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BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LINDA K. DAILEY,
Claimant,
vs.
File No. 947123
L'EGGS PRODUCTS, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
THE TRAVELERS INSURANCE CO,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Linda K.
Dailey, claimant, against L'Eggs products, Inc., employer,
and Travelers Insurance Co., insurance carrier, defendants,
for benefits as a result of an alleged injury which occurred
on November 13, 1989. A hearing was held in Des Moines,
Iowa, on September 1, 1992 and the case was fully submitted
at the close of the hearing. Claimant was represented by
John L. Riccolo. Defendants were represented by Scott E.
McLeod. The record consists of the testimony of Linda K.
Dailey, claimant, Tari Dailey, claimant's husband, Ken
Huber, district sales manager, Chris Strouth, area manager,
claimant's exhibits 1 through 30 (with the exception of 19
and 29 which were excluded because they were not timely
served), and defendants' exhibits A through M (with the
exception of C, E, and F, which are the depositions of
claimant, claimant's husband, and Huber because these
persons were available in the courtroom to testify at the
time of the hearing).
Claimant's deposition was admitted into evidence,
however, as defendants' exhibit A-5 because it is also
deposition exhibit 12 to the deposition testimony of John S.
Fox, M.D., whose testimony was admitted as defendants'
exhibit A. For simplicity, claimant's deposition will be
cited and referred to as claimant's deposition the first
time it is mentioned and thereafter it will be cited as Cl.
Dep. Defendants' exhibit I, a shipper, corrugated cardboard
box, and defendants' exhibit J, a tote, which is a smaller
corrugated cardboard box, were placed in the custody of
defendants until the expiration of all appellate periods
(Transcript page 60). The deputy ordered a transcript of
the hearing. Both attorneys submitted outstanding
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post-hearing briefs.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing.
Whether claimant sustained an injury on November 13,
1989, which arose out of and in the course of employment
with employer.
Whether the injury was the cause of either temporary or
permanent disability.
Whether claimant is entitled to either temporary or
permanent disability benefits and if so, the extent of
benefits to which she is entitled.
Whether claimant is entitled to medical benefits.
FINDINGS OF FACT
INJURY
It is determined that claimant did not sustain an
injury arising out of her employment. The words "out of"
refer to the cause or source of the injury. Crowe v. DeSoto
Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
The alleged injury did occur in the course of
claimant's employment because the event, which is alleged to
be an injury, occurred at a time and place while claimant
was performing work for her employer. "An injury occurs in
the course of the employment when it is within the period of
employment at a place the employee may reasonably be, and
while he is doing his work or something incidental to it."
Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298
(Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d
283 (Iowa 1971); Musselman v. Central Telephone Co., 261
Iowa 352, 154 N.W.2d 128 (1967). However, to be compensable
claimant has the burden of proving by preponderance of the
evidence that she received an injury on November 13, 1989,
arising out of and in the course of her employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967). Iowa Code section 85.3(1).
The reasons that the alleged injury did not arise out
of claimant's employment are because (1) the aneurysms and
headaches which claimant experienced were an idiopathic
health condition entirely personal to claimant, (2)
claimant's work activities were not a substantial factor
which aggravated her preexisting condition, (3) the
causation opinion of claimant's medical expert, who was also
the treating physician, was based upon an erroneous
understanding of the facts which transpired at the time
claimant experienced her acute onset of headaches on
November 13, 1989 and (4) the causation opinion of
claimant's medical expert was controverted by the opinion of
defendants' medical expert.
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Claimant, born January 9, 1947, was 42 years old at the
time of the alleged injury and 45 years old at the time of
the hearing. Claimant started to work for employer as a
sales representative in 1974. She continued to work for
employer for approximately 15 years until this incident
which occurred on November 13, 1989. Her job duties
included taking orders, delivering and maintaining displays
of L'Eggs products in various grocery stores, discount
stores and drug stores in various towns in east central Iowa
(Tran., pp. 61-68; Daily Deposition p. 4).
Employer furnished claimant with a large Ford Econoline
van with company lettering on the van. Claimant testified
that she delivered products to the retail stores in
corrugated cardboard boxes which were called shippers and
totes (Tran., pp. 68-73). A shipper is a larger cardboard
box and a tote is a smaller cardboard box. Excellent
photographs of the loaded van, shippers and totes were
introduced into evidence (Exhibits 27a-27j; Exhibit D, Items
1-5). A tote contains replacement panty hose for
replenishing the regular displays. A shipper is a display
box which is setup to exhibit promotional items (Cl. Dep.,
pp. 7-10).
Chris Strouth, employer's area manager, testified from
company documents that three shippers and three totes were
delivered to McNally's Super Valu on November 13, 1989
(Tran., pp. 203 & 204; Ex. D-1). Strouth testified that the
shippers delivered that day weighed respectively 10 pounds,
18 pounds and 19 pounds (Tran., p. 205; Ex. K, pp. 1, 2, &
4). She testified that totes contain various products and
usually weigh between six pounds and nine pounds (Tran., p.
205). Exhibit I, a shipper box and exhibit J, a tote box
were viewed by the deputy. Randy Smith, the manager of
McNally's Super Valu, testified that he estimated that a
shipper would not weigh more than 20 pounds and that a tote
would weigh approximately five to ten pounds (Ex. D, pp. 13,
14, & 16; Dep. Ex. 2, pp. 1-5). Smith estimated that
claimant delivered a couple of shippers and two or three
totes on November 13, 1989 (Ex. D, p. 15).
Claimant agreed that shippers weighed less than 20
pounds and totes weighed less than that. She demonstrated
at the hearing that she could pick up a tote with one hand
without difficultly. She agreed and demonstrated at the
time of her deposition on April 29, 1992, that she that
could easily lift a shipper (Tran., pp. 103-105, Cl. Dep.
pp. 60-62).
At the time of her deposition, claimant testified that
she normally unloaded the van with a cart unless it was only
one or two items. If it was simply a tote or a shipper she
would pick that up and carry it in by herself (Dep. Ex., pp.
13 & 14). Claimant further acknowledged that she was
physically able to lift a shipper and that she did it
regularly throughout her job as a sales representative (Cl.
Dep., pp. 16 & 17). Claimant also testified that even
though she did use a cart to move these boxes, if it was
only one or two shippers, she could lift them and take one
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in one hand and one in the other hand and move them from the
back room to the display in the store rather than use a cart
(Cl. Dep., pp. 27 & 28). Also at her deposition claimant
demonstrated that she could lift a tote and testified that
she could pick up five of them at time and place them on a
cart. She repeated that if there were only one or two boxes
she would carry those into the store by hand. She agreed
that she could do this easily and that it was not any strain
on her (Cl. Dep., pp. 64 & 65).
Claimant acknowledged that she had two episodes of
headaches prior to the one which occurred on November 13,
1989. In July of 1988 she experienced a very severe
headache which began while she was sitting on the bathroom
stool after work at the Oak Tree Motel in Newton, Iowa after
working all day (Tran., pp. 105, 106, 123 & 124).
At that time claimant saw Robert B. Devermann, M.D.,
her family physician, on July 12, 1988. The doctor recorded
headaches of uncertain etiology. He said there were several
possibilities. He indicated that it was most likely a
vascular migraine type of headache but that other
possibilities would include subarachnoid hemorrhage or
spinal meningitis. He ordered a CT scan and if it was
negative he thought she should probably have a spinal tap
(Ex. A-6, p. 2). Claimant was hospitalized from July 12,
1988 to July 15, 1988 (Ex. A-6, pp. 4-6).
The noncontrast CT scan performed by W. J. Friesen,
M.D., on July 12, 1988, showed no intracranial masses and no
hemorrhage. The impression was a normal noncontrast CT head
scan (Ex. A-6, p. 8). Dr. Devermann recommended a spinal
tap to determine whether claimant had spinal meningitis.
Claimant refused to have a spinal tap (Ex. A-6, pp. 4 & 6).
Later evidence revealed that a spinal tap also would have
confirmed the presence of a subarachnoid hemorrhage. Dr.
Devermann concluded "it was my impression that this most
likely represented a viral meningitis, although definitive
diagnosis rests on a lumbar puncture which the patient
refused repeatedly." (Ex. A-6, p. 4)
Dr. Devermann's notes for July 18, 1988, show that a
head MRI was scheduled at St. Lukes hospital on July 22,
1988 at 11:00 a.m. Dr. Devermann's notes for July 19, 1988,
indicate that this appointment would be cancelled if her
headaches were doing better. Dr. Devermann's notes for July
22, 1988, show that claimant's headache was gradually
getting better and that she missed the MRI appointment at
St. Lukes Hospital that morning (Ex. A-6, p. 2). An earlier
note of Dr. Devermann in 1986 reflects that claimant
requested a prescription for Darvocet for headaches she gets
around the time of her period (Ex. A-6, p. 1).
Claimant testified that at the time of the second
episode in August of 1989 she consulted Joan Ryder Benz,
M.D., for headaches that were not relieved by Advil.
Claimant indicated that Dr. Benz told her these were tension
headaches for which the doctor prescribed a different
medication (Tran., pp. 106, 133, & 143). Dr. Benz's office
note of August 18, 1989, showed that claimant had headaches
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three times with nausea and hives for which the doctor
prescribed Midrin, Benadryl, Flicon cream and Naprosyn (Cl.
Ex. 3, p. 8; Def. Ex. A-6, p. 22).
In performing her job for employer claimant typically
made deliveries out of town on Monday and Tuesday and stayed
overnight on Monday. It was her practice to load the van at
the warehouse on Sunday. Claimant testified that on Sunday,
November 12, 1989, at about 8:00 a.m., she went to the
warehouse in Cedar Rapids and spent about one hour loading
the van. She physically lifted the shippers and totes
without the use of a cart (Cl. Dep., pp. 7, 12, & 23-25).
The shippers went into the side door of the van and the
totes went into the back door of the van.
On Monday, November 23, 1989, claimant left home at
approximately 7:30 a.m., made deliveries in Tama, Iowa at
about 8:30 a.m. and made additional deliveries later that
day at a number of stores in Marshalltown (Cl. Dep., pp. 29
& 30). When claimant arrived at McNally's in Grinnell she
went in the store and brought out two carts (Tran., p. 73).
Claimant testified that she then got in the side door of the
van to get the shippers out, bent over at a 90 degree angle
and in five seconds she experienced a severe headache
(Trans., p. 75). Claimant clarified that she had not picked
up a shipper and she had not slid a shipper but simply bent
over to slide a shipper when the headache occurred (Tran.,
pp. 101 & 102).
Claimant related, "Everything turned white, and the
headache just came on." She added that it was "Pretty bad.
Awful. I felt like I was going to pass out." (Tran., p.
75). At another point claimant related "I recall turning
white, and I felt real dizzy and faint. And a headache came
on suddenly, and that was it." (Tran., p. 118). Claimant
agreed that the bending over was no more than she would
normally do in nonemployment life.
Claimant did not lose consciousness but put the
shippers and totes on the grocery carts and took them into
the store and told the manager that she would have to unload
them later because she was going to her motel and go to bed
because of a headache. Claimant testified that she called
her husband, Tari Dailey and her supervisor Ken Huber, that
evening from the motel. Claimant admitted that she did not
report to either her husband or Huber that the headache was
caused by unloading the van (Tran., pp. 108 & 169; Cl. Dep.
pp. 38 & 39). Claimant testified that she told Huber she
thought she had the flu (Tran., p. 108).
On Tuesday, November 14, 1989, claimant was able to
work with Huber making calls, part of the day, and she was
able to drive the van back to Cedar Rapids (Tran., pp. 111 &
112; Cl. Dep., p. 40). Upon arriving home she met Dr. Benz,
who was her next door neighbor, in the driveway, and the
doctor sent claimant to St. Lukes Hospital emergency room.
Claimant did not report to Dr. Benz that the headache
occurred while she was unloading the van or doing any other
work activity (Tran., pp. 79, 80 & 112; Cl. Dep., p. 41).
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At the emergency room claimant saw L. D. Helvey, M.D.,
(Tran., pp. 79-81). Dr. Helvey noted elevated blood
pressure, administered medications and made this impression
"probable tension headache, cannot rule out a typical
migraine at this time. No evidence of meningitis or
subarachnoid bleed, no CT scan or LP needed at this time."
(Ex. 1, p. 2). Dr. Helvey recorded that this 42-year-old
patient had a diffuse headache. His notes do not reflect
that it occurred while unloading a van or performing any
other work activity.
The following day, Wednesday, November 15, 1989,
claimant still suffered from severe headache and Dr. Benz
referred claimant to J. R. LaMorgese, M.D., a neurosurgeon
(Tran., pp. 81 & 113; Ex. 2, pp. 2 & 20). Dr. LaMorgese
admitted claimant to St. Luke's Hospital from November 15,
1989 to November 20, 1989. A CT scan performed by W. J.
Friesen, M.D., on Wednesday, November 15, 1989, disclosed a
rounded density and raised a possibility of an aneurysm at
the base of the tip of the basilar artery. Dr. Friesen said
that the scan demonstrated no evidence of acute intracranial
hemorrhage (Ex. 2, p. 47).
An angiogram performed by Craig E. Clark, M.D., on the
same day November 13, 1989, disclosed (1) a large basilar
tip aneurysm, (2) a small left anterior cerebral artery
aneurysm and (3) a right middle cerebral artery aneurysm
(Ex. 2, pp. 45 & 46). The angiogram disclosed no evidence
of blood or hemorrhage (Ex. 2, pp. 45 & 46). Even though
the CT scan and the angiogram did not disclose any blood or
hemorrhage, nevertheless, apparently based upon clinical
factors, Dr. LaMorgese diagnosed subarachnoid hemorrhage,
secondary to basilar tip artery aneurysm, aymptomatic right
middle cerebral artery aneurysm and anterior communicating
artery aneurysm (Ex. 2, pp. 2 & 20). There is no evidence
in the records of Dr. LaMorgese that claimant gave a history
that the headaches occurred at work or that they were caused
by any work-related activity. Dr. LaMorgese referred
claimant to the Mayo Clinic for surgery because claimant had
three aneurysms rather than just one (Tran., p. 82).
Claimant was hospitalized at the Mayo Clinic from
November 20, 1989 to December 19, 1989, (Ex. 5, p. 6) where
Thoralf M. Sundt, M.D., a neurosurgeon, performed a right
craniotomy to repair all three aneurysms on November 22,
1989 (Ex. 5, pp. 8, 12, 38 & 52). A head CT scan on
December 4, 1989, showed no evidence of hemorrhage or
infarction (Ex. 5, p. 39).
Claimant was admitted to the Mayo rehabilitation unit
on December 6, 1989 (Ex. 5, pp. 38 & 39). On December 19,
1989, she was discharged to the rehabilitation center at St.
Luke's Hospital in Cedar Rapids still severely debilitated
(Tran. p. 91; Ex. 5, pp. 2, 38-42 & 69-72). She was
discharged from there on January 19, 1990 and was still
required to use a wheelchair or a walker (Tran., pp. 91 &
147). B. R. Nichols, M.D., stated that claimant had
significant neurologic disability of third nerve palsies and
incoordination on the right as well as impulsivity,
diminished memory and depression.
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Most of these conditions persisted throughout all of
her rehabilitation (Ex. 5, pp. 2-5; Ex. 5, pp. 34-53, 135,
136, 139-141, 143-145, 150-152, 156-176, and 182-185).
Claimant continued with extensive out patient physical
therapy from January 23, 1990 to March 22, 1990 (Ex. 7).
She also required extensive home service care from Mary
Russell Home Care Services until March 2, 1990 (Tran., p.
148, Ex. 8). Since then claimant has been hospitalized a
number of times for suicidal threats, overdose of
medications, medication imbalance, severe depression,
affective organic syndrome, suspected but unconfirmed heart
problems, hypertension, hyperopia, obesity and bleeding
ulcers.
