Page 1 before the iowa industrial commissioner ____________________________________________________________ : KATHY McBRIDE, : : Claimant, : : vs. : : File No. 947544 MONFORT, 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 C/O : GALLAGHER BASSETT, INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Kathy McBride, claimant, against Monfort, Inc., employer, and Home Insurance Company c/o Gallagher Bassett, Inc., insurance carrier, defendants, for benefits as a result of an injury which occurred on March 27, 1990. A hearing was held in Des Moines, Iowa, on February 26, 1992, and the case was fully submitted at the close of the hearing. Claimant was represented by Phillip F. Miller. Defendants were represented by Timothy J. Wegman. The record consists of the testimony of John E. Garfield, Ph.D, clinical psychologist; Adela J. Niedermann, claimant's sister-in-law; Kathy McBride, claimant; Susan D. Sears, vocational rehabilitation consultant; Rod Cheney, certified prosthetics specialist; Bary Carl, personnel manager; joint exhibits A with sub-parts 1-7; claimant's exhibits 3, 4 and 5; and defendants' exhibits B, C and E. preliminary matter Claimant objected to defendants' exhibit D. The objection was sustained and the document was not admitted into evidence because it had not been timely served within fifteen days prior to hearing, as required by paragraph 8 of the hearing assignment order. Exhibit D was accepted as an offer of proof at the request of defendants' counsel, as well as a portion of the testimony of Bary Carl relating to the document. Defendants objected to claimant's exhibits 1 and 2. Claimant voluntarily withdrew claimant's exhibits 1 and 2. Both parties voluntarily withdrew sub-part 8 of exhibit A, a deposition of claimant, at the request of the deputy, because claimant was available at the hearing for both Page 2 direct and cross-examination. Official notice was taken of the Guides to the Evaluation of Permanent Impairment (3d ed. chapter 14 through 14.5), and Appendix of the glossary, Transcript, page 16. Claimant was permitted to amend the petition to request an arbitration proceeding instead of a review-reopening proceeding without objection by defendants. Claimant withdrew a motion filed two days prior to hearing to amend the petition to request additional appropriate therapy for claimant for depression and mental injury. Claimant objected to defendants' assertion of a claim pursuant to Iowa Code section 85.38(2) for credit for nonoccupational group plan benefits paid to claimant prior to hearing. The objection was sustained for the reason that this issue was not designated as a hearing issue on the hearing assignment order and the notes of the prehearing deputy do not indicate that this matter was discussed at the prehearing conference. Deputies determine only issues which are designated as hearing issues on the hearing assignment order. Presswood v. Iowa Beef Processors, file number 735442 (Appeal Dec. 1986); Hall v. Larson d/b/a Hilltop Pork, No. 846905 (Appeal Dec. April 22, 1991). Similarly, Deputy Industrial Commissioner Bernard J. O'Malley refused to determine defendants' credit for nonoccupational group health plans, pursuant to Iowa Code section 85.38(2) for the reason that it was not designated as a hearing issue on the hearing assignment order. Burk v. Department of Human Services, File No. 793416, filed May 18, 1989. Claimant withdrew the issue of whether claimant had sustained an occupational disease, pursuant to Iowa Code section 85A which appears as a hearing issue on the hearing assignment order. The parties agreed that the issue shown as alternate care on the hearing assignment order was an issue of whether claimant is entitled to future occupational therapy as a medical benefit under Iowa Code section 85.27 in order to learn how to better use the prosthetic device which replaces her amputated right hand and a portion of her right arm. The deputy determined that the issue of whether claimant had sustained a compensable psychological injury would be determined in the decision because it was raised by the discovery and both parties had ample opportunity to prepare for this issue. Formal rules of pleading are not required in workers' compensation hearings that require a psychological injury to be pleaded in the petition, raised at the prehearing conference or designated as a hearing issue on the hearing assignment order if it is raised by the evidence obtained during prehearing discovery proceedings. Shank v. Mercy Hospital Medical Center, File No. 719627 (Appeal Dec. August 28, 1989). Page 3 Defendants presented a brief description of disputes at the time of hearing. The deputy ordered a transcript of the hearing. Both attorneys submitted excellent posthearing briefs. issues The parties presented the following issues for determination at the time of the hearing: 1. Whether claimant is entitled to permanent disability benefits and, if so, the nature and extent of benefits to which she is entitled to include whether claimant has sustained an injury to a scheduled member or to the body as a whole, and whether claimant has sustained a compensable psychological injury; 2. Whether Iowa Code section 85.34(2), which provides only for limited recovery for scheduled member injuries, is constitutional; and, 3. Whether claimant is entitled to future occupational therapy treatments, pursuant to Iowa Code section 85.27, in order to better use the prosthetic device which replaces her amputated right hand and a portion of her right forearm. findings of fact entitlement to permanent disability scheduled member/body as a whole It is determined that claimant has sustained a scheduled member injury to the right arm which caused a 93 percent loss of use of the arm and that claimant is entitled to 232.5 weeks of permanent partial disability benefits. Claimant, born September 17, 1952, was 37 years old at the time of the injury and 39 years old at the time of the hearing. She started to work for the employer on December 5, 1988, and continued to work for the employer until her injury which occurred on March 27, 1990 (Defendants' Exhibit C). At the time of the injury, she was employed as a quality control inspector at a salary of approximately $18,200 per year (Transcript, pages 143, 144, 168 and 181). Claimant described the injury as follows: A. I was trying to push some of the meat samples into the grinder. Some had got stuck along the side and I wanted all of the meat to go through the sample to give accurate test results. I let my hand slip in too far. The auger of the grinder caught my glove and fingers and pulled my hand down into the main part of the grinder. There was intense pressure and squeezing and a great amount of pain. I immediately braced my left hand against the side of the grinder and began to try to pull my hand Page 4 out. I thought it would come out certainly injured, but when my arm came out, all I saw was a straight bone on the end of my arm and blood was everywhere. (Tr., p. 146) In addition to relating the horrible tragedy which occurred, claimant's testimony is the initial evidence that the injury affected her right hand and arm. Claimant was transported to Iowa Methodist Medical Center where she was treated by Douglas S. Reagan, M.D., an orthopedic surgeon (Joint Exhibit A(1), p. 2), who debrided the right arm stump and packed the wound on March 27, 1990 (Jt. Ex. A(1), p. 3), and debrided and closed the amputation on March 30, 1990 (Jt. Ex. 2, p. 4). Post-operatively, the patient progressed well with minimum or expected discomfort and was discharged on April 2, 1990 (Jt. Ex. A1(1), p. 5). On April 9, 1990, Dr. Reagan saw claimant for a follow-up of the debridement and closure of the amputation of the right arm. He noted that she had done well (Jt. Ex. A(1), p. 6). On April 23, 1990, he saw claimant again for follow-up of the amputation of the right arm and noted that she had done extremely well (Jt. Ex. A(1), p. 6). On May 21, 1990, he ordered a below elbow prosthesis for an amputation of the arm below the elbow (Jt. Ex. A(1), p. 8). On September 20, 1990, Dr. Reagan saw claimant for the final follow-up of the amputation of her right arm through the forearm. He noted that the prosthesis which he described as a bio-electric arm was working quite well and that claimant had good pinch and good control. He noted that claimant was having pain at the mid portion of the distal arm which he suspected was a neuroma which did not require treatment. He noted that she was also having a problem with continuous phantom pain. Dr. Reagan determined that claimant had sustained a "permanent partial impairment of 90% of the upper extremity based on the AMA Guidelines." (Jt. Ex. A(1), p. 7) In addition, he restricted claimant from climbing ladders, working with heavy machinery, and working with grinders. He said she would need a job where she would only use her right hand as a helper hand and that much of the work would be done with the left hand. He imposed a weight restriction of about five pounds to ten pounds for the right hand and said she would not be able to do repetitive activity with her right hand (Jt. Ex. A(1), p. 7). On August 8, 1990, Dr. Reagan wrote: The patient may return to limited duty work activities without use of the right upper extremity effective 8/13/90;...." (Jt. Ex. A(1), p. 1) Thus, in reviewing the notes of the treating orthopedic surgeon, there is no evidence of injury or disability beyond the right forearm and hand. The hospital records show that claimant did not have shoulder, neck or back pain but did have elbow pain (Jt. Ex. Page 5 A(2), pp. 1 and 5). Therefore, the hospital records demonstrate only an injury to the right hand and forearm with some elbow pain without any proof of physical injury to any other part of the body. On April 27, 1990, one month after the injury, defendants provided claimant with a private rehabilitation consultant, Susan D. Sears, R.N., BSN, who described herself as a rehabilitation specialist (Tr., p. 196). Sears worked with claimant from April 27, 1990 until September 20, 1990, when she received the final fitting on her right hand and arm prosthesis (Tr., pp. 107 and 206). A careful examination of the reports submitted by Sears, joint exhibit A(6) and the testimony of Sears at hearing (Tr. pp. 195-215) disclose no mention of physical injury beyond the right arm. Claimant was examined and evaluated on one occasion by Karen Kienker, M.D., a physical medicine and rehabilitation doctor, who reported on July 10, 1991. Dr. Kienker reported that claimant suffered an amputation of her right hand and four inches of her forearm in an industrial meat grinder. Sears reported that claimant was right hand dominant (Jt. Ex. A(6), p. 1), but Dr. Kienker reported that claimant uses her left hand as her dominant hand now. Dr. Kienker further reported that claimant denies any other health problems. This doctor's impression was "[t]raumatic right below elbow amputation." (Jt. Ex. A(7), p. 1) Dr. Kienker related the following evaluation: Her percentage of impairment is rated using the American Medical Association Guidelines, Third Edition. There is a diagram in which if the fingers are all gone there is a 90% impairment and if the arm is gone at the elbow there is a 95% impairment. I rate hers as a 93% impairment of the right upper extremity. (Jt. Ex. A(7), p. 1) Dr. Kienker imposed no restrictions on sitting, standing or walking. She did recommend sedentary work and lifting only up to ten pounds occasionally. She said claimant should avoid work which involves fine coordination of both hands or which requires heavy use of both hands simultaneously. Claimant should avoid climbing ladders. She recommended against claimant's previous job at the meat packing plant because it required heavy use of both hands. The doctor added that claimant had reduced coordination which put her at risk of reinjury (Jt. Ex. A(7), p. 2). Thus, nothing in Dr. Kienker's report indicates any physical injury beyond the right forearm. Shoulder injuries have been determined to be injuries Page 6 to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). However, this is not a shoulder injury. Hip injuries have been determined to be injuries to the body as a whole. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986). However, this is not an injury to the hip. None of the evidence in the case, medical or nonmedical, describes a physical injury beyond the right hand and forearm. Wherefore, it is determined that claimant has not sustained a physical injury to the body as a whole but on the contrary claimant's physical injury is limited to the right hand and arm. Therefore, claimant has sustained a scheduled member physical injury. psychological injury It is determined that claimant has not sustained a psychological injury independent of the normal psychological residual effects that normally accompany and are a part of a traumatic amputation of a limb. Furthermore, it is determined that psychological impairments caused by a scheduled member injury are contemplated by the statute and are not compensable industrially. Claimant was examined by the clinical psychology department of Iowa Methodist Medical Center on the day following the injury on March 28, 1990. The report is signed by what appears to be a psychologist and also a medical doctor. This report states that claimant appeared oriented and communicative and voiced acceptance of the loss of her hand. However, it appeared that because of the acute nature of the injury, she had not yet begun the actual grieving process nor had she even been afforded the time to herself needed to begin this process (Jt. Ex A(2), p. 6). On April 27, 1990, on the first report of Sears, she reported: "The claimant does not feel she needs any further psychological help at this time, as a physchologist [sic] spoke with her at the hospital." (Jt. Ex. A(6), p. 3) In the same report, Sears found claimant pleasant and cooperative and had a very good support system from her family and friends (Jt. Ex. A(6), pp. 1 and 2). On May 21, 1990, Sears reported: "I feel the claimant is handling the loss of her limb quite well." (Jt. Ex. A(6), p.5). Sears' report of June 22, 1990, demonstrates no evidence of any psychological problems. This report discussed with optimism the choice of appropriate prosthesis and a possible return to work in a management position (Jt. Ex. A(6), pp. 8 and 9). On July 25, 1990, there is no evidence of psychological problems but on the contrary Sears reported: "Ms. McBride stated that this was great and was quite excited about her new arm and pleased with the appearance of it. She practiced closing and opening the new limb." (Jt. Ex. A(6), p. 11) On October 24, 1990, Sears Page 7 gives no evidence of psychological injury but on the contrary reports: "Ms. McBride has decided not to return to Monfort. Ms. McBride states that she began school at Marshalltown Community College on August 21, taking a full load of courses in business." (Jt. Ex. A(6), p. 13). On October 15, 1990, in the final report of Sears, there is no mention or indication of psychological difficulties (Jt. Ex. A(6), p. 15). At the hearing, Sears testified that in her opinion claimant was dealing with the loss of her arm quite well. Claimant indicated that somebody had visited her while she was in the hospital concerning the loss of her arm and that claimant was excited about obtaining a prosthesis and the ability it would give her once she received it. Sears testified that claimant never asked for psychological counseling for the loss of her arm (Tr., pp. 198 and 199). Sears testified: "Ms. McBride appeared as if she was handling the loss of her arm quite well. She had appropriate conversation and was talking about everyday activities and dealing with them." (Tr., p. 205) Sears acknowledged that she did not observe claimant after September 20, 1990 (Tr., p. 206). Sears acknowledged that claimant was upset about the