BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
CECIL MCNICHOLS, :
:
Claimant, :
:
vs. :
: File No. 950059
FIRESTONE TIRE AND RUBBER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Cecil
McNichols, claimant, against Firestone Tire and Rubber,
employer, Cigna, insurance carrier, and Second Injury Fund
of Iowa, defendants, to recover benefits under the Iowa
Workers' Compensation Act as a result of an injury sustained
on March 28, 1990. This matter came on for hearing before
the undersigned deputy industrial commissioner on August 4,
1993, in Des Moines, Iowa. The record was considered fully
submitted at the close of the hearing. The claimant was
present and testified. The documentary evidence identified
in the record consists of claimant's exhibits 1 through 69
and defendants' exhibits AA through FF and HH through JJ.
At this time, the only claim is against the Second
Injury Fund of Iowa. Claimant's claim against employer was
settled through an agreement for settlement under Iowa Code
section 86.13(3). Under the settlement, claimant received
compensation for an 8 percent permanent partial disability
to his left arm.
ISSUES
Pursuant to the hearing report and order approving same
dated August 4, 1993, the parties have presented the
following issues for resolution:
1. Whether claimant sustained two separate injuries to
his right and left arms on May 4, 1989 and March 28, 1990,
or whether his bilateral injuries occurred simultaneously,
and;
Page 2
2. Whether claimant is entitled to Second Injury Fund
benefits as a result of his alleged March 28, 1990 injury.
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 June 20, 1954 and completed the ninth
grade of school. He received his GED certificate in 1974
while serving in the United States Army. Claimant served
two terms in the army, one from October 1971 through
December 1974 and another from January 1977 through December
1982. He commenced working for Firestone in April 1984. He
was assigned to the banbury room as a belt loader. In
December 1984 he was laid off for two and one-half years.
During that time he went to truck driving school and
received a chauffeur's license. He drove a truck and cab
during his lay off tenure. He returned to Firestone on July
2, 1987 and was again assigned to the banbury room. He
suffered two work injuries which resulted in surgical
intervention in September 1989 and June 1990. After his
second surgery he was assigned to the tuber department. In
November 1992 he received a one year appointment as a
quality control inspector. In November 1993 he plans to
transfer to heavy duty curing. This work is performed using
hoists and does not require heavy lifting, twisting,
turning, or jerking arm movements.
The pertinent medical evidence of record reveals that
on May 4, 1989, claimant presented to employer's infirmary
with complaints of pain, numbness and stiffness in his right
hand (exhibit 1, page 8). James L. Blessman, M.D., company
physician, referred claimant to Iowa Methodist Medical
Center for EMG studies on May 25, 1989. The results
revealed mild right carpal tunnel syndrome (ex. 40). His
condition gradually deteriorated and Dr. Blessman referred
him to Arnis D. Grundberg, M.D., for examination on August
15, 1989. An injection was administered at this time.
Claimant's condition did not improve and claimant elected
out-patient surgery. On September 7, 1989, Dr. Grundberg
performed decompression of the right carpal tunnel and right
cubital tunnel (ex. 45, pp. 72-73).
Dr. Grundberg released claimant to full duty on October
11, 1989 (ex. 45, p. 73).
On March 28, 1990, claimant presented to the company
infirmary with complaints of left wrist and elbow pain (ex.
1, p. 11). He was referred to Dr. Grundberg for evaluation
on April 24, 1990. X-rays of the left wrist and elbow were
normal. An EMG was also normal. Based on his symptoms, Dr.
Grundberg diagnosed left cubital and carpal tunnel syndrome.
He was given an injection of Depo Medrol IM. His symptoms
did not improve and on June 6, 1990, Dr. Grundberg performed
decompression of the ulnar nerve of the left elbow and
decompression of the medial nerve of the left wrist (ex. 51,
Page 3
pp. 81-82).
On June 26, 1990, Dr. Grundberg gave claimant an 8
percent impairment rating of the right arm (ex. 51, p. 82).