Claimant has been seen, treated and evaluated by a
number of psychiatrists and psychologists for difficult
family relationships with her husband, mother, step-daughter
and daughter. Claimant has shown improvement over time
(Exs. 9-13, 16-21). Claimant applied for social security
disability benefits in January of 1990 (Ex. 14, pp. 47 & 48)
and began receiving benefits in May of 1990 (Tran., p. 161).
Claimant was receiving these benefits at the time of the
hearing (Tran., p. 105).
Claimant has participated in the brain injury program
at Traumatic Brain Injury Systems (T.B.I) at Reinbeck, Iowa
for seven months (Tran., pp. 92, 93 & 173) and she also has
been treated at the Kansas Institute for one month (Tran.,
pp. 97 & 176). Claimant's husband testified that she has
been more stabilized since she returned home from the Kansas
Institute but that there was still room for improvement
(Tran., pp. 179 & 180). Total medical expenses submitted
amount to $195,768.50 (Cl. Ex. 26). Claimant's husband
acknowledged that when his wife called him from Grinnell
that she did not associate her headaches with her work or
any work activity at that time (Tran., pp. 169 & 170).
Huber testified that when claimant called him from
Grinnell that she did not say that she was performing any
work activity for employer when the headaches occurred such
as unloading the van at McNally's (Tran., p. 185). Huber
further stated that he talked to claimant and claimant's
husband when she was in the hospital in Cedar Rapids and
neither one mentioned that they were claiming that claimant
sustained the headache as a result of any work activity that
she was performing for employer (Tran., pp. 185-188).
Dr. Sundt, an outstanding board certified neurosurgeon,
with over 30 years of experience in the speciality of
vascular surgery testified by deposition on June 27, 1991
(Exs. 28 & B, p. 7). He said he first saw claimant on
November 21, 1989. The history he received from the
neurology department was that claimant sustained a sudden
onset of headache while lifting a heavy box from a van (Exs.
28 & B, p. 7).
Dr. Sundt testified that claimant's symptoms at that
time were typical of a bleed which he further described as
an intracranial hemorrhage (Exs. 28 & B, p. 7). He further
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testified that the bleed occurred because an aneurysm
ruptured (Exs. 28 & B, p. 8). Dr. Sundt correlated the
hemorrhage with the lifting that claimant was performing at
the time of the bleed (Exs. 28 & B, pp. 8-11). He stated
that in looking for a cause and effect relationship, that a
large percentage of the time ruptured aneurysms are
associated with (1) lifting, (2) acute onset with bowel
strain at the stool and (3) acute onset during sexual
intercourse because these activities increase blood pressure
(Exs. 28 & B, p. 21). However, the doctor also granted that
most bleeds occur without a known precipitating factor (Exs.
28 & B, p. 23).
The doctor clarified that the lifting did not cause the
aneurysm but he felt that the lifting precipitated the
hemorrhage because of the frequency of the correlation
between the relative strain of the lifting and the event of
the hemorrhage based on his past experience (Exs. 28 & B,
pp. 9-11, 27 & 28). He declined to say that this was his
opinion based upon a reasonable degree of medical certainty
but would only say it was his opinion, even though it was
explained to him that medical certainty did not mean
absolute certainty but just more probable than not (Exs. B &
28, p. 11).
The history presented to Dr. Sundt by the neurology
department states that claimant experienced a sudden severe
headache on November 13, 1989, when lifting a heavy box from
a van (Ex. 5, p. 14). This is an erroneous history.
Neither the deposition testimony of claimant nor the hearing
testimony of claimant confirm that she was doing any
lifting, save heavy lifting when she experienced the
headache. Her testimony was that she bent over at ninety
degrees to slide a shipper in the van when she experienced
the headache.
The question of causal connection is essentially within
the domain of expert testimony Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, the
expert opinion may be accepted or rejected in whole or in
part by the trier of fact Sondag v. Ferris Hardware, 220
N.W.2d 903, 907 (Iowa 1974). Furthermore, the weight or
probative value of the opinion may be destroyed by the fact
that it is based upon an erroneous premise. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967). Thus the opinion of Dr. Sundt was based
upon erroneous facts. Also taken into consideration is the
fact that Dr. Sundt acknowledged that most bleeds occur
without any known precipitating factor (Exs. 28 & B, p. 23).
The testimony of Dr. Sundt does add weight to the
determination of the deputy that this headache incident,
which occurred on November 13, 1989, was attributable to an
idiopathic condition and was attributable to claimant's
state of health on that date which had existed for quite
some time. Claimant requested Darvocet because of the
severity of her headaches associated with her menstrual
cycle as early as 1986. Dr. Sundt testified that he
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believed that claimant had a major bleed in July of 1988
because the aneurysm existed at that time (Exs. 28 & B, pp.
12, 18 & 19). Dr. Sundt examined the CT scan taken by Dr.
Friesen at that time (July 12, 1988) for Dr. Devermann and
identified the basilar aneurysm in the center of the picture
(Exs. 28 & B, pp. 34 & 35). He further believed that if
claimant had consented to a lumbar puncture that the
aneurysm could have been treated more effectively at that
time (Exs. 28 & B, pp. 16 & 17).
Dr. Sundt further believed that the headaches for which
claimant consulted Dr. Benz on August 18, 1989
(approximately three months before this alleged injury) were
probably a little signal bleed, a warning bleed, or a
sentinel bleed. He said these are little hemorrhages that
typically occur a week or ten days before a major bleed
(Exs. 28 & B, p. 20).
Other factors that would indicate that claimant's
subarachnoid hemorrhage was an idiopathic condition entirely
personal to claimant's state of health is based upon the
fact that Dr. Sundt testified that the aneurysm was
approximately 10 or 12 millimeters in size on July 12, 1988,
and that it was 17 millimeters at the time of the surgery on
November 22, 1989 (Exs. 28 & B, p. 35).
Further evidence that the aneurysm might have been
somewhat advanced is Dr. Sundt's speculation that claimant's
basilar aneurysm had expanded and was impacting or
projecting into the hypothalamus and caused a change in her
eating habits and metabolism and was causing her obesity and
overweight (Exs. 28 & B, pp. 38 & 39).
Additional evidence that claimant's subarachnoid
hemorrhage was related to an idiopathic condition is the
fact that women have thinner blood vessels than men (Exs. 28
& B, p. 39) and that Dr. Sundt opined that it was
inevitable that the aneurysm would rupture after it became
10 millimeters in size (Exs. 28 & B, p. 40), notwithstanding
the fact he believed that the strain of lifting on November
13, 1989, precipitated the bleed at that time (Exs. B & 28,
p. 40). However, there is no evidence from claimant that
she was lifting or performing heavy lifting at the time of
the headache. On the contrary, claimant testified that she
simply bent over, and without sliding the box or lifting it,
she experienced the severe headache.
Wherefore, (1) based upon the fact that it was
established by objective evidence that claimant had a
basilar aneurysm on July 12, 1988, which was already at
least 10 millimeters in size, (2) based upon the fact that
she experienced additional headaches not relieved by over
the counter medications on August 18, 1989, which Dr. Sundt
believed were warning or sentinel bleeds which precede a
major bleed, (3) based upon the fact that the aneurysm had
increased from 10-12 millimeters to 17 millimeters in size
at the time of the surgery on November 22, 1989, (4) based
upon claimant's female gender her arteries were thinner and
more predisposed to an aneurysm than persons of the male
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gender, (5) based upon the speculation that claimant's
aneurysm had possibly expanded to the point where it had
been affecting the hypothalamus and contributed to her
obesity as ai the injury Lawyer & Higgs, Iowa Workers Compensation --
Law & Practice (2nd (Ed.), Section 5-1 page 36; Musselman
v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128
(1967). Like claimant in this case Musselman had a
preexisting vascular disease. Somewhat like claimant
Musselman's work required him to lift containers weighing up
to approximately 40 pounds, however, at the time of the
alleged injury he was leaning against a wall for balance
while putting an overshoe on the left foot with his right
hand, gave it a jerk and then noticed a sharp knife like
pain on the left side of his lower back. The supreme court
stated in Musselman:
This court has previously held, if a claimant had
a preexisting condition or disability, aggravated,
accelerated, worsened or "lighted up" by an injury
which arose out of and in the course of employment
resulting in a disability found to exist, he would
be accordingly entitled to compensation. See
Nicks v. Davenport Produce Co., 254 Iowa 130,
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134, 135, 115 N.W.2d 812, and citations.
However, a disease which under any rational work
is likely to progress so as to finally disable an
employee does not become a "personal injury" under
our Workmen's Compensation Act merely because it
reaches a point of disablement while work for an
employer is being pursued. It is only when there
is a direct causal connection between exertion of
the employment and the injury that a compensation
award can be made. The question is whether the
diseased condition was the cause, or whether the
employment was a proximate contributing cause.
Littell v. Lagomarcino Grupe Co., 235 Iowa 523,
529, 17 N.W.2d 120, and citations.
The Mussleman court determined that the commissioner
was justified in denying benefits for the reason that
claimant did not sustain the burden of proof by
preponderance of the evidence that the facts of this case
(putting on an overshoe) were the proximate cause of
claimant's injury or disability.
Likewise, in this Dailey case it is evident that
diseased condition (aneurysms) rather than the employment
was the proximate cause of the headache and possible rupture
of the aneurysm.
The meaning of proximate cause was clarified in the
case of Blacksmith v. All American Inc., 290 N.W.2d page
348, 354 (Iowa 1980). Blacksmith also had a vascular
deficiency known as thrombophlebitis. The court stated a
cause is proximate if it is a substantial factor in bringing
about the result. See Holmes v. Bruce Motor Freight, Inc.,
215 N.W.2d 296, 297 (Iowa 1974).
Probably the most common citation of authority that the
injury must arise out of the employment is the case of
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976). McDowell is a case involving the aggravation of a
preexisting aneurysm which ruptured resulting in the death
of claimant. The ultimate outcome of the McDowell case
cannot be determined from the supreme court decision but it
would appear the work activity was a substantial factor in
causing the injury. McDowell, a volunteer fireman, was
called to an emergency flooding situation, operated an end
loader, operated a dump truck, and assisted workers in
filling sandbags alternating holding the bags or shoveling
sand into the bags for approximately 20 minutes in a hurried
manner under the stress of the natural disaster of flooding.
This clearly appears to this deputy to be work activity
which would be a substantial factor in causing the rupture
of the aneurysm.
In Auxier v. Woodward State Hospital School, 266 N.W.2d
139 (Iowa 1978) claimant had a preexisting broken leg from
which she was recuperating when a patient tripped her and
she fell and reinjured her right ankle. The work activity
was determined to be a substantial factor in bringing about
the reinjury of claimant's right ankle.
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In Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
1974) a claimant with a preexisting heart condition had his
case remanded to the industrial commissioner for a finding
of whether his act of continuing to work after heart attack
symptoms begin aggravated his preexisting heart condition.
The conclusion of the court was that a claimant with
preexisting angina pectoris, who was recalled from vacation
on hot and sultry day to hurriedly unload crated washing
machines weighing 300 to 400 pounds from a boxcar and haul
them to his employer's store for approximately one hour had
shown that his work activity was a substantial factor in
bringing about claimant's myocardial infraction.
In Barz v. Oler, 257 Iowa page 508, 133 N.W.2d 704
(1965) claimant ruptured an aneurysm in the lower portion of
the abdominal aorta with massive hemorrhage. Barz was a
plumber making an emergency repair on a pressure tank in a
well pit. Barz had lifted 15 or 20 buckets of water out of
the pit worked in a very awkward position and was required
to push on an 18 inch wrench with all of his strength.
Claimant suddenly became ill and died of a ruptured aneurysm
in the ambulance en route to the hospital. Thus, the court
determined in effect that the work activity was a
substantial factor in bringing about and hastening
claimant's death.
In reviewing these landmark, traditional workers'
compensation cases to determine what is or what is not a
substantial factor in aggravating a preexisting condition,
the facts of this case are the most analogous to the facts
in the case of Olson v. Goodyear Service Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963). Olson sustained an injury to
his back when he simply stooped over to test a battery and
experienced a terrific pain across his back and down into
his testicle that caused permanent incapacity. Claimant
Dailey in this case simply bent over to slide a box. Olson
stooped over to test a battery. A distinguishing feature of
the Olson case is that claimant had already sustained
several back injuries that had arisen out of and in the
course of his employment, had made 15 trips to Mayo Clinic
in the 20 years preceding this injury and had already
received two lumbar fusions prior to this injury. Claimant
in this case had no previous work-related headaches which
arose out of and in the course of her employment with
employer. Thus, when Olson's stooping action was combined
with his long and extensive history of work-related back
problems apparently it was concluded that the work activity
was a substantial factor in aggravating his preexisting
condition.
In Hemker v. Drobney, 253 Iowa 421 112, N.W.2d 672
(1962) Drobney, with his employer, removed a mattress and
box springs from a home and delivered a new mattress and box
springs, which required quite a struggle in a warm house.
Drobney struck his foot against some object and dropped his
end of the load subsequently became ill and died. This
would appear to be a substantial factor sufficient to
constitute a proximate cause.
Page 14
In Yeager v. Firestone Tire and Rubber Co., 253 Iowa
369, 373-74, 112 N.W.2d 299, 301 (1961) claimant fell,
struck his head and suffered a blackout in 1956. In 1958 he
fell again when a heavy tire fell on top of him from a mold
which caused a goose egg on the back of his head. The facts
of the second fall were considered to be a substantial
factor in the aggravation of his preexisting head injury.
Claimant was not able to receive compensation for the result
of the preexisting injury but he was entitled to
compensation for the disability found to exist from the
second injury. The Yeager case stands for the proposition
that the aggravation of a preexisting must be a material
aggravation. Whether that is a different test than a
substantial factor is not known. It believed that material
aggravation is just another way of saying substantial
factor. The court found there was "substantial evidence" of
disability caused by the second fall.
In Ziegler v. United States Gypsum, 252 Iowa 613, 106
N.W.2d 591 (1960) the supreme court applied a slightly
different legal standard than the substantial factor test in
order to find causation from the aggravation of a
preexisting condition. The court said that if the
preexisting active or dormant health impairments are more
than slightly aggravated then the resultant condition is
considered a personal injury. More than slightly aggravated
sounds like a lesser standard than whether it is a
substantial factor. In any event, the facts of the case
would appear to pass the substantial factor test also.
Ziegler was seriously injured in May of 1956, in a switching
accident, which pinned him between the end of a railroad car
and the side of a trackmobile. About a year later he was
returned to work light duty. The light duty consisted of
pushing and pulling a 30 pound rake and using a wheelbarrow
to dump 50 pounds loads of stucco into a bin. The court
upheld the commissioner because there was sufficient
competent evidence that there was direct causal connection
between the exertion of the employment and the injury upon
which the award was made. A substantial factor appears to
be present in the Ziegler case.
In Guyon v. Swift and Company, 229 Iowa 625 (1940) the
court determined that strenuous employment exertion was a
substantial factor in aggravating Guyon's preexisting
coronary artery disease. Guyon, age 60, who weighed over
200 pounds was a stationary engineer. A conveyor broke and
over 100 employees were unable to work until the trouble was
remedied. Guyon was ordered to get it going. He walked up
a ramp, then up a series of stairs, climbed a vertical
ladder over 13 feet high to the balcony then went along the
runway of the balcony to the motor which failed to operate
the conveyor. Claimant followed this course two or three
times. His face became red. He became excited and nervous
because he was having difficulty in locating the trouble.
Twenty minutes later he suffered a coronary occlusion and
died two hours later because a small piece of the calcified
Page 15
wall (plaque) had broken off and became lodged in his
arterial passageway causing a complete obstruction or
occlusion of the artery and causing his death. The court
concluded that strenuous employment exertion was a
substantial factor in aggravating his preexisting coronary
artery disease.