loss of her arm but denied that claimant was depressed (Tr., p. 209). Sears admitted that she did not know, interview or talk to any of the family members to determine their observations, nor did she talk to the person who interviewed claimant in the hospital in the clinical psychology department (Tr., p. 213). Rodney W. Cheney, a certified prosthetist-orthotist, testified at hearing that he fitted claimant for the prosthesis. During those sessions, he found claimant to be intelligent and responsive. She did not cry and was not upset. She received an excellent fit on the prosthesis (Tr., pp. 214-218). In a letter dated May 9, 1990, which recommended the myoelectric prosthesis over the conventional body part prosthesis, there was no indication from Cheney that claimant manifested any indications of psychological injury (Jt. Ex. A(5). Bary Carl, personnel manager, testified that he hired claimant and promoted her to the management position in the quality assurance department as a quality assurance technician. He saw claimant in the hospital and a couple of times afterwards. With respect to claimant's appearance on those occasions, Carl testified as follows: "Very good. She always appeared good to me. One of the things that impressed me, that she was of good Iowa stock and levelheaded and dealt with reality and that was why we promoted her. After the accident I was very impressed with the way she handled it." (Tr., p. 228) Carl further testified that when he received the letter from claimant dated August 20, 1990, that she was not coming back to work because she intended to go to school (Defendants' Exhibit B) that he completed the separation and termination papers for claimant on August 22, 1990 (Def. Ex. C). On this form, Carl testified that he rated claimant above average in all categories - quality of work, productivity, ability to get along with others, attendance and punctuality, and safety Page 8 record. In answer to the question, "would you rehire," Carl marked, "yes." (Def. Ex. C). John C. Garfield, Ph.D, a licensed clinical psychologist, testified by report (Ex. A(4), pp. 1-9; Tr., pp. 47-108). He examined claimant for an hour and a half on April 4, 1991, approximately one year after the date of injury. He supplemented his clinical impressions with a Minnesota Multiphasic Personality Inventory (MMPI). He did not make a written report until October 28, 1991 (Tr., p. 49; Jt. Ex. A(4), p. 1). No explanation was offered for the delay between the date of his examination and the date of his report. He testified that claimant displayed symptoms of post-traumatic stress disorder when confronted with reminders of the accident such as the place of her employment and the bloody clothing she was wearing at the time of the injury (Tr., pp. 51 and 52). This was further manifested by nightmares, social withdrawal, her own perception of loss of physical attractiveness and continuous phantom limb pain, a phenomenon experienced by persons who have lost a limb (Tr., pp. 51-54). Dr. Garfield said these symptoms were attributable to the traumatic injury claimant suffered on March 27, 1990 (Tr., p. 58). In his written report on October 28, 1991, Dr. Garfield rated claimant as follows: "In terms of the Guide to Impairment of the American Medical Association I would rate Kathy McBride as having suffered a 20-25% permanent impairment based upon her psychological reactions to the traumatic injury suffered at the Monfort plant on March 27, 1990." (Jt. Ex. A(4), p. 2) Dr. Garfield admitted in his hearing testimony that in the vernacular, he goofed. Because he was not aware that the second edition of the Guides which he used had been superseded by the third edition (Tr. p. 59). The Guides to the Evaluation of Permanent Impairment (3d ed.), published by the American Medical Association, shows that the first printing of the third edition was in November 1988, approximately three years prior to Dr. Garfield's letter of October 28, 1991. Dr. Garfield concluded by opining that claimant was not the normal emotional person that she was before this traumatic amputation; that she has sustained an emotional injury; and, that emotional reactions are systemic and involve the entire central autonomic nervous system including the brain and the head (Tr., pp. 84 and 85). Dr. Garfield acknowledged that he only saw claimant on one occasion, that he did not examine the medical records of Dr. Reagan or Dr. Kienker, nor had he examined the vocational rehabilitation reports of Sears or the report of Cheney. He did not speak with claimant's family or friends (Tr., pp. 87 and 88). He did not talk with any representatives of employer (Tr., p. 92). Dr. Garfield admitted that he had not treated claimant. He said that using the third edition, which no longer gives numerical ratings of impairment, he would place claimant in Class 3, table I, on page 233, which is worded: "impairment levels Page 9 compatible with some but not all useful function." (Tr., p. 105) Claimant was examined by Raymond Moore, Ph.D, a licensed clinical psychologist and neuropsychologist, on February 11, 1992, and he reported on February 14, 1992 that he performed the Mini Mental Status exam and she made a perfect score of 24 out of 24 possible points indicating that her mental capacities of registration, attention and calculation, and language functioning are within normal limits (Jt. Ex. A(3), pp. 1 and 2). On the Pain Inventory, she did not rate the average intensity of the pain very high, giving it a rating of uncomfortable but she stated it was constant and continuous (Jt. Ex. A(3), p. 3). Dr. Moore concluded: Summarizing the data which I collected directly from Mrs. McBride, I asked her about numerous symptoms of psychiatric disorders, but I can make no diagnosis based upon her responses, and I would say that while she is a somewhat shy and sensitive person who tends toward very mild depression, that basically she is a normal person. (Jt. Ex. A(3), p. 5) Dr. Moore examined the report of Dr. Reagan, Dr. Kienker, Dr. Garfield, Iowa Methodist Hospital Clinical Psychology Department, and the reports of Rehabilitation Specialist Sears. Dr. Moore said that except for Dr. Garfield's report, the others opinions which he read also substantiated his own opinion that Mrs. McBride is a normal, mostly healthy woman who has made a good adjustment to the traumatic loss of part of her right arm (Jt. Ex. A(3), p. 6). Dr. Moore also examined the MMPI performed by Dr. Garfield and stated that he found the profile suggests a normal person who is slightly introverted and slightly depressed (Jt. Ex. A(3), p. 6). Dr. Moore testified that his interpretation is that a disability cannot be declared permanent until treatment has failed to remedy it, however, claimant has made no effort whatsoever to seek any kind of treatment for her mild depression. He said claimant is an unimpaired person who puts in a long day as an effective student who is earning a 3.0 grade average, parenting her children, managing her finances, taking care of her own personal needs and helping her mother (Jt. Ex. A(3), p. 7). Dr. Moore's final opinion was as follows: "In summary, I find no evidence that Kathy McBride suffers from a diagnosable mental disorder, I find that she is a normal person, and I see no evidence that the traumatic experience that she had on March 27, 1990, has had any significant impact on her current mental functioning." (Jt. Ex. A(3), p. 8) From the foregoing evidence, it is determined that the opinion of Dr. Garfield is outweighed by the testimony of Dr. Moore, Rehabilitation Specialist Sears, and Dr. Reagan. Page 10 Furthermore, as noted, Dr. Garfield's opinion is flawed in several respects, (1) that he did not examine the reports of the other medical practitioners; (2) he used an outdated edition of the AMA Guides; (3) that claimant has not sought any treatment for psychological injury, but on the contrary the refused treatment when it was offered to her by Sears; and, (4) the forward movement and success that claimant has made of her life through family relationships, financially and scholastically, do not give any evidence that claimant is suffering from a psychological injury. The psychological symptoms that claimant has experienced are an integral part of the grieving and recovery process for a person who has suffered the sudden and unexpected, tragic and traumatic loss of a limb. Even if claimant had proven an independent psychological injury which was the sequelae of the amputation injury, claimant would not be entitled to recover industrial disability benefits for an injury to the body as a whole, because it has been determined by the industrial commissioner that psychological impairments caused by a scheduled member injury are contemplated in the schedule itself and do unto constitute an extension of the injury to the body as a whole Cannon v. Keokuk Steel Casting, File No. 795331 (Appeal Dec. January 27, 1988). Mortimer v. Fruehauff Corporation, File No. 506116, filed February 22, 1990. Cannon was a hearing loss case but the commissioner cited a decision made by himself three months earlier where a claim was made for psychological injuries where he held that benefits for a scheduled member injury under Iowa Code section 85.34 contemplates compensation for any effect on claimant's earning capacity caused by psychological problems stemming from a scheduled member injury. Pilcher v. Pennick & Ford, File No. 618597 (Appeal Dec. October 21, 1987). Mortimer was a psychological injury case. The commissioner's comments in Pilcher were dicta because claimant failed to prove a change of condition in order to be entitled to any benefits. Cannon and Mortimer did decide the issue, however, and are res judicata. The commissioner's decision in Cannon and the deputy commissioner's decision in Mortimer follow an old and established line of precedent that the amount payable for specific injuries includes both payment for the impairment and payment for the reduced capacity to labor. Schell v. Central Engineering Company, 232 Iowa 421, 424, 4 N.W.2d 399, 401 (1942). The schedule which specifically fixes the amount to be paid on account of disability resulting from a single scheduled member injury must be construed as exclusive from all other provisions of the act. Moses v. National Union Coal Mining Co., 194 Iowa 819, 824, 184 N.W. 746, 748 (1921). The Supreme Court of Iowa has recognized the unfairness in the situations, however, it has refused to judicially legislate but has recognized that any change should come Page 11 from the legislature itself. Brugioni v. Saylor Coal Co., 198 Iowa 135, 138, 197 N.W. 470, 471 (1924); Graves v. Eagle Iron Works, 331 N.W.2d 115 (Iowa 1983); Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). entitlement It is determined that claimant is entitled to 232.5 weeks of permanent partial disability benefits based upon a 93 percent permanent physical and functional impairment to the right arm. In this case, Dr. Kienker's evaluation is preferred over that of Dr. Reagan. A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. The weight to be given testimony of a physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. Rockwell Graphics systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). In this case it is determined that Dr, Kienker has arrived at the most accurate determination. An examination of Figure 2 on page 17 of the Guides to the Evaluation of Permanent Impairment (3d ed.), published by the American Medical Association, shows that an amputation of all digits at the metacarpophalangel joint level is considered to be 90 percent of the upper extremity and that an amputation immediately distal to the elbow joint is a 95 percent impairment of the upper extremity. Claimant's amputation is clearly proximal to the metacarpophalangel joint and distal to the elbow joint. She lost approximately four inches off the end of her forearm as well as the complete right hand. Dr. Reagan does not give any explanation at how he arrived at his rating whereas Dr. Kienker does give a complete and accurate description of how she arrived at her rating. Even though the industrial commissioner and deputies do not have the authority to award industrial disability for scheduled member injuries, nevertheless, they ar authorized to prorate compensation payments within established norms when the loss is less than something provided in the schedule. Blizek v. Eagle Signal Co., 164 N.W.2d 84 (Iowa 1969). The established norms in the Blizek decision were to the provisions in the scheduled member statute, section 85.64(2)(n). In this case the established norms are provided by Figure 2 of the Guides to Evaluation of Permanent Impairment, which is found on page 17 of the third edition and page 15 of the third edition (revised). Dr. Kienker's proration of the impairment is found to be fair and accurate based on the norm provided by the AMA Guides. Even though the industrial commissioner and deputies have used a number of factors in addition to impairment ratings in order to determine scheduled member disability over the years, the impairment rating in this case is determined to be the proper amount of permanent partial disability to the right arm. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936); Weiland v. Swanson, File No. 783580 (Appeal Dec. December 29, 1989); Hernandez v. Iowa Page 12 Packing Company, File No. 764529, filed September 25, 1985; Walker v. Sheller Globe Corp., File No. 741065, filed October 12, 1984; Arce v. Sandra pollock, File No. 707677, filed November 8, 1983; Conyers v. Ling-Casler Joint Venture, Vol. 1, No. 2, State of Iowa Industrial Commissioner Decisions, 309 (1984); Langrehr v. Warren Packing Corp., Thirty-fourth Biennial Rep., Iowa Ind. Comm'r 179 (1980); Pizza Hut of Washington, Inc. v. St. Paul Fire & Marine Insurance Company, II Iowa Indus. Comm'r Rep. 317 (1979); Smith v. Winnebago Industries, File No. 824666, filed April 2, 1991. Therefore, Dr. Kienker's rating is preferred over Dr. Reagan's rating. Ninety-three percent of the arm allowance of 250 weeks (Iowa Code section 85.34(2)(m) equals 232.5 weeks. constitutionality of iowa code section 85.34(2) It is determined that the constitutionality of the schedule member provisions of the workers' compensation law has been determined by the Iowa Supreme Court and that this agency lacks the authority to determine the validity of a statute. Spalding v. Emco Industries, File No. 892690 (Appeal Dec. November 28, 1990 written by Clair R. Cramer). It is noted that claimant's counsel in this case also represented claimant in the Spalding case. Probably the most effective way to dispose of this issue in this case is to quote acting commissioner Clair R. Cramer in that case with the following language: Claimant raises as an issue on appeal whether the scheduled member provisions of the Iowa Workers' Compensation Law are constitutional. Claimant contends that these sections of the law in their application to claimant operate to deny her equal protection of the law as compared to other claimants who suffer injuries that extend to the body as a whole, and thus are compensated on the basis of industrial disability. Claimant relies on both equal protection under the U.S. Constitution and Article I, Section 6 of the Iowa Constitution. These sections have been previously upheld by the Iowa Supreme Court as an appropriate determination by the legislature to treat various injuries differently under the workers' compensation system. Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983). Claimant also alleges that the statute is unconstitutional on its fac. This agency lacks jurisdiction to determine the constitutional validity of a statute. Salsbury Laboratories v. Iowa Dept. of Environmental Quality, 276 N.W.2d 830 (Iowa 1979). Wherefore, it is determined that the scheduled member provisions of Iowa Code section 85.34(2) have been determined to be constitutional and that this agency lacks jurisdiction to determine the validity of the statute. occupational therapy Page 13 It is determined that claimant is entitled to future occupational therapy in order to learn how to adapt and more proficiently manipulate the prosthetic device with which she has been fitted. This issue was described variously as alternate care, physical therapy and occupational therapy. Defendants disputed claimant's entitlement to future occupational therapy as described above at the time of hearing (Tr., pp. 8 and 9). Rehabilitation Specialist Sears recommended occupational therapy (Jt. Ex. A(6), p.2) to learn finer motor control of her new prosthetic limb (Jt. Ex. A(6), pp. 11 and 12). Dr. Kienker stated that claimant would likely benefit from occupational therapy in the use of her prosthesis. She only had a brief instruction in its use and very likely would become more skilled with more detailed instruction (Jt. Ex. A(7), p. 2). Sears testified that Cheney mentioned it and Dr. Reagan indicated it was available but it was never set up (Tr., pp. 201, 202, 210, 211). Prostetist Cheney testified he recommended occupational therapy (Tr., pp. 219 and 220) but he did not know if Sears was present at that time. In any event, Cheney testified that it must be ordered by a medical doctor and not by him (Tr., p. 221). Claimant's counsel asserted at the hearing that occupational therapy had been denied (Tr., p. 38). Defendants' counsel maintained that Cheney recommended occupational therapy but claimant did not follow up on it and request it (Tr., p. 46). Claimant acknowledged in her testimony that she had not received any occupational therapy (Tr., p. 163). Claimant related that she did not use the prosthesis very much because she did not know how to operate it well. She maintained that she was never given a referral to an occupational therapist (Tr., pp. 176 and 177). She said the prosthesis is very limited in what it can do (Tr., p. 178). As the hearing ended, claimant was still requesting occupational therapy (Tr., p. 189) because it had never been ordered for her (Tr., p. 191). She was still waiting to be referred for occupational therapy (Tr., p. 194). In his posthearing brief, defendants' counsel stated that employer does not dispute claimant's request for occupational therapy to learn to better utilize the prosthetic device. Wherefore, it is determined that claimant is entitled to future occupational therapy, physical therapy, or other alternate care of good quality and at times and places convenient to claimant as well as medical mileage to and from occupational therapy sessions. conclusions of law Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: Page 14 That claimant sustained a scheduled member injury to her right arm and that claimant did not sustain a physical injury to the body as a whole (Iowa Code section 85.34(2)(m). Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained a psychological injury and if she had done so it would not have been compensable industrially because Iowa Code section 85.34(2) with respect to scheduled member injuries contemplates compensation for any effect on claimant's earning capacity caused by psychological problems stemming from an injury to a scheduled member. Pilcher v. Pennick & Ford, File No. 618597 (Appeal Dec. October 21, 1987); Cannon v. Keokuk Steel Casting, File No. 795331 (Appeal Dec. January 27, 1988); Mortimer v. Fruehauff Corporation, File No. 506116, filed February 22, 1990. That claimant is entitled to 232.5 weeks of permanent partial disability benefits based upon a 93 percent permanent physical and functional impairment to the right arm. Iowa Code section 85.32(2)(m)(u). That claimant is entitled to quality occupational therapy at reasonably convenient times and places and medical mileage compensation for these treatments. That the scheduled member provisions of Iowa Code section 85.34(2) have been determined to be constitutional and that this agency lack authority to determine the constitutionality of the statute. Spalding v. Emco Industries, File No. 892690 (Appeal Dec. November 28, 1990). order THEREFORE, it is ordered: That defendants pay to claimant two hundred thirty-two point five (232.5) weeks of permanent partial disability benefits at the stipulated rate of two hundred twenty-three and 98/100 dollars ($223.98) per week in the total amount of fifty two thousand seventy-five and 35/100 dollars ($52,075.35), commencing on September 19, 1990, as stipulated to by the parties. That all accrued weekly benefits are to be paid in a lump sum. That interest shall accrue, pursuant to Iowa Code section 85.30. That defendants are to arrange for occupational therapy for claimant within thirty (30) days after the signing and filing of this order. Page 15 That the costs of this action including the cost of the attendance of the court reporter at hearing and the cost of the transcript are to be charged to defendants, pursuant to Iowa Code section 86.40 and 86.19(1) and rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as requested by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1992. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Philip F Miller Attorney at Law Saddlery Bldg Ste 200 309 Court Ave Des Moines IA 50309 Page 16 Mr Stephen W Spencer Mr Timothy W Wegman Attorneys at Law 218 6th Ave Ste 300 P O Box 9130 Des Moines IA 5030 Page 1 5-2903; 5-2906; 5-1803.1; 1108.20; 1108.50; 1401; 1402.40; 2204; 1803; 2301; 2302; 2902; 2906; 2501; 2504; 2700 Filed March 31, 1992 Walter R. McManus before the iowa industrial commissioner ____________________________________________________________ : KATHY McBRIDE, : : Claimant, : : vs. : : File No. 947544 MONFORT, 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 C/O : GALLAGHER BASSETT, INC., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2903; 5-2906 Claimant objected to defendants' proof of payment supporting defendants' claim for credit under section 85.38(2). The exhibit was excluded because it was not timely served pursuant to paragraph 8 of the hearing assignment order. In fact, it had never been served and was first produced at the hearing. It was admitted as an offer of proof as well as a portion of the testimony of the personnel manager on the issue of non-occupational group health plan credits. Claimant was allowed to amend the petition to designate an arbitration proceeding rather than a review-reopening without objection from defendants. Claimant objected to defendants' assertion of a claim for section 85.38(2) credit. This issue was not designated as a hearing issue on the hearing assignment order nor was it noted by the prehearing deputy at the prehearing conference. Claimant's motion was granted and this issue was not addressed in the decision. Deputies determine only issues raised at the prehearing conference and designated as hearing issues on the hearing assignment order. Cites It was not necessary to specify psychological injury as a hearing issue on the hearing assignment order because it Page 2 was raised by the prehearing discovery and both parties were prepared to present evidence on this matter. Cite Claimant withdrew the issue of whether claimant had sustained an occupational disease which was shown as a hearing issue on the hearing assignment order. 5-1803.1 Claimant's loss of her right hand and about four inches of her right forearm in a meat grinder that resulted in amputation of her right hand and a portion of her forearm was determined to be an injury to a scheduled member, the right arm, and not an injury to the body as a whole. 1108.20; 1108.50; 1401; 1402.40; 2204 Claimant did not prove that she sustained a psychological injury. The weight of the evidence is that she did not sustain a psychological injury. The psychological symptoms that she suffered were an integral part of the sudden and unexpected, tragic and traumatic loss of her limb. Claimant was only seen once by psychologists in the hospital but was never subsequently treated for a psychological injury. Treatment was offered several times and claimant refused it. Moreover, if claimant had sustained a psychological injury which was sequelae of the arm amputation injury, claimant would not be entitled to body as a whole permanent partial disability benefits awarded industrially for the reason that the industrial commissioner has determined that psychological impairments caused by a scheduled member injury are contemplated in the schedule itself and do not constitute an extension of the injury into the body as a whole. Cites 1803 The AMA Guides allow 90 percent of the arm for an injury that amputates the fingers at the metacarpophalangeal joint and 95% of the arm for an amputation just immediately distal to the elbow. The treating physician assessed a 90% permanent impairment. Claimant's evaluator assessed a 93% permanent impairment. Claimant's evaluator was more accurate than the treating physician. Claimant's evaluator explained her rating; defendants' evaluator made no explanation. Since the amputation was several inches proximal to the fingers, then 90% was obviously not correct based on the AMA Guides, because it did not consider the metacarpal bones or the distal four inches of claimant's right forearm. Claimant's evaluator properly prorated the permanent between the two norms prescribed by the AMA Guides. Cites Even though the industrial commissioner and deputies may consider other factors other than impairment ratings to determine scheduled member disability, it was determined in this case that the impairment rating accurately and fairly Page 3 measured claimant's permanent partial disability. Cites 2301; 2302; 2902; 2906 It has previously been determined by the industrial commissioner that the scheduled member provisions of section 85.34(2) have been found constitutional by the supreme court and that the agency lacks the jurisdiction to determine the constitutionality of the statute. Cites 2501; 2504; 2700 The weight of the evidence supported the proposition that claimant was entitled to future occupational therapy designed to instruct claimant in how to more effectively and proficiently use the myoelectric forearm and hand prosthesis. Although defendants opposed it at the hearing, defendants conceded that claimant was entitled to occupational therapy in their post hearing brief. defendants were ordered to arrange quality occupational therapy within 30 days of the decision at reasonable times and places for claimant and to also pay medical mileage to obtain it. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TEDD A. NORMAN, : : Claimant, : : vs. : : File No. 947582 DON AND TEDD'S TRUCK & : AUTOMOTIVE SERVICE, INC., : A P P E A L : Employer, : D E C I S I O N : and : : WEST BEND MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. ISSUES Defendants state the following issues on appeal: Whether the claimant sustained a personal injury arising out of and in the course of his employment with the employer herein on May 28, 1990; Whether or not there is a causal relationship between medical care and treatment rendered after claimant's first surgery, and the injury of May 28, 1990 resulting in medical expenses pursuant to section 85.27, Iowa Code; and, The determination of the nature and extent of claimant's disability resulting from the injury of May 28, 1990, if said injury arose out of and in the course of employment. FINDINGS OF FACT The findings of fact appearing in the proposed arbitration decision, pages 1 to 12, through paragraph ending "the May 28, 1990 injury" are accepted and adopted as final agency action. CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed February 24, 1994 are adopted as set forth below. It is intended that these conclusions shall stand in lieu of Page 2 those of the arbitration decision. The industrial commissioner accepts the causal relation testimony of John Sinning, Jr., M.D., with regard to the second and third surgeries. Dr. Sinning's letter of February 4, 1992 is accepted with regard to lack of causal relationship. The commissioner specifically finds in addition to Dr. Sinning's letter, that his testimony given January 19, 1994 is supportive of this conclusion as the physician testified at page 31 of his deposition: Q. Okay. Dr. Sinning, for our record have you had an opportunity to look at Dr. Jones' letter to Carol Nietzel [sic] of February 5, 1991, and a letter to the attention of Carol Nietzel [sic] from April 20, 1991? A. Yes. Q. Okay. Is it fair to say that you and Dr. Jones disagree about the cause for his January 1991 surgery? A. Yes. Q. Okay. Is there something, doctor, about the work neurosurgeons as opposed to orthopedists do that would give rise to your difference in opinion, or is this a matter, doctor, upon which reasonably trained and competent surgeons no matter their board certification can and do disagree about? .... A. Neither. Q. Okay. As a layperson, doctor, why does Dr. Jones causally relate his January surgery to the May incident of 1990 and you don't? A. Dr. Jones is proposing that a disk ruptures over time because of an injury, and he proposes here that an injury in May over a period of time caused a disk rupture that became apparent in December, seven months later. That's contrary to medical fact and contrary to medical opinion. Ruptured disks occur directly as a result of a specific injury. The disk degeneration that is part of everyday living does go on over time and then a specific incident, sometimes an injury at work, sometimes something as simple as a sneeze, causes that disk to rupture. (Joint Exhibit C, page 31, line 15 through page 32, line 25) As a result of this decision, it is specifically held that claimant's second and third surgeries, or all treatment rendered after the first surgery, were not caused by the traumatic incident of May 28, 1990. However, it is held that claimant did sustain a personal injury arising out of the course of his employment on May 28, 1990 with Don and Tedd's Truck and Automotive Service, Inc.; and further that he is entitled to healing period benefits commencing May 28, 1990 through January Page 3 5, 1991; and further, that said injury resulted in industrial disability of 30 percent or 150 weeks at the stipulated rate of $195.77. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants pay unto claimant healing period benefits at the rate of one hundred ninety-five and 77/l00 dollars ($195.77) for the period beginning May 28, 1990 through January 5, 1991 totalling thirty-one point eight-five-seven (31.857) weeks. That defendants pay claimant one hundred fifty (150) weeks of permanent partial disability benefits at the rate of one hundred ninety-five and 77/l00 dollars ($195.77) beginning January 5, 1991, the day following the end of the healing period. That defendants have paid all reasonable and necessary medical expenses consistent with the conclusions of law reached herein; and further, that the defendants are not responsible for medical bills listed and previously ordered awarded in the arbitration decision. That defendants shall pay the cost of this action pursuant to rule 343 IAC 4.33. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall file an activity report upon payment of this award as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Page 4 Mr. E. J. Giovannetti Ms. Anne L. Clark Attorneys at Law Terrace Center STE 111 2700 Grand Avenue Des Moines, Iowa 50312 5-1100; 5-1108; 5-1802 5-1803; 5-2206; 5-2500 Filed May 11, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : TEDD A. NORMAN, : : Claimant, : : vs. : : File No. 947582 DON AND TEDD'S TRUCK & : AUTOMOTIVE SERVICE, INC., : A P P E A L : Employer, : D E C I S I O N : and : : WEST BEND MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100; 5-1108; 5-1802; 5-1803 Found 32-year-old claimant incurred an injury that arose out of and in the course of his employment resulting in a 60% industrial disability award and healing period. 