On November 6, 1990, Dr. Grundberg gave claimant an 8
percent impairment rating of the left arm. On examination,
claimant reported an absence of numbness, tingling and pain
in his left wrist and elbow (ex. DD).
Claimant testified that he was off work for one week
after the June 1990 surgery. Upon his return to work he was
transferred to the tuber department. A notation from Dr.
Blessman dated July 17, 1990, states that, "At this point I
agree it's safe for him to go back and try his regular duty
job and released him to do that." (ex. 43, p. 69).
CONCLUSIONS OF LAW
The issue to be determined is whether claimant is
entitled to Second Injury Fund Benefits.
Section 85.64 governs Second Injury Fund liability.
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability
present after the second injury that exceeds the disability
attributable to the first and second injuries. Section
85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467
(Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335
(Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274
N.W.2d 300 (Iowa 1970).
The Second Injury Fund argues that they have no
liability in this case because claimant's bilateral carpal
tunnel syndrome resulted from one gradual injury process and
was a simultaneous injury to both arms despite manifestation
on two separate occasions. Defendant's contentions are
without merit.
The record clearly establishes that claimant did not
sustain a cumulative injury to both hands and arms
(bilaterally) which developed and occurred simultaneously.
The record, in fact, clearly demonstrates claimant suffered
two separate cumulative injuries, one in May 1989 to his
Page 4
right arm and a second in March 1990 to his left arm. Both
injuries resulted in surgery and postoperative recuperation
of about one week. Claimant's complaints were clearly
manifested on different occasions and no physician who has
treated and/examined claimant has described his injuries as
basically occurring simultaneously. Therefore, because
Second Injury Fund benefits are triggered, an assessment of
industrial disability is appropriate in this case.
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
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
Page 5
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.
Claimant is 39 years old. He has a GED certificate.
His work experience has been divided between a tour of duty
with the United States Army and work with employer. In the
army he was a machine gun carrier and demolition specialist.
At Firestone he has been a utility worker and production
line worker. Claimant has worked for employer since 1984.
Currently he is serving a one year appointment as a quality
control coordinator. He already has a transfer approved
effective November 1993. Claimant has never been a tire
builder at Firestone.
Despite two surgeries, claimant has no work
restrictions and requires no ongoing medical care. Claimant
testified that he works an eight-hour day from 3 p.m. to 11
p.m. and a mandatory overtime eight-hour day on Saturday.
He does not volunteer to work on Sunday or any other time
because of his family responsibilities. Claimant has
suffered no loss in hourly wages since May of 1989 (ex. EE).
Claimant has lost no time from work after his second surgery
due to either of his work injuries.
Although claimant complained that he suffers from pain,
numbness and loss of grip strength, this is not borne out by
the objective medical evidence. Claimant takes no pain
medication and sought no medical treatment since he was
released to return to work in July 1990. Claimant lost some
time from work in June 1991 when he sprained his right wrist
in a motorcycle accident. Otherwise, claimant's work
attendance has been excellent.
After carefully considering the factors of industrial
disability including those previously specifically discussed
the undersigned concludes that claimant has sustained 10
percent industrial disability. This is equivalent to 50
weeks. The Second Injury Fund's liability is reduced by the
combined losses of claimant's right arm (8 percent of 250
weeks or 20 weeks) and claimant's left arm (8 percent of 250
weeks or 20 weeks). The total reduction is 40 weeks. The
Second Injury Fund's liability is 10 weeks of benefits.
ORDER
THEREFORE IT IS ORDERED:
That the Second Injury Fund shall pay claimant ten (10)
weeks of permanent partial disability benefits at the rate
of four hundred three and 62/100 dollars ($403.62) per week.
The Second Injury Fund's liability begins at that end of the
employer's liability for weekly benefits. Finneman v.
Page 6
Wilson Foods Corp., file numbers 834479/913590 (App. Dec.
March 17, 1993).
That the Second Injury Fund pay accrued weekly benefits
in a lump sum.