In West v. Phillips, 227 Iowa 612 (1939) claimant,
West, a baker, who had a preexisting diseased heart and
arteries died as a result of heat exhaustion and heat stroke
from the intense heat in the bake shop. The court found
that natural heat intensified by artificial heat was a
substantial factor in causing his death. The court found
that the excessive heat was the proximate cause of the
aggravation of claimant's preexisting heart condition and
hastened his death.
In the famous case of Almquist v. Shenandoah Nurseries
Inc., 218 Iowa 724, 254 N.W. 35 (1934) the court found that
Almquist's work of manually pulling up and shaking out
barberry bushes from clumps of dirt weighing anywhere from a
few pounds to 250 pounds was a substantial factor and
proximate cause of his death because it caused a perforation
in a preexisting ulcer. The court confirmed that an
accident, special incident or unusual occurrence is not
required in order to establish a personal injury in Iowa.
The court held the physical strain of his ordinary work
ruptured his stomach at the point of a preexisting old
perforated ulcer. The heavy work was the substantial factor
which aggravated claimant's preexisting ulcer weakened
stomach. In this Dailey case we do not have an accident,
special incident or unusual occurrence, which are not
required for an injury, but neither do we have the exertion
of heavy work operating on claimant's preexisting
aneurysm(s).
In Hanson v. Dickinson, 188 Iowa 728 (1920), claimant's
hammer slipped off the chisel and struck Hanson's left leg.
This was determined to be the proximate cause of gonorrhoeal
arthritis because it lighted up claimant's hidden and
dormant gonorrhoeal condition. The striking of his leg with
the hammer was a substantial factor in aggravating the
preexisting condition.
In Lindahl v. L. O. Boggs Co., 236 Iowa 296 18 N.W.2d
607 (1945), claimant Lindahl, age 42, was a warehouse worker
with preexisting arteriosclerosis. He loaded seven cartons
of syrup which weighed 42 and one-half pounds onto a cart
which is something he had done numerous times in the past.
A short time later he became ill and was taken to the
hospital where it was determined that he suffered a stroke
of apoplexy which resulted in a permanent paralysis to his
left side. At no time did Lindahl state he hurt himself or
injured himself or what was causing him to feel as he did.
He did not claim that he had strained, or over exerted
himself, or that he had done any heavy lifting, or that he
had slipped, fell or that anything out of the ordinary had
occurred. The industrial commissioner resolved a conflict
Page 16
of the expert medical testimony in favor of the employer.
The supreme court refused to disturb the finding of the
commissioner. Thus, the Lindahl case did not find that
claimant's loading and stacking of seven boxes of syrup
which weighed 42 and one-half pounds, which was a normal
exercise in his employment, was a substantial factor in
aggravating his preexisting arteriosclerosis, which was a
progressive disease, which was caused by his high blood
pressure or hypertension, and which could cause a stroke at
anytime with or without exertion. It is noted that in this
case claimant Dailey who was also performing her regular
duties, did not testify that she hurt or injured herself, or
that she strained, or over exerted herself, or that she had
done any heavy lifting, slipped, fell or anything out of the
ordinary had occurred. Claimant Dailey testified that she
merely bent over and suffered a severe headache.
Claimant herself admitted that she did not think this
was a work injury until quite sometime after it occurred
(Cl. Dep., pp. 44 & 45). The fact that claimant did not
know that she had aneurysms, or that leaning over may or may
not have caused a subarachnoid hemorrhage, is not conclusive
as to whether bending over to slide the shipper aggravated
her preexisting condition. Nevertheless, the fact that
claimant could not identify any stress or strain at the time
the headache occurred is strong evidence that leaning over
to slide the shipper box was not a substantial factor in
causing the headache to occur, irrespective of whether or
not the leaning over precipitated a subarachnoid hemorrhage
of the basilar aneurysm.
When leaning over preparatory to, or in anticipation
of, sliding a box is compared to the classic and traditional
workers' compensation cases over the years, which have
demonstrated when either the commissioner or the supreme
court has determined that a substantial factor was a
proximate cause of the subsequent injury, it clearly shows
that claimant did not prove that her leaning over at the
time of her headache was a substantial factor in causing
this injury. In the other cases, claimant usually performed
heavy lifting or some form of strenuous exertion, sometimes
in emergency situations, or experienced severe trauma at the
time of the injury. Claimant Dailey's case is readily
distinguishable from those other cases.
John L. Fox, M.D., a board certified neurosurgeon with
approximately 30 years of experience and with very
significant scholastic and practice credits to his name did
not examine claimant but examined several pertinent
documents pertaining to claimant's history which are in
evidence in this case and testified for defendants by
deposition on July 27, 1992. He said that claimant had
preexisting aneurysms which were undiagnosed prior to
November 13, 1989. He examined the CT scan of July 12, 1988
and testified that it strongly suggested a basilar aneurysm
but did not confirm it. He examined the CT scan of November
15, 1989 and said it showed the same thing as the earlier
Page 17
scan, which was a suggestion of a probable basilar tip
aneurysm. Dr. Fox testified that neither CT scan showed any
evidence of bleeding (Ex. A, pp. 2-9).
Dr. Fox examined the angiogram performed on November
15, 1989 and testified that it demonstrated a large basilar
artery tip aneurysm, an interior communicating artery
aneurysm and a middle cerebral aneurysm. He said that the
angiogram did not show any vasospasms which tended to
confirm his diagnosis of no bleeding or hemorrhage (Ex. A,
pp. 9-13).
Dr. Fox further testified that he examined the records
of Mayo Clinic and Dr. Sundt's operative report as well as
the CT scans and angiogram and there is no evidence or
mention of a bleed or hemorrhage (Ex. A, p. 16).
Dr. Fox gave his professional medical opinion that the
work activities of claimant on November 13, 1989 had no
causal relationship with the alleged rupture or bleed of the
preexisting aneurysm(s). Nor did claimant's job activities
substantially or materially aggravate or accelerate the
alleged rupture of the aneurysm(s) (Ex. A, pp. 17 & 18). He
stated his opinion was that the aneurysm surgery was the
natural progression for a medical condition that preexisted
November 13, 1989 (Ex. A, pp. 18 & 19). Dr. Fox further
testified that claimant's job activities would have no
greater impact on her preexisting aneurysms than
nonemployment life activities such as straining at a stool,
engaging in sexual intercourse, lifting a child of 20 pounds
or taking out garbage weighing 20 pounds (Ex. A, pp. 19 &
20). Doctor Fox further opined that the surgery performed
by Dr. Sundt would have been the same even if there was no
bleed involved.
Dr. Fox further opined that claimant's job activities
did not cause any permanent impairment or disability because
there was insufficient bleed to cause the resulting
conditions (Ex. A, pp. 20 & 21). Irrespective of whether
she had a bleed or not he would have recommended the same
surgical procedure (Ex. A, p. 22). Dr. Fox further opined
that the emotional problems that claimant had suffered after
the surgery were not caused by her work activities because
he would have to assume she had a subarachnoid hemorrhage
that led to the surgery and he did not see any evidence of a
subarachnoid hemorrhage prior to the surgery (Ex. A, pp. 27
& 28).
Dr. Fox found no neurological defects noted in the
records based on the mere existence of the aneurysms
themselves (Ex. A, pp. 28-31). He did not think lifting 10
or 20 pounds that you were used to doing would raise your
blood pressure and precipitate a hemorrhage. The doctor
repeated that there was no demonstration of a hemorrhage.
He agreed that a spinal tap would confirm or rule out a
hemorrhage but that was not done either in Cedar Rapids in
1988 or 1989 or at the Mayo Clinic in 1989. A spinal tap
would show blood in the spinal fluid if it were done within
24 hours. After that it might be a discoloration of the
Page 18
fluid called xanthochromia. If this was a major hemorrhage
there would still be some xanthochromia and some red blood
cells when claimant arrived at the Mayo Clinic (Ex. A, pp.
35 & 36).
Dr. Fox agreed with Dr. Sundt that the fact no blood is
seen in a CT scan does not rule out the fact that there
might not have been a rupture of an aneurysm (Ex. A, p. 36).
Dr. Fox agreed that vasospasms would not show up on the
angiogram before the third or fourth day after hemorrhage
and therefore he would not expect to see vasospasms on the
angiogram performed on November 15, 1989, for a headache
which occurred on November 13, 1989 because they would not
have occurred at that point in time (Ex. A, pp. 38 & 39).
From the foregoing evidence, it can be seen that Dr.
Sundt's opinion that claimant sustained a subarachnoid
hemorrhage is controverted by Dr. Fox. Likewise Dr. Sundt's
opinion that claimant's lifting of a box or heavy box would
cause a subarachnoid hemorrhage is controverted by Dr. Fox.
The fact that claimant sustained any impairment or
disability as a result of these aneurysms is controverted by
Dr. Fox.
Wherefore, it is determined that claimant did not
sustain an injury arising out of her employment because she
did not demonstrate that the headaches which occurred on
November 13, 1989 (1) were anything other than an idiopathic
condition of aneurysms which had no relationship to her
employment or work activities, (2) because claimant did not
demonstrate that any work activity was a substantial factor
in bringing about or hastening the treatment of her
condition of preexisting aneurysm(s), (3) because Dr.
Sundt's opinion that lifting or heavy lifting at work caused
a subarachnoid hemorrhage is based upon the erroneous
information that claimant was lifting at the time that the
headaches occurred and (4) because Dr. Sundt's opinion about
causal connection between the employment and the injury was
controverted by Dr. Fox.
Therefore, a review of the evidence compels a
determination that claimant did not sustain an injury
arising out of her employment with employer.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law these conclusions of law are made:
That claimant did not sustain the burden of proof that
she sustained an injury arising out of her employment. 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).
In view of the foregoing finding all the other issues
in the case are rendered moot.
ORDER
Page 19
THEREFORE IT IS ORDERED:
That no amounts are owed by defendants to claimant.
That the costs of this action are charged to claimant
pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40
except that the cost of the attendance of the court reporter
at hearing and the cost of the transcript of the evidence at
hearing is charged to defendants pursuant to Iowa Code
section 86.19(1).
That defendants file any claim activity reports
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1993.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. John L. Riccolo
Attorney at Law
Suite 1140 - The Center
425 Second Street, S.E.
Cedar Rapids, IA 52401
Page 20
Mr. Scott E. McLeod
Attorney at Law
526 Second Ave. S.E.
P.O. Box 2457
Cedar Rapids, IA 52406-2457
Page 1
1100, 1108.50, 1108.20, 1401,
1402.20, 1402.30, 1402.40,
1402.60, 2204, 2206, 2902
Filed April 9, 1993
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LINDA K. DAILEY,
Claimant,
vs.
File No. 947123
L'EGGS PRODUCTS, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
THE TRAVELERS INSURANCE CO,
Insurance Carrier,
Defendants.
___________________________________________________________
1100, 1108.50, 1108.20, 1401, 1402.20, 1402.30, 1402.40,
1402.60, 2204, 2206, 2902
Claimant leaned over in her employer's van to slide a box
and sustained an excruciating headache. She was diagnosed
as having three aneurysms. Surgery was performed at Mayo
Clinic. Claimant continued to have severe physical and
emotional problems after the surgery in spite of about
$200,000 worth of treatment.
It was determined that claimant's alleged injury did not
arise out of her employment because it was an idiopathic
condition peculiar and personal to her own health condition
that predated the alleged injury. Cites to Larson, Work
Comp and Supreme Court Cases.
It was determined that claimant's work and more specifically
leaning over to slide the box was not a substantial factor
in bringing about the alleged injury and therefore was not a
proximate cause of the aggravation of her preexisting
condition. Cites to several traditional supreme court cases
used in the blurbs and summaries of those decisions are used
to illustrate what a substantial factor is and to show why
none occurred in this case.
It was determined that the opinion of the treating surgeon
favorable to claimant was not acceptable because it was
based on an erroneous understanding of the facts.
It was determined that claimant's medical expert, the
treating surgeon, was controverted by defendants' medical
expert who was also a highly qualified neurosurgeon.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
PATRICIA M MARLENEE, :
:
Claimant, :
:
vs. :
: File No. 947156
STEWART'S, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CRUM AND FORSTER, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Patricia
Marlenee against her former employer Stewart's, Inc. wherein
she seeks permanent partial disability compensation. The
case was heard at Council Bluffs, Iowa, on January 5, 1994.
The evidence consists of testimony from Patricia Marlenee,
Anthony M. Romano, M.D. and Gail Leonhart. The record also
contains joint exhibits A, claimant's exhibits 1 through 7
and defendants' exhibits A, B and C.
FINDINGS OF FACT
Patricia Marlenee is a 44-year-old woman who throughout
most of her adult life has worked as a cosmetologist or
cosmetology instructor. The work placed her in beauty
salons where she was exposed to airborne inhalants such as
hairspray and the fumes from permanent solutions, tints and
other hair care chemicals. Claimant had reactions and
problems with those substances when she was attending
cosmetology school and has continued to have problems
subsequently. Over the years she has been diagnosed with
conditions such as sinusitis and rhinitis on a number of
occasions. As time has passed, the frequency with which she
has sought medical care for her condition has increased.
According to Anthony M. Romano, M.D., claimant's family
physician for approximately the past 20 years, claimant has
underlying sensitivity to the substances used at beauty
salons. She has underlying sinusitis, conditions which are
basically the same as basil motor rhinitis. Claimant has
probably had the disease or disease condition for years and
that the disease is aggravated by the exposures from the
beauty salon workplace. He stated that the exposures cause
a temporary aggravation and have not produced any permanent
physical impairment. He found that there was a definite
Page 2
causal relationship between the exposure and the
aggravations but no relationship between the exposure and
the underlying disease condition. When asked to provide an
assessment of claimant's disability on the basis of her age,
work experience, qualifications, and other matters which are
commonly considered when assessing industrial disability, he
assessed no part to any physical disability. In accordance
with his statement that she would feel better if she did not
work where she was exposed to those chemicals and his advise
that she should avoid such exposure. Dr. Romano stated that
claimant's underlying problem will not improve but that she
will feel better if she avoids exposure to the irritants.
Dr. Romano felt that claimant's problem was clear-cut and he
found no need to send her to an allergist.
Claimant was sent to an allergist, Stanley L. Davis,
M.D., in late 1990. Dr. Davis concluded that claimant did
not have allergies in the classical sense, as shown by skin
antibody testing. He found that she had a significant
vasomotor rhinitis which was similar to allergy but which
was triggered by nonspecific irritants rather than organic
antigens. Dr. Davis did not consider claimant to be
disabled because of her job as a beautician. (defendants'
exhibit A).
Claimant was evaluated by Paul From, M.D., who
concluded that it did not appear to him that claimant would
be more sensitive to agents to which she would be exposed at
work than she would in normal life because of her extensive
list of sensitivities. (def. ex. B, page 5). Use of
records from claimant's brother detracts greatly from the
probative value of Dr. From's report.
The record of this case fails to contain any expert
medical opinion which finds that any disability which
currently afflicts Patricia Marlenee resulted in any
significant part from her exposure to chemicals in her
workplace. To the contrary, claimant appears to be
sensitive to a number or irritants, many of which are not
found in the workplace. There is some indication in the
record that her degree of sensitivity may have increased
over the years but there is nothing in the record which
shows that any such increased sensitivity resulted in any
significant part from exposures at the workplace rather than
from exposures of everyday life to other irritants or from
some naturally occurring change in her body.
In short, while the evidence in this case shows that
the exposures from claimant's workplace aggravated her
underlying condition, the evidence fails to show that it is
probable that those exposures caused any permanent change in
claimant's underlying condition or any permanent disability
of any type or nature.
