BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
ROXANNE BENEFIEL,
Claimant,
vs.
File No. 948482
PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
WAUSAU INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
August 15, 1994 is affirmed and is adopted as the final agency
action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of November, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Channing L. Dutton
Attorney at Law
West Towers Office Complex
1200 35th Street, Suite 500
West Des Moines, Iowa 50266
Mr. Marvin E. Duckworth
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
2901, 2902, 2906, 3700, 1401,
1402.40, 1803, 2206, 2209
Filed November 30, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
ROXANNE BENEFIEL,
Claimant,
vs.
File No. 948482
PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
WAUSAU INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
2901, 2902, 2906, 3700
The deputy excluded the deposition of claimant from evidence
on his own initiative for the reason that claimant was present in
the courtroom to testify on the points relevant and material to
the remaining issues at the time of hearing. The deposition
could be used to refresh memory or to impeach the credibility of
the witness.
1401, 1402.40, 1803, 2206, 2209
It was determined that the injury, bilateral carpal tunnel
and bilateral cubital tunnel was not the cause of permanent
impairment, even though claimant had right and left carpal tunnel
surgery and right cubital tunnel surgery.
Claimant did not prove that the injury was the cause of
thoracic outlet syndrome, chronic pain syndrome, myofascial pain
syndrome, reflex sympathy dystrophy, or Raynaud's disease.
Claimant's shoulder, neck and back complaints preceded this
injury. The recurrence of these symptoms did not recur until
claimant was off work and had performed no duties for employer
for over six months. Likewise, it was determined that this was
not an aggravation of a preexisting condition.
The one doctor who called it a thoracic outlet syndrome at
one time vacillated back and forth and ended up saying it was
either thoracic outlet syndrome or chronic pain syndrome, but he
could not determine which one. His opinion was contrary to three
specialists that he had referred claimant to for an opinion on
thoracic outlet syndrome one of which was the final recognized
TOS specialist.
The only impairment evaluator for the carpal tunnel and
cubital tunnel said there was no permanent impairment. Claimant
did not have an independent medical examination to controvert or
rebut this opinion.
The determination of no causal connection to permanent
disability made moot a determination of whether the injury was to
the hands, arms, or the body as a whole and claimant's
entitlement to permanent disability benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROXANNE BENEFIEL,
Claimant,
vs.
File No. 948482
PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
WAUSAU INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Roxanne
Benefiel, claimant, against Principal Mutual Life Insurance
Company, employer, and Wausau Insurance Companies, insurance
carrier, defendants, for benefits as the result of an injury
which occurred on February 7, 1990.
A hearing was held in Des Moines, Iowa, on November 22,
1993, and the case was fully submitted at the close of the
hearing. Claimant was represented by Channing L. Dutton.
Defendants were represented by Marvin E. Duckworth and Tina
Eick. The record consists of the testimony of Roxanne
Benefiel, claimant, Marsha Ray, manager, and Doug Hanselman,
vocational rehabilitation specialist, exhibit 1 minus pages
72 and 73 (Transcript page 219), exhibit 2 minus pages 110,
111, 112 (Tran. p. 225) and 114 and 115 (Tran. p. 227),
exhibit 3 minus pages 120, 121, 122 (Tran. p. 229), 126, 127
(Tran. p. 230), 133, 134 (Tran. p. 231) and pages 138
through 146 (Tran. p. 232), Exhibit 4, minus page 155 (Tran.
p. 233) and page 167 (Tran. p. 235), Exhibit 5, 7 and 8
(Tran. p. 240). Exhibit 6, a deposition of claimant, was
excluded by the deputy for the reason that claimant was
present to testify at the hearing and the deposition could
be used to refresh memory or to impeach the credibility of
the witness.
The deputy ordered a transcript of the hearing.
Defendants' attorney filed an excellent post-hearing brief.
Claimant's attorney did not file a brief (Tran. pp. 211 &
212).
STIPULATIONS
It was stipulated that claimant sustained an injury on
February 7, 1990, that arose out of and in the course of
Page 2
employment with employer; that the injury was the cause of
temporary disability; that claimant was entitled to and was
paid temporary disability benefits for the period from April
17, 1990 through July 14, 1991 (Tran. pp. 50 & 51); that the
medical expenses have all been paid; and that the rate of
compensation in the event of an award is $165.18 per week.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing:
Whether the injury was the cause of permanent
disability.
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 is
entitled to scheduled member benefits for an injury to a
scheduled member (hand or arm) or whether claimant is
entitled to industrial disability benefits for an injury to
the body as a whole (shoulders, neck, back or head).
FINDINGS OF FACT
causal connection-permanent disability
It is determined that the injury was not the cause of
permanent disability and that claimant is not entitled to
permanent disability benefits.
In the past claimant worked for Happy Chef as a
waitress, cook and hostess from January of 1980 to June of
1983. She worked for the Hotel Fort Des Moines as a
waitress, cashier and bartender from October of 1983 to July
of 1985. Claimant worked for Hawkeye Security Insurance
Company from July of 1985 until March of 1988 handling mail,
filing and micro-fisching (Ex. 3, p. 125; Ex. 4, p. 148;
Tran. pp. 31-35).
Claimant started to work for employer on April 25, 1988
in the commercial real estate department as a receptionist
(Tran. pp. 36 & 110). There were about 225 people on the
floor in that department at that time. There were six
receptionists, including claimant. Claimant explained that
a receptionist answered the overflow telephone calls to the
underwriters and other persons on the floor. She described
that this work consisted of writing down urgent messages,
putting other messages on the CRT screen, preparing labels
for overnight mail and stamping documents. Claimant related
that there were other special projects such as putting
together brochures for 801 Grand (Tran. pp. 36-44, 128 &
129).
Marsha Ray, claimant's manager, testified that a
receptionist answered approximately 100 to 120 calls per day
(Tran. pp. 128-130 & 170).
Claimant testified that by February of 1990 she had
begun to experience problems in her arms, shoulders, neck
Page 3
and back (Tran. pp. 44 & 45). Claimant further explained
that the injury date of February 7, 1990 represented the
date that employer transferred claimant to the
rehabilitation department to perform lighter duties to
accommodate her injury symptoms (Tran. p. 48; Ex. 4, pp.
162-166).
Claimant related that as early as November of 1989 she
started to experience tingling and numbness in her hands and
it advanced into her neck, back and shoulders (Tran. pp. 44,
45 & 111). Claimant testified that she reported this
problem to the company nurse and the nurse sent claimant to
see Arnis B. Grundberg, M.D., an orthopedic surgeon, in
January of 1990 (Tran. p. 46).
Dr. Grundberg saw claimant on January 30, 1990. He
diagnosed bilateral carpal tunnel syndrome, post operative
state, with recurrence of symptoms caused by the work that
she was doing for employer (Ex. 1, p. 1; Tran. pp. 51 & 52).
Previously, Sinesio Misol, M.D., another orthopedic surgeon,
had treated claimant for carpal tunnel syndrome in 1985 and
1987. On May 15, 1987, Dr. Misol performed both a right and
a left carpal tunnel release (Ex. 1, pp. 10-18, 23 & 24;
Tran. pp. 52 & 119).
On March 16, 1990, Dr. Grundberg said that an EMG
established a bilateral carpal tunnel and a bilateral
cubital tunnel syndrome but he declined to perform surgery
if claimant was not willing to change jobs (Ex. 1, p. 5;
Tran. p. 52). Claimant only received injections from Dr.
Grundberg (Ex. 1, pp. 1-5).
On March 22, 1990, Dr. Grundberg noted that claimant
was going to return to Dr. Misol for a second opinion (Ex.
1, p. 4). Claimant testified that she requested to go back
to Dr. Misol (Tran. p. 52).
During the course of his treatment of claimant at this
time, Dr. Grundberg does not make any mention or notation
whatsoever of any problems or complaints in claimant's
shoulders, neck or back (Ex. 1, pp. 1-6).
Claimant then saw Dr. Misol again on April 4, 1990 for
numbness, tingling and pain involving both upper
extremities. He recorded that she does not sleep well at
night, is nervous and was thinking about requesting full
disability. Dr. Misol diagnosed (1) recurrence, probably
secondary to scar of bilateral carpal tunnel surgery
performed three years ago, (2) mild ulnar cubital tunnel,
(3) past history of suicide attempt, and (4) possible
remaining psychological problems maybe even induced by
anorexia nervosa (Ex. 1, p. 8).
Dr. Misol noted that he advised claimant that any
additional surgery would not be for the purpose of returning
her to work but only to relieve her symptoms and to enable
her to perform the duties of a homemaker (Ex. 1, p. 9). Dr.
Misol performed another left carpal tunnel release on June
7, 1990 (Ex. 1, pp. 9 & 104; Tran. p. 51). Dr. Misol had
planned to perform a right carpal tunnel and a right cubital
Page 4
tunnel surgery but claimant's care was switched by the
insurance carrier to Scott B. Neff, D.O., another orthopedic
surgeon for another opinion (Tran. p. 53).
During the course of his treatment of claimant at this
time Dr. Misol makes no mention of any problems with
claimant's shoulders, neck or back (Ex. 1, pp. 6-9, 20-22).
Dr. Neff reported on April 23, 1990, May 16, 1990, June
11, 1990. On October 29, 1990, Dr. Neff stated that he felt
that claimant had a positive Roo's sign and he recommended
that claimant see C. David Smith, M.D., a board certified
general surgeon, to rule out thoracic outlet syndrome prior
to performing any more surgeries on the right upper
extremity for carpal tunnel or cubital tunnel (Ex. 1, pp.
15-29; Tran. pp. 55 & 56).
On January 16, 1991, Dr. Neff reported that Dr. Smith
did not feel that claimant had a thoracic outlet syndrome
(Ex. 1, p. 30). Dr. Neff then performed a right carpal
tunnel revision and a right cubital tunnel release on
February 14, 1991 (Ex. 1, p. 32; Tran. p. 54). The right
upper extremity was healing well on February 22, 1991 (Ex.
1, p. 33).
Dr. Neff proposed to perform a left carpal tunnel
revision on March 29, 1991, but the surgery was cancelled
because the anesthesiologist learned that claimant had a
family history of malignant hyperthermia (Ex. 1, pp. 34 &
35). The anesthesiologist refused to administer a general
anesthesia under outpatient surgical conditions. Mercy
Hospital rules prohibited administering a general anesthesia
to a patient with malignant hyperthermia under any
conditions. Claimant refused a block, which is a regional
anesthesia (Ex. 1, p. 36). Thus, the third left carpal
tunnel surgery was never performed.