That Second Injury Fund pay interest on unpaid weekly
benefits beginning on the date of this decision. Braden,
459 N.W.2d 467, 473.
That Second Injury Fund file claim activity reports as
required by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of August, 1993.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert Pratt
Attorney at Law
6959 University Ave.
Des Moines, Iowa 50311-1540
Mr. Marvin Duckworth
Attorney at Law
2700 Grand Ave STE 111
Des Moines, Iowa 50312
Mr. James Christenson
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
53202
Filed August 17, 1993
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CECIL MCNICHOLS,
Claimant,
vs.
File No. 950059
FIRESTONE TIRE AND RUBBER,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CIGNA,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
___________________________________________________________
53202
Claimant found to be 10 percent industrially disabled as a
result of injuries to his right and left arm on separate
occasions. Claimant underwent surgery on his right arm in
September 1989 and on his left arm in June 1990. He has
returned to work without restriction and ceased medical care
in July 1990. Claimant works a 48-hour weeks and earns more
now than he did when first injured.
Claimant received 8 percent functional impairment ratings
for each extremity. The Second Injury Fund was credited
with 40 weeks and liable for 10 weeks of benefits.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAN BOENDER,
Claimant,
vs.
File No. 950086
L & R MAINT. & CONST. CO.,
A P P E A L
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed September 17, 1992 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, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Lance A. Grotewold
Attorney at Law
219 First Ave. East
Oskaloosa, Iowa 52577
Mr. Glenn Goodwin
Attorney at Law
4th Floor, Equitable Bldg.
Des Moines, Iowa 50309
5-1803; 5-2500
Filed April 29, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DAN BOENDER,
Claimant,
vs.
File No. 950086
L & R MAINT. & CONST. CO.,
A P P E A L
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1803
Claimant has failed to show by a preponderance of the evidence
that his work injury resulted in permanent disability.
Claimant was working in a manbasket on a fork lift when it
dropped and fell 20 feet to the ground. He injured his chin and
left elbow. Dental work was required. Claimant lost no time
from work but was temporarily put on light duty for about four
months. Thereafter, he returned to his usual job and worked 14
months until he voluntarily quit on November 15, 1990. Claimant
was given no work restrictions. He had persistent complaints of
back pain but an orthopedic examination revealed normal range of
motion and negative straight leg raising. Claimant received
chiropractic treatments from July 1990 through January 1991. In
June 1992, claimant's chiropractor gave him a 20 percent
permanent impairment rating but no restrictions. This rating is
discounted as it is unsupported by the objective evidence in the
record.
5-2500
Claimant requests that defendants pay for wisdom teeth which were
extracted subsequent to his work injury. After his injury,
claimant required dental work because he had a loose tooth which
needed to be extracted. At the same time, the dentist noted that
his wisdom teeth were in bad shape and recommended that they be
extracted. However, the necessity for their removal was not
related to his accident. Accordingly, defendants are not liable
for the bill incurred for this procedure
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DAN BOENDER, :
:
Claimant, :
:
vs. :
: File No. 950086
L & R MAINTENANCE and :
CONSTRUCTION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA CASUALTY & SURETY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Dan
Boender, claimant, against L & R Maintenance & Construction
Company, identified as employer, and Aetna Casualty,
insurance carrier, defendants, to recover benefits under the
Iowa Workers' Compensation Act as a result of an injury
sustained on September 8, 1989. This matter came on for
hearing before the undersigned deputy industrial
commissioner on September 14, 1992, in Ottumwa, Iowa. The
claimant was present and testified. Also present and
testifying were Deborah Boender, Louis L. Lawson and Larry
Allgood. The documentary evidence identified in the record
consists of exhibits 1 through 8 and defendants' exhibits A
through D. The record was considered fully submitted at the
close of the hearing.