CONCLUSIONS OF LAW
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
Page 3
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Aggravation of a preexisting condition is one manner of
sustaining a compensable injury. While a claimant is not
entitled to compensation for the results of a preexisting
injury or disease, its mere existence at the time of a
subsequent injury is not a defense. Rose v. John Deere
Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is
materially aggravated, accelerated, worsened or lighted up
so that it results in disability, claimant is entitled to
recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115
N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co.,
253 Iowa 369, 112 N.W.2d 299 (1961).
Iowa workers' compensation law distinguishes
occupational diseases from work injuries. An occupational
disease is a disease which arises out of and in the course
of the employee's employment. The disease must have a
direct causal connection with the employment and must follow
as a natural incident from injurious exposure occasioned by
the nature of the employment. While the disease need not be
foreseeable or expected, after its contraction, it must
appear to have had its origin in a risk connected with the
employment and to have resulted from that risk. A disease
which follows from a hazard to which an employee has or
would have been equally exposed outside of the occupation is
not a compensable occupational disease.
The claimant need meet only two basic requirements to
prove causation of an occupational disease. First, the
disease must be causally related to the exposure to the
harmful conditions in the field of employment. Second, the
harmful conditions must be more prevalent in the employment
than in everyday life or other occupations. Section 85A.8;
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
Where an employee is injuriously exposed to hazardous
conditions producing occupational disease while employed by
several successive employers, the employer where the
employee was last injuriously exposed is liable for all of
Page 4
the disability. Doerfer Div. of CCA v. Nicol, 359 N.W.2d
428 (Iowa 1984).
To be compensable, an aggravation of an occupational
disease must be more than a temporary aggravation curable by
removal from the exposure. McNeil v. Grove Feed Mill, II
Iowa Industrial Commissioner Report 261 (App. 1981).
In this case claimant seeks a recovery under chapter 85
and, alternatively, under chapter 85A. Since section
85.61(4) provides that, by definition, injury excludes any
condition which is an occupational disease, it is necessary
to first consider this case as an occupational disease
claim.
Claimant's underlying diseases of rhinitis and
sinusitis have not been shown to have been causally related
to exposures in her workplace. The evidence clearly shows
that exposures in the workplace aggravate her underlying
condition and cause it to become symptomatic. The exposures
are not shown, however, to have caused its onset. On the
second test, there is some reason to believe, though no
definite evidence, that the exposure to hairsprays and hair
care chemicals is more prevalent in a beauty salon then in
everyday life or occupations. Anyone who has walked into a
beauty salon should realize that that is probably the case.
There is, however, no evidence in the record of this case
that there is any peculiar relationship between exposure to
hairspray chemicals and contraction of the disease which
afflicts claimant. In view of the lack of that peculiar
relationship and the lack of a causal relationship between
the exposure and the condition itself, this case does not
provide any recovery to the claimant under chapter 85A of
the Code because the condition has not been shown to be an
occupational disease.
When viewed as an injury, it is clear that claimant has
had a number of temporary injuries whenever the exposure
aggravated her underlying condition and caused it to be
sufficiently symptomatic to be disabling. At the
commencement of the hearing it was expressly stated that no
claim was being made for any temporary total disability or
healing period. The only claim made was for permanent
disability. The physicians are all in agreement in that
there is no evidence that the exposures have produced any
permanent disability. There is no showing in the record
that the exposures have produced any permanent change in the
claimant's health or body. Simply stated, she is sensitive
to the hair care chemicals as well as numerous other
chemicals and irritants. When she is exposed to any of
those irritants her symptoms become pronounced. When the
exposure ends, the symptoms subside. The fact that medical
care is sometimes necessary to cause the symptoms to resolve
does not change the character of the aggravation from
temporary into permanent.
It is therefore concluded that Patricia Marlenee has
failed to prove that she is entitled to any recovery for
permanent partial disability under chapter 85 of the Code.
Page 5
ORDER
IT IS THEREFORE ORDERED that claimant take nothing from
this proceeding.
It is further ordered that each party is responsible
for their own costs incurred in participating in this
action.
Signed and filed this ____ day of January, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Drew H. Kouris
Attorney at Law
501 S Main #2C
Council Bluffs, Iowa 51503
Mr. Harry Dahl
Attorney at Law
974 - 73rd St, STE 16
Des Moines, Iowa 50312
1108.30 1108.40 1402.30
1402.40 2203 2205 2206
Filed January 14, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
PATRICIA M MARLENEE,
Claimant,
vs.
File No. 947156
STEWART'S, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CRUM AND FORSTER,
Insurance Carrier,
Defendants.
___________________________________________________________
1108.30 1108.40 1402.30 1402.40 2203 2205 2206
Claimant had underlying sinusitis and rhinitis and
sensitivity to a number of nonspecific irritants. Her work
as a cosmetologist may have caused a number of recurrent
aggravations which required medical care. All the medical
evidence indicated that those were simply temporary
aggravations. Claimant held entitled to no recovery for
permanent disability.
Claimant's case analyzed as occupational disease. In view
of the lack of showing of the required causal connection and
lack of the peculiar relationship between the exposure and
the condition that the condition claimant is afflicted with
it is not an occupational disease.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ALMA SLAUTER, :
:
Claimant, :
:
vs. :
: File No. 947359
GREEN THUMB, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Alma Slauter, against her former employer,
Green Thumb, Inc., and its insurance carrier, Home Insurance
Company, defendants. The case was heard on July 15, 1993 at
the office of the Industrial Commissioner in Des Moines,
Iowa. The record consists of the testimony of claimant.
The record also consists of the testimony of claimant's
spouse, John Slauter; the Lamoni Public Librarian, Barb
Huston; and the testimony of a rehabilitation counselor,
retained by defendants, Patricia Conway. Additionally, the
record is comprised of claimant's exhibits 1 and 2, and
defendants' exhibits A through J.
ISSUES
The issues to be determined are: 1) whether there is a
causal relationship between the work injury and any
permanent disability; 2) whether claimant is entitled to any
healing period or to any permanent partial disability
benefits; 3) whether claimant is entitled to reimbursement
for certain expenses incurred as a result of an independent
medical examination pursuant to section 85.39 of the Iowa
Code, as amended; and 4) whether claimant served timely
notice pursuant to section 85.23 of the Iowa Code, as
amended.
FINDINGS OF FACT
Claimant is 66 years old. She is married with three
adult children. Claimant completed the ninth grade. She
terminated her formal education after the ninth grade
because of poor health. At the time of her termination,
claimant was in the tenth grade. Claimant never attempted
to obtain her GED.
Page 2
For most of her life claimant has worked long and hard
hours. She is a typical example of the Iowa farm wife who
is expected to run the home, raise the children and assist
on the family farm.
In 1958 claimant took on the added responsibility of
working outside of the home. She commenced employment with
Graceland College in the food service division. There she
progressed to the positions of head cook and production
manager of the food service. Her employment involved
strenuous physical labor. She was required to lift heavy
kettles and pans in preparation of the upcoming meal.
Claimant testified she served about one thousand people per
meal. Her duties included managing the production of food,
managing the amounts to serve and managing the necessary
personnel who handled the tasks. Claimant terminated her
position at the college in 1975. At the time of her
termination, claimant was paid the paltry sum of $2.55 per
hour.
Claimant next owned and operated her own fabric store,
Sue's Golden Thimble. She maintained the shop from 1976
through 1982. She sold fabrics, ready to wear clothing and
jewelry. Her duties reflected those of every other
shopkeeper. She stocked shelves, performed bookkeeping,
waited on customers, hired and fired personnel and ordered
goods. Claimant sold the store in 1982.
Claimant returned to the family farm where she assisted
her husband in the daily operation of the business. Her
duties included operating farm machinery, plowing, disking,
feeding cattle and mending fences. She remained employed on
the farm for two years.
Next claimant and her husband purchased a grocery store
in Blythedale, Missouri. The every day operation of the
business was primarily the responsibility of claimant. She
had three part-time employees to assist her. However, most
of the employment responsibilities fell upon claimant's
shoulders. After one year claimant sold the business. The
work, claimant testified, "was too hard, and not feasible."
On November 17, 1986, claimant commenced employment
with Green Thumb, Inc., a non-profit organization which was
initiated by the National Farmers Union. The organization
was established as a vehicle for retraining senior citizens,
especially farmers, who had been displaced from the farm.
Only certain individuals qualify as employees.
The employees are paid the minimum wage and they
generally work part-time hours. They are placed with
non-profit entities. Applicants are eligible if they meet
certain financial criteria.
Claimant qualified for employment with defendant. She
started her position on the day after her sixtieth birthday.
Claimant was hired to work 20 hours per week. She received
on-the-job training. Her first assignment was at the
Central DeCatur School System. She was employed as an
Page 3
elementary school library clerk. She processed books, typed
book cards, mended books, did occasional typing, shelved
books and assisted students with checking out books from the
school library. Claimant testified she enjoyed the
position. She worked Monday through Thursday for five hours
per day. Claimant worked at the school for one year and one
summer.
After her tour of duty at the school, claimant was
transferred to the Department of Employment Services,
Division of Job Service in Lamoni, Iowa. She was required
to file, type, and administer tests to customers. Claimant
worked at the office from September of 1987 through December
of 1987. The office was closed for financial reasons and
claimant was transferred to the Lamoni City Library.
Claimant commenced her duties at the Lamoni Public
Library on December 8, 1987. She was assigned the position
of part-time Library Clerk. Again, she was compensated at
the then minimum wage rate. She worked four days per week
and five hours per day.
Claimant reported to the head librarian or else to her
assistant. Claimant's duties were similar to the ones she
had at the elementary school. Claimant checked books back
into the library, shelved books, mended books, assisted
customers, provided information, checked books out of the
library, collected fines, prepared new books for shelving
and performed other tasks as assigned.
Claimant remained employed through Green Thumb, Inc.,
until April 3, 1990. Since that time, claimant has only
been employed by Decatur County as an election official on
two separate occasions. She has not looked for any other
employment.
While claimant was working at the city library, she
began to experience difficulties with her upper extremities.
She testified that she encountered gradual pain in her
wrists and hands. She also experienced pain in the regions
of her elbows. Claimant provided verbal notice of the
difficulties to both the then head librarian, Laura
Williams, and to the assistant librarian, Paula Sandelson.
Claimant also provided verbal notice to her supervisor at
Green Thumb, Inc., Ernestine Judkins.
Paula Sandelson, the assistant librarian referred
claimant to Charles Manuel, D.C. He treated claimant on
several occasions. Because his notes were nearly impossible
to read, this deputy was unable to determine the diagnosis
he had rendered.
Claimant sought chiropractic care for her upper
extremities from C. E. Tindel, D.C. Dr. Tindel engaged in
cervical manipulation. (Cl. Ex., p. 12) He treated
claimant for "headaches, pain in neck, shoulders & hands."
(Cl. Ex., p. 13) Claimant experienced little relief from
the chiropractic manipulation.
Since claimant received little relief from the
Page 4
chiropractic treatment, the supervisor sent claimant to the
Patel Medical Clinic in Mt. Ayr, Iowa. In his report of
November 20, 1990, Bhalchandra R. Patel, M.D., opined:
Mrs. Slauter has been seen by us at Patel Medical Clinic
in April 1990. She presented with pain in both hands and
our impression was that she had bilateral carpal tunnel
syndrome. And therefore, she was sent to Neurologist, Dr.
Joseph Doro. Please find enclosed letter of Dr. Doro's
consultation.
Dr. Doro's assessment was of bilateral ulnar nerve
entrapment at elbow. And electrophysiologically, Dr. Doro
couldn't demonstrate evidence of bilateral carpal tunnel
syndrome, though there was strong clinical possibility of
bilateral carpal tunnel syndrome.
We had discussed these findings with Mrs. Slauter and had
suggested that she have release of ulnar nerves first, and
if there are no improvements, then bilateral carpal tunnel
release. But, the patient had said that she had more pain
over wrists and she wanted to have carpal tunnel release
first.
This was discussed in June 1990, and we had decided to
give a trial with anti-inflammatory medications for
reasonable time. Her symptoms did not improve with
conservative management, and as her symptoms were worse on
right side, we decided to operate on right side first.
Surgery was performed on September 11, 1990.
There is definite relationship between her work leading
to carpal tunnel syndrome, which was evident clinically.
Normal recuperation time after surgery is 4 to 6 weeks.
And after surgery Mrs. Slauter developed other symptoms like
pain in legs, dyspnea and chest pain, which is not related
to her surgery. She has been sent to Cardiologist, and
Cardiologist so far has not found any substantial cardiac
problem.
As Mrs. Slauter continues to have above symptoms, I have
advised her to see Rheumatologist. She has an appointment
to see Dr. Finan on December 4, 1990.
At this point in time, I do not think Mrs. Slauter has
any permanent impairment as a result of injury. In my
opinion, her present symptoms are not related to carpal
tunnel syndrome.
(Cl. Ex., pp. 20 & 21)
Dr. Patel performed the right carpal tunnel surgery in
September of 1990. Subsequent to the surgery, claimant
experienced difficulties with both her upper and her lower
extremities. Her surgeon referred claimant to the Mercy
Arthritis Center in Des Moines. Michael J. Finan, M.D.,
conducted an examination of claimant in December of 1990.
Among other findings, Dr. Finan opined the following
relative to claimant's wrists:
Neck had fair range of motion. Both shoulders had
good, comfortable range of motion. No synovitis
of the elbows or wrists. There is a well-healed
scar over the volar aspect of the right wrist from
prior carpal tunnel surgery. No evidence of
infection. Both wrists had good range of motion.
There was minimal degenerative changes in the DIP
Page 5
joints. The other small joints of the hands were
normal. No active synovitis.... Pinprick exam
was normal, including both hands. Both toes were
downgoing. With the Phalen's maneuver, she
complained of a little numbness in both thumbs.
Tinel's was negative on the right and equivocal on
the left.
...
3. Bilateral hand pain. It is not clear that this
is entirely explained by carpal tunnel syndrome
or even possible ulnar nerve entrapment
syndrome.
4. Positive rheumatoid factor....
...
3. Because of her complaints of upper extremity
symptoms, one might want to proceed with repeat
EMG/NCV's and even have the situation reviewed
by a neurosurgeon or orthopaedic surgeon to see
if he feels her symptoms are secondary to nerve
entrapment syndrome. I do not find
inflammatory arthritis as an explanation for
her hand pain.
(Cl. Ex., p. 57-59)
Joseph M. Doro, D.O., conducted an EMG with respect to
claimant's problems with the upper extremities. In his
report of April 26, 1990, Dr. Doro opined:
Essentially, she does have slowing across the
elbow of both ulnar velocities, which would be
consistent with an ulnar neuropathy at that point.
She does have some evidence of minor chronic
denervation int [sic] he ulnar innervated muscles
of the hand.
Clinically, the description I get of her pain is
one of both ulnar involvement, and also what
sounds like median involvement, with carpal
tunnel, however, I was not able to demonstrate,
electrophysiologically, evidence of a carpal
tunnel, although clinically that still is a strong
consideration.
(Cl. Ex., p. 25)
As aforementioned, claimant had a right carpal tunnel
release. Because claimant did not believe that she had
achieved a good result, she refused to have any more
surgeries on her upper extremities. Nevertheless, claimant
experienced continued pain in both of her upper extremities.
Martin S. Rosenfeld, D.O., performed an independent
medical examination of claimant in October of 1991. He
authored a report dated October 22, 1991. In his report he
Page 6
opined:
At this time she has negative Tinel and Phalen
signs over the carpal tunnels bilaterally. She
does have tingling when pressing on the ulnar
nerves at the elbows bilaterally. She does have
positive Grind tests bilaterally.
X-rays of both hands are taken showing moderate to
moderately severe basal thumb arthritis
bilaterally.
Impression: 1) Bilateral basal thumb arthritis.
2) Bilateral ulnar nerve entrapment
neuropathy.