5-2206 Found claimant's preexisting degenerative disease was substantially and materially aggravated and lighted up by claimant's work injury. 5-2500 Found defendants have paid all reasonable and necessary medical expenses; further, defendants are not responsible for medical bills listed and previously ordered awarded in the arbitration decision. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ FRANK E. DAVIS, Claimant, File No. 947688 vs. A L T E R N A T E RUAN LEASING COMPANY, M E D I C A L Employer, C A R E and D E C I S I O N CRAWFORD & COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE Frank E. Davis filed a petition for alternate medical care under Iowa Code section 85.27, invoking the summary procedures of rule 343 IAC 4.48. He sustained an injury on April 12, 1990, arising out of and in the course of employment with Ruan Leasing Company and is now dissatisfied with medical treatment provided by that employer. Mr. Davis' petition for alternate medical care was filed on September 2, 1992. A telephone conference hearing was thereafter held on September 15, 1992. Claimant participated personally and by counsel, Michael P. Brice. Defendants were represented by Stephen W. Spencer. The evidentiary record consists of claimant's testimony. No documentary evidence was presented by either party. The hearing deputy recorded the entire hearing via audio tape. Defendants were required through counsel to respond to the allegations of claimant's petition. Defendants admit that claimant sustained injury arising out of and in the course of employment on April 12, 1990, that the injury caused need for medical treatment and that liability on the claim is not generally disputed. Defendants denied that the treatment was reasonably suited to treat the injury without undue inconvenience or that claimant has communicated his dissatisfaction. Page 2 ISSUE The sole issue presented for resolution is: 1. Whether defendants should be ordered to provide alternate medical care under Iowa Code section 85.27. findings of fact Claimant sustained injury on April 12, 1990, and was thereafter treated by Dr. Berg in Des Moines. Dr. Berg eventually released claimant to return to work without restriction, and claimant accepted employment with another trucking firm on September 21, 1991. He remains so employed in a job that requires him to lift weights in excess of 90 pounds. Except for occasional treatment by two chiropractors, which claimant does not claim is related to the work injury, no further medical treatment was requested until August 1992. Upon representation by claimant's attorney that immediate need was required, defendants made an appointment with Dr. Berg's partner, Dr. Blessman. Dr. Blessman prescribed one week's therapy and released claimant to return to work. Mr. Davis' is dissatisfied with Dr. Blessman's care. He believes Dr. Blessman was ill-prepared to see him on the first visit, that he treated him too roughly in evaluating range of motion, and, no doubt most significantly, found nothing wrong. Mr. Davis now wishes authorization to see Dr. Berg again. CONCLUSIONS OF LAW In pertinent part, Iowa Code section 85.27 provides: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. The statute was amended by House File 2250 in the 74th General Assembly, affected July 1, 1992. The amendment required the industrial commissioner to provide a method to expeditiously resolve disputes under this section. Claimant is dissatisfied with the care provided by Dr. Blessman. Under the statute, employer has the right to choose medical treatment although it must be offered promptly and be reasonably suited to treat the injury without undue inconvenience. The statute does not require that claimant be satisfied with the treatment. The Page 3 commissioner may order alternate care, but only "upon application and reasonable proofs of the necessity therefor." The statute is couched in terms of necessity, not desirability. It is claimant that seeks relief in this case. He bears the burden of proof to show that the medical treatment provided by defendants is not reasonably suited to treat the injury without undue inconvenience. The party who would suffer loss if an issue is not established has the burden of proving that issue by a preponderance of the evidence. Iowa Rule of Civil Procedure 14(f). Two physicians have released claimant without restriction. The treatment provided by Dr. Blessman is on the order of one year after claimant was released by Dr. Berg without restriction, and after he returned to work in a physically demanding job with another employer. Claimant offers no expert opinion to show that Dr. Blessman's treatment failed to meet the statutory standard that it be reasonably suited to treat the injury. Claimant is not qualified to pass on the wisdom of Dr. Blessman's professional judgment. Although claimant's petition alleges that the care is unsuitable due to distance, he withdrew that allegation at hearing. As claimant has failed to establish his right to alternate treatment, the issue must be resolved in favor of defendants. ORDER THEREFORE IT IS ORDERED: Claimant's petition for alternate medical care is denied. Signed and filed this ____ day of September, 1992. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Michael P Brice Attorney at Law PO Box 1143 Oskaloosa Iowa 52577 Mr Stephen W Spencer Attorney at Law 218 Sixth Avenue Ste 300 PO Box 9130 Des Moines Iowa 50306-9130 1402.60; 2700 Filed September 26, 1992 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ FRANK E. DAVIS, Claimant, File No. 947688 vs. A L T E R N A T E RUAN LEASING COMPANY, M E D I C A L Employer, C A R E and D E C I S I O N CRAWFORD & COMPANY, Insurance Carrier, Defendants. ___________________________________________________________ 1402.60; 2700 Claimant failed to meet burden of proof in showing medical care not reasonably suited to treat the injury without undue inconvenience. About one year after he had been released without restriction, claimant requested immediate treatment and was sent to partner of the original physician. After one week of therapy, he was again released without restriction. Dissatisfaction with treatment is not the statutory standard. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JODIE L. COAN, Claimant, vs. File No. 947809 JOHN MORRELL & COMPANY, 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 upon the petition in arbitration filed by claimant, Jodie Coan against her employer, John Morrell & Company, and its insurance carrier, Home Insurance Company. The parties agree that claimant sustained injury arising out of and in the course of that employment on November 2, 1989, but disagree as to the nature and extent of permanent disability, if any. A hearing was accordingly held in Sioux City, Iowa on May 19, 1993. Claimant, Dr. Horst Blume and Jay Everett testified personally. The record also contains joint exhibits 1 through 53, defendants' exhibits A through D and claimant's exhibits 1, 2, and 4. ISSUES The parties have stipulated that claimant sustained injury arising out of and in the course of employment on November 2, 1989, and that the injury caused temporary disability, the extent of which is no longer in dispute. The parties also agreed to the appropriate rate of compensation ($207.44 per week) and agree that defendants are entitled to credit for benefits voluntarily paid prior to hearing. Issues presented for resolution include: (1) Whether the injury caused permanent disability; (2) The nature and extent of permanent disability, if any; and, (3) Entitlement to medical benefits under Iowa Code section 85.27. The disputed medical expenses are for charges of Dr. Blume. These include both an examination (including various tests) and a charge to review the file, presumably for Page 2 preparation of the doctor's report. Defendants dispute whether those fees are fair and reasonable, whether the treatment was reasonable and necessary, and whether the treatment is causally connected not only to the work injury, but even to the condition upon which this claim is based, and whether those expenses were authorized. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Jodie Coan, 27 years of age at hearing, took employment with John Morrell & Company in July, 1989. John Morrell is engaged in the meat packing industry. Claimant took a job on the kill floor, but was working on the derind line when she developed the symptoms that constitute injury in this case. Her job involved sliding pork bellies onto a scale, then lifting and placing the bellies in a container. Most bellies weigh 10 to 13 pounds, although a rare specimen may reach 18.5 pounds. On November 2, 1989, claimant visited the plant nurse with complaints of hand, thumb, first and second digit pain. She was referred to D. M. Youngblade, M.D., and eventually seen on November 20. Dr. Youngblade returned her to light duty work, charting painful and sensitive digits on the left hand. Claimant was to reduce left wrist activity and was given a splint. On January 15, 1990, claimant was better, but complained that grasping with the left hand caused pain. The light work she had been given was that of splitting heads, which Dr. Youngblade thought seemed beneficial. By February 6, claimant's left thumb was noted as better and diagnosis was of tendonitis of the left thumb. However, claimant was to stay out of cold, moist areas because she had developed symptoms that have since been diagnosed as Raynaud's phenomenon, a vascular disease afflicting the extremities. By March 1, claimant also had developed symptoms in the right hand. Dr. Youngblade saw claimant a total of five times between November 20, 1989 and March 28, 1990. In addition to cold hands, claimant complained of wrist and thumb pain, especially on the left side. Dr. Youngblade charts no complaints of numbness, nor of problems affecting any other part of the body, such as the neck or shoulders. Claimant was next referred to Alan Pechacek, M.D.. Dr. Pechacek saw claimant on numerous occasions between April 17, 1990 and May 9, 1991. On the first visit, Ms. Coan made complaint of persistent pain over the radial aspect of the wrists, extending into the thumb. Left was worse than right. Dr. Pechacek's initial impression was of (1) DeQuervain's tendonitis involving the extensor tendons to both thumbs; and (2) bilateral Raynaud's phenomenon. After numerous medications failed to bring relief, Dr. Page 3 Pechacek performed a tendon sheath release in November 1990. Unfortunately, the procedure failed to relieve symptoms. Due to the lack of success, a similar procedure was not performed on the right side. On May 9, 1991, claimant underwent a functional capacity evaluation. The occupational therapist, Melissa Pierce, suggested certain limitations, but noted that claimant's efforts "were not consistent and indicate full effort was not given." Dr. Pechacek charted that there was not much more he could offer the patient and imposed restrictions of light duty work, not in a cold environment. Claimant was to avoid prolonged or heavy gripping, prolonged heavy grasping, prolonged heavy pushing and pulling with a limit of less than 25 pounds occasionally. She should reduce or avoid repetitive hand and wrist motion and should not use a knife, hook or electric knife. Lifting restrictions were 25 pounds from floor to waist, 15 pounds from waist to shoulder and 10 pounds above shoulder level. Claimant was released PRN. Dr. Pechacek's extensive chart notes reflect absolutely no complaints of numbness or any problems other than in the hands. On May 17, 1991, Dr. Pechacek rated claimant as having a zero impairment rating pursuant to the AMA Guides to the Evaluation of Permanent Impairment, noting that the Guide is based on range of motion measurements, not pain or loss of other function. Claimant had full range of motion of the wrist, thumb and fingers. Claimant was seen by Dr. Kuhnlein in October 1990. His diagnosis was of bilateral DeQuervain's syndrome. His records do not reflect complaints other than in the hands. On August 26, 1991, claimant was seen for evaluation by Michael T. O'Neil, M.D.. Claimant conceded that Dr. O'Neil was her selected physician for an independent medical examination under Iowa Code section 85.39. Dr. O'Neil concurred with Dr. Pechacek that claimant suffered chronic tenosynovitis of the wrist including the first extensor compartment (DeQuervain's syndrome) and cold induced Raynaud's phenomenon. He recommended that claimant avoid work requiring cold or damp climates and should avoid repetitive flexion, extension and grasping and releasing of both hands. Although noting that claimant had normal range of motion of both wrists and fingers, Dr. O'Neil assigned a 5 percent permanent impairment rating related to both conditions. Dr. O'Neil does not specifically discuss whether any causal nexus exists between the work and claimant's Raynaud's phenomenon. There is no indication of symptoms located other than in the hands and wrists. Records of the Grandview Medical Clinic show that claimant was seen on June 12, and September 26, 1991. On the first occasion, claimant had chest pain, light headedness and tachycardia, along with pain in the right scapular region. In September, she reported pain from the left front radiating to the left shoulder blade. Claimant last worked for John Morrell in March 1990. Page 4 June and September 1991 mark the first complaints of shoulder pain appearing in any medical records. Well over a year separates the events. Beginning December 17, 1991, claimant began a course of treatment with David Paulsrud, M.D.. Dr. Paulsrud's chart notes reflect complaints of numbness and tingling in the hands which he diagnosed as cervical outlet syndrome. Dr. Pechacek does not directly discuss causation, except that he notes claimant's past medical history is significant with respect to synovitis in the hands "and has a permanent impairment disability from work comp." Thus, his only statement tending to support causal nexus between claimant's work and her medical problems is limited to the hands. On January 28, 1993, Dr. Paulsrud rated claimant's impairment at zero. Although his diagnosis continued to be of cervical outlet syndrome, he charted that claimant demonstrated full range of motion of the upper extremities. For at least the second time, he notes drooping of the shoulders. Claimant was seen for evaluation by Horst G. Blume, M.D., on March 15, 1993. By this time, Ms. Coan complained of pain coming from the neck into the left shoulder girdle, down the left arm into the left hand with intermittent tingling in the second and third fingers of the left hand and of a cold feeling in the left fingers. Dr. Blume diagnosed a nerve root irritation in the C6 distribution with sensory and pain condition and cervicogenic headaches as well as Raynaud's phenomenon. He also found evidence of reflex sympathetic dystrophy, status post previous hand surgery on the left, irritation of the left acromioclavicular joint and thoracic outlet syndrome, and anterior scalenus syndrome on the left (however, in his report of March 18, Dr. Blume specified that he found no evidence of thoracic outlet syndrome). Assigning a permanent impairment rating to the body as a whole of 10 to 15 percent, Dr. Blume concluded that repetitive work activity as well as the "particular accident" on November 2, 1989 were responsible for claimant's condition. Actually, there was no particular accident on November 2, 1989; that was the date claimant first sought medical attention at the plant medical department. However, as to claimant's chronic tenosynovitis problem, Dr. Blume found no symptomatology whatsoever. Claimant was also seen for evaluation by Joel T. Cotton, M.D.. She was seen on April 16, 1993. Dr. Cotton, a board certified neurologist, agreed with the diagnoses of DeQuervain's tenosynovitis. As did Dr. Pechacek, he found no loss of range of motion in either hand or wrist and assigned no permanent impairment to that problem. Dr. Cotton