On April 26, 1991, Dr. Neff reported that claimant had
a poor result from the right carpal tunnel and the right
cubital tunnel surgery and therefore he recommended against
the planned revision of the left carpal tunnel (Ex. 1, p.
37; Tran. pp. 55 & 56). Dr. Neff said that the Roo's
maneuver on that date was equivocal.
During the entire period of time that claimant was
treated by Dr. Neff he did not treat claimant for shoulder,
neck or back pain (Ex. 1, pp. 25-42A). He did mention one
time, in his letter of October 29, 1990, that claimant did
complain of numbness, aching and tingling in the left hand
that extended into her shoulder and neck (Ex. 1, p. 28). No
other mention of shoulder, neck or back pain appears in his
office notes.
At the time of the history and physical on March 29,
1991, (the date of the cancelled left carpal tunnel
revision surgery) Dr. Neff mentioned a limited range of
motion of the right shoulder and that a Roo's maneuver for
TOS was suspicious (Ex. 1, p. 58). At the time of the
history and physical examination on February 14, 1991, (the
date of the right carpal and cubital tunnel surgeries) Dr.
Page 5
Neff made the same comment (Ex. 1, p. 41).
Other than these few isolated passing comments, there
was no mention of an injury to the shoulder, neck or back in
Dr. Neff's records. More importantly, there was no
treatment for claimant's shoulder, neck or back in Dr.
Neff's office notes. Dr. Neff referred claimant to Dr.
Smith to see if she had thoracic outlet syndrome and Dr.
Smith said that she did not have it.
Claimant was taken off work on April 18, 1990 by Dr.
Misol (Ex. 1, p. 19; Tran. p. 50) even though she was paid
temporary disability benefits from April 17, 1990.
Claimant performed no work of any kind for employer
after April 17, 1990 until July 15, 1991. Therefore, it is
difficult to attribute one remark about shoulder and neck
pain on October 29, 1990 to this injury which occurred on
February 7, 1990. It is equally as difficult to attribute
any shoulder, neck or back symptoms to claimant's employment
for this employer when she had not performed any work of any
kind for employer for over six months on October 29, 1990,
and when Dr. Neff had not provided any specific treatment of
any kind for shoulder, neck or back complaints during the
course of his treatment.
Moreover, after the initial bilateral carpal tunnel
surgeries of Dr. Misol back on May 15, 1987, his notes show
that claimant had a recurrence of her hand falling asleep on
November 3, 1987 (Ex. 1, p. 12). However, claimant
testified that she was "100 percent fine." after the first
surgeries by Dr. Misol (Tran. p. 118).
On January 8, 1988, claimant reported to Joshua
Kimelman, an associate of Dr. Misol, that she had back pain
without any specific history of injury or trauma. It just
came on and had gotten worse. It increased with activity.
Claimant also reported to Dr. Kimelman that she had
radiating pain into the left arm and shoulder with weakness
of the left wrist status post bilateral carpal tunnel
release by Dr. Misol. Thus, claimant did have continued
problems from her hands and wrists and there is documented
evidence of shoulder and neck pain on January 8, 1988 (Ex.
1, p. 11).
Claimant did not start to work for employer until April
25, 1988.
On January 8, 1988, when claimant first mentioned head,
neck and shoulder she was employed by Hawkeye Security (Ex.
4, p. 148).
Dr. Kimelman said she denied depression or other
problems but he found some transverse scars on her wrists
secondary to a suicide attempt previously. He also
mentioned that she had had a hysterectomy secondary to
recurrent infections status post being raped. He noted that
claimant was 5 foot 4 inches tall and weighed 100 pounds.
With respect to thoracic problems, Dr. Kimelman noted on
January 8, 1988, that claimant had a right rib prominence
Page 6
probably indicative of mild right thoracic curve (Ex. 1, p.
11). Thus, there are early indications of both left arm and
shoulder pain as well as a thoracic abnormality prior to
claimant's employment by employer. Dr. Kimelman diagnosed
chronic back pain, etiology unknown. He took an x-ray of
the left wrist because of continued complaint of pain and
this was within normal limits (Ex. 1, p. 10).
On February 19, 1988, Dr. Kimelman reported that
claimant continued to have back pain but that her most
pressing problem was headache, neck ache and tingling and
numbness and going to sleep of both hands. He said this has
been a continued problem since her prior carpal tunnel
releases. Claimant was still working for Hawkeye Security
at this time. He referred claimant to see Michael J. Stein,
D.O., a neurologist.
Dr. Stein saw claimant on February 25, 1988. Dr. Stein
reported that claimant told him that she has had headaches
which last from 24 to 48 hours since she was a child. These
are frequently associated with photophobia, phonophobia,
nausea and vomiting and that she has to lie down when the
headaches occur. Dr. Stein said she had a family history of
headaches, which she thought were the migraine type. At the
time of this examination by Dr. Stein they had persisted for
approximately three or four months. She also complained of
carpal tunnel symptoms which had persisted since her
surgeries by Dr. Misol in 1987. He noted that the surgery
did not relieve her symptoms. Dr. Stein said claimant also
complained of low back pain over the last several months
without definite radiation.
Dr. Stein noted that claimant had received several
surgeries (1) bilateral carpal tunnel surgery, (2)
hysterectomy, (3) gall bladder surgery, (4) plastic surgery
on her nose in 1978 and (5) three laparoseopies. Dr. Stein
noted that claimant had a loss of facial expression and
appeared to be depressed. He did not see any muscle wasting
over her extremities nor the shoulders and neck. Dr. Stein
concluded with this clinical impression:
This young lady has, I feel, a migraine
cephalgia along with occipital neuralgia. I can't
help but wonder whether there is some sort of a
tension stress component here although she denies
it presently to me (Ex. 1, p. 101).
An EMG was attempted on March 28, 1988 and Dr. Stein
recorded that the EMG needle portion had to be stopped
because claimant could not tolerate it. Median nerve
conductions were normal. Her headaches still persisted (Ex.
1, p. 102).
At another point in her testimony, claimant's testimony
on whether Dr. Misol's 1987 bilateral carpal tunnel
surgeries relieved her symptoms was equivocal. First she
said she did not remember if the symptoms were relieved or
not. Then she stated that she went back to work and had no
problems. Then she stated yes, it did relieve the symptoms
(Tran. p. 122).
Page 7
Thus, it can be seen from the foregoing evidence that
claimant has suffered from headaches, neck pain and back
pain for a long time prior to February 7, 1990, which began
prior to the date of her employment for employer on April
25, 1988, with many of her complaints, dating back to
childhood.
Therefore, it is determined that the injury of February
7, 1990, was not the cause of claimant's shoulder, neck and
back complaints first voiced in the medical records on
October 29, 1990 to Dr. Neff, some six months after she had
not performed any work for employer. Claimant made no
mention of shoulder, neck or back complaints to Dr.
Grundberg or Dr. Misol of any kind. She did not mention
anything to Dr. Neff until eight months after the injury
date and six months after she had been taken off work. Even
then, Dr. Neff made no specific diagnosis and performed no
specific treatment for the shoulder or neck pain. He only
mentions it as a passing remark in his notes.
These first complaints of shoulder, neck and back pain
in October of 1990 are too remote in time to be causally
connected with this injury of February 7, 1990, with
symptoms that first appeared in November of 1989. Nor can
it be said they were aggravated by her employment for
employer. The medical evidence demonstrates that shoulder,
neck and back pains have been a common complaint of claimant
for many years preceding this injury.
Dr. Smith first saw claimant on December 11, 1990 at
the request of Dr. Neff (Ex. 1, pp. 71, 74 & 57). Dr. Smith
did not believe that claimant had thoracic outlet syndrome
at that time and he recommended that Dr. Neff go ahead with
the right carpal tunnel surgeries. At the same time he
acknowledged that Dr. Grundberg had found that there was a
high likelihood of recurrence even if claimant had the
surgeries.
Dr. Smith's letter of December 11, 1990, to the
insurance carrier contains a serious error. He stated that,
"In December and January of last year she developed pain in
both arms, hands, shoulders, and neck which has been
progressive." (Ex. 1, p. 57). This history totally
conflicts with the actual records of Dr. Grundberg, Dr.
Misol and Dr. Neff summarized above that show that claimant
did not develop pain in her neck and shoulders in December
of 1989 and January of 1990, save that the pain was
progressive.
On May 24, 1991, Dr. Smith wrote that, "Her findings
again are not classic for thoracic outlet syndrome, and
therefore I believe it would be in her best interest to seek
an alternate explanation." (Ex. 1, pp. 55 & 56). However,
he recommended plain films and an MRI of her neck.
On June 14, 1991, Dr. Smith stated that the cervical
spine film was unremarkable and the MRI showed no gross
abnormalities. He said that claimant had no benefit from
the scalene injection on her prior visit and it was not
Page 8
repeated. Dr. Smith remarked that claimant had many
findings consistent with thoracic outlet syndrome, however,
he said she would not benefit from an operation for thoracic
outlet syndrome. He said that he planned to treat her
nonoperatively like a thoracic outlet syndrome which was
bilateral. He said that claimant could return to work with
restrictions of 20 pounds lifting, no repetitive work and no
work with her arms elevated up high (Ex. 1, p. 54). On July
10, 1991, he changed his restrictions to 15 pounds lifting,
no repetitive work and that her right arm was to be kept
(immobilized) at her side. He said these are permanent
restrictions (Ex. 1, p. 52). On a return to work slip also
dated July 10, 1991, he said the lifting restriction was 10
pounds (Ex. 1, p. 60).
It should be noted that these restrictions were because
of shoulder, neck and back pain and not due to the bilateral
carpal and cubital tunnel.
When claimant returned to work on July 15, 1991, the
receptionist job had added the duties of microfilming,
faxing, filing and picking up express mail (Tran. pp. 73-77,
112 & 113). A few of the jobs, such as mail handling,
inspection reports and stamping had been eliminated (Tran.
p. 113). The work was within the restrictions imposed by
Dr. Smith and claimant's pay had been increased both during
her absence and again when she had returned to work (Tran.
p. 113). Employer made accommodations in her work station
to attempt to make her comfortable (Tran. p. 78).
Nevertheless, claimant testified that she was miserable, she
was in a lot of pain, and she could not concentrate (Tran.
pp. 79 & 80). She said there was a lot of mistakes in her
work (Tran. pp. 80 & 82.