Page 7
3) Status post-right carpal tunnel
release.
Patient denies any symptoms prior to starting the
job as a librarian and I would feel that her
symptoms are most probably due to cumulative
effect from over use of her elbows, wrists, and
thumbs. I would feel that the basal thumb
arthritis probably was present but was aggravated
by the working conditions.
My recommendations of treatment at this time would
include bilateral ulnar nerve transpositions at
the elbow and probably injections to the basal
thumb joints with some Cortisone to see if this
will not get rid of her pain.
At the present time I do, indeed, feel that the
patient has a permanent physical impairment to
each upper extremity. I believe that the basal
thumb arthritis and aggravation of same would
cause a five ( 5%) percent impairment to each
upper extremity and that the persistent ulnar
neuropathy would cause a ten (10%) percent
impairment to each upper extremity. I feel that
this means that she has fifteen (15%) percent
impairment to the right upper extremity and
fifteen (15%) percent to the left upper extremity.
I would feel that corrective surgery on the ulnar
nerves and treatment to the basal thumb joints
should diminish this impairment if it were to be
carried out.
(Cl. Ex., p. 69-70)
In April of 1992 Tom Bower, LPT, conducted a functional
capacity evaluation. He summarized his findings in his
report of April 29, 1992. He determined that:
SUMMARY
This patient, in my opinion, is perceiving herself
as being unable to do virtually anything. We find
inconsistencies in all the grip measurements that
have been taken today, using the various pieces of
equipment. The 0 grip strength display with the
Preston hand dynamometer in all positions of
spread, is generally considered to be one of the
criteria used in identifying symptom magnifiers.
I feel very strongly that in fact is occurring.
Heart rates certainly do not appear to be
proportionate to the pain levels described by this
patient.
I am somewhat concerned, based on the tingling
that the patient is experiencing in her little and
ring fingers, specifically the ulnar distribution,
that we could have some ulnar nerve involvement
either proximal or distally. Since no EMG studies
have been done following the surgery, it might be
Page 8
wise to repeat those studies, not only to assess
the ulnar nerve, but to assess the status of the
median nerve to see if there is any residual
changes that have occurred from the surgery.
I am not quite certain as to what to make of the
Roo's maneuver today since these clinical findings
are certainly not totally consistent with thoracic
outlet, but may well be mildly suggestive of that
diagnosis.
I find it extremely unusual the patient is able to
lift 20 pounds from a floor to waist position when
she is unable to generate any grip on the hand
dynamometer or certainly minimal grip on the BTE
work simulator. All these findings appear to be
completely inconsistent from test to test.
I believe that there is a high propensity for
symptom magnification being present here, and
certainly exclusion of that can be made perhaps in
repeating the EMG studies to rule out any old or
new pathology.
(Cl. Ex., p. 75-76)
Several days later, Jack E. Reynolds, M.S., C.R.C., a
vocational expert retained by claimant prepared a vocational
assessment. He drafted a report dated May 4, 1992. His
opinions were summarized as follows:
Alma Dean Slauter A (sic) 65 year old Librarian
for Green Thumb, Inc., suffered a work related
injury resulting from the repetitive nature of her
work. Ms. Slauter began noticing pain in both
hands on December 1, 1989. This pain progressed
until she left work on April 13, 1990, when she
could no longer perform her job requirements.
Ms. Slauter underwent right Carpal Tunnel surgery
on September 9, 1990, however, her condition has
not improved. Both Dr. Doro and Dr. Rosenfeld
have diagnosed her condition as Bilateral Ulnar
Nerve Entrapment.
Ms Slauter continues to have pain and weakness in
both hands. She is unable to sustain any gripping
activity or more than an occasional use of her
hand without experiencing considerable pain. She
is precluded from such activities as sewing,
quilting, painting, canning, opening jars,
vacuuming or using a keyboard.
Ms. Slauter had hoped to keep working until she
was 70 years of age. She has not attempted to
find work because she is unable to sustain any use
of her hands without having severe pain.
Ms. Slauter is unable to do her old job as a
Librarian due to the job requirements of handling
Page 9
books, reshelving books, rebinding books, and
using a keyboard. She could not perform any of
her previous work due to these jobs requiring more
than an occasional use of her hands with such
activities as handling pots and pans, supplies,
fabric, groceries, and operating cash registers.
While much of Ms. Slauter's past work was in
supervision, these jobs were primarily hands-on
supervisory responsibilities requiring her to
participate in caring (sic) out physical
activities.
With Ms. Slauter's inability to sustain activity
with her hands, considering her age, education and
work experiences; she is not capable of performing
any of her past work or transfer skills to other
jobs in a competitive job market. These factors
would also severely limit any capacity for
retraining. Thus Ms. Slauter presents a poor
candidate for either successful job placement or
retraining. She could be considered totally
disabled from a vocational rehabilitation
standpoint.
(Cl. Ex., p. 79-80)
In June of 1992, claimant was evaluated by Dr. Doro.
In his report of June 10, 1992, Dr. Doro wrote:
The patient continues to have difficulties with
pain and it is mainly in her hands. It is in a
diffuse fashion surrounding the whole areas,
although, occasionally the small and ring finger
will be more affected that other fingers, and
other times there is no difference between the two
sides and they are both equally symptomatic.
She feels that the pain is worse whenever she does
any type of activity. At night, it bothers her
considerably and will prevent her from sleeping.
In speaking with her about further evaluation and
treatment, as you know, she is quite reluctant to
undergo anything further. She did not want to
have another EMG done today. She was quite
insistent upon that.
She also is not in favor of having further surgery
in view of the problems that she had after the
original one.
On her examination at this time, her general
neurologic examination is normal.
Concentrating on her arms and hands, she has
diffuse weakness of the distal muscles of her
hands. This is both the ulnar, median and radial
distribution. The weakness that she has seems to
be more of a break away type of weakness secondary
to pain which is generated whenever she tries to
Page 10
do anything with her hands as opposed to true loss
of muscle power. For example, I was able to
increase her grip by having her try to overcome
the pain, even just for a few seconds.
Sensation shows areas of hypesthesia. There were
also areas of almost dysesthesia in the hands as
well.
The muscle stretch reflexes are equal and
symmetric. There were no pathologic reflexes.
There were food finger flexor reflexes
bilaterally.
Phalen's maneuver does reproduce the patient's
symptoms. She is also diffusely tender to
percussion over the wrists, both anteriorly and
posteriorly.
In watching her use her hands spontaneously, she
did have difficulty with performing fine finger
movements.
In reviewing the patient's history and her exam, I
would concur with Dr. Rosenfeld's feeling of 15
percent physical impairment rating due to the
patient's difficulties with her ulnar neuropathies
as well as her prior surgery and her present
symptoms.
I did raise with her the question of having
further evaluation and potential treatment,
however, she is quite frustrated by everything
that she has gone through and does not want to
proceed with more of an evaluation or treatment at
this time.
(Cl. Ex., p. 29-30)
Defendants referred claimant to Excel Work Performance
Center for a second functional capacity evaluation. The
evaluation took place on February 24, 1993. Randy Pressler,
P.T., conducted the evaluation. He opined that his test
results were invalid because, in his opinion, claimant did
not exert maximus effort. The evaluator opined that
claimant was functioning in the sedentary physical demand
level. (Cl. Ex., p. 117)
Defendants also retained the services of Patricia
Conway of Rehabilitation Professionals, Inc., to evaluate
claimant for possible employment. She was not retained to
engage in job placement. Ms. Conway testified that claimant
had transferable skills. She also testified that claimant,
per the functional capacity evaluation was capable of
engaging in sedentary type jobs, and that claimant could
carry up to 12 pounds. Ms Conway testified that claimant
had transferable skills and that she could engage in the
following fields of employment: customer service work,
telephone solicitation, so long as claimant uses a headset,
library clerk, restaurant hostess, and cashier, in a
Page 11
convenience store provided that claimant did not exceed her
lifting restrictions. The expert testified that claimant
had told her she was moving to Missouri, and that she did
not want to find employment until she had moved out of
state. Ms. Conway also testified there were part-time
positions available to claimant at the minimum wage rate up
to $5.50 per hour. Ms. Conway opined that claimant could
still perform the duties of a library clerk provided
claimant limited the number of books she would carry at one
time.
As of April 27, 1990, claimant was notified that she no
longer qualified for a position with defendant-employer.
The basis for the termination was not due to claimant's
physical condition. Rather, she earned more income than
what the federal government would allow an individual to
earn in order to qualify for the program.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. Procedure
14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
Page 12
Page 13
Apportionment of disability between a preexisting condition
and an injury is proper only when some ascertainable portion
of the ultimate industrial disability existed independently
before an employment-related aggravation of disability
occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991);
Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa
1984). Hence, where employment is maintained and earnings
are not reduced on account of a preexisting condition, that
condition may not have produced any apportionable loss of
earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to
be apportionable, the preexisting disability must not be the
result of another injury with the same employer for which
compensation was not paid. Tussing v. George A. Hormel &
Co., 461 N.W.2d 450 (Iowa 1990).
The burden of showing that disability is attributable
to a preexisting condition is placed upon the defendant.
Where evidence to establish a proper apportionment is
absent, the defendant is responsible for the entire
disability that exists. Bearce, 465 N.W.2d at 536-37;
Sumner, 353 N.W.2d at 410-11.
The first issue to address is the issue of notice
pursuant to section 85.23 of the Iowa Code, as amended. The
relevant portion of the section provides that:
Unless the employer or the employer's representative
shall have actual knowledge of the occurrence of an injury
received within ninety days from the date of the occurrence
of the injury, or unless the employee or someone on the
employee's behalf or a dependent or someone on the
dependent's behalf shall give notice thereof to the employer
within ninety days from the date of the occurrence of the
injury, no compensation shall be allowed.
Failure to give notice is an affirmative defense which
the employer must prove by a preponderance of the evidence.
DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91
(1940). Mefferd v. Ed Miller & Sons, Inc., Thirty-third
Biennial Report of the Industrial Commissioner 191 (Appeal
Decision 1977).
The time period contemplated in Iowa Code section 85.23
does not begin to run until the claimant has knowledge of
the nature of his disability. Jacques v. Farmers Lbr. &
Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951).
An employer's actual knowledge of occurrence of injury
must include some information that the injury is
work-connected in order to satisfy the alternative notice of
claim requirement. Robinson v. Department of Transp., 296
N.W.2d 809,812 (Iowa 1980). The interpretation in Robinson
was confirmed in Doerfer Division of CCA v. Nichol, 359
N.W.2d 4218, 435 (Iowa 1984).
A claimant's duty to give notice of injury arises when
the claimant should recognize the nature, seriousness and
probable compensable character of his injury or disease.
The reasonableness of claimant's conduct is to be judged in
light of his education and intelligence. Claimant must know
Page 14
enough about the injury or disease to realize that it is
booth serious and work connected, but positive medical
information is unnecessary if he has information from any
source which puts him on notice of its probable
compensability. Robinson, supra.
The purpose of the 90 day notice or actual knowledge
requirement is to give the employer an opportunity to timely
investigate the facts of the injury. Knipe v. Skelgas Co.,
229 Iowa 740, 748, 294 N.W. 880, 994 (1940); Hobbs v. Sioux
City, 368 N.W.2d 176 (Iowa 1985). Koopsman v. Iowa Electric
Light and Power Company, (Appeal Decision dated, December
30, 1981).
The word "compensable" in the workers' compensation
notice context is not used to connote legal knowledge that a
claim is within the workers' compensation act. Rather,
"compensable" means that the disability or injury was work
related. Quaker Oats Co. v. Miller, 370 So. 2d 1363, 1366
(Miss. 1979).
Unless a statute that imposes a period of limitations
expressly authorizes exceptions for extenuating
circumstances, it must be applied uniformly even though the
result may seem harsh. Burgess v. Great Plains Bag
Corporation, 409 N.W.2d 676, 679 (Iowa 1987).
A mistake of law is no more an excuse in connection
with a late compensation claim than anywhere else, unless
expressly made so by statute. 3 Larson, Workmen's
Compensation Law, Section 78.47 at 15-334.
In the instant case, defendants assert the affirmative
defense of lack of notice under section 85.23 of the Iowa
Code, as amended. Defendants bear the burden of proving
there was not proper notice. Claimant testified that she
tendered verbal notice to the librarian at the Lamoni City
Library as well as to the assistant librarian, Paula
Sandelson. Moreover, claimant testified it was Ms.
Sandelson who initially referred claimant to Dr. Mandel for
claimant's hand pain. The progress notes of Dr. Mandel,
indicate claimant first visited his office on December 1,
1989. Claimant also testified that in December of 1989,
she showed her hand condition to Ernestine Judkins, Green
Thumb supervisor, and that Ms. Judkins replied, "You just
can't do the work." No one refuted claimant's testimony
regarding the notice issue. Her testimony was
uncontroverted. It is the determination of the undersigned
that claimant supplied the requisite notice to her employer,
as required by section 85.23.
Claimant alleges that she has sustained a permanent
disability as a result of her simultaneous cumulative
injury to her upper extremities. The medical opinions
substantiate this allegation. Dr. Patel opines the
condition is work related. Dr. Doro opines that claimant
has sustained a permanent disability and he has provided
claimant with an impairment rating. Likewise, the
evaluating physician, Dr. Rosenfeld has also opined that
claimant's condition is causally connected to her work
Page 15
injury and that her condition is a permanent one . Claimant
has established the requisite causal connection. Claimant
has a permanent disability.
The next issue to address is the issue dealing with the
nature and extent of claimant's permanent disability.
Benefits for permanent partial disability of two members
caused by a single accident is a scheduled benefit under
section 85.34(2)(s). The degree of disability must be
computed on a functional basis with a maximum benefit
entitlement of 500 weeks. Simbro v. Delong's Sportswear,
332 N.W.2d 886 (Iowa 1983).
Bilateral carpal tunnel syndrome which results from one
gradual injury process and which constitutes the loss of two
members from one accident is evaluated on a functional basis
under Iowa Code section 85.34(2)(s). Himschoot v. Montezuma
Mfg., File numbers 6722778 and 738235 (App. Dec. April 15,
1988), (affirmed and appealed to Court of Appeals, February
22, 1990).
In the case of Johnson v. George A. Hormel & Co.,
(Appeal Dec. June 21, 1988), the industrial commissioner
held that claimant's bilateral carpal tunnel syndrome was
found to be the loss of two scheduled members as the result
of a single gradual injury process, and the disability was
compensated under section 85.34(2)(s).
Section 85.34(2)(s) as well as the Simbro case, supra,
are discussed at length in Lawyer and Higgs Iowa Workers'
Compensation 2d Section 13-4 at p. 124. The authors write:
Special mention needs to be made of the cases
arising under Iowa Code section 85.34(2)(s), the
provision covering loss of both arms, hands, feet,
legs, or eyes or any two thereof in a single
accident. Simbro v. DeLong's Sportswear makes it
clear that impairment in such cases must be
computed as functional impairment rather than as
industrial disability. Simbro's impairment was
three percent of each upper extremity. Although
testimony of industrial disability was presented,
the commissioner awarded the combined value of a
three percent loss to each extremity or four
percent of the 500 weeks scheduled benefit. The
supreme court approved the commissioner's award
based on functional impairment. However, an
employee who is permanently and totally disabled
by a single accident under subsection (s) may be
entitled to permanent total disability benefits.
(footnote omitted)
In Simbro, supra, the Iowa Supreme Court specifically
discusses the 1974 amendment to section 85.34(2)(s). The
Court concludes at page 889:
We conclude that the amendment to paragraph (s)
clearly makes the paragraph a scheduled disability
subject to functional evaluation. The plain and
unambiguous language in the amendment of paragraph
Page 16
(s) which sets out a definite schedule of benefits
shows a clear intent by the legislature to make
the loss of two members a scheduled loss. We
assume that at the time the legislature amended
paragraph (s) it was familiar with the existing
case law that evaluated scheduled disability on a
functional basis. See Peffers v. City of Des
Moines, 299 N.W.2d 675, 678 (Iowa 1980). Thus, if
it had wished us to apply a different method of
evaluation to paragraph (s) losses than we apply
to other scheduled losses, it would have so
indicated.