found no evidence indicative of cervical outlet syndrome, irritation of the brachial plexus, irritation of the sixth cervical nerve root or of anterior Page 5 scalene syndrome. In addition to finding no evidence of these conditions, Dr. Cotton opined that any past consideration of such irritation was not causally related to claimant's employment at John Morrell. In this connection, he pointed out the huge time gap between claimant's last work and the development of symptoms requiring treatment in December 1991. Dr. Cotton also found no evidence to suggest a condition of reflex sympathetic dystrophy. The hands were easily manipulated without complaint, claimant showed no atrophy of the skin or nails, and had no abnormal perspiration pattern. Dr. Cotton was unimpressed by Dr. Blume's use of thermography, pointing out that the procedure is not accepted by the American Academy of Neurology and that pursuant to Medicare policy, Iowa Medicaid has declared thermograms not compensable. Dr. Blume had found, based largely upon thermogram testing, that claimant suffered a mild case of reflex sympathetic dystrophy. Dr. Cotton also pointed out that some three years had elapsed between claimant's last work for John Morrell and her examination by Dr. Blume, the first physician to suggest the presence of reflex sympathetic dystrophy. Dr. Cotton also pointed out that Raynaud's phenomenon is a disorder of unknown cause, and that females are most commonly afflicted. Exposure to cold or emotional stimuli may trigger the response, but cold does not itself cause the condition. It is worth noting that claimant had been previously employed by another meat packer, IBP. Nurse's notes from that plant dated January 1988 show complaints of redness in the palm of the right hand; a physician (name illegible) concluded that claimant had sustained no injury, but that this was a normal reaction to cold. Claimant, in her application for employment with Morrell, requested that she not be assigned to a cold environment. It seems clear that symptoms of Raynaud's phenomenon preceded her employment with Morrell. conclusions of law The parties agree that claimant sustained injury arising out of and in the course of employment. The fighting issue is whether the injury caused permanent disability, and if so, the extent; specifically, whether the injury extends into the body as a whole because of the late-developing symptoms described by Dr. Blume. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within Page 6 the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Claimant has been seen by a number of physicians. Only two, Dr. Paulsrud and Dr. Blume, find evidence of symptoms beyond the hands. Dr. Blume's opinion -- that all the physical problems he diagnosed were caused by repetitive work at Morrell -- stands alone. First, it is not at all certain that claimant has the wide range of conditions outlined by Dr. Blume. Dr. Cotton, a highly qualified neurologist, specifically believes not. Dr. Blume, while also board certified in his specialty, is currently practicing medicine on a probationary status. He is barred from performing certain craniotomies at a local hospital except in association with a second physician. He is the only local physician who relies on thermograms, a procedure not shown to be accepted by the medical establishment and not compensable by Medicaid or Medicare. It is also noted that Dr. Blume's opinions have frequently been offered in evidence before this agency. In agency experience, those opinions rather consistently tend to favor claimants. Under Iowa Code section 17A.14(5), it is appropriate to consider agency experience in evaluating Dr. Blume's opinion. Davis v. Rose Haven Nursing Home (Appeal Decn. July 26, 1993). But, the main problem in accepting Dr. Blume's opinion on causation is the extensive time gap between claimant's last work for John Morrell and the development of numbness and symptoms beyond the wrists and thumbs. Dr. Blume does not hypothesize a mechanism for explaining the greatly belated development of symptoms. Although Ms. Coan's brief claims that "Dr. Blume testified many times a final diagnosis of cervical outlet syndrome scalene syndrome and/or C6 nerve irritation does not manifest itself until some years after the event(,)" a careful review of the transcript fails to find support for her allegation. On only two occasions does Dr. Blume even come close to expressing such an opinion. At page 6 of his transcribed testimony, Dr. Blume found claimant's history consistent with reported symptomatology, "even though in the beginning patient had some kind of tendonitis for which the patient was treated appropriately by orthopedic doctors." And, at page 16, Dr. Blume testified that the cervical outlet syndrome he diagnosed in claimant developed gradually. This is a tenuous tie to the original work injury. Claimant was actually taken off the derind line in November 1989 and had improved somewhat by March 1990. Symptoms Page 7 consistent with cervical outlet syndrome, including numbness in the extremity, were not complained of until December 1991. Even Dr. Blume agrees that other conditions can cause or aggravate such an impingement syndrome, including lifting heavy weights and poor posture. Claimant agrees that she carried her children and grocery bags during the intervening time, and the records of Dr. Paulsrud make note of claimant's stooped posture. This writer observed that claimant exhibited a noticeably slumped or stooped posture during the course of hearing. Dr. Blume in part buttresses his opinion with the repeated assertion that Dr. Youngblade charted numbness early on. In fact, a review of Dr. Yongblade's records does not confirm Dr. Blume's understanding. On November 20, 1989, Dr. Youngblade charted "sort of a peculiar sensation" involving the thumb, first and second fingers. This is the only reference in Dr. Youngblade's records that even suggests complaints of numbness. During Dr. Pechacek's lengthy treatment, his only mention of such symptoms is when he points out that claimant did not complain of numbness. While Dr. Paulsrud also diagnosed a cervical outlet syndrome, he apparently did not find it significant, since he found that claimant had zero impairment. Dr. Cotton opined that claimant had no such symptoms, and that any past consideration of such a syndrome was not caused or related to claimant's employment. It must be concluded, then, that claimant has failed to prove that the various conditions described by Dr. Blume bear a causal nexus to the original work injury. This leaves for consideration the original diagnoses of Dequervain's tenosynovitis and Raynaud's phenomena. The evidence does not show that work at John Morrell caused (or aggravated or lit up) development of Raynaud's phenomenon. Dr. Cotton's testimony is consistent with agency experience: Raynaud's is an idiopathic condition of unknown etiology which becomes symptomatic, especially in females, in the presence of cold or emotional stress. Claimant apparently had early signs of Raynaud's phenomenon in her previous employment with another packinghouse, IBP. Dr. Pechacek specified that the two conditions were independent problems. Cold conditions at John Morrell merely provided a stage for the preexisting condition to manifest itself. Come at last we must to the thorniest issue: what, if any, disability was caused by claimant's bilateral development of DeQuervain's tenosynovitis. There are at least three reasonable solutions. First, it can be concluded that claimant sustained permanent impairment to the wrists as shown by the fact that Dr. Pechacek, the treating surgeon, imposed substantial restrictions on activities. While Dr. Pechacek gave claimant a zero impairment rating, he specifically did so on the basis of the American Medical Association Guides to The Page 8 Evaluation of Permanent Impairment. As the doctor himself points out, the Guides deal almost exclusively with measuring range of motion, not other indicia of impairment. The imposition of medical restriction by itself is indicative of impairment. Even though Dr. Blume and Dr. Cotton found zero impairment, Dr. Cotton described continuing tenderness and complaints of pain over both wrists and increasing hand and forearm pain with lifting in excess of ten pounds. Pointing out that he found no loss of range of motion in either hand or wrist, Dr. Cotton opined that claimant had no permanent impairment relating to her history of DeQuervain's tenosynovitis, further stating that claimant had reached maximum medical improvement as of May 17, 1991 (the date of Dr. Pechacek's letter setting forth impairment ratings and restrictions). He did not suggest lifting the medical restrictions imposed by Dr. Pechacek. Alternatively, it could well be concluded that claimant continued to improve beyond May, 1991, until she was essentially nonsymptomatic when seen by Dr. Blume on March 15, 1993. Under this theory, claimant has no permanent disability now, but her healing period should extend until that date, when "it is medically indicated that significant improvement from the injury is not anticipated." See Iowa Code section 85.34(1). This theory postulates that Dr. Pechacek has been proved incorrect in concluding that claimant reached maximum benefit in 1991. Thirdly, it could reasonably be determined that claimant had sustained no permanent impairment whatsoever as of May 17, 1991. Although Dr. Pechacek imposed medical restrictions, he did so in large part on the basis of claimant's functional capacity evaluation on May 10, 1991. The occupational therapist, Melissa Pierce, noted as part of that report: Observed effort: Lifting performance on the BTE Work Simulator and dynamically using Valpar 19 were not consistent and indicate full effort was not given. Use of sensory muscles were not noted throughout other testing procedures suggesting full effort was not given consistently throughout the evaluation. This observation is also consistent with claimant's demonstrated poor motivation to return to work. She did not undergo work hardening (being "too busy") as recommended by Dr. Pechacek. She did not cooperate with the Nebraska Division of Vocational Rehabilitation in seeking work. It appears that claimant has removed herself voluntarily from the workforce. All things considered, the first alternative seems most reasonable. Notwithstanding claimant's questionable motivation, the undersigned believes that she had and continues to have functional limitations with respect to her hands, even though it is difficult to measure that disability because she limited her effort in the only functional capacity evaluation given. Still, claimant voluntarily underwent surgery. Generally speaking, people Page 9 do not do so unless they hurt. Her complaints have continued since then. Unfortunately, it is difficult to quantify impairment given a scarcity of medical opinion based on anything other than the AMA Guides. As noted, the Guides are largely concerned with measuring loss of range of motion. Functional loss can be manifested in other ways. Dr. O'Neil, it will be recalled, estimated impairment at 5 percent, but did so in part due to Raynaud's phenomenon. Both wrists are affected. An injury to the wrist is considered an injury to the hand, not the arm. The hand extends to the distal end of the radius and ulna, including the carpus or wrist. Elam v. Midland Manufacturing, II IICR 141 (Appeal Decn. 1981). Under Iowa Code section 85.34(2)(l) and (s) the loss of a hand is compensated during 190 weeks, but the loss of both hands caused by a single "accident" shall equal 500 weeks and be compensated as such. Since both extremities are involved, claimant must be compensated under section 85.34(2)(s). As Dr. Pechacek points out in his letter of May 17, 1991, "(t)o a large extent and unfortunately, these limitations and restrictions cannot be converted to a percentage form." However, having found that permanent impairment exists, the agency must do so. On the basis of all the evidence, claimant has sustained a permanent impairment to both hands equivalent to 10 percent of 500 weeks, or 50 weeks. Pursuant to the parties' stipulation, the commencement date for those benefits is May 10, 1991. Claimant also seeks to be reimbursed for Dr. Blume's charges. Actually, Dr. Blume was seen for evaluation, not treatment. His charges, if compensable at all, fall under Iowa Code section 85.39, not 85.27. In pertinent part, Iowa Code section 85.39 provides: 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. It is immediately evident that section 85.39 speaks to a subsequent examination by a physician. Claimant is entitled to a single such evaluation, not multiple evaluations. As she concedes, claimant received an 85.39 examination from Dr. O'Neil prior to engaging her present attorney. She is not entitled to a second 85.39 evaluation. Defendants prevail on this issue. DECISION THEREFORE, IT IS ORDERED: Defendants shall pay claimant fifty (50) weeks of Page 10 permanent partial disability benefits at the stipulated rate of two hundred seven and 44/100 dollars ($207.44) commencing May 10, 1991. Defendants shall have credit for all benefits voluntarily paid prior to hearing. All accrued benefits shall be paid in a lump sum together with statutory interest. Each party shall be responsible for its costs. Signed and filed this ____ day of September, 1993. ______________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Richard D. Crotty Attorney at Law 311 Metropolitan Federal Bk. Bldg. Council Bluffs, IA 51503 Ms. Rita C. Grimm Attorney at Law 200 Pioneer Bank Bldg. P.O. Box 3086 Sioux City, IA 51102 1803, 1808 Filed September 15, 1993 David R. Rasey BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JODIE L. COAN, Claimant, vs. File No. 947809 JOHN MORRELL & COMPANY, 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, 1808 Treating surgeon imposed substantial medical restrictions following wrist/thumb surgery, but assigned a zero impairment rating under AMA Guides, since claimant had full range of motion. Bilateral cumulative wrist injury was compensated as 10 percent of 500 weeks under 85.34(2)(s). BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DENNIS ROMEO, : : Claimant, : : vs. : : File No. 947894 WOODMARC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY & : GUARANTY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Dennis Romeo, against his employer, Woodmarc, and its insurance carrier, United States Fidelity and Guaranty Company, defendants. The case was heard on May 6, 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 claimant's exhibits 1 and 2, as well as defendants' exhibits a, b, c and d. 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; and 3) whether claimant is entitled to a reimbursement for costs. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 46-years-old. He is a 1964 graduate of Lincoln High School in Des Moines, Iowa. He is bright and quite articulate. Claimant is a veteran of the United States Marine Corps where he was engaged in field artillery. After his release from the military, claimant attended the Madison Area Technical College for one year. He studied accounting. Subsequent to his year in college, claimant held a variety of positions. He worked at Fawn Engineering as an assembler. He Page 2 operated heavy equipment. He worked as a crew leader for Bullock Garage Company where he was required to construct garages. Claimant was plant manager for a cellulose manufacturer. His duties included quality control, managerial responsibilities, and maintenance. He also worked as a supervisor in inventory control while he was living in Colorado. Claimant moved to Montana where he established his own construction company, D and D Construction. While operating his own company, claimant bid on projects, built homes, remodeled homes, built garages, supervised his crew, and conducted other duties which were germane to running a construction business. Claimant operated his own business until late summer of 1989. In August of 1989, claimant returned to the Des Moines area. He worked at Cimino Recycling Plant as the plant manager. There he engaged in all types of supervisory duties. In January of 1990, claimant was terminated because of an illness. Next, claimant was hired by defendant-employer. He was hired as supervisor of the maintenance department. His duties included, keeping the factory running smoothly, maintaining oilers, saws, and motors, as well as changing the decor in the furniture store which was operated by defendant-employer. Claimant earned $22,000.00 per year. The parties stipulated that claimant sustained a work-related injury on April 30, 1990. At the time of the work injury, claimant was assisting with the design of a new saw. He and another employee were designing a prototype chop saw. The saw consisted, in part, of a one half inch steel plate table which weighed 250 to 300 pounds. Claimant was attempting to screw into the table several 2 inch threaded legs. He was working alone and trying to set the table upright when the table slipped, and claimant grabbed it. At that time he felt severe pains in his back. Moments later, several employees came to assist claimant who was wincing in pain. The work injury occurred at approximately 8:30 a.m. Claimant attempted to work on that date but he was unable to complete his shift. An agent for the employer authorized claimant to be seen by the company doctor, J. Giddings, D.O. The physician treated claimant conservatively and then referred him to Kirk Green, D.O., of Iowa Orthopedic Center, P.C. Dr. Green prescribed physical therapy for claimant. Claimant did not participate fully in his physical therapy program. As a consequence, the therapy was suspended. Because claimant expressed continued pain in his low back area, he was referred to Daniel J. McGuire, M.D., an orthopedic surgeon. Dr. McGuire examined claimant on July 22, 1990. The physician authored a report in which the physician opined that: His x-rays are remarkable in that it looks like he may have a pars defect at L5. It is not really easily seen on the axial views of his CT scan and the sagittal Page 3 views are questionable. This could explain some of his back pain and also his left leg pain. It is hard to tell the age of this and this may require a bone scan with SPECT. I really see no evidence of a major disc bulge or anything else major going on. We also see the calcifications of the vessels on his film. PHYSICAL EXAM: He has decreased sensation of his left L5. He has weakness of his extensor halluces longus on his left side. He has really questionable straight leg raise or foot test. He has some discomfort in his calf muscles at about 50 degrees with SLR and about zero degrees with a slip test. Perhaps this is just some tightness of his muscles. He has normal flexibility of his lumbosacral spine. This is all on his left leg. I had a talk with his Intracorp nurse. I had a talk with the patient. The patient is upset with the employer who calls him and tells him that he is faking everything and he should come back to work. I don't think that is a true statement, that he is faking it. I think the pain is legitimate, it is just that we don't have a simple answer for his pain. I told him that I do not think surgery is the first option, especially in light of his occupation. I told him he needs to stop smoking. I think he needs to become involved with physical therapy and a work-hardening program. We will have to make an evaluation to see how he does.... (Claimant's Exhibit 1, pages 17 & 18) Dr. McGuire continued to treat claimant in a conservative fashion. The physician again ordered psychical therapy. He also ordered a CT scan and a MRI. The diagnostic tests revealed that: CT of the lumbar spine: ... The examination shows that the L3-L4 interspace is normal. At the L4-L5 level, there is a protruding disc pushing and narrowing the canal. The lateral recesses are narrowed and the fat is partially replaced. Relative stenosis of the canal at this level is observed. The L5-S1 interspace appears normal. The abdominal aorta shows some calcifications at the distal end. Calcifications are also seen in the iliac vessels. IMPRESSION: Protruding disc and relative spinal stenosis at the level of L4-L5 interspace. ... MRI Lumbar Spine: Page 4 ... L4-5: Loss of disc hydration and disc space. Disruption of the annulus, with small central HNP. This lies beneath an intact posterior longitudinal ligament. There is slight indentation of the thecal sac, without significant narrowing of the spinal canal. Even with mild facet degeneration, L5 lateral recesses are only mildly narrowed and fat has not been obliterated. I do not identify definite nerve root compression. L4 neural foramina are widely patent. (Cl. Ex. 2, pp. 1 & 2) Claimant did not cooperate fully with the physical therapy which was prescribed by Dr. McGuire. The notes of Martin Ungs, LPT, establish less than maximum effort on the part of claimant. The notes also indicate that claimant missed appointments on several occasions. Mr. Ungs administered a functional capacities evaluation for claimant. The results of the test are found in claimant's exhibit 1, pages 7-12. Mr. Ungs summarized his opinion in the "comments and recommendations." He opined: Based on Mr. Romeo's functional capacity assessment, Mr. Romeo falls within the Light Work category to ward [sic] the Medium Work category. Light work category includes lifting no more than 20 pounds on an occasional basis and up to 10 pounds on a frequent basis and typically requires standing and walking for six hours out of an eight hour day. Medium work category includes maximum occasional lifting up to 50 pounds and frequent lifting up to 25 pounds and typically being on the feet a minimum of six hours out of an eight hour day. Mr. Romeo may be most appropriate for a job that falls within these recommendations. Mr. Romeo has more difficulty sitting than he does standing or walking. So, it may be most appropriate for him to start out with the type of job where he would be standing or walking and then spending more time sitting and slowly working more into a sitting type of job. Depending on the type of job Mr. Romeo would be going into, it may be appropriate for him to undergo work hardening in preparation for that job. Mr. Romeo stated to me a number of job experiences other than heavy labor that he may be qualified to do. I urged him to pursue this route with his vocational counselor in the future, and I'm sure that will be taken care of. (Cl. Ex. l, p. 12) In August of 1991, Dr. McGuire rated claimant as having a four percent permanent partial impairment. In support of his writing, Dr. McGuire opined: Page 5 He is a long ways out from his injury, he really hasn't made any improvement. I would place no lifelong permanent restrictions on him. I realize he has back pain, I realize he has subtle abnormalities on his CAT scan and MRI, but he has lived a year of his life without dying from this, without this problem getting worse by diagnostic study. By the AMA guidelines, we are to assign a permanent partial disability rating. Based on his subjective complaints of pain, his minimal objective findings and his findings on his diagnostic studies, his permanent partial disability rating would have to be in the single digits. Some of his problems probably predate his injury, therefore, I put his PPD at 4%. Again, I don't see the evidence of a pars defect I thought I saw on his plain films. (Cl. Ex. 1, p. 27) After claimant received an impairment rating from Dr. McGuire, claimant obtained an independent medical examination from Joseph Doro, D.O. Dr. Doro is a board certified neurologist. He examined claimant on November 6, 1992. In his report of the same date, Dr. Doro opined: On sensation, there was a slight decrease of pinprick along the dorsum of the foot on the left. This was in a patchy area which was not reproducible. There is no extinction. Gait and station are normal. The patient walks on a normal base. No difficulties with associated movements or postural reflexes. Muscle stretch reflexes are equal and symmetric bilaterally. There are no pathologic reflexes. There are no meningeal signs and no cerebellar signs. There are no bruits auscultated. ... This man has a history of back injury and has had pain since then. There are some components to the pain as well as to some of his sensory symptoms which would be consistent with mild nerve root irritation. His MRI and his CT scan do show a protruding disc to the left. In view of his symptoms, I would relate the pain that he has to the injury that he had in April of 1991. [sic]. Whether this is on a musculoskeletal basis or whether this is secondary to the findings that are seen on MRI and CT is not entirely clear to me. Certainly, he has some symptoms suggestive of some mild nerve root irritation, but in terms of motor abnormalities, reflexes, straight leg raising, etc., these are negative which one would expect to find some abnormality if this were nerve root. EMG could be done to further look at the potential for motor involvement if this were radiculopathy and also CT myelography would be another procedure to do to Page 6 further delineate how much of his present symptoms are secondary to structural abnormalities. However, in view of the patient's feelings regarding surgery, one can argue as to the merits of doing these other tests if it is not going to change our treatment whatever the findings should be. I explained to the patient that from a treating point of view, if he were my patient in that capacity since he is having such debilitating problems and that he has not responded to conservative therapy, that I would proceed with CT myelography as well as EMG looking for a structural cause and if an operable lesion were found, then I would consider that to be a strong option in this situation. However, that would be something that he would have to think more about and discuss with his treating physician. Otherwise, I don't think that there is much more to offer him in terms of treatment since he has reached his maximum improvement with the present conservative therapy. (Defendants' Ex. D, p. 16) In addition to the above physicians, claimant was also examined on one occasion by Deems Ortega, Ph.D., a psychologist who specializes in pain management. Dr. Ortega opined that claimant would benefit from assisted relaxation training (Cl. Ex. 1, p. 6). Dr. Ortega also opined that claimant had various psychological factors which were affecting his physical condition (Cl. Ex. 1, p. 6). During the course of his medical treatment, claimant was informed that his employer no longer had a position which was within the restrictions imposed by Mr. Ungs and Dr. McGuire. Carla Summy, R.N., was assigned to manage claimant's case and to chart claimant's progress. Ms. Summy provided a three page list of job opportunities for claimant to pursue. At the hearing, claimant testified that he had not sought employment since he was injured, nor had claimant worked in any capacity, since the date of the injury. 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). 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 Page 7 relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whol body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Page 8 Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. The first issue to address is whether the work injury which claimant sustained caused any permanent partial disability. There is objective evidence to support claimant's low back condition. Both the CT scan and the MRI establish minimal abnormalities. Additionally, there is a small sensory loss in claimant's left foot. Dr. McGuire opined claimant's condition was real and that claimant was not faking it (Cl. Ex. 1, p. 18). Dr. Doro also related claimant's low back condition to the work injury in question (Dr. Doro's report of November 6, 1992). Claimant has met the requisite causal connection to establish that he has a permanent partial disability as the result of his work injury on April 30, 1990. The next issue to address is the nature and extent of claimant's permanent partial disability. Dr. McGuire, who has a reputation as a "very conservative evaluator," has rated claimant as having a four percent permanent partial impairment. The rating is the result of claimant's back condition. In addition to the impairment rating, Dr. McGuire has restricted claimant to light to medium work categories where he is not lifting more than 40 pounds on an occasional basis. The functional capacity evaluation which has been conducted is consistent with the restrictions imposed by Dr. McGuire. Claimant is capable of handling duties in the light to medium work categories. The evaluating physician, Dr. Doro, concurs with the opinion of Dr. McGuire, relative to the work restrictions. Claimant can engage in meaningful employment, although his available labor market is now restricted. Previous to the work injury, claimant had engaged in manufacturing and in construction positions which involved work duties in the moderate to heavy Page 9 work categories. His previous employment had also involved many supervisory responsibilities. His job skills are transferable to positions in the light and medium work classifications. It is true that defendant employer is unwilling to accommodate claimant, given his work restrictions. However, claimant is not precluded from all types of positions. It is acknowledged that prior to the work injury, claimant had years of employment where the periods of employment were sporadic or only covered partial years of employment. He has not always earned wages at the high end of the scale. It is quite clear to the undersigned that claimant has been less than cooperative in his efforts to rehabilitate himself. Claimant has not faithfully attended his physical therapy sessions. He has missed many appointments. Claimant has not cooperated with the nurse who had been assigned to assist claimant in his rehabilitation. Claimant voluntarily terminated the services of the rehabilitation nurse even though she had presented claimant with numerous names and addresses of potential employers in the Des Moines area. Claimant is totally unmotivated to seek employment or even to attempt employment. The undersigned deputy has observed many other claimants, with far greater objective findings of impairment, who have been at least willing to attempt rehabilitation. This deputy is not impressed with the efforts of claimant. The efforts have been minimal, at best. He is advised to explore the "psychological factors which are affecting claimant's physical condition," and which Dr. Ortega has briefly discussed in his report. Claimant is intelligent. He is articulate. He is wasting his talents. He has years of experience in supervising, overseeing, and managing people. He has some knowledge of accounting. Claimant has owned and operated his own business. It is hoped that claimant will make use of his talents, as he has potential. Therefore, in light of the foregoing, as well as in light of the testimony, and this deputy's observations of claimant, it is the determination of the undersigned that claimant has a 15 percent permanent partial disability. He is entitled to 75 weeks of permanent partial disability benefits at the stipulated rate of $253.70 per week and commencing on the 31st day of October, 1990. 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 permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Page 10 Claimant is entitled to healing period benefits from April 30, 1990 through October 30, 1990. This is a period of 26.286 weeks of benefits at the stipulated rate of $265.53 per week. ORDER THEREFORE, it is ordered that: Defendants shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of two hundred sixty-five and 53/l00 dollars ($265.53) per week and commencing on October 31, 1990. Defendants shall pay unto claimant twenty-six point two-eight-six (26.286) weeks of healing period benefits at the stipulated rate of two hundred sixty-five and 53/l00 dollars ($265.53) per week. Defendants shall take credit for all permanent partial disability benefits previously paid to claimant. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (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 June, 1993. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Larry L. Miller Attorney at law 2600 72nd Street, Suite D Des Moines, Iowa Ms. Iris Post Attorney at law 2222 Grand Avenue PO Box 10434 Des Moines, Iowa 50306 1803 Filed June 22, 1993 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DENNIS ROMEO, : : Claimant, : : vs. : : File No. 947894 WOODMARC, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY & : GUARANTY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803 Claimant sustained a work-related injury to his low back. The injury occurred on April 30, 1990. There were some objective findings to support claimant's low back condition, however, the objective findings were minimal. Claimant had many subjective complaints. There was some evidence of a psychological overlay. Dr. McGuire, the treating physician, rated claimant as having a permanent partial impairment of 4 percent. The evaluating physician did not asses a permanent partial impairment. He did concur with Dr. McGuire, relative to the restrictions which were imposed. Claimant was precluded from any lifting greater than 40 pounds. Defendant-employer refused to accommodate claimant, given the restrictions imposed. Claimant was unmotivated. He put little time and effort into the physical therapy which two physicians had ordered on separate occasions. Claimant voluntarily terminated the services he was receiving from the registered nurse who had been hired to assist in claimant's rehabilitation. Claimant was supplied with a list of potential job openings. He refused to apply for the jobs listed. Claimant sought no employment opportunities on his own. He had not worked since the date of the work injury. Claimant was bright and articulate. He had supervisory skills which were transferable. He had some knowledge of accounting and bookkeeping. Previous employment had been sporadic but claimant had managed his own construction business. Meaningful employment is available to him. Claimant refuses to assist in his own rehabilitation. HELD: Claimant has sustained a 15 percent permanent partial disability as a result of his work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ BETTY MADDOCKS, Claimant, vs. File No. 948414 GLENWOOD STATE HOSPITAL- SCHOOL, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed March 3, 1993 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of December, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law P.O. Box 1588 Council Bluffs, Iowa 51502 Mr. James F. Christensen Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 5-1803 Filed December 20, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BETTY MADDOCKS, Claimant, vs. File No. 948414 GLENWOOD STATE HOSPITAL- SCHOOL, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Claimant (61 years of age) awarded 30 percent industrial disability. She was an RN who had worked for more than 17 years for the Glenwood State Hospital School. Restrictions included an eight percent functional impairment, no lifting of more than 30 pounds, and no repetitive bending, lifting or twisting. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BETTY MADDOCKS, : : Claimant, : : vs. : : File No. 948414 GLENWOOD STATE HOSPITAL : SCHOOL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Betty Maddocks, against her former employer, Glenwood State Hospital School, and the State of Iowa. The matter came on for hearing before the undersigned deputy industrial commissioner on February 3, 1993, at Council Bluffs, Iowa. The evidence in the case consists of testimony from the claimant, Emma Jo Hammers, Earl Maddocks III, Earl Maddocks, Jr., Barbara Slama, and Judith Anglen; claimant's exhibits 1 through 13; and, defendants' exhibits A through E. ISSUES In accordance with the prehearing report submitted by the parties at the hearing, the following issues are presented for resolution: 1. Whether claimant sustained an injury on April 18, 1990, which arose out of and in the course of her employment; 2. Whether there is a causal relationship between claimant's alleged injury and her disability; 3. Whether claimant is entitled to permanent partial disability benefits; and, 4. Whether claimant is an odd-lot employee. Page 2 FINDINGS OF FACT The undersigned deputy having reviewed all of the evidence received finds the following facts: Claimant, Betty Maddocks, was born on April 21, 1931. At the time of the hearing, she was 61 years of age. Claimant has been married for 43 years, and has five children, none of whom are dependents. Claimant stated that she maintains a good relationship with her children, although due to her alleged injury and subsequent physical condition is unable to travel extensively to visit them. However, claimant did attend her youngest son's wedding in Alaska, an event which took place in June of 1991, and took vacation trips to several other states, including Wisconsin, Florida and Nevada in 1991 and 1992. Claimant, who is a high school graduate, earned her licensed practical nursing degree in 1969 from Iowa Western Community College. In 1984, at the age of 53, claimant obtained her registered nursing degree from the College of St. Mary. Claimant stated that obtaining her nursing degree was a "life long dream." Claimant was a very motivated student, as she continued working the night shift at the Glenwood State Hospital School while she was studying to become a nurse. It was evident that claimant was rightfully very proud of her accomplishments. Claimant had been an employee at the defendant Glenwood State Hospital School for approximately seventeen and one-half years before her alleged accident in April 1990. All of the residents at the hospital are mentally and/or physically challenged. There are three classifications of workers in the health care field at the school. A resident treatment worker (RTW) provides daily care for the clientele in the form of bathing clients, transporting them from the recreation class to their rooms, feeding them and teaching classes. The LPNs and RNs, the two other classes of professionals, provide medical care to the patients in the form of assessments and evaluations, and also assist with teaching procedures for the clients. At some time or another, claimant has held each of these three positions. Claimant had enjoyed her career with the school, and had not planned on retiring at age 62. From approximately 1980 until April of 1990, claimant was assigned to the night shift which began at 10:15 p.m. and ended at 6:15 a.m. She viewed the shift as one which did not require the physical demands as those workers who were assigned to the day or p.m. shifts. Claimant explained that because the clients were usually asleep and were contained in the various units on the campus, assessments and evaluations were easier to perform, and the workers were not required to walk around the campus as much during the night shift. On April 18, 1990, at approximately 6:00 a.m., claimant Page 3 was working in the hospital area. Claimant was attempting to care for a female client who was visibly upset. Claimant stated that the client reached up and grabbed claimant by the collar and jerked her forward. By attempting not to fall on top of the client, claimant pulled back and twisted her shoulders and low back. She felt a sharp pain in her low back and reported the incident to the appropriate personnel the same day. Claimant continued to have pain the following day but reported to work. She first sought medical treatment on April 25, 1990, when she visited the emergency room at Jennie Edmundson Hospital in Council Bluffs, Iowa. She was treated by Behrouz Rassekh, M.D., a neurologist. His notes, mostly illegible, indicate that claimant was to return to work on May 2, 1990 (Defendants' Exhibit D(1)). Claimant returned to Dr. Rassekh on May 1 and continued to complain of pain in her low back. Dr. Rassekh recommended she use a heating pad and ordered physical therapy. He also prescribed orudis (Def. Exs. D(1) and D(2)). The defendants referred claimant to Back Care, Inc., for physical therapy where she came under the care of Frank P. LaMarte, M.D. Her first visit was on May 10, 1990, and her chief complaints were of low back pain, left hip pain and occasional dull pain in the left anterior thigh. According to the claimant, this pain affected sleeping, driving, standing, sitting, bending, lifting and housework activities on a daily basis. Dr. LaMarte's examination revealed tenderness over the left S1 joint and over the lower lumbar spine on the left side. Claimant reported some low back discomfort while performing a straight leg test on the left side. Dr. LaMarte's impression was that of acute low back pain probably secondary to myofascial strain. He recommended an x-ray of the lumbar spine and prescribed a stretching and strengthening exercise program. Eventually, claimant was to move into an active rehabilitation program with utilization of passive physical therapy modalities including ultrasound and cold and hot packs. She was to undergo treatment for six to eight weeks and the prognosis was guarded due to claimant's weight. Claimant is five feet one and one-half inches tall and weighs approximately 240 pounds (Cl. Ex. 2(i), pp. 1-2). Claimant returned to Dr. LaMarte on May 31, 1990, and was started on a home exercise program. Dr. LaMarte released claimant to return to work on June 4, 1990, with restrictions of no lifting. Claimant was to be given the opportunity to sit and stand when necessary, and he recommended that she be assigned to office desk-type work (Cl. Ex. 2(h)). Claimant returned to Dr. LaMarte on June 26, 1990, complaining of an exacerbation of her symptoms. She had not returned to work, and Dr. LaMarte recommended an MRI scan of the lumbar spine (Cl. Ex. 2(g)). The results of the MRI scan revealed a herniated disc at the L1-2 level, spondylolisthesis at the L5-S1 level and bilateral foraminal stenosis at the L5-S1 level. Dr. LaMarte referred claimant Page 4 to John L. Fox, M.D. (Cl. Ex. 2(f)). Dr. Fox reviewed the MRI scan and concurred that spine changes were consistent with an L1-2 disc herniation and diffuse bulging of the disc at the L5-S1 level. He also noted mild spondylolisthesis at the L5-S1 level. However, he believed that these defects were "incidental to her complaints of pain." He believed her complaints stemmed from the spondylolisthesis condition, and diagnosed chronic low back strain, obesity, psychophysiologic musculoskeletal reaction. He recommended an orthopedic evaluation and possible treatment from the pain clinic at the University of Nebraska Medical Center (Cl. Ex. 3, pp. 1-2)). Claimant was then sent to Michael T. O'Neil, M.D. He reviewed claimant's x-rays and agreed that claimant displayed Grade I spondylolisthesis of the L5-S1. Although he did not believe claimant was a candidate for surgery, he did recommend further conservative treatment. He also agreed with Dr. Fox's assessment that claimant had a psychosomatic functional overlay or physiological musculoskeletal reaction. He suggested claimant lose weight and continue therapy (Cl. Ex. 4(b), pp. 1-3; Def. Ex. E(1). Dr. O'Neil was of the opinion that claimant had an 8 percent permanent impairment of the body as a whole as a result of an injury "superimposed on a preexisting nonsymptomatic Grade I spondylolisthesis of L5, S1." He imposed activity restrictions of no repetitive stooping, twisting or bending and no lifting of more than 25 to 30 pounds repetitively (Cl. Ex. 4(a)). Claimant then returned to Dr. LaMarte whose last report, dated December 4, 1990, provides the following information: MRI scan performed 6/28/90 did reveal a mild spondylolisthesis at the L5,S1 level. This would be consistent with a Grade I spondylolisthesis. The AMA Guide Guide [sic] to the Evaluation of Permanent Impairment, Third Edition, states that a Grade I spondylolisthesis accompanied by medically documented injury and a minimum of six months of medically documented pain, recurrent muscle spasm, or rigidity results in a permanent impairment of the body as a whole. My examinations have failed to reveal a recurrent muscle spasm or rigidity. In my opinion, there is a significant emotional component associated with her pain and this makes it very difficult to determine how much true pain she is experiencing. In my opinion her reported work related injury dated 4/18/90 did not cause her spondylolisthesis. .... Based on her subjective complaint and not on any objective findings, I doubt that she will be able to perform any heavy manual labor. I do not feel I can outline any specific restrictions Page 5 since, in my opinion, we are dealing more with an emotional response to pain rather than a physical response. (Cl. Ex. 2(a)) Claimant has also been treated by Harris A. Frankel, M.D, a neurologist in Omaha, Nebraska. His involvement included an overall neurological examination which did not produce abnormal findings except minimal discomfort when claimant performed straight leg raising tests on the right. Dr. Frankel agreed that the results of the MRI revealed a bulging disc at the L1-2 level and diffuse bulging at L5-S1. He also noted Grade I spondylolisthesis. His final analysis was that claimant had sustained an 8 percent functional impairment of the whole person. He recommended that claimant avoid frequent and/or repetitive bending, stooping, twisting, and lifting of anything weighing more than 30 pounds (Cl. Ex. 1(c)-1(g)). Specifically, Dr. Frankel was concerned about claimant's ability to lift a stretcher from an emergency van. He advised that she avoid lifting more than 150 pounds from a heighth of 34 inches. He was of the opinion that claimant would be able to perform CPR, driving duties, stepping up into an emergency vehicle with a step 16 inches off of the ground, and walking about the campus to make rounds (Cl. Ex. 1(b)). In May of 1991, claimant returned to Dr. Frankel with continued complaints of low back pain. Claimant felt that her low back pain had increased due to the requirements of the daytime shift (Cl. Ex. 1(a)). Dr. Rassekh wrote a series of reports dated September 13, 1991; September 30, 1991; March 26, 1992; and, April 7, 1992. In summation, he expressed his opinion that based on his treatment from April 20 to May 8, 1990, and a March 20, 1992 examination, he believed claimant had sustained an 8 percent impairment due to chronic back pain resulting from a soft tissue injury. He believed claimant's weight also aggravated her back condition. Dr. Rassekh recommended that claimant not return to work as a nurse due to the lifting and repeated bending required by the duties (Cl. Ex. 5(a)- 5(d)). With Dr. Frankel's assessment in mind, a personnel committee at the hospital decided claimant would be transferred to the day shift. Ms. Slama, who was part of the committee that recommended the transfer, felt the transfer was reasonable to accommodate claimant's condition. The general tone of both Ms. Slama's and Judith Anglen's testimony is that there is more likelihood that claimant would be required to lift a stretcher if she were working the night shift as opposed to exposure to lifting a stretcher if she were working the day shift. Claimant testified that this would not be the case, and that she had never been required to lift a stretcher while working the night shift. In any event, claimant attempted to return to work on Page 6 the day shift in April of 1991. She was able to work for only several days. She stated that the pain was so severe that she was unable to continue working the day shift. Eventually, claimant