ISSUES
Pursuant to the prehearing report and order dated
September 14, 1992, the parties have presented the
following issues for resolution:
1. Whether claimant's injury was a cause of permanent
disability and, if so, the extent thereof; and
2. Whether claimant is entitled to certain medical
benefits pursuant to Iowa Code section 85.27.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
Page 2
contained in the exhibits herein, and makes the following
findings:
Claimant was born on November 24, 1956, and completed
the twelfth grade of school. Claimant's primary work
experience has been as a manual laborer. He commenced
working for employer in May 1989 and was injured on the job
on September 8, 1989. Claimant's injury occurred while he
was working in a manbasket on a fork lift when it dropped
and fell 20 feet to the ground.
The pertinent medical evidence of record reveals that
on September 8, 1989, claimant was seen in the emergency
room at Ottumwa Regional Health Center immediately following
the accident. Claimant presented with complaints of
discomfort in his left elbow and a dislodged tooth. On
examination he was noted to have a laceration on his chin, a
contusion to the left elbow and a loose right upper
premolar. Claimant denied any neck pain or other
discomfort. C-spine films, mandible films and left elbow
films were negative for any acute fracture (exhibit 1, pages
1-6).
Claimant testified that he was injured on Friday
afternoon and worked the entire day. He was paid for 11
hours on the day he was injured. He did not work Saturday
or Sunday but returned to work on Monday and worked nine
hours. Initially, for four weeks, he performed light duty
work but afterwards returned to his previous job and worked
full time, between 40 and 60 hours per week. Claimant
voluntarily quit on November 15, 1990.
On September 12, 1989, claimant saw Thomas J. Bowie,
D.D.S., for surgical removal of his fractured tooth (ex. 5).
The next day, claimant reported to the emergency room of
Ottumwa Regional Health Center for follow-up evaluation. He
was seen by J. Howell, M.D. He complained of anterior chest
pain. A chest x-ray was negative for any rib fractures and
his lungs appeared normal. The laceration on his chin was
healed (ex. 1, pp. 7-8).
Claimant returned to Dr. Bowie on September 19, 1989,
for x-rays and evaluation. At this time, Dr. Bowie noted
that claimant's wisdom teeth were in poor shape and he
recommended that they be removed by Mike Ketcham, an oral
surgeon (exs. 5, A).
Claimant underwent chiropractic treatment from Dr.
Stanzel for the period from July 13, 1990 through January 2,
1991 (ex. 7).
Claimant was referred by defendant insurance carrier to
Donald D. Berg, M.D., orthopedic surgeon, for evaluation on
July 30, 1990. Claimant presented with complaints of left
elbow pain and back pain in the dorsal spine area. X-rays
of the left elbow were normal. X-rays of the dorsal and
lumbar spine showed the height and disc space and vertebral
bodies to be well maintained with good alignment. Dr. Berg
opined that claimant sustained a strain of the muscles and
ligaments of his dorsal and lumbar areas secondary to the
Page 3
manbasket fall at work. He recommended conservative
treatment. He concluded, "...I do not feel that he will
have any permanent physical impairment secondary to this
injury, but he may require some therapy and use of muscle
relaxants to help his back overcome the current tightness."
(ex. 3, p. 23).
On December 17, 1990, claimant presented to Southern
Iowa Rehabilitation Center for an isometric strength
analysis of his left elbow. The results indicated some
strength impairment (ex. 4, pp. 25-27).
Claimant saw Dr. Berg on May 23, 1991. He presented
with some back discomfort and sciatic discomfort. On
examination, he had good range of motion with negative
straight leg raising. Claimant related that he has problems
with his back flaring up when doing farm work such as riding
a tractor and sciatic pain when horseback riding. Dr. Berg
stated that, "...I cannot state within a certain degree of
medical certaintly [sic] whether or not his current
condition is related to his injury of September 8, 1989.
He's had, I think, some aggravation by doing farm work with
riding tractors. As far as his symptoms continuing in the
future, this is impossible to predict." (ex. 3, p. 21).