Later in the decision, at page 889, the Court
concludes:
In conclusion we agree with the ruling of the
commissioner that a partial loss under paragraph
(s) must be determined by evidence of the
functional loss rather than the industrial loss...
The instant case clearly deals with the same situation
as is found in the Simbro case. Claimant has not sustained
a permanent and total disability. Her injury is to be
evaluated by the functional method for determining the
nature and extent of her permanent disability. Section
85.34(2)(s) is the appropriate section to use in figuring
the weekly benefits.
Dr. Rosenfeld opines that claimant has a fifteen
percent impairment to each upper extremity. He writes that
claimant's condition is related to her work situation and
that her pre-existing arthritis is aggravated by her
employment duties. Dr. Doro concurs with his opinion. Dr.
Patel opines there is no impairment. When the fifteen
percent impairment rating to each upper extremity is
converted to the whole body rating, the figure equals 9
percent to the whole body. In order to calculate the number
of weeks of benefits to which claimant is entitled, the
Combined Values Chart on page 246 of The AMA Guides to the
Evaluation of Permanent Impairment 3d edition must be
consulted. According to The Guides, the combined values of
9 percent is 17 percent. Using section 85.34(2)(s), the
weeks are calculated as: 500 weeks x 17% =85 weeks .
Claimant is therefore entitled to 85 weeks of permanent
partial disability benefits at the stipulated weekly benefit
rate of $63.82 per week.
The next issue to address is the issue of healing
period benefits. Section 85.34(1) provides that healing
period benefits are payable to an injured worker who has
suffered a permanent partial disability until ( 1) the
worker has returned to work; (2) the worker is medically
capable of returning to substantially similar employment; or
(3) the worker has achieved maximum medical recovery. The
healing period can be considered the period during which
there is a reasonable expectation of improvement of the
disabling condition. See Armstrong Tire & Rubber Co. v.
Kubli, 312 N.W.2d 60 (Iowa Ct. App 1981). Healing period
benefits can be interrupted or intermittent. Teel v.
Page 17
McCord, 394 N.W.2d 405 (Iowa 1986).
Healing period may be ended at the time a physician
states the condition has remained unchanged and he provides
an impairment rating. Hungate v. Lear Sigler, Vol. II-1
State of Iowa Industrial Commissioner Decisions 196 (Appeal
Decision 1985).
Generally, healing period benefits accrue from the date
of the injury. Compensation payments are to be made
beginning on the eleventh day after injury. Interest is to
be paid on benefits which are due but not paid. Iowa Code
section 85.30. Teel, Supra.
With respect to the present case, claimant is entitled
to healing period benefits. Claimant has failed to
establish whether she is owed healing period benefits prior
to April 3, 1990. However, since April 3, 1990, claimant
has been unable to work because of the conditions of both of
her upper extremities. She remained in the healing period
through October 22, 1991. On October 22, 1991, Dr.
Rosenfeld conducted his examination of claimant and he
provided an impairment rating to claimant. Claimant is
entitled to benefits for ________ weeks at the stipulated
rate of $63.82 per week.
The final issue to address is whether the $640.00 cost
of Dr. Rosenfeld's independent medical examination is
reasonable.
Iowa Code section 85.39 provides in pertinent 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.
Page 18
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).
An inference of reasonableness can be created when a
claimant pays a medical bill. Schneider v. Prairie
Contractors, Inc., (Appeal Decision, 1992).
It is not necessary for claimant to obtain prior
approval of defendants or that claimant file an application
for approval from the industrial commissioner's office prior
to visiting with the 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 a hearing. Pirozek v. Swift
Independent Packing and Second Injury Fund of Iowa, File
Nos. 753643, 753642, 724893 (Appeal Decision 1987).
Recently, the Iowa Industrial Commissioner addressed
the reasonableness of the charge for an independent medical
examination. See Wright v. Bridgestone/Firestone, File No.
1023144 (Appeal Decision April 29, 1993). In Wright, supra,
defendants challenged the charges of Dr. Rosenfeld for
making an independent medical examination. In that
situation, Dr. Rosenfeld charged $600.00 as his fee. This
deputy wrote the following:
Claimant has met his burden of proof. Dr. Rosenfeld's
fee of $600.00 is reasonable. Claimant has paid the bill.
The fee does not appear outrageous or excessive. The
sensibilities of this deputy are not shocked.
On appeal, the industrial commissioner affirmed the
deputy's decision. The defendants failed to overcome
claimant's prima facie case of reasonableness and they were
held liable for $600 for an independent medical examination
of an upper extremity.
In the instant case, the facts are quite similar to the
facts in the Wright case. Defendants are disputing the
reasonableness of an independent medical examination which
was performed by Dr. Rosenfeld. The medical examination was
for conditions of the upper extremities. The fee in this
case is $640.00. Defendants have paid $400.00 of the
charges. Defendants have not paid $240.00 for x-rays of the
hands. Claimant is requesting reimbursement for the
$240.00. She testified the x-rays were new ones and they
were not duplicate tests. Defendants provided no testimony
to the contrary.
It is the determination of the undersigned that
claimant has made a prima facie case with respect to the
reasonableness of the medical bill for the independent
medical examination. Defendants have failed to overcome
claimant's prima facie case of reasonableness. Defendants
are liable for the $640.00 fee. The $240.00 balance is to
be reimbursed to claimant.
Page 19
ORDER
THEREFORE, it is ordered that:
Defendants shall pay unto claimant eighty-five (85)
weeks of permanent partial disability benefits at the
stipulated rate of sixty-three and 82/l00 dollars ($63.82)
per week and commencing on October 23, 1991.
Defendants shall pay unto claimant _____ weeks of
healing period benefits from April 3, 1990 through October
22, 1991 at the stipulated rate of sixty-three and 82/l00
dollars ($63.82) per week.
Defendants shall reimburse claimant for two hundred
forty and no/l00 dollars ($240.00) in reasonable expenses
incurred for an independent medical examination.
Defendants shall take credit for all 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 (10%) per
year.
Costs are taxed to defendants pursuant to rule 343 IAC
4.33.
Defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of September, 1993.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311-1540
Ms. Dorothy L. Kelley
Attorney at Law
500 Liberty Building
Des Moines, Iowa 50309
1803; 1803.1; 2505; 2601
Filed September 14, 1993
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ALMA SLAUTER,
Claimant,
vs.
File No. 947359
GREEN THUMB, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
1803; 1803.1
Claimant sustained simultaneous bilateral injuries to her
upper extremities. The benefits owed were calculated on a
functional basis using section 85.34(2)(s). The line of
cases in Simbro was followed.
2505; 2601
Claimant had an independent medical examination. Dr.
Rosenfeld performed the examination and he charged $640.00
as his fee. Defendants paid $400.00 of the fee but they
disputed the balance. Claimant paid the balance and
requested reimbursement for the $240.00. Claimant made a
prima facie showing of reasonableness of the fee.
Defendants failed to overcome claimant's prima facie case of
reasonableness. Defendants were held liable for the balance
and they were ordered to reimburse claimant for the sum.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JASON A. MEHMEN,
Claimant, File Nos. 947408/970240
vs. A P P E A L
DAYCO PRODUCTS, INC., D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
ISSUES
The issue on appeal is: The extent of claimant's industrial
disability resulting from his April 16, 1990 or his December
11, 1990 injury.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed June 28, 1993 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions
of the language from the proposed agency decision that have
been intentionally deleted and do not form a part of this
final agency decision. Segments designated by brackets ([
]) indicate language that is in addition to the language of
the proposed agency decision.
[Claimant was born on September 8, 1968.] Claimant worked
for Dayco from January 1989 until February 1991. Claimant
started operating a deburring machine and later moved to CNC
lathe operation. All of this work required heavy manual
labor at times. Claimant quit in February 1991 as he felt
that he could no longer perform this work and started
attending a vocational school in aviation mechanics.
Although he is not currently attending school, he is
planning on returning to complete his certification as an
aviation mechanic. Claimant has been working
Page 2
summers as a carpenter performing normal carpentry duties
including heavy labor and heavy lifting from time to time.
The injury on April 16, 1990 occurred while lifting a barrel
of metal chips. Claimant felt a pop and the onset of pain
in the right shoulder. When conservative initial treatment
from Raul Ruiz, M.D., failed to alleviate symptoms of pain
and numbness, claimant received surgery from Scott Neff,
D.O., an orthopedic surgeon, in July 1990 upon a diagnosis
of impingement syndrome, subsacromial bursitis,
subclavicular spurring and rotator cuff tendonitis. [On
July 5, 1990 Dr. Neff performed excision of coracoacromial
ligament with subacromial bursectomy, anterior and inferior
acromioplasty, exploration of rotator cuff, and Mumford
excision of the distal clavicle. (Ex. 15, page 16)]
Claimant returned to work on November 18, 1990 performing
his lathe job with temporary restrictions on lifting at or
above shoulder level. Claimant reinjured the right shoulder
in December 1990 when he was tightening a part on a lathe.
Although his pain increased briefly for a while after this
injury, he returned to the same condition as before the
December 1990 injury within a week or two.
*****
[On November 12, 1990 Dr. Neff wrote that he did not believe
claimant had any significant impairment in the right upper
extremity. At that time Dr. Neff recommended a restriction
from repetitious work at and above shoulder height for a
period of one month following resumption of work. (Ex. 19,
page 21) On January 25, 1991 Dr. Neff recommended a
restriction of not more than twenty pounds at or above
shoulder height for a period of time. (Ex. 21, p. 23) On
February 4, 1991 Dr. Neff wrote that claimant had done very
well and "based on essentially almost normal motion, he will
have a 5 percent impairment to his upper extremity." (Ex.
22, p. 24)
On August 3, 1992 claimant was evaluated by Martin S.
Rosenfeld, D.O. On that same date Dr. Rosenfeld wrote:
On examination he has essentially full motion of the
shoulder. He does have some perceptible abductor power
weakness at the right shoulder vs. the left. He does have a
small defect where the distal clavicle was excised as
expected.
No films are available at this time, but due to his
satisfactory result, I feel that he has a five (5%) percent
permanent physical impairment to the right upper extremity
as a result of his injury. This could be construed to be
five (5%) percent to the body as a whole since the surgery
was carried out medial to the distal end of the clavicle.
... He is working without restrictions and I doubt that
there would be any reason to put restrictions on him.
(Ex. 24, page 26)]
***** Claimant stated that he could not continue in his
machinist work at Dayco because of his shoulder problems but
Page 3
he should be able to perform the aircraft maintenance work.
He was able to perform heavy work as a carpenter during
summer work but he stated that he did experience pain in
doing so.
*****
[Claimant was earning approximately $9.00 per hour at the
time of his December 1990 injury. (Tr., p. 43) Claimant's
subsequent earnings are approximately $5.50 per hour during
the summers when he was not attending school. (Tr., p. 39)]
CONCLUSIONS OF LAW
The issue to be resolved is the extent of claimant's
industrial disability. Claimant has had two injuries, one
on April 16, 1990 and one on December 11, 1090. The injury
on April 16, 1990 did not resolve after conservative
treatment and eventually required surgery. It is clear from
the opinions of both Dr. Neff and Dr. Rosenfeld that
claimant's permanent disability resulted from claimant's
April 16, 1990 injury and resulting surgery. Claimant was
able to return to work shortly after his December 11, 1990
injury and has not had medical treatment for the December
11, 1990 injury. The December 11, 1990 injury was a
temporary aggravation of his shoulder condition. Claimant's
permanent disability is a result of his April 16, 1990
injury.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience and inability to engage in employment for which
the employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
Page 4
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Iowa Code section
85.34.
Claimant was 21 years old at the time of his April 19, 1990
injury. That injury has resulted in a five percent
impairment of the right upper extremity. Claimant had
surgery as a result of the injury. That surgery has proved
to be successful. Claimant has no permanent work
restrictions. He has nearly normal range of motion in his
shoulder. Claimant has shown an aptitude and ability for
retraining as evidenced by his post-high school study and
aircraft maintenance training school. Claimant's past
employment primarily consists of heavy manual labor in
manufacturing. Claimant has had a loss of earnings but his
subsequent employment has been limited to summer jobs while
attending school. When all relevant factors are considered
claimant has suffered a ten percent loss of earnings
capacity (industrial disability) as a result of the April
19, 1990 work injury.
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That defendant is to pay unto claimant fifty (50) weeks of
permanent partial disability benefits at the rate of one
hundred sixty-eight and 97/100 dollars ($168.97) per week
from November 18, 1990.
That defendant shall pay accrued weekly benefits in a lump
sum.
Page 5
That defendant is to be given credit for benefits previously
paid.
That defendant shall pay interest on unpaid weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
That defendant shall pay the costs of this matter
including transcription of the hearing and shall reimburse
claimant for the filing fee if previously paid by claimant.
That defendant shall file claim activity reports as
required by this agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ____ day of December, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 6
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311
Mr. Stephen W. Spencer
Mr. Timothy W. Wegman
Attorneys at Law
P.O. Box 9130
Des Moines, Iowa 50306-9130
5-1803
Filed December 20, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JASON A. MEHMEN,
Claimant, File Nos. 947408/970240
vs. A P P E A L
DAYCO PRODUCTS, INC., D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
5-1803
Claimant was 21 years old at time of injury. As a result of
the injury claimant had surgery and a five percent
impairment of the upper extremity. Claimant had no work
restrictions. Claimant had shown an ability for post high
school education. Claimant had an industrial disability of
ten percent.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JASON A. MEHMEN, :
: File Nos. 947408
Claimant, : 970240
:
vs. : A R B I T R A T I O N
:
DAYCO PRODUCTS, INC., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Jason A.
Mehmen, claimant, against Dayco Products, Inc., employer,
hereinafter referred to as Dayco, a self-insured defendant,
for workers' compensation benefits as a result of alleged
injuries on April 16, 1990 and December 11, 1990. On May 4,
1993, a hearing was held on claimant's petition and the
matter was considered fully submitted at the close of this
hearing.
The parties have submitted a hearing report of
contested issues and stipulations which were approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the hearing report, the parties have
stipulated to the following matters:
1. Claimant received the injuries alleged in the
petitions herein both of which arose out of and in the
course of employment with Dayco.
2. Claimant is not seeking additional temporary total
or healing period benefits.
3. At the time of both injuries herein, claimant was
single and entitled to one exemption.
4. Medical benefits are not in dispute.
ISSUE
The only issue submitted by the parties for
determination in this proceeding is the extent of claimant's
entitlement to permanent disability benefits.
Page 2
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is unnecessary to this decision
as defendant did not place claimant's credibility at issue
during the hearing.
Claimant worked for Dayco from January 1989 until
February, 1991. Claimant started operating a deburring
machine and later moved to CNC lathe operation. All of this
work required heavy manual labor at times. Claimant quit in
February 1991 as he felt that he could no longer perform
this work and started attending a vocational school in
aviation mechanics. Although he is not currently attending
school, he is planning on returning to complete his
certification as an aviation mechanic. Claimant has been
working summers as a carpenter performing normal carpentry
duties including heavy labor and heavy lifting from time to
time.
The injury on April 16, 1990 occurred while lifting a
barrel of metal chips. Claimant felt a pop and the onset of
pain in the right shoulder. When conservative initial
treatment from Raul Ruiz, M.D., failed to alleviate symptoms
of pain and numbness, claimant received surgery from Scott
Neff, D.O., an orthopedic surgeon, in July 1990 upon a
diagnosis of impingement syndrome, subsacromial bursitis,
subclavicular spurring and rotator cuff tendonitis.