On August 7, 1991, Dr. Smith gave claimant another
scalene injection which made her worse. Dr. Smith appeared
to be puzzled. On August 7, 1991, he wrote,
Mrs. Benefiel's symptoms, history, and physical
exam all appear to be consistent with thoracic
outlet syndrome on the right side. I am concerned
about an exaggerated response to pain and the
failure of the scalene block to improve her
symptoms. This is not a typical finding. She may
have the diagnosis; however, she may be
malingering or she may have an alternate
diagnosis. Since her symptoms have worsened, I
recommended she avoid work for two to four weeks
(Ex. 1, p. 51).
On September 9, 1991, Dr. Smith ordered that claimant
only work half-time but that she could work without her
shoulder immobilizer (Ex. 1, p. 62).
On September 20, 1991, claimant was terminated for
making too many mistakes in her work (Tran. pp. 82, 83, 86 &
114). The testimony of Marsha Ray, manager, and the
personnel records establish that claimant did commit more
than the allowed number of significant mistakes (Ex. 4, pp.
168-174). Likewise, the personnel records, as well as the
Page 9
testimony of Ray and Doug Hanselman, the vocational
rehabilitation specialist, demonstrate that defendants did
make a sincere attempt to accommodate claimant's physical
problems (Ex. 4, pp. 156-167).
Other evidence shows that claimant was less than a
model employee due to a number of work interruptions due to
family problem in her life at this time.
Claimant was examined by Thomas W. Bower, L.P.T., on
May 1, 1991 for an evaluation in terms of permanent
impairment. Repeat conduction studies were performed on
both the left and right upper extremities. Mr. Bower
stated, "... Nerve conduction studies of the left and right
upper extremities demonstrate normal findings for all the
nerves tested, both in the left and right upper extremities.
Therefore, we find no persistent demyelinating changes that
are occurring." (Ex. 1, p. 106M). Mr. Bower concluded,
"Therefore, in conclusion, I find that the patient has
sustained no impairment on the basis of the median and ulnar
nerve problems at the present time." (Ex. 1, p. 106N).
This latest finding revoked an earlier determination of
Mr. Bower that claimant had sustained a 2 percent impairment
of the left hand due to left median palmar latency (Ex. 1,
p. 106Q).
Mr. Bower explained in his deposition given on October
21, 1993, that it was not unusual to repeat a study and find
normal results after a period of time had gone by (Ex. 7, p.
7). Mr. Bower testified that he did not place any
restrictions on claimant's future work activity (Ex. 7, p.
9). Mr. Bower added that typically a person with thoracic
outlet is going to experience tingling paresthesia in their
hands when they are above shoulder height. However, he
noticed that claimant was experiencing these symptoms with
her hands down at her side (Ex. 7, p. 8 & 14).
There is no evidence that claimant requested or
obtained an independent medical examination that would
controvert, contradict, rebut or refute Mr. Bower's
evaluation of no permanent impairment.
Claimant found employment on October 8, 1991, with
Burger King and performed several repetitive jobs with her
hands and arms. Claimant admitted that her employment with
Burger King required the repetitive use of her hands and
arms (Tran. pp. 86-93, 105 & 106). The Burger King work
also involved lifting anywhere from a few pounds to 50
pounds (Tran. pp. 106-109). Her primary employment for
Burger King was preparing food for breakfasts and lunches
(Tran. pp. 109 & 110). Claimant worked for Burger King for
approximately two years.
On August 23, 1993, claimant began working for DZ
Manufacturing performing repetitive work with her hands and
arms. This was production assembly line type of work
packaging and labeling bug shields and contours with
mandatory overtime (Tran. pp. 94-97 & 102). Claimant
admitted that this job requires repetitive use of her hands,
Page 10
wrists and shoulders and that she is able to concentrate on
the job (Tran. p. 103). Claimant had lost no time from work
since beginning this employment and was just a few days away
from completing her first 90 days at which time she would be
eligible for employee benefits.
Claimant was not receiving medical treatment at the
time of the hearing (Tran. p. 114).
Claimant voiced several complaints of pain and
disability at the time of the hearing but most of them both
predated and postdated this injury of February 7, 1990.
They are chronic in nature. It cannot be said that these
apparently chronic conditions were aggravated by this injury
for the reason that the shoulder, neck and head complaints
did not recur until about one-half a year or more after
claimant discontinued hand and arm work with employer when
she was off work from April 17, 1990 to July 15, 1991 (Tran.
pp. 98-124).
It is determined that claimant did not establish that
this injury of February 7, 1990 was the cause of thoracic
outlet syndrome nor was it the cause of myofascial pain
syndrome nor was it the cause of a chronic pain syndrome.
At the request of Dr. Smith, claimant was examined by
Todd C. Troll, M.D., a physical medicine and rehabilitation
doctor, on September 16, 1991 (Ex. 1, p. 70). His
impression was chronic bilateral upper extremity and neck
pain. He found that her neck pain was diffuse and her upper
extremities were sensitive to any touch. Dr. Troll
concluded, "I feel the patient has chronic pain syndrome. I
do not think that she has thoracic outlet syndrome." (Ex. 1,
p. 86). Dr. Troll did not attribute this chronic pain
syndrome to this injury. Nor did Dr. Troll find any
physical basis for it (Ex. 1, pp. 85 & 87).
Claimant was also examined by Dana Simon, M.D., at the
Mercy Hospital Nerve Block Center. Dr. Simon did not
believe that claimant had thoracic outlet syndrome because
claimant did not respond to scalene injections and the MRI
of the cervical spine was unremarkable. Dr. Simon related
that claimant had a history of intolerance for aspirin and
Tylenol because her stomach was denuded. A prior
gastroscopy was recommended by her personal physician. He
said claimant previously weighed 35 pounds but was up to
107.7 pounds but looks rather gaunt, if not thin (Ex. 1, p.
92). Dr. Simon said that claimant was suffering from a
constitutional problem that he more specifically defined as
a chronic pain syndrome. He testified that claimant was out
of a job, but other evidence indicates that claimant was
working at Burger King at this time.
Dr. Simon did not say that any of claimant's problems
were caused by the injury of February 7, 1990. Nor did he
say that they were caused by the carpal tunnel syndrome of
February 7, 1990. Dr. Simon said claimant had
constitutional problems rather than specific problems in her
neck and shoulders. He recommended extensive physical
therapy. He said there was no derangement in either her
Page 11
muscles or bones that would prevent her from performing
extensive physical therapy such as water therapy or hydro
therapy. He recommended against injections because they
could aggravate her problem. Furthermore, he found no
active trigger points that could be injected.
Claimant returned to see Dr. Simon on December 30, 1991
and he stated, "Once again, I do not find anything
significant in terms of reflex sympathetic dystrophy or
myofascial pain in the past exam. ... It is not felt,
generally speaking, that she has thoracic outlet syndrome as
I mentioned above." (Ex. 1, pp. 91-95). Thus, Dr. Simon did
not causally relate any of claimant's problems to the injury
of February 7, 1990, or to the carpal tunnel syndrome that
was stipulated to have occurred on that date.
Dr. Smith sent claimant to see Lawrence J. Rettenmaier,
M.D., a rheumatologist. Dr. Rettenmaier saw claimant on
April 7, 1992, November 10, 1992 and wrote a letter on
September 14, 1993. On April 7, 1992, Dr. Rettenmaier said
that claimant had a full range of motion of the cervical
spine and shoulders, albeit some discomfort. He did not
find rheumatism, arthritis or thoracic outlet syndrome.
Rather he recommended a chronic pain management program
which would not heal her, but would help her to live with
the pain. He did not believe that she had reflex
sympathetic dystrophy or Raynaud's disease.
Dr. Rettenmaier commented that it was work-related but
he did not say what work caused it. Claimant was working
for Burger King at the time of his examination and had been
working there for approximately six months prior to his
examination. She had also worked for Happy Chef, Hotel Fort
Des Moines and Hawkeye Security in the recent past. On his
April 7, 1992 report he said her current symptom complex
began sometime around April of 1988. However, this date
precedes this injury of February 7, 1990 by a period of two
years.
When claimant saw Dr. Rettenmaier on November 10, 1992,
he found she had no significant change in her symptoms. He
corrected his previous report by stating that her condition
became more constant and developed around 1990 rather than
April of 1988. He noted that claimant had a full range of
motion of the cervical spine and her shoulders. His
impression was complex of diffuse upper extremity pain and
dysesthesias (Ex. 1, p. 77). Dr. Rettenmaier said, "... my
current diagnosis would includes [sic] possible thoracic
outlet bilateral, as well as elements of chronic pain
syndrome." (Ex. 1, p. 78).
Dr. Rettenmaier said that the diagnosis of thoracic
outlet syndrome was a very controversial one. Again, he
said it was related to repetitive activities at work but he
did not say what work he was referring to. Claimant was
still performing the repetitive hand and arm work at Burger
King at the time of his evaluation and had been employed
there for over a year at this time. He thought that
thoracic outlet syndrome surgery would be risky and
unpredictable and that it might not be in her best interest.
Page 12
He said that he has not been doing impairment ratings but
referred them to a physiatrist (Ex. 1, pp. 76-79).
On April 7, 1992, Dr. Rettenmaier stated, "I certainly
do not consider myself experienced or an expert in thoracic
outlet." (Ex. 1, p. 82).
On September 14, 1993, Dr. Rettenmaier wrote to
claimant's attorney that he did not believe that claimant
had a classic thoracic outlet but there was an element of
chronic pain and he would diagnosis that. He stated that he
was not seeing claimant in 1987 and 1988 and that he could
not make an accurate assessment of whether this condition
was similar in origin to her condition at that time or not
(Ex. 1, p. 75).
On March 18, 1992, Dr. Smith changed his diagnosis to
thoracic outlet syndrome. This was after he had been seeing
her for over a year and this diagnosis was contrary to Dr.
Troll, Dr. Simon and Dr. Rettenmaier that he referred her
to.
On April 15, 1992, he noted that claimant had what
appeared to be a histrionic personality and that surgical
intervention for thoracic outlet syndrome might not be in
her best interest at that time. He further noted that
claimant failed to respond to the scalene block and that she
did not want thoracic outlet surgery. Later on June 15,
1992 and July 29, 1992, Dr. Smith said claimant did get
relief from scalene injections. On January 16, 1992, he
told Job Service of Iowa that claimant had bilateral
thoracic outlet syndrome from January of 1990 until January
of 1992 (Ex. 1, p. 61).
On May 20, 1992, Dr. Smith said claimant had an overlap
of thoracic outlet syndrome and chronic pain syndrome. He
said that the onset of pain began when she was working for
employer and therefore he believed that her complaints were
work-related. This is a repeat of his earlier erroneous
history. The medical records show that claimant had
shoulder, neck and back symptoms along with her upper
extremities complaints as far back as 1988 with Dr.