was formally terminated. Defendants submit that they were particularly concerned with claimant's health and safety because once she returned to work she filed six accident reports. Claimant explained, and defendants concurred that the hospital's policy mandated employees to document every or almost every type of accident and/or injury sustained at the facility. Given the nature and environment of the facility, the number of incident reports filled out by claimant does not appear to be excessive (Def. Ex. 11). In May of 1991, claimant was referred to Patrick W. Bowman, M.D, at the advice of her family physician, Robert K. Fryzek, M.D. Dr. Bowman also obtained thoracic and lumbar spine x-rays. He felt claimant had spondylosis of the dorsal spine, degenerative disc disease of the lumbar spine and a possible spondylolysis at the L5 level. No surgery was recommended and Dr. Bowman suggested claimant learn to "live with the condition expecting better days in the future." (Cl. Ex. 6(1) through 6(4)). In March of 1992, claimant received an additional neurological examination by Dr. Rassekh. He noted "ante-flexion" of the spine and believed claimant had a chronic back pain condition due to a soft tissue injury. He agreed that claimant had an 8 percent disability rating. He also stated: The patient was advised to have psychological assessment to determine how much of her pain is on the organic basis and how much is functional. I did not recommend psychiatric treatment but only psychological evaluation so that we will be in better position to state if she needs long-term psychiatric treatment. (Cl. Ex. 5(b)) Dr. Rassekh attributed some of claimant's pain to her weight (Cl. Ex. 5(a)). Claimant underwent a work capacity evaluation in May of 1992. Apparently, claimant was able to complete the pre-evaluation interview, but when the evaluation exercises started, claimant was unable to complete a hand grip strength test and a push-pull dynamometer test at which point she became weepy and was complaining of severe pain. The remainder of the physical testing evaluation was rescheduled for June 5, 1992. When claimant left the clinic, she was admitted to the psychiatric unit at Jennie Edmundson Hospital in Council Bluffs, Iowa. Claimant was disoriented, could not remember where she was and could not recall undergoing any of the work evaluation procedures. She was discharged from the hospital despite objections from the attending physicians. The final diagnosis was that of probable conversion disorder and chronic pain syndrome (Cl. Page 7 Ex. 8(b), 8(c)). Claimant subsequently reported to the Working Back Institute again in June of 1992. During this visit, she was able to complete the evaluation, but the physical therapist, Karen Brown, stated that claimant did not pass the validity profile and produced submaximal effort. Ms. Brown noted that claimant had extreme anxiety over her pain and was apprehensive about reinjury and therefore exhibited submaximal efforts during the evaluation. Minimal capacities were that claimant would be able to sit for an hour, walk for brief periods of time, occasionally use stairs, five pounds of lifting or carrying at the hip to chest level and only intermittent and limited bending. Ms. Brown stated that claimant had a poor tolerance for standing, poor hand grip strength and subnormal hand dexterity skills (Cl. Ex. 10(b)). In June of 1992, claimant underwent a vocational evaluation and earnings capacity assessment performed by a counselor associated with Midlands rehabilitation consultants in Omaha, Nebraska. At the end of the interview, the counselor, James Rogers, stated that claimant would not be a candidate for any type of vocational rehabilitation services. He felt claimant was in need of further medical treatment, specifically, psychiatric treatment followed by treatment at a pain center (Cl. Ex. 11). Claimant has not returned to work at the Glenwood State Hospital-School, and has applied for positions at the following health care facilities: Jennie Edmundson Hospital; Mercy Hospital, Omaha, Nebraska; Clarkson Hospital, Omaha, Nebraska; and, Methodist Hospital, Omaha, Nebraska (Cl. Ex. 12). She has not been hired by any of the institutions. Claimant has had some psychiatric problems in the past. Throughout the medical records received for this case, there have been numerous references to a potential diagnosis of conversion disorder. Also, it has been recognized that claimant has a function overlay component to her symptoms. Claimant has also been diagnosed as being depressed, and it has been recommended that she seek psychiatric treatment. Michael Taylor, M.D., a psychiatrist located in Des Moines, reviewed claimant's medical records and determined that she was suffering from a major depressive disorder unrelated to the accident on April 18, 1990 (Def. Ex. F). ANALYSIS AND CONCLUSIONS OF LAW The first issue to be addressed is whether claimant sustained an injury on April 18, 1990, which arose out of and in the course of her employment. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Page 8 Claimant has the burden of proving by a preponderance of the evidence that she received an injury on April 18, 1990, which arose 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). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 19791); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. Although an incident report for the April 18, 1990 injury is probably the only report which was not introduced into evidence by either party, the undersigned finds that claimant was able to describe the incident with specificity and clarity. Given the nature of her work as a registered nurse at the facility, claimant encountered patients or clients with varying degrees of mental challenges. She was working her regular shift and performing the duties required of her position. She stated that she filled out an incident report on the same day as the policy at the facility was to report any injuries within 24 hours of the occurrence. Likewise, the medical evidence is consistent with an injury date on or about April 18, 1990. As a result, it is found that claimant did sustain an injury while at work on April 18, 1990, which arose out of and in the course of her employment. The next issue to be addressed is whether there is a causal relationship between claimant's injury and her disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 18, 1990, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the Page 9 domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 348, 354 (Iowa 1980). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is 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, 815 (1962). Claimant submits that prior to the injury on April 18, she was able to fully perform her job duties as a registered nurse assigned to the night shift. Indeed, the evidence supplied to the undersigned supports a finding that claimant has sustained a disability due to the condition of her back subsequent to the work injury. Claimant has missed a substantial amount of work. Several physicians have the opinion that she sustained an 8 percent functional impairment to the body as a whole. Drs. Rassekh and Frankel both are of the opinion that the injury caused the disability. Although defendants argue that claimant had a preexisting condition of spondylolisthesis and other degenerative changes, the evidence is clear that an MRI performed shortly after the incident at work showed that claimant also had a bulging disc at the L5-S1 level. That claimant had preexisting conditions is irrelevant, as an injury on the job which aggravates an asymptomatic condition Page 10 is compensable. Likewise, there is ample evidence in the record which supports a finding that claimant has sustained a permanent injury, and is entitled to healing period benefits as governed by Iowa Code section 85.34(1). The next issue to be addressed and whether claimant is an odd-lot employee. In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Guyton, 373 N.W.2d at 105. When viewing the record as a whole, and especially considering claimant's educational background, she cannot be described as an odd-lot employee. It appears that with claimant's restrictions, she is able to perform most of the activities of an RN. Her lifting capabilities will inhibit her ability to perform work as she has in the past. The defendant hospital tried to accommodate her restrictions, and apparently felt that claimant would be able to perform her duties within her restrictions. Claimant's complaint about her new assignment rested with the amount of walking she was required to perform on the day shift. Claimant has not established by a preponderance of the evidence that she is not employable in the competitive labor market. However, as claimant has sustained a permanent injury to the body as a whole, an analysis of her industrial disability is warranted. At the time of her injury, claimant was almost 59 years of age. She is a high school graduate and has earned LPN and RN degrees. She had worked in the health care field for more than 17 years. Claimant's physical condition prior to the accident was good, if not excellent. She was able to perform all job duties required by her position as an RN. Defendants attempted to accommodate claimant's physical limitations by moving her from the night shift, where the need to lift a stretcher is greater than on other shifts, to the day shift, where more help would be available to claimant. As pointed out by the defendants, and corroborated by the medical evidence, claimant has a preexisting condition called spondylolisthesis, as well as some arthritic changes in the spine. These conditions, however, were asymptomatic prior to the April 18, 1990 incident. Claimant also has a herniated disc at the L1-2 level Page 11 and diffuse bulging of the disc at the L5-S1 of the lumbar spine. Although the undersigned recognizes that the incident at work did not cause claimant's spondylolisthesis, it is found that the claimant's physical problems manifested themselves due to the work injury. Since the injury, she has not returned to gainful employment. Claimant's work restrictions encompass several activities. Drs. O'Neil and Frankel both opine that claimant should refrain from lifting more than 30 pounds, and recommended that claimant not perform repetitive bending, stooping or twisting. Dr. Frankel was mostly concerned with claimant's ability to lift a stretcher, and recommended that she not perform this activity. Dr. LaMarte, after reviewing the results of the MRI scan, felt that the defects found in claimant's spine were incidental to her complaints of pain. No one has recommended surgery. All physicians who have treated claimant have indicated that there is a definite emotional reaction to her physical condition. Most have suggested a functional overlay. Claimant has gone through a long healing process. Although at several times during the period, she was released to return to work either for full job duties or restricted duties. It was not until April of 1991 that she did attempt to return to work, an attempt which lasted for four or five days. Two physicians also rendered opinions with respect to claimant's functional impairment. Drs. O'Neil and Frankel both thought claimant had sustained an 8 percent functional impairment due to the injury. Perhaps the most troubling aspect of the case is claimant's emotional response to the injury. While defendants argue that she had preexisting psychiatric problems, she had not been treated for the same during the three and one-half years prior to the injury. In fact, it seems claimant was an exemplary employee, even though Ms. Slama indicated it was hard to depend on claimant due to her loss of time from work for one reason or another. This latter fact is not supported by the evidence. Emotional stability is one of many factors to evaluate when determining claimant's industrial disability. Even though claimant had prior psychological problems, she had not received treatment for the same since 1986. Given her age and the nature of her injury, coupled with claimant's past work experience, it is doubtful she will be an attractive candidate for employment as a nurse. It is unfortunate that defendants' attempt to accommodate claimant's physical limitations reached only as far as placing her on a different shift. One physician recommended a desk job, yet no attempt was made to allow claimant to work in a role less demanding than that as an RN. Perhaps claimant's most severe restriction is the 30 pound lifting Page 12 restriction. It is difficult to believe that claimant's position with the facility would not consistently place her in a position that would require lifting ability of more than 30 pounds. After considering all of the factors that have been enumerated in the decision, it is found that claimant has sustained a 30 percent industrial disability. ORDER THEREFORE, it is ordered: Defendants shall pay unto claimant permanent partial disability for one hundred fifty (150) weeks at the rate of three hundred forty-two and 44/100 dollars ($342.44) per week beginning March 26, 1992. Defendants shall pay all medical bills incurred due to this accident. That defendants shall pay the accrued weekly benefits in a lump sum, and receive credit for benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Page 13 Signed and filed this ____ day of March, 1993. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Sheldon M Gallner Attorney at Law 803 Third St P O Box 1588 Council Bluffs IA 51502-1588 Mr James F Christenson Assistant Attorney General Tort Claims Division Hoover State Office Bldg Des Moines IA 50319 5-1802 Filed March 3, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BETTY MADDOCKS, : : Claimant, : : vs. : : File No. 948414 GLENWOOD STATE HOSPITAL : SCHOOL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1801 Claimant (61 years of age) awarded 30% industrial disability. She was an RN who had worked for more than 17 years for the Glenwood State Hospital-School. Restrictions included an 8% functional impairment, no lifting of more than 30 pounds, and no repetitive bending, lifting or twisting. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARIA E. VALDES, : : Claimant, : : vs. : : File No. 948422 IOWA STATE UNIVERSITY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE The aforecaptioned case was set for hearing at the office of the Industrial Commissioner on May 27, 1992. The parties, through their attorneys, entered into a stipulation whereby they agreed to a running award for the duration of claimant's period of disability. ORDER THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant a running award for weekly benefits for the duration of claimant's period of disability with said benefits commencing on February 24, 1990 and running contin uously through the period of disability at the stipulated rate of two hundred sixty-seven and 28/l00 dollars ($267.28) per week. Defendant shall take credit for benefits previously paid claimant. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pur suant to section 85.30, Iowa Code, as amended. Costs are taxed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of July, 1992. Page 2 ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Marvin E. Duckworth Ms. Jane E. Van Werden Attorneys at Law Terrace Center STE 111 2700 Grant Avenue Des Moines, Iowa 50312 Mr. Charles S. Lavorato Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1400; 1402 Filed July 24, 1992 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARIA E. VALDES, : : Claimant, : : vs. : : File No. 948422 IOWA STATE UNIVERSITY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendant. : ___________________________________________________________ 1400; 1402 Claimant failed to appear at his previously set hearing. No evidence in support of his allegations of a compensable work injury was presented. Claimant failed to meet his burden of proof.