Claimant returned to work on November 18, 1990 performing
his lathe job with temporary restrictions on lifting at or
above shoulder level. Claimant reinjured the right shoulder
in December 1990 when he was tightening a part on a lathe.
Although his pain increased briefly for a while after this
injury, he returned to the same condition as before the
December 1990 injury within a week or two.
Claimant previously injured his right shoulder in
October 1989 at Dayco while tightening a jaw on his CNA
lathe. Claimant received treatment for this condition and
was off work for a week. He had intermittent pain in the
shoulder after that time. However, according to claimant,
the pain became worse and chronic only after the April 1990
injury.
The work injury of April 16, 1990 is found to be a
cause of a 5 percent permanent impairment to the body as a
whole. The injury of December 1990 did not add to this
impairment. Any apportionment based upon the prior to
subsequent injury would be improper as all injuries occurred
during employment at Dayco. Claimant has no formal work
Page 3
restrictions at present and is able to perform limited heavy
work. However, claimant stated that he could not continue
in his machinist work at Dayco because of his shoulder
problems but he should be able to perform the aircraft
maintenance work. He was able to perform heavy work as a
carpenter during summer work but he stated that he did
experience pain in doing so.
Due to the work injury, claimant cannot return to
repetitive heavy factory work. However, claimant is young
at age 24. If he completes aircraft training school he
could earn substantial similar wages to the wages he
received at Dayco. However, he had not as yet completed
this training. Claimant has a high school education and
three semesters at Elsworth Community College studying
conservation. Claimant's past employment primarily consists
of heavy manual labor in manufacturing.
From examination of all of the factors of industrial
disability, it is found that the work injury of April 16,
1990 was a cause of a 20 percent loss of earning capacity.
The subsequent injury was not a cause of permanent
disability.
From exhibit 25, it is found that claimant's gross
weekly earnings during the 13 representative weeks prior to
the injury of April 16, 1990 was $273.41.
CONCLUSIONS OF LAW
As the claimant has shown that the work injury of April
16, 1990 was a cause of permanent physical impairment or
limitation upon activity involving the body as a whole, the
degree of permanent disability must be measured pursuant to
Iowa Code section 85.34(2)(u). However, unlike scheduled
member disabilities, the degree of disability under this
provision is not measured solely by the extent of a
functional impairment or loss of use of a body member. A
disability to the body as a whole or an "industrial
disability" is a loss of earning capacity resulting from the
work injury. Diederich v Tri-City Railway Co., 219 Iowa
587, 593, 258 N.W. 899 (1935). A physical impairment or
restriction on work activity may or may not result in such a
loss of earning capacity. Examination of several factors
determines the extent to which a work injury and a resulting
medical condition caused an industrial disability. These
factors include the employee's medical condition prior to
the injury, immediately after the injury and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
Page 4
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. See Peterson v Truck Haven
Cafe, Inc. (Appeal Decision, Feb. 28, 1985).
In the case sub judice, it was found that claimant
suffered a 20 percent loss of his earning capacity as a
result of the work injury. Such a finding entitles claimant
to 100 weeks of permanent partial disability benefits as a
matter of law under Iowa Code section 85.34(2)(u) which is
20 percent of 500 weeks, the maximum allowable number of
weeks for an injury to the body as a whole in that
subsection.
Apportionment of disability between a preexisting
condition or injury and the injury at bar is proper only in
those situations where a prior injury or illness "unrelated
to employment" independently produces some ascertainable
portion of the ultimate disability. Tussing v George A
Hormel & Co., 461 N.W.2d 450 (Iowa 1990), Varied
Enterprises, Inc. v Sumner, 353 N.W.2d 407 (Iowa 1984).
Prior existing impairment does not mandate a finding of loss
of earning capacity when there has been no lost earnings or
employment. See Bearce v FMC Corp, 465 N.W.2d 531 (Iowa
1991).
The parties dispute as to rate of compensation centers
around the calculation of her gross wages. As claimant's
hours varied greatly from week to week, the previous 13
weeks must be utilized to calculate the rate. However, this
agency has consistently held that in weeks which contain
absences due to illness, vacation or other causes are not
representative weeks and should be excluded from the
calculation. Lewis v Aalf's Mfg. Co. I Iowa Indus. Comm'r
Rep. 206 (Appeal Dec. 1980). In this case, it was found
claimant's gross weekly earnings were $273.41 at the time of
the injury producing permanent disability. Given the
stipulation as to marital status and exemptions, claimant's
rate of weekly compensation according to the industrial
commissioner published rate booklet for an injury during FY
90 is $168.97.
ORDER
1. Defendant shall pay to claimant one hundred (100)
weeks of permanent partial disability benefits at a rate of
one hundred sixty-eight and 97/100 dollars ($168.9)7 per
week from November 18, 1990.
2. Defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
3. Defendant shall pay interest on weekly benefits
Page 5
awarded herein as set forth in Iowa Code section 85.30.
4. Defendant shall pay the costs of this action
pursuant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
5. Defendant shall file activity reports on the
payment of this award as requested by this agency pursuant
to rule 343 IAC 3.1.
Signed and filed this ___ day of June, 1993.
______________________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Robert W Pratt
Attorney at Law
6959 University Ave
Des Moines IA 50311-1540
Mr Stephen W Spencer
Mr Timothy W Wegman
Attorneys at Law
405 6th Ave Ste 700
P O Box 9130
Des Moines IA 50306-9130
5-1803
Filed June 28, 1993
Larry P. Walshire
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JASON A. MEHMEN, :
: File Nos. 947408
Claimant, : 970240
:
vs. : A R B I T R A T I O N
:
DAYCO PRODUCTS, INC., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SHAWN T. WORTON, :
:
Claimant, :
:
vs. :
: File No. 947422
RON BUYSEE DODGE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WEST BEND MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Shawn T.
Worton, against his former employer, Ron Buysee Dodge, and
its insurance carrier, based upon an injury that occurred on
April 16, 1990, when Worton slipped and fell at his place of
employment. The primary issue in this case is determination
of whether that injury proximately caused Shawn's continuing
back problems, particularly those which commenced on or
about October 1, 1990. Shawn seeks to recover weekly
compensation for healing period, permanent partial
disability, payment of medical expenses and costs.
The case was heard and fully submitted at Davenport,
Iowa, on March 25, 1992. The evidence consists of testimony
from Shawn Worton and David Cozad. The record also contains
exhibits 1 through 25 and 27 through 33.
FINDINGS OF FACT
Having considered all of the evidence received,
together with the appearance and demeanor of the witnesses,
the following findings of fact are made:
Shawn Worton is a 28 year old married man with two
children who had traditionally worked in the auto body
repair field. While employed at Ron Buysee Dodge on April
16, 1990, he slipped on a wet floor and fell, landing
primarily on his right buttock and injuring his low back and
neck. Shawn sought treatment from J. Albert DeBlois, M.D.
Claimant was treated conservatively, remained off work
approximately two days and resumed his employment without
any particular medically imposed activity restrictions.
Shawn's symptoms improved notably following the injury. He
was able to perform his work without any difficulty being
apparent to David Cozad, one of Shawn's supervisors.
In August of 1990, Shawn's back was bothering him and
Page 2
he sought treatment from Mary Jo Delsman, D.C. He was
treated on August 18 and 25, 1990. Shawn returned to Dr.
Delsman on October 1, 1990, with acute low back pain,
demonstrating antalgic posture. Shawn reported that he had
bent over on September 30 and felt a pop in his back. The
notes also indicate that Shawn reported to Dr. Delsman that
his back had not been completely right since he fell at work
on April 16, 1990 (Exhibit 14).
Shawn was taken off work by Dr. Delsman (Ex. 9) and
engaged in a course of treatment from Dr. Delsman running
through January 31, 1991 (Ex. 6). Dr. Delsman reported that
the condition for which she treated Shawn was due to the
fall of April 16, 1990, an injury from which he did not
completely heal (Ex. 14).
On October 18, 1990, Shawn returned to Dr. DeBlois who
found his condition to be similar to that which had existed
in April. Dr. DeBlois expressed the opinion that the back
problem was directly related to the April 16, 1990 work
injury (Ex. 19).
On October 10, 1990, Shawn was examined by neurologist
Michael H. Laws, M.D. Dr. Laws formed the impression that
Shawn had a lumbar radiculopathy at the L5 level of his
spine and recommended treatment in the nature of therapy and
medication (Exs. 22 and 23). A CT scan showed an osteophyte
at the L5 level on the right side of Shawn's spine which
provided an approximate 50 percent stenosis of the neural
foramina (Ex. 23; Ex. 28, pp. 3, 47 and 90). A myelogram
was also conducted which showed a bulging disc of doubtful
significance and which also again showed the osteophyte
which the radiologist concluded might be the cause of a
right L5 radiculopathy (Ex. 28, pp. 25 and 89). The report
goes on to indicate that the osteophyte is probably related
to degenerative changes of claimant's facet joints. An EMG
test was conducted which was interpreted as being normal
(Ex. 28, pp. 48 and 49). Despite the normal EMG report Dr.
Laws continued to feel that claimant had a radiculopathy
(Ex. 27, p. 9). Dr. Laws was also of the opinion that the
October incident was related to the fall which Shawn had
experienced earlier in the month of April 1990 (Ex. 27, pp.
14 and 15).
Shawn was referred to neurosurgeon Richard A. Roski,
M.D. Dr. Roski explained in his deposition that a normal
EMG test does not absolutely rule out the existence of a
radiculopathy (Ex. 31, pp. 8 and 9). Dr. Roski also
explained that the October incident evoked most of
claimant's symptoms and could exacerbate any type of
underlying back problem (Ex. 31, pp. 12 and 13). Dr. Roski
was unable to state whether or not claimant's degenerative
condition which had been observed by the diagnostic tests
had preexisted the April 1990 fall or whether it might have
developed since that April 1990 fall (Ex. 31, p. 11).
Shawn was also evaluated by John S. Koch, M.D., a Cedar
Rapids orthopedic surgeon. Dr. Koch in his report stated:
"I do not feel the injury of April, 1990 was the basis for
Page 3
this as the immediate following difficulty course of
activity was not consistent with any significant injury
having occurred in April."
The various physicians have provided a number of
different impairment ratings. Dr. Roski has recommended
activity restrictions which in general consist of avoiding
repetitive bending, awkward positions or lifting more than
20 pounds.
The only physiology abnormality shown by any of the
diagnostic tests which could provide an anatomical basis for
Shawn's complaints is the osteophyte on the right side at
the L5 level of his spine. The only suggested origin or
cause of that osteophyte is found in a radiology report
where it is suggested that it is probably related to
degenerative changes of the facet joints (Ex. 28, pp. 25 and
89). Dr. Roski agreed that the osteophyte was probably
related to degenerative changes of the facet joints (Ex. 31,
p. 9).
Dr. Roski indicated in his deposition that if
claimant's symptoms were the same in April as they were in
October, then the October incident was an exacerbation or
reinjury of the same problem (Ex. 30, p. 15). It is clear
from the evidence and the course of Shawn's symptoms that
the October incident had a much greater immediate impact on
him than did the April incident. The October symptoms were
much more severe.
Shawn denied having any notable prior back problems and
he appeared to be a credible witness, as did David Cozad.
The record provides nothing to contradict Shawn's denial of
back problems prior to April 16, 1990.
The greater weight of the evidence in this case is that
Shawn Worton has a degenerative condition in his spine which
has produced an osteophyte which encroaches the neural
foramina. The evidence suggests that the radiculopathy
which Dr. Laws has diagnosed and which has not been
disproven by diagnostic tests is a result of the
degenerative condition. There is nothing in the record of
the case which suggests a cause for that degenerative
condition. If Shawn had the degenerative condition prior to
April 16, 1990, it is something which would be quite
susceptible to being aggravate or exacerbated by a fall. It
is a condition which would likewise be susceptible to
exacerbation or aggravation by an activity such as bending
forward or any other activity which might place stress on
his low back. Any such aggravation could be either
temporary or permanent. There is no expert opinion
testimony in the record of this case which relates the
degenerative condition, or any part of it, to the April 16,
1990 fall.
It is found that Shawn's symptoms did not completely
resolve over the summer of 1990 but that he did experience a
great degree of recovery from the symptoms which were
initially present after he fell on April 16, 1990. It is
also found that the residual symptoms during the summer of
Page 4
1990 were not sufficiently severe to prevent him from
performing his work in his customary fashion or to be
observed or noticed by a casual observer such as David
Cozad. Those symptoms were not disabling and did not
prevent Shawn from performing his normal work in his
customary manner.
The record in this case certainly shows it to be
possible that the fall of April 16, 1990 produced some
permanent change in claimant's spine. The evidence,
however, does not reach the level of showing that
possibility to be a probability. It is equally possible
that the April incident was merely one of a series of three
incidents which aggravated an underlying degenerative
condition. The first two, namely, April and August,
provided reasonably prompt recovery while the third,
September 30 or October 1, provided continuing symptoms. It
was the third which led Shawn to seek aggressive medical
care. The evidence which is present in the record of this
case, does not establish that the April 16, 1990 fall was
probably a substantial factor in producing the disability
which afflicted Shawn Worton commencing September 30 or
October 1, 1990, or of producing any residual permanent
impairment, permanent limitations on his physical abilities,
permanent disability or temporary disability beyond the
initial two days he was off work.
CONCLUSIONS OF LAW
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).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement foril 16, 1990 fall in some way caused the disability which
followed the incident of September 30, 1990. From the
record which has been made in this case, it is just as
likely that each of those events was an independent and
separate aggravation of a preexisting degenerative condition
as it is that the April 16, 1990 incident was a substantial
factor in producing the subsequent incident. It is
therefore concluded that Shawn Worton has failed to carry
the burden the law imposes upon him of proving that the
April 16, 1990 fall was more likely than not a substantial
factor in producing the disability which has afflicted him
since October 1, 1990. Claimant is therefore not entitled
to any recovery in this case.
ORDER
IT IS THEREFORE ORDERED:
That claimant take nothing from this proceeding.
IT IS FURTHER ORDERED:
That each party pay the costs incurred by it in
participating in this proceeding.
Signed and filed this ____ day of August, 1992.
________________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr John T Bribriesco
Attorney at Law
Page 6
2828 18th St Ste 4A
Bettendorf IA 52722
Ms Vicki L Seeck
Attorney at Law
600 Union Arcade Bldg
Davenport IA 52801
5-1402.30
Filed August 31, 1992
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SHAWN T. WORTON,
Claimant,
vs.
File No. 947822
RON BUYSEE DODGE,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
WEST BEND MUTUAL,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1402.30
Claimant's claim was denied where there was an admitted
injury that occurred in April of 1990, but the onset of
disability did not occur until October of 1990. The record
indicated a very substantial recovery from the first injury.
The second injury or onset of disability occurred following
activities which did not occur at the employer's work place.
Diagnostic medical testing showed an osteophyte which
encroached the neural foramina and was likely responsible
for his radiculopathy complaints. No medical evidence
attributed that osteophyte to any injury. It was rather
attributed to degeneration.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
MARY UNDERWOOD,
Claimant, File No. 947518
vs.
A R B I T R A T I O N
FARMLAND FOODS,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
________________________________________________________________
STATEMENT OF THE CASE
Claimant, Mary Underwood, has filed a petition in arbitration and seeks
workers' compensation benefits from Farmland Foods, Inc., defendant
self-insured employer, for an injury of March 13, 1990. The hearing
was held before the undersigned on January 12, 1995 at Sioux City,
Iowa. The evidence in this case consists of the testimony of claimant;
Nancy Wiese, company nurse for defendant employer; Mike Mann,
supervisor for defendant employer; joint exhibits 1 through 45;
Claimant's exhibits 46 through 48; and defendant's exhibits A
through R. The case was considered fully submitted at the close
of the hearing. Defendant filed a brief at the hearing.