Kimelman. A causal connection opinion based upon erroneous
facts is not a reliable statement of causal connection.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d
607 (1945).
On June 17, 1992, Dr. Smith continued to think that
claimant's symptoms were consistent with thoracic outlet
syndrome. However, he recommended against surgery because
of her attitude and a certain amount of anger (Ex. 1, pp. 45
& 46).
On December 30, 1992, Dr. Smith said that for
medicolegal reasons his malpractice carrier requested, as of
October of 1992, that he discontinue this high risk surgery.
Therefore, he asked that claimant be evaluated by Douglas W.
Massop, M.D., a vascular surgeon (Ex. 8, p. 9 & 29).
Page 13
Claimant saw Dr. Massop on January 8, 1993, for
evaluation of thoracic outlet syndrome. He gave a very
definitive report to Dr. Smith in which he stated,
As you know, she represents a challenging
history. The diffuse numbness is somewhat
nondescript. It appears to involve mainly the
shoulder girdle area. She has no objective or
subjective evidence of weakness. On further exam,
I find no evidence of objective compression of the
thoracic outlet. That is to say, Adson's
maneuvers and Roos' maneuvers are normal, and
there is no obliteration of the radial pulse on
either side.
After discussion with you and finding out that
the MRI of her cervical spine, the EMG's, and
plain films are all normal, I am somewhat
reluctant to attempt an operative procedure on
this young lady.
I am somewhat uncertain as to what her
diagnosis at this time is. However, I do not feel
that she suffers from significant thoracic outlet
syndrome, and therefore, should not be operated on
(Ex. 1, p. 106).
Dr. Massop was equally as unequivocal in an office note
dated January 28, 1993,
1/28/93: I called Roxanne today at work and
discussed findings of results obtained from Dr. C.
David Smith. I feel that she would not benefit
from a thoracic outlet type procedure. Her
symptoms are quite vague, and the numbness that
she experiences is not particularly classic for
thoracic compression. Adson's maneuver
demonstrates no obliteration of the pulse. There
is some tingling associated with provocative
maneuvers. However, no specific findings are
present. Her EMG was entirely normal. F-wave
studies, I am told, are normal. I have asked her
to follow up with Dr. Smith if further questions
arise. DWM (Ex. 106T).
On February 1, 1993, Dr. Smith wrote to claimant as
follows,
I received a letter from Doctor Massop dated
January 8 after your visit with him. It did not
surprise me to learn that he was unwilling to
operate on you and that he did not feel you had
thoracic outlet syndrome. I have told you in the
past that your diagnosis fits criteria minimally.
The criteria I use I don't believe he employs (Ex.
1, p. 43).
Dr. Smith gave a deposition on November 12, 1993, just
a few days prior to hearing (Ex. 8, p. 5). At that time he
said that claimant had either thoracic outlet syndrome or
Page 14
chronic pain syndrome but he could not determine which one
(Ex. 8, p. 5). He said that thoracic outlet syndrome
typically would follow an automobile accident and that since
claimant did not have an automobile accident he wondered if
it was not myofascial pain syndrome or chronic pain syndrome
(Ex. 8, p. 6).
Dr. Smith agreed with defense counsel that he did not
document any loss of range of motion in claimant's neck
until September of 1991 (Ex. 8, p. 16). He further admitted
that claimant's symptoms did not meet the clinical criteria
for thoracic outlet syndrome (Ex. 8, p. 17). He admitted
that he did not detect any thoracic outlet syndrome
complaints until June of 1991 (Ex. 8, pp. 21-23). Dr. Smith
further admitted that in August of 1991 he said that
claimant may have thoracic outlet syndrome, or she may be
malingering, or she may have an alternate diagnosis (Ex. 8,
p. 23).
Dr. Smith said the condition appeared to be related to
employment with employer (Ex. 8, p. 6). However, he
admitted he had no idea of what she was doing at the time
the symptoms began at her place of employment.
Dr. Smith said he first considered myofascial pain
syndrome in February of 1992 (Ex. 8, p. 24). However, he
admitted that he did not know what activities claimant was
involved in at that time. Dr. Smith admitted that he did
not hold himself out as an expert in myofascial pain
syndrome or chronic pain syndrome (Ex. 8, p. 28).
Thus, in the final analysis it can be seen that Dr.
Smith went from (1) a determination that claimant did not
have thoracic outlet syndrome, to (2) a determination that
claimant did have thoracic outlet syndrome, to (3) a
determination that claimant had either thoracic outlet
syndrome or chronic pain syndrome, but he did not know which
one. Several doctors said that claimant did not have
thoracic outlet syndrome. Dr. Smith still was not sure at
the time of his deposition ten days prior to hearing.
Wherefore, based on the foregoing evidence, it is
further determined that the injury of February 7, 1990 was
not the cause of thoracic outlet syndrome. None of the many
physicians could definitively state that claimant had
thoracic outlet syndrome. Furthermore, none of the
physicians could state that her shoulder, neck and back
complaints were caused by her employment for this employer
on February 7, 1990, or any other date during her employment
for this employer.
It is further determined that the injury of February 7,
1990 was not the cause of myofascial pain syndrome or
chronic pain syndrome. Claimant suffered from chronic
shoulder, neck and back complaints and headaches both prior
to and subsequent to this injury. None of the physicians
stated that the injury of February 7, 1990, while working
for this employer, was the cause of the chronic pain
syndrome or myofascial syndrome.
Page 15
Furthermore, based on the foregoing evidence, it is
determined that the injury of February 7, 1990, which caused
bilateral carpal tunnel syndrome and bilateral cubital
syndrome was not the cause of permanent disability. Mr.
Bower determined that claimant did not sustain any permanent
impairment from her carpal tunnel and cubital tunnel
surgeries. Mr. Bower's impairment rating is supported by
the fact that claimant has performed repetitive work with
her hands and arms since October of 1991 for Burger King and
now for DZ Manufacturing.
Therefore, in conclusion it is determined as a matter
of fact that the injury of February 7, 1990 was not the
cause of any permanent disability and therefore claimant is
not entitled to any permanent disability benefits.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant did not sustain the burden of proof by a
preponderance of the evidence that the injury of February 7,
1990 was the cause of permanent disability. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl
v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).
That claimant did not sustain the burden of proof by a
preponderance of the evidence that the injury of February 7,
1990 was the cause of either thoracic outlet syndrome,
chronic pain syndrome or myofascial pain syndrome. Bodish,
257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 Iowa 296
18 N.W.2d 607 (1945).
Based on the foregoing two conclusions of law the issue
of whether claimant is entitled to any permanent disability
benefits is moot.
ORDER
THEREFORE, IT IS ORDERED:
That no money is owed by defendants to claimant.
That both parties are to bear their own costs of this
action, except that defendants are to pay for the attendance
of the court reporter at hearing and the transcript of
hearing. Rule 343 IAC 4.33 and Iowa Code sections 86.19(1)
and 86.40.
That defendants file claim activity reports as
requested by this agency.
Signed and filed this ____ day of August, 1994.
Page 16
-----------------------------
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Channing L. Dutton
Attorney at Law
1200 35th Street, Suite 500
West Des Moines, IA 50266
Mr. Marvin E. Duckworth
Ms. Tina M. Eick
Attorneys at Law
2700 Grand Ave., Suite 111
Des Moines, IA 50312
2901, 2902, 2906, 3700, 1401,
1402.40, 1803, 2206, 2209,
Filed August 15, 1994
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROXANNE BENEFIEL,
Claimant,
vs.
File No. 948482
PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
WAUSAU INSURANCE COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
2901, 2902, 2906, 3700
The deputy excluded the deposition of claimant from
evidence on his own initiative for the reason that claimant
was present in the courtroom to testify on the points
relevant and material to the remaining issues at the time of
hearing. The deposition could be used to refresh memory or
to impeach the credibility of the witness.
1401, 1402.40, 1803, 2206, 2209
It was determined that the injury, bilateral carpal
tunnel and bilateral cubital tunnel was not the cause of
permanent impairment, even though claimant had right and
left carpal tunnel surgery and right cubital tunnel surgery.
Claimant did not prove that the injury was the cause of
thoracic outlet syndrome, chronic pain syndrome, myofascial
pain syndrome, reflex sympathy dystrophy, or Raynaud's
disease.
Claimant's shoulder, neck and back complaints preceded
this injury. The recurrence of these symptoms did not recur
until claimant was off work and had performed no duties for
employer for over six months. Likewise, it was determined
that this was not an aggravation of a preexisting condition.
The one doctor who called it a thoracic outlet syndrome
at one time vacillated back and forth and ended up saying it
was either thoracic outlet syndrome or chronic pain
syndrome, but he could not determine which one. His opinion
was contrary to three specialists that he had referred
Page 2
claimant to for an opinion on thoracic outlet syndrome one
of which was the final recognized TOS specialist.
The only impairment evaluator for the carpal tunnel and
cubital tunnel said there was no permanent impairment.
Claimant did not have an independent medical examination to
controvert or rebut this opinion.
The determination of no causal connection to permanent
disability made moot a determination of whether the injury
was to the hands, arms, or the body as a whole and
claimant's entitlement to permanent disability benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LINDA SANDERSON, :
:
Claimant, : File Nos. 948568
: 1013377
vs. :
:
UNITED TECHNOLOGIES : A R B I T R A T I O N
AUTOMOTIVES, :
: D E C I S I O N
Employer, :
:
and :
:
PACIFIC EMPLOYERS INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
These are proceedings in arbitration upon the petition
of claimant, Linda Sanderson, against her employer, United
Technologies, and its insurance carrier, Pacific Employers
Insurance, defendants. On June 2, 1993, a hearing
assignment order was filed which set these matters for a
primary hearing date on January 10, 1994 at noon, at the Des
Moines County Courthouse in Burlington, Iowa.
At the aforesaid time and place, the undersigned deputy
industrial commissioner appeared. Also present were William
Bauer, attorney for claimant, and Harry Dahl, attorney for
defendants, and a representative of defendant-employer.
Claimant did not appear.
Attorney Bauer made a professional statement on the
record with respect to the efforts he had made to contact
his client. He stated that:
1. Claimant's last known address was listed as 210
Dallas Road, Carthage, Illinois 62321, but that to the best
of his knowledge, claimant had no telephone.
2. Attorney Bauer listed the following dates as dates
when he had tried to reach claimant by letter:
January 6, 1994
December 27, 1993
December 10, 1993
December 3, 1993
October 18, 1993
September 14, 1993
3. Attorney Bauer indicated the last time he had
communicated with claimant was in September or October of
1993.
Page 2
No witnesses testified for either party. Claimant's
attorney offered claimant's exhibits 1-5. Defendants'
attorney offered exhibits A-D. All of the above exhibits
were admitted as part of the official record.
ISSUES
The issues to be determined are:
For file numbered 948568: (knee claim)
1. Whether there is a causal relationship between the
work injury on April 30, 1990 and any permanent disability;
and,
2. Whether claimant is entitled to any permanent
partial disability benefits.
For file numbered 1013377: (right upper extremity)
1. Whether claimant sustained an injury which arose
out of and in the course of her employment;
2. Whether there is a causal relationship between the
alleged injury and any temporary or permanent disability;
and,
3. Whether claimant is entitled to any healing period
or permanent partial disability benefits.
FINDINGS OF FACTS
The undersigned deputy finds:
Claimant was employed by defendant employer when she
sustained a work-related injury on April 30, 1990. Claimant
fell on the parking lot adjacent to her place of employment.
She received medical treatment from Robert Kemp, M.D. Dr.
Kemp's records for the date of the work injury revealed:
This patient was seen because of a fall in the
parking lot at work in which she fell and injured
her right knee by direct contusion and also
apparently some problems with slight twisting.
However on examination her ligaments are intact.
She has a contusion just interior to the patella
and x-rays are negative. So this appears to be
primarily a contusive affair. The patient will be
treated with ice packs, 4 inch Ace bandages,
crutches, rest. I will see her in 2 days. She
will have to be off work, completely, and followed
up accordingly.
FINAL DIAGNOSIS: contusion of the right knee.
(Exhibit 1-1).
Dr. Kemp ordered x-rays. The x-rays were negative.
Dr. Kemp continued with follow-up care. Physical therapy
Page 3
was prescribed but eventually claimant was discharged from
the physical therapy department.
In June of 1990, claimant sought a consultation from
Keith W. Riggins, M.D., an orthopedic surgeon. In his
report of June 7, 1990, Dr. Riggins opined:
Linda Sanderson is interviewed and evaluated
on June 7, 1990. She reports a fall occurring on
April 30, 1990 in the course of her employment, at
which time she struck the anterior aspect of the
knee against a hard surface. She has noted
persistent discomfort in the anterior and
posterior aspects of the knee, particularly
associated with prolonged standing. No true
episodes of locking or giving way are related.
Examination of the right knee demonstrates
range of motion to be full and complete. No
effusion is present. No clinical laxity is
apparent. Tenderness is apparent over the
patellar articular surface and anterior
retinacular structures.
Previous x-ray examinations are reviewed and
are within normal limits.
MRI of the knee is reviewed and demonstrated
grade 1 changes within the substance of the
meniscus which are not felt to be of clinical
significance.
Diagnosis: Traumatic patellar chondromalacia,
code 717.7.
Recommendation: The patient is counseled
regarding the nature of that condition. She may
continue to work but should abstain from
prolonged, standing, walking, kneeling or
squatting. She is provided a prescription for
Feldene, 20 mgs. daily, and counseled regarding
its use and is to return for re-examination in ten
days. If no improvement is noted on Feldene, MRI
with trans-axial cuts through the patella to
evaluate for possible sub-condylar fracture
patella will be obtained.
(Exhibit 2-1).
Later Dr. Riggins opined in his report of July 2, 1990:
Recommendation: I am unable to definitively
identify a pathologic condition responsible for
Mrs. Sanderson's discomfort, and must therefore,
presume that it is persistent tendonitis secondary
to contusion. It is recommended she not engage in
activities which require squatting or kneeling on
a permanent basis. No return visits are required.
(Exhibit 2-4).
Page 4
In August of 1990, Dr. Riggins authored a final report
regarding claimant's condition. He opined:
As of Ms. Sanderson's last visit to the office
on July 2, 1990 I was unable to identify the
presence of a rateable condition within her right
lower extremity. It is recommended that if she
remains symptomatic at this time, she be returned
for re-examination.
(Exhibit 2-5).
On September 4, 1990, claimant sought treatment from
Werner F. Schoenherr, M.D. Claimant complained of symptoms
which were consistent with symptoms of a right carpal tunnel
syndrome. (Exhibit 3-2) Dr. Schoenherr referred claimant
to Walid Hafez, M.D., a neurologist. However, claimant did
not keep an appointment she had with him.
The evidence indicates that claimant sustained an
injury to her left wrist on April 2, 1990. Throughout the
course of the month, claimant received medical treatment
from Dennis Coventon, D.O. Dr. Coventon diagnosed
claimant's condition as "Sprain L wrist pulled muscles". The
physician also indicated the injury was not related to
claimant's employment. (Exhibit B-3)
In her answers to interrogatories, which claimant
completed on April 5, 1993, she answered under oath the
following in reply to interrogatory number 13:
ANSWER: On August 8, 1990, I injured my right
arm while working for United Technologies
Automotive through repetitive use. The Industrial
Commissioner's claim number is 1013377 and is
currently pending. See the answers to
interrogatories produced in that file for further
answer.
(Exhibit C)
In separate answers to interrogatories which claimant
also completed on April 5, 1993, claimant wrote in reply to
interrogatory number 17 that:
ANSWER: There were no witnesses because my
injury is a cumulative injury. However, two other
women who worked the same job as I did suffered
from carpal tunnel also. The name of these women
are Marilyn Davis of Keokuk, and Carol Simpson of
Keokuk, Iowa.
(Exhibit D)
On April 30, 1991, claimant completed a form, entitled,
Statement of Claim, Group Accident & Sickness. On the face
of the application form, claimant indicated that she had
sustained a non-occupational injury. According to
claimant's form, she "had flu became dizzy fell against sink
Page 5
on wrist." Claimant indicated the non-work injury occurred
on April 30, 1991.
Claimant's attorney, in anticipation of a hearing on
these matters, then referred claimant to Robert P. Randolph,
M.D. Dr. Randolph examined claimant on June 5, 1991. His
office notes for that date indicated in relevant portion:
The third orthopaedic problem has resulted in the
pt being off work for the past 6 weeks. She fell
onto her right hand and was thought at one point
apparently, to have had a fx of one of the carpal
bones, presumeably [sic] the navicular or scaphoid
bone. A bone scan was performed and apparently,
according to the pt's hx, no pathologic findings
were noted. It was for this injury that the pt
has been off work, but she apparently prior to
that had been working in some capacity throughout
the course of her problem with the right knee. In
fact, dating back essentially to her original
injury. The pt is 180#, 5'2" tall and again, her
pain and crepitance is localized to the right
knee, but more appropriately localized to the
lateral ligamentus complex and iliotibial band
above the joint line, not specifically pointing in
the direction of significant internal derangement.
E: Pt's right lower extremity exam included
exam of the knee where she found to have a
slightly increased Q angle and somewhat increased
mobility with passive medial and lateral
subluxation of the patella, but no patellofemoral
compression tenderness. She had mild tenderness
to joint line laterally and superiorly along the
iliotibial tract, not specifically at G____
tubricle. Knee ROM wsa [sic] from full extension
to 125o of flexion. She had no medial joint line
tenderness.
There was no crepitance, locking and stable knee
ligaments were noted with various and valgus
stress testing in extension and 30o of flexion as
well as with anterior drawer and Lachiman test.
....
Given the fact that the pt's diagnostic studies
including radiographs, MRI and ED studies and bone
scan were all not presented for review, it would
[be] inappropriate to make a final determination
as to my assessment to the pt's etiology for her
right knee pain. In all likelihood, the pt's
symptomatic right wrist is secondary to carpal
tunnel syndrome, however, much improved and
certainly on the basis of her clinical
presentation at this time, not warranting
additional tx including surgical release of the
volar carpal ligament.
In my view, based on purely the hx and exam
Page 6
findings today, the pt's right knee pain is not
clearly intra-articular, but rather more strongly
suggestive of a tendinitis in the lateral capsular
structures, secondary restraints including
iliotibial band. She did not have any presenting
signs or symptoms that would be strongly
suggestive of a torn meniscus or ligamentus damage
to the knee. The pt, by way of further hx,
suggested that she may have had some degenerative
change noted radiographically, and certainly may
be some pathologic findings with respect to the
articular cartilage and meniscal structures within
the knee that might warrant surgical intervention,
specifically arthroscopic surgery. Arthroscopic
surgery was discussed, but not specifically as a
therapeutic procedure, but given the pt's lengthy
saga of pain, arthoscopic surgery certainly would
add a dimention [sic] of additional diagnostic
information and might be warranted on that basis.
(Exhibit 4-1, 4-2)
Later Dr. Randolph wrote to claimant's attorney the
following report, dated, August 29, 1991:
It would appear that since her knee symptoms are
related to an isolated traumatic episode that
occurred on 040290, that this could legitimately
be considered work related. That injury, by
history, having occurred at the work place. In so
far as she has developed carpal tunnel syndrome
and her work situation involves repetitive use of
the extremities, there may be a strong connection
between work activities and the development of
peripheral nerve entrapment neuropathies in the
upper extremity as well . On that basis, this
problem, too, could be considered work related.
(Exhibit 4-3)
The record reveals that claimant was terminated from
her position with defendant on June 30, 1993 and after
claimant failed to report to work. (Exhibit A) Claimant
had sought subsequent employment but whether she had
obtained employment of any kind is unknown to this deputy.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
Page 7
of" refer to the time, place and circumstance of the injury.
Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure
v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant also has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, 215 N.W.2d 296 (Iowa
1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W. 2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934).
With respect to the alleged right upper extremity
condition, claimant has failed to meet the requisite burden
of proof which is required of every claimant who alleges she
has sustained a work-related injury. Claimant is required
to prove that her injury arose out of and in the course of
her employment. Claimant has failed to appear and to
testify on her own behalf. There is not sufficient evidence
to support the allegations found in her original notice and
petition. The evidence is conflicting whether the injury
was work related. Claimant has failed to present sufficient
evidence to support allegations of a compensable work
injury. Claimant takes nothing from these proceeding with
respect to file number 1013377.
Besides her right upper extremity claim, claimant has
alleged that she has sustained a work-related injury to her
Page 8
right lower extremity. The parties have stipulated that
claimant did sustain a work-related injury to her right knee
when she slipped on the parking lot. The parties have also
stipulated that claimant has sustained a temporary
disability as a result of her work injury. Previous to the
date of the hearing, defendants have paid claimant 4.286
weeks of weekly benefits at the stipulated rate of $270.02
per week.