Claimant filed a post-hearing brief on February 21, 1995.
ISSUES
The parties presented the following issues for resolution:
1. Whether claimant's injury of March 13, 1990 resulted in any
permanent disability and, if so, whether her disability is causally
connected to her work injury;
2. Whether claimant is entitled to permanent partial disability
benefits; and,
3. Whether claimant is entitled to reimbursement for an independent
medical examination pursuant to Iowa Code section 85.39.
FINDINGS OF FACT
The undersigned deputy industrial commissioner, having reviewed all of
the evidence received, finds the following facts:
Claimant, Mary Underwood, was 39 years old on the date of the hearing,
married and the mother of two children, one of whom was still living at
home on the date of the hearing. She obtained a high school diploma
in 1973 and thereafter attended business school for one year.
Claimant's past work history includes work as a nurse's aid, for two
different nursing homes, work in the U.S. Army as a rec specialist and
work as a file clerk and in a grocery store. (Joint Exhibit 1, page 2)
She has worked for defendant employer continuously since April of 1981.
For nine years claimant performed the job of "reel pack operator." As
a reel pack operator claimant was required to place boneless hams into
an automatic stuffing machine. She would first fold the hams in half
then put them into the stuffing chamber and push the start cycle
button. Ham to be processed in the machine came down a chute toward
claimant. The ham wasn't always close enough for her to reach it so
she used a rake to pull the ham pieces close enough to her so she could
easily grab them. Claimant estimated that she used a rake up
to 30 percent of the time she
spent working on the machine. Use of the rake required claimant to
bend her elbows as the meat was pulled closer to her. Occasionally,
larger pieces of ham had to be cut up so they would fit in the machine.
Before beginning work for defendant employer claimant had no disability
of either arm. (Jt. Ex. 1, p. 3) In 1981 claimant's left index finger
was amputated in a work-related accident. Claimant is left handed.
(Jt. Ex. 33)
In January of 1989 Claimant underwent carpal tunnel release on the
right. (Jt. Ex. 9) In April of 1989 claimant underwent carpal tunnel
release on the left. (Jt. Ex. 10) She settled her claim for benefits
with regard her carpal tunnel problems and specifically reserved for
this hearing the issue of her ulnar nerve complaints. (Claimant's
Exhibits 46 and 47)
Defendant stipulated that claimant sustained an injury that arose out
of and in the course of her employment on March 13, 1990.
On March 13, 1990, claimant saw Mary Franklin-Paulus, M.D., and voiced
complaints of intermittent tingling, pain and numbness both hands up to
her elbows as well as pressure sensation in the fingertips. Dr.
Franklin-Paulus' impression was tingling hands. (Jt. Ex. 13, p. 3)
Nerve conduction studies showed mild carpal tunnel syndrome on the
right in the sensory fiber only. The EMG was normal. (Jt. Ex. 14)
Dr. Franklin-Paulus referred claimant to Thomas P. Ferlic, M.D.
On April 4, 1990 claimant saw Dr. Ferlic and complained of aching in
both hands that was different from her pre-carpal tunnel surgery
symptoms. He noted that she performed repetitive flexion of her elbows
as part of her job. She had tenderness over the ulnar grooves
bilaterally. She had point tenderness over the ulnar nerve as it
entered the two heads of the flexor carpi ulnaris. Dr. Ferlic
suspected ulnar nerve symptoms from repetitive flexion. He prescribed
use of splints at night and the use of nonsterodial anti-
inflammatories. (Jt. Ex. 24, p. 1, 2) Claimant was placed on light
duty work with the restriction that she do no repetitive bending or
flexion of her elbows. (Jt. Ex. 17)
On a follow-up visit of April 18, 1990, Dr. Ferlic noted that she
continued to have tenderness over the two head of the flexor carpi
ulnaris. His impression was ulnar nerve neuritis bilaterally.
Claimant was continued on nonsterodial anti-inflammatories and taken
off work for two weeks. (Jt. Ex. 24, p. 2; Jt. Ex. 18)
On May 2, 1990, Dr. Ferlic noted that claimant was tender in both ulnar
grooves. He continued Ansaid and allowed claimant to return to light
duty work. He also noted that he would speak to the employer about a
job which did not involve repetitive flexion of claimant's elbows.
(Jt. Ex. 24, p. 2; Jt. Ex. 19)
On May 23, 1990, Dr. Ferlic thought claimant's ulnar neuritis was
resolving. She was kept on light duty for another month. (Jt. Ex. 24,
p. 3)
On July 12, 1990, Dr. Ferlic continued claimant on light duty and noted
that she had continued tenderness over the ulnar nerve. A tennis elbow
band relieved symptoms of medial epicondylitis but she indicated the
tingling had grown stronger. (Jt. Ex. 24, p. 3)
On August 8, 1990, claimant returned to Dr. Ferlic and requested that
she be allowed to return to work at her regular job and at her regular
hours. Claimant continued to sporadically experience symptoms. When
she returned to work claimant attempted to avoid repetitive flexion of
her elbows. (Jt. Ex. 24, p.3) Claimant credibly testified that she
wanted to return to regular duty work because light duty work left her
in limbo. She explained that defendant employer does not have specific
light duty jobs.
If there was an open job that no one else was doing, claimant was
placed in that job as a light duty job. The plant nurse did not have
any input into work assignments. She was allowed to return to work
without restriction.
On August 27, 1990, claimant was able to bid into a different job
packing carton on the HRI line. (Jt. Ex. 7) This job, which she still
held on the day of the hearing, does not require that she perform the
extensive elbow flexion required in the reel pack job. Claimant bid
into this job because it was the first one that came up that did not
require the extensive repetitive elbow flexions. Mike Mann, an
assistant supervisor, testified that he sees claimant on a daily basis
and that she is a good worker.
He has never had any trouble getting her to do her work. He also
agreed that her current job is less repetitive than the previous work
she did on the reel pack line. He also agreed with claimant's
testimony when she explained how the bidding process worked. The
bidding process was the only way that claimant could move into a less
repetitive job.
Claimant returned to Dr. Ferlic on May 8, 1991 and was still
experiencing tingling in her fingers and problems with ulnar nerve
numbness. There was still some tenderness at her elbows in the cubital
groove. Dr. Ferlic recommended holding off on ulnar nerve surgery.
(Jt. Ex. 24, p. 4)
On May 13, 1991, Dr. Ferlic assigned claimant a 5 percent impairment
rating for her carpal tunnel release. He specifically stated that his
"rating does not include her ulnar nerve symptomatology which she
currently has and [which] has not reached its maximum medical
improvement." (Jt. Ex. 25)
On April 24, 1992, Pat Luse, D.C., evaluated claimant and determined
that claimant had reached maximum medical improvement and that she had
(per the AMA Guides to The evaluation of Permanent Impairment, Third
Edition) a 10 percent impairment rating for each upper extremity due to
mild entrapment of both the right and left ulnar nerves at the elbow.
(Jt. Ex. 32, p. 5) He also determined that claimant would be subject
to recurrent problems in the area of both upper extremities depending
upon the environmental activities she performed. In his opinion
claimant would be restricted from repetitive motion work with either
upper extremity. (Jt. Ex. 32, p. 6) Dr. Luse also determined
that sometime in the future claimant may require surgery for both
ulnar nerves. (Jt. Ex. 32, p. 8)
Repeat nerve conduction studies and an EMG performed in August of 1992
revealed that there was no EMG evidence for an ulnar neuropathy. (Jt.
Ex. 27, p. 2)
John C. Goldner, M.D., examined claimant and reviewed her medical
records for the purpose of an evaluation and on August 20, 1992 opined
that claimant did not have compression of her ulnar nerves and
therefore did not have ulnar neuritis. However, he did conclude that
she had pain in the elbow and in the ulnar nerve distribution and it
was his opinion that the pain was related to tendinitis and the
repetitive use of her arms. (Jt. Ex. 28, p. 2, 3) He further
concluded that claimant did not have any impairment so long as
she did not have to be involved in work that required active
repetitive trauma over a long period of time. (Jt. Ex. 28, p. 3)
The very fact that Dr. Goldner determined that claimant
would have no impairment if she limited her activity, is evidence of
impairment. Without limiting her normal behavior claimant would suffer
from permanent impairment. Dr. Goldner's opinion supports the
conclusion that claimant has suffered permanent disability because she
must limit her activities in order to avoid symptom flare-up.
In his letter of December 21, 1994, Dr. Goldner again confirms
that his diagnosis of tendinitis will have a decreased symptomatology
if activity, or trauma, is decreased or ended.
This is evidence of permanent disability when claimant must refrain
from engaging in conduct in order to avoid symptom flare-up. (Jt. Ex.
29) Dr. Goldner confirmed in December of 1994 that claimant had 0
percent impairment rating, the same rating he had determined in his
report of August 1992.
On December 2, 1994, Frederick R. Entwistle, M.D., performed an
independent medical examination of claimant. He determined that the
fact that there is not a block, as noted on the nerve conduction
studies, does not mean that the ulnar nerves have not been irritated
and inflamed. The nerves clinically appeared to be irritated as Dr.
Ferlic and Dr. Luse pointed out. Use of the elbows and forearms
exacerbated claimant's problems. On examination, the claimant did have
symptoms and findings consistent with bilateral ulnar neuritis.
He determined that the claimant had permanent impairment bilateral
impairment. Per the AMA Guides to Evaluation of Permanent Impairment,
Fourth Edition, he determined that claimant had a 10 percent
impairment to each upper extremity as a result of her bilateral
ulnar neuritis. He also determined that her repetitive production
work for defendant employer from the time she began through March
1990 caused her ulnar problems. Claimant is going to have to be
careful with repetitiveuse of her forearms, wrists and elbows in
the future. (Jt. Ex. 30, p. 5) Again, the fact that claimant will
have to limit her activity in the future to control symptom flare-up
indicates that she suffers from permanent disability.
Dr. Entwistle's fee for performing the independent medical examination
was $500.00 and has been paid by claimant. (Jt. Ex. 48, p. 2)
Claimant traveled 312 total miles to undergo the independent
medical examination. (Jt. Ex. 48, p. 1)
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be determined is whether claimant's work injury of
March 13, 1990 resulted in any permanent disability and if so, whether
the disability is causally connected to her work injury.
The claimant has the burden of proving by a preponderance of the
evidence that the injury is a proximate cause of the disability on
which the claim is based. A cause is proximate if it is a substantial
factor in bringing about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal connection is
probable rather than merely possible. Blacksmith v. All-American,
Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc.,
215 N.W.2d 296 (Iowa 1974).
The question of causal connection is essentially within the domain of
expert testimony. The expert medical evidence must be considered with
all other evidence introduced bearing on the causal connection between
the injury and the disability. The weight to be given to any expert
opinion is determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as other
surrounding circumstances. The expert opinion may be accepted or
rejected, in whole or in part. Sondag v. Ferris Hardware,
220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co.,
217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516,
133 N.W.2d 867 (1965).
Both Drs. Luse and Entwistle clearly have determined that claimant has
permanent impairment and that claimant's permanent impairment is as a
result of not only her work injury but also a result of her work for
defendant employer. Additional persuasive evidence of permanent
impairment is found in the report of Dr. Goldner. While Dr. Goldner
has determined that claimant has no permanent impairment, he has also
determined that to avoid future symptoms or problems claimant should
limit or avoid repetitive work. Dr. Goldner's determination
that claimant should change her work activity indicates that she
has suffered permanent impairment. To avoid ongoing repetitive
use of her elbows claimant has switched to a job that requires
less use of her elbows. It is determined that claimant has
suffered permanent disability and that her permanent disability
is causally connected to her work injury of March 13, 1990 and
to her work for defendant employer.The next issue to be addressed
is claimant's entitlement to permanent partial disability benefits.
Benefits for permanent partial disability of two members caused by a
single accident is a scheduled benefit under section 85.34(2)(s); the
degree of disability must be computed on a functional basis with a
maximum benefit entitlement of 500 weeks. Simbro v. Delong's
Sportswear, 332 N.W.2d 886 (Iowa 1983).
It is determined that Dr. Entwistle's evaluation of claimant's actual
loss of use of her upper extremities is the most reliable. Dr.
Entwistle is more qualified by training and experience. His report is
also the most recent which is indicative of claimant's situation at the
time of the hearing. It is determined based on Dr. Entwistle's report
that claimant has sustained a 10 percent loss of use, due to ulnar
neuritis, of both her left and her right arm. Each 10 percent loss of
the arm converts to 6 percent of the whole person based on
Table 3 of the AMA Guides to the Evaluation of Permanent Impairment,
Fourth Edition. Per the Combined Values Chart of the Guides, page
322, claimant's impairment to the body as a whole is 12 percent.
Thus, claimant is entitled to 60 weeks of permanent partial disability.
The final issue to be determined is whether claimant is entitled to
reimbursement for an independent medical examination.
Iowa Code section 85.39 permits an employee to be reimbursed for
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 responsible only for reasonable fees associated with
claimant's independent medical examination. Claimant has the burden of
proving the reasonableness of the expenses incurred for the
examination. See Schintgen v. Economy Fire & Casualty Co., File No.
855298 (App. April 26, 1991). Defendants' liability for claimant's
injury must be established before defendants are obligated to reimburse
claimant for independent medical examination. McSpadden v. Big Ben
Coal Co., 288 N.W.2d 181 (Iowa 1980).
In August of 1992 Dr. Goldner, an employer retained physician,
evaluated claimant and determined that she had no permanent impairment.
Clearly, claimant believed that Dr. Goldner's evaluation was too low,
thus, she sought an independent medical examination by Dr. Entwistle.
The examination by Dr. Luse was done for another file. Claimant is not
limited to one independent medical examination per employer. The other
file was a different injury with a different injury date. Claimant is
entitled to reimbursement for $500.00 for Dr. Entwistle's
independent medical examination as well reimbursement for her
mileage expense to attend the examination.
ORDER
THEREFORE, it is ordered:
That defendant shall pay claimant sixty (60) weeks of permanent partial
disability at the rate of two hundred sixty_six and 62/100 dollars
($266.62) per week commencing on April 28, 1992.
That defendant shall pay accrued benefits in a lump sum and shall
receive credit for benefits previously paid as set out on the hearing
report.
That defendant shall reimburse claimant five hundred dollars ($500.00)
for the cost of the independent medical examination performed by Dr.
Entwistle, plus the mileage expenses.
That defendant shall pay interest on the award, as governed by Iowa
Code section 85.30.
That defendant shall pay the costs of this action.
That defendant shall file claim activity reports as requested by the
agency.
Signed and filed this ____ day of April, 1995.
_______________________________
TERESA K. HILLARY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Dennis M. McElwain
Mr Harry H. Smith
Attorneys at Law
632-640 Badgerow Bldg
P O Box 1194
Sioux City IA 51102
Ms Judith Ann Higgs
Attorney at Law
701 Pierce St Ste 200
P O Box 3086
Sioux City IA 51102-3086
5-1800; 5-1402.40
Filed April 20, 1995
Teresa K. Hillary
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
MARY UNDERWOOD,
Claimant, File No. 947518
vs.
A R B I T R A T I O N
FARMLAND FOODS,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
________________________________________________________________
5-1808; 5-1402.40
Claimant was determined to have permanent disability based on the
statement of treating and evaluating physicians, particularly because
employer evaluating physician wanted claimant to limit her future
activity. Claimant determined to have 10 percent loss of use of each
arm and awarded 12 percent body as a whole, or 60 weeks of permanent
partial disability. Claimant was allowed reimbursement for an IME,
even though she had a previous IME on a different file for different
injury. The law does not restrict each claimant to only one IME
per employer.