Again, claimant has failed to appear and to testify on
her own behalf. Claimant has failed to present sufficient
evidence to support the allegations in her original notice
and petition that her work injury has resulted in a
permanent condition and that she is entitled to any
permanent partial disability benefits.
The medical evidence does not support any permanent
condition. The radiographs are in the normal range. The
range of motion of the right knee is in the normal range.
Dr. Riggins has opined that he is unable to identify the
presence of a ratable condition. Dr. Randolph's findings
are minimal, at best. He has diagnosed claimant as having a
strong suggestion of tendonitis. Claimant's condition does
not appear to be permanent in nature. Claimant takes
nothing further from these proceedings.
ORDER
With respect to file numbered 1013377, claimant takes
nothing from the procedures.
With respect to file numbered 948568, claimant takes
nothing further from these proceedings.
Costs are taxed to defendant pursuant to rule 343 IAC
4.33.
Defendant shall file claim activity reports as
requested by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of January, 1994.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. William Bauer
Attorney at Law
100 Valley Street
P.O. Box 517
Burlington, Iowa 52601
Harry W. Dahl
Attorney at Law
974 73rd Street Suite 16
Des Moines, Iowa 50314
1400; 1402
Filed January 21, 1994
Michelle E. McGovern
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LINDA SANDERSON,
Claimant, File Nos. 948568
1013377
vs.
UNITED TECHNOLOGIES A R B I T R A T I O N
AUTOMOTIVES,
D E C I S I O N
Employer,
and
PACIFIC EMPLOYERS INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
1400, 1402
Claimant failed to appear at the consolidated hearing of her
claims. Claimant's attorney appeared and made a
professional statement regarding the attempts he had made to
contact his client. A representative of defendant was
present at the hearing as well as defendants' attorney.
Various exhibits were offered and admitted.
With respect to file number 1013377, claimant did not
produce sufficient evidence in support of her allegations of
a compensable work injury. Claimant failed to meet her
burden of proof.
With respect to file number 948568, the parties stipulated
that claimant had sustained a work related injury to her
right lower extremity. The parties also stipulated that the
injury caused a temporary disability. It was disputed
whether claimant had sustained a permanent condition.
The medical evidence was insufficient to support a
conclusion that the condition was permanent in nature.
Because claimant failed to appear ar her hearing, she did
not provide any testimony in support of her allegations of a
compensable work injury and which was permanent in nature.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
DEBORAH L. KNOLL, :
:
Claimant, :
:
vs. :
: File No. 948815
CHEROKEE MENTAL HEALTH :
INSTITUTE,
: 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 Deborah
L. Knoll, claimant, against Cherokee Mental Health
Institute, employer and State of Iowa, insurance carrier, to
recover benefits under the Iowa Workers' Compensation Act as
the result of an injury sustained on April 21, 1990. This
matter came on for hearing before the undersigned deputy
industrial commissioner on February 4, 1992, in Storm Lake,
Iowa. The record was considered fully submitted at the
close of the hearing. The record in this case consists of
testimony of claimant, Philip Knoll, Billy McKay, and Bonita
Rupp; claimant's exhibits 1 through 5 and defendants'
exhibits A through H.
issues
Pursuant to the prehearing report and order dated
February 4, 1992, the parties stipulate that an
employer-employee relationship between claimant and employer
existed at the time of the alleged injury and that claimant
sustained an injury on April 21, 1990, which arose out of
and in the course of her employment with employer. The
parties submit the following issues for resolution:
. Whether the work injury is a cause of permanent
disability;
. The extent of entitlement to weekly compensation for
temporary total or healing period benefits;
. The extent of entitlement to weekly compensation for
permanent disability benefits;
. The extent of entitlement to medical benefits under
Iowa Code section 85.27; and
Page 2
. Defendants entitlement to credit under Iowa Code
section 85.38(2).
findings of fact
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on January 18, 1960, and completed
the twelfth grade of school. Claimant's work activity has
been primarily as a child development worker/resident
treatment worker. She worked eight years at Woodward State
Hospital School and transferred to Cherokee Mental Health
Institute in late 1988. Claimant's duties at Cherokee prior
to her injury in April 1990 included housekeeping,
supervising adult male patients, delivering meals,
supervising patients' daily activities and acting as a link
between patients and their doctor. Her medical history
prior to April 1990 includes a knee injury in 1986, which
was rated at 10 percent permanent disability. Claimant's
present injury occurred on April 21, 1990. While retrieving
linens in the hospital clothing room, she caught her shoe on
the corner of the cupboard and fell to the ground. She
filled out an incident report indicating that she hurt her
back. She worked the rest of her shift that day and the
following week. On May 5, 1990, her back pain became so
severe that she required treatment at Sioux Valley Memorial
Hospital. She was taken for conservative treatment. She
returned to work for one day on October 3, 1990. After
exhausting her sick and vacation leave, she applied for
medical leave of absence without pay. She received
long-term disability payments from December 15, 1990 through
April 30, 1991. On October 23, 1991, she was recalled by
employer and returned to work as a resident treatment worker
on the night shift.
The pertinent medical evidence of record indicates that
claimant was seen in the emergency room at Sioux Valley
Memorial Hospital on April 29, 1990, for evaluation of back
pain. She was given Motrin IM and discharged. She then
made arrangements to see her treating physician, Steven J.
Veit, for follow-up evaluation (exhibit 1, page 12).
Dr. Veit admitted claimant to Sioux Valley Memorial
Hospital on May 5, 1990, for treatment of midline low back
pain. A lumbar CT scan was negative at L3-L4 and L4-L5, but
showed vacuum degenerative disc with central herniation of
disc material at L5-S1 just to the left of the midline
putting pressure on the dural sac. She was treated
conservatively with one week of pelvic traction. She was
discharged on May 15, 1990 (ex. 1).
Claimant was referred by employer/insurance carrier to
Leonel H. Herrera, M.D., neurosurgeon, for evaluation on May
15, 1990. After reviewing the claimant's medical history
and noting her complaints, Dr. Herrera performed a physical
examination. He diagnosed lumbosacral and sacroiliac
ligamentous sprain with no focal neurological deficits. It
Page 3
was his impression that the centrally, mildly bulging disc
was not producing her symptoms. He recommended time off
work and an out-patient physical therapy program (ex. A, pp.
1-2).
Claimant saw Dr. Herrera for follow-up examination on
June 5, 1990. She reported that her back pain was much
improved and no longer presented difficulty for her. Her
chief complaint was pain in the left hip with radiation down
the left leg into her foot. She was advised to start a
rehabilitation program (ex. A, p. 3).
After three physical therapy sessions, claimant
reported to Dr. Herrera increased back pain. On
examination, she had some tenderness at the lumbosacral
junction with negative straight leg raising in the sitting
and supine positions. She was advised to increase her
participation in the rehabilitation program (ex. A, p. 4).
Dr. Herrera last saw claimant on July 17, 1990. At
this time, he recommended that she return to work starting
on a light duty program with lifting no more than 10 pounds
and no repetitive bending or stooping. He recommended
increasing work hours from four to six and then eight hours,
three times per week. He requested a re-evaluation after
five days of eight hours work (ex. A, pp. 5 and 15).
Claimant requested a second opinion and wanted Dr.
Herrera to refer her to a physician in Spencer, Iowa.
Instead, he referred her to a neurosurgeon in Sioux City,
Iowa (ex. A, pp. 17-19).
Claimant felt that she was unable to return to full
duty as recommended by Dr. Herrera and was referred to K.J.
Liudahl, M.D., for orthopedic consultation on August 8,
1990. On examination, he reported, in part, that she "Has
variable inconsistent complaints of back pain and leg pain
with internal, external rotation of her hip and negative
Patrick's test, negative Bowstring test. Is neurological
intact in both lower extremities." He indicated that he had
nothing further to offer her and recommended that she
continue under Dr. Herrera's care at Back Care, Inc. (ex. 1,
p. 2).
Claimant was evaluated by Ralph F. Reeder on August 21,
1990. After reviewing the claimant's medical history and
noting her complaints (low back pain with bilateral leg
pain, left side much worse than right), Dr. Reeder conducted
a neurological examination. He also reviewed a myelogram
which was taken on July 26, 1990. He recommended an
epidural flood and continuance on nonsteroidal
anti-inflammatory medication. He recommended six more weeks
of total disability and a return to light duty on October 1,
1990. He recommended lifting no more than 10 pounds and
restricted stooping, bending, crouching, twisting, pulling,
pushing, prolonged sitting. After one month of these
restrictions, he indicated that she may return to full
duties with a permanent 50-pound weight restriction. He
reported that "The prognosis for recovery is uncertain and
this patient may in fact be at maximum medical improvement.
Page 4
If she shows no improvement by the time of the
aforementioned dates, I believe that patient will be left
with a permanent partial disability of 5%...." (ex. B, pp.
2-3).
Claimant returned to work on October 3, 1990, which was
her regularly scheduled work day. She reported to the 6:30
a.m. shift and was placed on the adult men's open ward with
light duty restrictions. Claimant testified that she did
not return to work on October 4, 1990, because she felt that
she could not do the work. She testified that Dr. Reeder
sent her back to Dr. Veit and he took her off work.
However, there is no supporting documentation either in Dr.
Reeder's or Dr. Veit's notes indicating that she was
referred by Dr. Reeder to Dr. Veit. Instead, a notation
from Dr. Veit dated October 4, 1990, states that "Tried to
work yesterday. Now has a lot of back pain into left leg.
Had to do quite a bit of walking at work and now just has
almost a constant pain down the left side of her body. In
addition, still notices the funny intermittent bizarre
feeling shooting down her left upper extremity." Dr. Veit
made no mention of a referral from Dr. Reeder. Based on her
subjective complaints, Dr. Veit took her off work for
another month and continued conservative care (ex. 1, p.
14).
After being taken off work by Dr. Veit, claimant
presented to the Division of Vocational Rehabilitation
Services in Cherokee, Iowa, on October 9, 1990, for
evaluation. Claimant was approved for enrollment at Iowa
Lakes Community Colleges Substance Abuse Counselor program
in January 1991. Claimant testified that she has obtained
30 semester hours and expects to receive an associate degree
in January 1993 (ex. D).
Claimant was referred by Principal Insurance to Michael
T. O'Neil, M.D., for evaluation on July 1, 1991, to
determine whether she was still eligible for long-term
disability benefits. Claimant presented with complaints of
dull aching low back pain and left posterior buttock and
lateral thigh pain. X-rays of the lumbosacral spine were
obtained and revealed a severely narrowed L5-S1
intervertebral disc space. Dr. O'Neil believed that there
was some functional overlay and malingering to claimant's
complaints. He noted inconsistent straight leg raising
tests and inconsistent pain with minimal forward flexion of
the lumbar spine. There was no evidence of any objective
neurological changes and minimal changes were noted on
previous myelograms and CT scans. He felt that she could
return to work in a more sedentary type of occupation. He
indicated that she has reached maximum medical improvement
and is entitled to a 5 percent permanent impairment of the
body as a whole as a result of her back injury (ex. E).
conclusions of law
The parties do not dispute that claimant sustained a
work-related injury to her back on April 21, 1990.
The first issue to be determined is the extent of
Page 5
claimant's entitlement to weekly compensation for temporary
total disability or healing period benefits.
Defendants contend that claimant's entitlement to
temporary benefits ended sometime in 1990 when Dr. Reeder
released her for light duty. Claimant contends that she is
entitled to temporary benefits from April 21, 1990, through
October 23, 1991, when she returned to work with employer.
After carefully considering the total evidence in this
case, the undersigned concludes that claimant has suffered a
permanent disability. Therefore, she is entitled to healing
period benefits under Iowa Code section 85.34(1). Healing
period benefits may be characterized as that period during
which there is a reasonable expectation of improvement of a
disabling condition and ends when maximum medical
improvement is reached. Armstrong Tire & Rubber Co. v.
Kubli, Iowa App., 312 N.W.2d 60, 65 (1981). In discussing
the concept of healing period as contemplated by Iowa Code
section 85.34(1), the Kubli court observed that recuperation
refers to that condition in which healing is complete and
the extent of the disability can be determined. Kubli, 312
N.W.2d 65. The healing period generally terminates at the
time the attending physician determines that the employee
has recovered as far as possible from the effects of the
injury. Kubli, 312 N.W.2d 65. When a permanent rating is
given, it indicates that the physician does not expect the
claimant to improve and this conclusion meets the criteria
of Iowa Code section 85.34(1) and Thomas v. Wm. Knudson &
Sons, Inc., 349 N.W.2d 124, 126 (Iowa Ct. App. 1984).
In this instance, claimant's healing period ended on
October 31, 1990, when she was released by Dr. Reeder for
full-time work duty and given a permanent partial disability
rating of 5 percent (ex. B, p. 3).
The next issue to be determined is claimant's
entitlement to permanent partial disability benefits. The
causal connection of permanent partial disability to the
April 21, 1990, injury was established by physicians who
have treated and/or examined claimant for this injury and
claimant's testimony that she had no back problems prior to
the injury. Claimant has clearly demonstrated that she
sustained an industrial disability as a result of her April
21, 1990, injury.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
Page 6
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
Industrial disability was defined in Diederich, 219
Iowa 587, 593, 258 N.W. 899, 902 as loss of earning capacity
and not a mere `functional disability' to be computed in
terms of percentages of the total physical and mental
ability of a normal person. The essence of an earning
capacity inquiry then, is not how much has the claimant been
functionally impaired, but whether that impairment, in
combination with the claimant's age, education, work
experience, pre and post-injury wages, motivation, and
ability to get a job within her restrictions, if any
restrictions have been imposed, have caused a loss of
earning capacity. Olson v. Goodyear Service Stores, 255
Iowa 1112, 125 N.W.2d 251, 257 (1963); Diederich, 219 Iowa
587, 593, 258 N.W. 899, 902; Peterson v. Truck Haven Cafe,
Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner
Decisions 654, 658 (Appeal Decision February 28, 1985);
Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa
Industrial Commissioner Decisions 529 (Appeal Decision March
26, 1985).
Page 7
There are no weighting guidelines that indicate how
each of the factors are to be considered. There is no
equation which can be applied and then calculated to
determine the degree of industrial disability to the body as
a whole. It therefore becomes necessary for the deputy or
commissioner to draw upon prior experience and general and
specialized knowledge to make a finding with regard to the
degree of industrial disability. See, Peterson, vol. 1, no.
3 State of Iowa Industrial Commissioner Decisions 654, 658;
Christensen, vol. I, no. 3, State of Iowa Industrial
Commissioner Decisions 535.
In this instance, claimant is relatively young and her
industrial disability is not as serious as it would be for
an older employee. McCoy, file numbers 782670 & 805200.
Claimant has been given a 5 percent functional impairment
rating and a 50 pound lifting restriction by Dr. Reeder and
limitations on sitting, standing, bending, stooping, and
climbing. Claimant is still working at Cherokee Mental
Health Institute and is earning more money than she was at
the time of her injury. There is some hint in the medical
evidence that claimant's complaints are out of proportion to
the clinical and laboratory findings and may well be
exaggerated. Claimant's limitations and restrictions appear
to be based more on her subjective complaints of pain rather
than objective medical evidence.
Based upon the foregoing factors, all of the facts used
to determine industrial disability, and employing agency
expertise, it is determined that claimant sustained a 10
percent industrial disability and is entitled to 50 weeks of
permanent partial disability benefits commencing on November
1, 1990.
The final issue to be determined is whether claimant is
entitled to certain medical expenses under Iowa Code section
85.27.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27.; Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., File No. 850096 (App. 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).
When a designated physician refers a patient to another
Page 8
physician, that physician acts as the defendant employer's
agent. Permission for the referral from defendants is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker does not include the right to
determine how an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgment. Assmann v. Blue Star Foods, Inc., File No. 866389
(Declaratory Ruling, May 18, 1988).
Defendants argue that some of claimant's medical
charges are not causally related to the April 1990 work
injury and were not authorized by defendants.
The employer's obligation to furnish medical treatment
carries with it the privilege of selecting the care. In an
emergency when an employer or the employer's agent cannot be
contacted immediately, the employee may choose care at the
employer's expense. An employee who experiences
dissatisfaction with the provided care should communicate
the basis of the unhappiness to the employer. This
communication should be in writing.
The employer has a duty to monitor the treatment being
provided. If for any reason the employer is dissatisfied
with the care given, it must provide an alternative and give
notice preferably in writing that care by a particular
practitioner is no longer authorized.
Claimant has proven entitlement to reimbursement for
some medical and mileage expenses related to the April 21,
1990, injury including one office visit to Dr. Veit for
purposes of a second opinion, office visits and treatment by
Dr. Herrera and office visit and treatment recommendations
(an epidural flood and continuation of nonsteroidal
anti-inflammatory medication and Voltaren) recommended by
Dr. Reeder.
Claimant has failed to prove entitlement to
reimbursement for medical mileage and expenses incurred with
Dr. Veit, (other than the one authorized visit) including
all treatments and referrals made by Dr. Veit and medication
prescribed by him. Claimant insisted that Dr. Reeder
referred her back to Dr. Veit in October 1990, however, the
evidence does not support claimant's contentions.
Therefore, defendants are not obligated to pay medical bills
and expenses for unauthorized treatment.
Defendants seek a credit pursuant to Iowa Code section
85.38(2). That section provides a credit against an award
for amounts paid under a nonoccupational group plan.
Claimant was an employee of the state of Iowa. The State of
Iowa's Employee's Long-term Disablity Plan has been held to
constitute a nonoccupational group plan entitling defendants
to credit under Iowa Code section 85.38(2). Lowe v. Iowa
State Penitentiary, (file numbers 673326, 776977, 805718)
Appeal Decision, December 16, 1988.
Page 9
order
THEREFORE, IT IS ORDERED:
That defendants pay to claimant twenty-seven point
seven one four (27.714) weeks of healing period benefits at
the rate of two hundred fifty-six and 98/100 dollars
($256.98) per week from April 21, 1990, through October 31,
1990.
That defendants pay to claimant fifty (50) weeks of
permanent partial disability benefits at that rate of two
hundred fifty-six and 98/100 dollars ($256.98) per week
commencing November 1, 1990.
That defendants pay for all medical and mileage
expenses incurred for medical treatment and medication
authorized by them.
That defendants receive credit under Iowa Code section
85.38(2) for previous payments made under a nonoccupational
group health plan.
That defendants pay all of the costs pursuant to rule
343 IAC 4.33.
That defendants receive credit for any benefits
previously paid.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30.
That defendants file claim activity reports as required
by this agency.
Signed and filed this ____ day of February, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. George Wittgraf
Attorney at Law
223 Pine St.
PO Box 535
Cherokee, Iowa 51012
Mr. Greg Knoploh
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
Page 10
Page 1
51802 51803 52500
Filed February 13, 1992
Jean M. Ingrassia
before the iowa industrial commissioner
____________________________________________________________
:
DEBORAH L. KNOLL, :
:
Claimant, :
:
vs. :
: File No. 948815
CHEROKEE MENTAL HEALTH :
INSTITUTE,
: 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. :
___________________________________________________________
51802
In a dispute as to when healing period benefits ended, it was
determined that pursuant to Armstrong Tire & Rubber Co. v. Kubli,
Iowa App., 312 N.W.2d 60, 65 (1981), that claimant's healing
period ended when she was given a permanent impairment rating and
it was determined that she reached maximum medical improvement.
51803
Based on claimant's age, education, work experience, pre and
post-injury wages, motivation, functional impairment and
restrictions, it was determined that claimant sustained a 10
percent industrial disability.
52500
Defendants stipulated that claimant sustained an injury which
arose out of and in the course of employment with employer.
Pursuant to Iowa Code section 85.27, the employer is obliged to
furnish reasonable services and supplies to treat an injured
employee and has the right to choose the care. If the employee
is dissatisfied with the care offered, she must follow the
procedures set out in Iowa Code section 85.27 before procuring
alternate care. Defendants agreed to pay all bills related to
services authorized by them. There is no evidence that
claimant's chosen treatment was authorized by defendants.
Defendants are not obligated to pay medical bills for
unauthorized treatment.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DUANE ULRICK,
Claimant,
vs.
File No. 949030
GARNER PRINTING,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL,
Insurance Carrier,
and
Defendants.
_________________________________________________________________
The record has been reviewed de novo on appeal. The ruling of
the deputy filed December 30, 1993 is affirmed and is adopted as
the final agency action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of April, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Thomas P. Lenihan
Attorney at Law
5836 Grand #104
Des Moines, Iowa 50312
Mr. James F. Christenson
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
5-3203; 5-3302
Filed April 29, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DUANE ULRICK,
Claimant,
vs.
File No. 949030
GARNER PRINTING,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL,
Insurance Carrier,
and
Defendants.
____________________________________________________________
5-3203; 5-3302
On appeal it was determined that summary judgment should be
granted. Claimant's alleged work injury had been settled in
a compromise special case settlement. As a matter of law
when claimant's alleged injury in this case was settled
pursuant to Iowa Code section 85.35, claimant could not seek
benefits from the second injury fund alleging this injury
was a qualifying "second injury."
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
FORTUNATO TAMAYO, :
:
Claimant, :
:
vs. :
: File No. 949353
BLUE STAR FOODS, :
A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
SEDGWICK JAMES OF :
NEBRASKA, INC., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding upon a petition in
arbitration filed by claimant Fortunato Tamayo against his
former employer, Blue Star Foods, and insurance carrier
Sedgwick James of Nebraska, Inc. Mr. Tamayo sustained a
work injury while tugging on a heavy tub of ice on April 19,
1990.
A hearing was accordingly scheduled and held in Council
Bluffs, Iowa on February 21, 1994. The record consists of
joint exhibits 1-12 and claimant's testimony. In addition,
official notice was taken of a published case cited by
claimant as persuasive authority: Tsuchiyama v. Kahului
Trucking and Storage, Inc., 638 P.2d 1381 (Hawaii App.
1982).
ISSUES
The parties have stipulated to the following:
1. Claimant sustained injury arising out of
and in the course of employment on April 19,
1990;
2. The injury caused both temporary and
permanent disability;
3. Entitlement to healing period benefits
(April 19 through August 26 and October 10
through October 14, 1990) is no longer
disputed;
4. Permanent disability should be
compensated industrially;
5. The correct rate of weekly compensation
Page 2
is $229.18;
6. Entitlement to medical benefits is no
longer in dispute; and,
7. Prior to hearing, defendants paid
claimant 80 weeks of compensation at the
stipulated rate, 19.286 weeks of which are
attributable to healing period.
The sole issue presented for resolution is the extent
of claimant's industrial disability, as an odd-lot employee
or otherwise.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Fortunato Tamayo, 67 years of age at hearing, left
school in the second grade and is functionally illiterate.
Although Mr. Tamayo speaks English as a second language, he
has reasonable proficiency and can be readily understood.
He cannot read or write in Spanish, his first language, and
in English, can sign his name, but cannot write a bank check
and recognizes street signs only by shape.
Born in Texas in 1926, claimant engaged in farm labor
until 1960, when he moved to Council Bluffs, Iowa. He
thereupon accepted work with Blue Star Foods until retiring
in 1993. Except for one year when he loaded trucks by hand,
Mr. Tamayo was employed as a forklift driver through the
date of injury.
Claimant was injured while defrosting a large walk-in
freezer. He knocked a quantity of ice from the freezer
ceiling, placed it into a five foot by three foot tub, then
injured himself when he slipped while attempting to move it.
Radiographic evidence of a torn rotator cuff resulted
in a surgical repair on May 11, 1990, by orthopedic surgeon
Daniel J. Larose, M.D. The procedure was described as
repair of the right rotator cuff, acromioplasty, section of
the coracoacromial ligament bursectomy and resection of the
distal 1 cm of the clavicle.
Dr. Larose eventually rated impairment at 20 percent of
the upper extremity or 12 percent of the whole person. He
imposed permanent restrictions against lifting over 20
pounds and any lifting above shoulder level. Given those
restrictions, Dr. Larose believed that claimant would
"certainly" be able to work as a forklift operator and
should be able to enjoy a comfortable retirement.
Claimant also complains of back, neck and head pain.
In particular, he complains of an inability to rotate his
head while operating a forklift. According to Dr. Larose,
this cervical pain is not related to the initial injury.
Claimant was also seen by a neurosurgeon, Behrouz
Rassekh, M.D. Dr. Rassekh would impose no restrictions due
Page 3
to neck pain, but notes some limitation of neck motion
secondary to degenerative changes in the cervical spine,
described as cervical spondylosis. He estimates permanent
impairment due to cervical problems as between 0-5 percent
of the body as a whole.
As to causation of neck pain, Dr. Rassekh wrote on
October 18, 1990: "I do believe some of the symptoms of this
patient is related to his rotator cuff injury rather than
any cervical pathology." The writer does not understand
what Dr. Rassekh means by this statement. On February 6,
1991, Dr. Rassekh wrote: "We still have no objective
evidence of explanation for the neck pain other than mild
degenerative changes."
Claimant returned to work for Blue Star Foods in a
light duty capacity in maintenance of the company cafeteria.
This work involved cleaning tables and the like, and
apparently honors the restrictions imposed by Dr. Larose.
Neither did the job entail a loss of pay. Mr. Tamayo
continued at this job for approximately one year, then
requested re-assignment to forklift duties due to a personal
conflict with a fellow employee. The record fails to
disclose any medical reason why claimant could not have
continued in this job.
Claimant then continued in his regular forklift job
until retiring at age 67. During this time, a management
decision was made to require operation of unloaded forklifts
inside the plant only in reverse, so as to avoid the
possibility of spearing pedestrians with the fork prongs.
Mr. Tamayo felt unable to operate his forklift in reverse
due to difficulty rotating his head, but Blue Star
accommodated him by limiting his duties to the loading dock,
where the "reverse only" rule was not in effect.
Claimant eventually retired at age 67 on May 11, 1993.
He now lives on Social Security retirement benefits and a
very modest pension from Blue Star Foods. Mr. Tamayo cites
several forklift mishaps, including a collision with a
pedestrian, as precipitating the decision to retire.
Indeed, he specified in testimony that he retired due to
fear that he might injure someone. Mr. Tamayo further
blames consumption of substantial quantities of aspirin due
to residual pain from the work injury (he says he could
barely make it to his car after an 8-hour shift). This
record, however, does not contain evidence that aspirin
interferes with the ability to safely operate machinery.
According to Gerald Menges, who testified by deposition
on February 16, 1994, the collision with a pedestrian
shortly before claimant's retirement occurred as he was
coming through a curtained "blind spot" in a freezer.
Menges testified:
It was just a blind spot in the freezer. He
was coming through the curtains, and she was
getting ready to go through the other way,
and you can't see through the curtains.
They're all frosted up.
Page 4
(Gerald Menges' Deposition, Page 11)
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
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.
The burden of persuasion on the issue of industrial
disability always remains with the worker. When a worker
makes a prima facie case of total disability by producing
substantial evidence that the worker is not employable in
the competitive labor market, the burden to produce evidence
of suitable employment shifts to the employer, however. If
the employer fails to produce such evidence and if the trier
of fact finds the worker does fall in the odd-lot category,
the worker is entitled to a finding of total disability.
Guyton, 373 N.W.2d at 106. Even under the odd-lot
doctrine, the trier of fact is free to determine the weight
and credibility of evidence in determining whether the
worker's burden of persuasion has been carried, and only in
an exceptional case would evidence be sufficiently strong as
to compel a finding of total disability as a matter of law.
Guyton, 373 N.W.2d at 106.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
Page 5
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
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.
Dr. Larose, the treating surgeon, has imposed medical
restrictions against lifting in excess of 20 pounds or above
shoulder level. He also specified that claimant should be
able to work as a forklift operator so long as these
restrictions were observed. He does not find cervical
complaints related to this injury, while Dr. Rassekh's view
on this question is unclear. Nonetheless, Dr. Rassekh has
further specified that no physical restrictions were imposed
by reason of back pain.
Claimant was employed by Blue Star Foods for some 33
years before retiring at an age many consider a "normal"
retirement age. There is little doubt that his
attractiveness on the competitive labor market is reduced by
reason of the rotator cuff repair and subsequent medical
restrictions, but this factor is of less significance in the
case of such a long-time employee, close to retirement age,
who is able to return to his regular, long time job.
The record shows no medical reason why claimant could
not have continued working either in the company cafeteria
or on the forklift, both at the same hourly wage he enjoyed
Page 6
before the work injury. While claimant experienced some
reduction in hours as a forklift driver, this was due to a
company reorganization, not the work injury.
Claimant is clearly not an odd-lot employee. His
actual loss of earnings is little, if any. His decision to
retire is not shown to be attributable to the work injury.
There is no medical reason why Mr. Tamayo could not have
continued operating the forklift, as he had done for so many
previous years. His retirement, as noted, came at an age
many people would consider entirely normal.
Considering then these factors in particular and the
record otherwise in general, it is held that claimant has
sustained a permanent partial disability equivalent to ten
percent of the body as a whole, or 50 weeks. As defendants
have voluntarily paid compensation in excess of 50 weeks,
claimant takes nothing further.
ORDER
THEREFORE, IT IS ORDERED:
Claimant takes nothing further.
Costs are assessed to defendants.
Signed and filed this ____ day of May, 1994.
________________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Sheldon M Gallner
Attorney at Law
803 Third Avenue
PO Box 1588
Council Bluffs Iowa 51501
Mr James F Thomas
Mr Ronald L Comes
Attorneys at Law
1100 One Central Park Plaza
2222 S 15th Street
Omaha Nebraska 68102
5-1803
Filed May 20, 1994
DAVID RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
FORTUNATO TAMAYO, :
:
Claimant, :
:
vs. :
: File No. 949353
BLUE STAR FOODS, :
A R B I T R A T I O N
Employer, :
D E C I S I O N
and :
:
SEDGWICK JAMES OF :
NEBRASKA, INC., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Industrial disability was less than benefits voluntarily
paid.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
----------------------------------------------------------------
ALICE CHRISTINE VAN ROEKEL, :
: File Nos. 955801
Claimant, : 991582
: 949436
vs. :
:
IOWA VETERANS HOME, :
: 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. :
----------------------------------------------------------------
This matter came on for hearing at 3 p.m. on the third day
of February 1994 in accordance with the hearing assignment order
issued August 3, 1993. Claimant did not appear and no one
appeared on her behalf. No evidence was introduced.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a preponderance of
the evidence that the alleged injury actually occurred and that
it arose out of and in the course of employment. McDowell v.
Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words
"arising out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time, place and
circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d
415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa
1971).
No evidence was introduced and the claimant failed to carry
the burden of proving that she had any entitlement in any of the
three claims.
ORDER
IT IS THEREFORE ORDERED that claimant take nothing from
these proceedings. The costs of these actions are assessed
against the claimant.
Signed and filed this __________ day of February, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Page 2
Copies to:
Ms. Christine Van Roekel
Box 173
Marshalltown, Iowa 50158
CERTIFIED AND REGULAR MAIL
Mr. James Christenson
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
1402.20 1402.40
Filed February 9, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
ALICE CHRISTINE VAN ROEKEL, :
: File Nos. 955801
Claimant, : 991582
: 949436
vs. :
:
IOWA VETERANS HOME, :
: 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. :
------------------------------------------------------------
1402.20 1402.40
Claimant failed to appear for hearing. Claimant failed to
carry burden of proof.