On April 2, 1992, claimant was re-evaluated at Southern
Iowa Rehabilitation Center. He was given a Med X Cervical
Extension static test. On April 28, 1992, he was given a
Med X Lumbar Extension Fatigue Response test. On May 19,
1992, he was given a Med X Cervical Extension Fatigue
Response test (ex. 4, pp. 28-36).
On June 15, 1992, Dr. Stanzel reported to claimant's
attorney that he reviewed the Med X test results and used
the Guides to the Evaluation of Permanent Impairment, (3d
ed) (revised 1990), to reach a 20 percent whole person
impairment rating (ex. 2, pp. 16-17).
CONCLUSIONS OF LAW
Defendants do not dispute that claimant sustained a
work-related injury on September 8, 1989. They contend that
claimant's injury has not resulted in a permanent
impairment.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of September 8, 1989, is causally related to the disability
on which he now bases his claim. Bodish v. Fischer, Inc.,
133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility is
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
Page 4
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The supreme court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
In this instance, on June 15, 1992, Dr. Stanzel gave
claimant a 20 percent whole person impairment rating. Dr.
Stanzel's rating is entitled to no weight and consideration
since he last treated claimant on January 2, 1991, and
imposed no restrictions at that time. Claimant returned to
work immediately after his injury. He worked light duty for
four weeks and then returned to construction and maintenance
work for employer. He performed the same job that he
performed at the time of his injury with no restrictions or
accommodations made by employer. He worked between 40 and
60 hours per week and testified that he was able to carry
around a 70-pound toolbox which he used in order to perform
his duties. In addition, claimant worked on his farm and
assisted in grooming and feeding his horses. On November
15, 1990, claimant voluntarily left his job with his
employer because of dissatisfaction with the work
environment (ex. C, p. 4). In May 1991, claimant went to
work for Mahaska County mowing road sites. In August 1992,
claimant took a job with Oskaloosa Engineering running
machinery. Claimant is still employed in that capacity.
Dr. Berg, an orthopedic surgeon, evaluated claimant in
July 1990 and May 1991. Dr. Berg noted on May 23, 1991,
that claimant had good range of motion of his back and
negative straight leg raising. He felt that claimant's
continued problems with pain may be related to his farm work
activity and involvement with his horses. He stated that,
"...I cannot state has any long term permanent physical
impairment as he does have good range of motion." (ex. 3,
p. 21).
Claimant bears the burden of proof. At most, claimant
has shown that he has some pain and discomfort in his back.
He has not shown that his injury has caused a permanent
impairment or interfered with his ability to perform his
pre-injury job and other manual labor. Although Dr. Stanzel
did impose a rating of impairment, the basis of this rating
is not supported by the total evidence in the record. Dr.
Stanzel had no contact with claimant after January 2, 1991.
Claimant has no physical restrictions apparent from the
medical evidence. Claimant worked without incident at his
prior occupation for 14 months. Claimant continues to
perform manual labor jobs without restrictions.
Accordingly, claimant has not shown by a preponderance
of the evidence that his work injury has resulted in
Page 5
permanent impairment to his back or left elbow.
Claimant requests that defendants pay $485 to cover the
costs of dental services provided by Dr. Ketcham. Dr. Bowie
stated that claimant's poor wisdom teeth were not caused by
his work injury. Since this treatment was unauthorized and
unrelated to claimant's work injury, defendants are not
liable for the costs thereof.
This issue is dispositive of the entire case and
further analysis is unnecessary.
ORDER
THEREFORE, IT IS ORDERED:
Claimant shall take nothing from these proceedings.
The parties shall pay their own costs pursuant to rule
343 IAC 4.33.
Signed and filed this ____ day of September, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Lance Grotewold
Attorney at Law
118 N. Market
Oskaloosa, Iowa 52577
Mr. Glenn Goodwin
Attorney at Law
4th Floor, Equitable Bldg
Des Moines, Iowa 50309
51803 52500
Filed September 17, 1992
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAN BOENDER,
Claimant,
vs.
File No. 950086
L & R MAINTENANCE and
CONSTRUCTION,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY,
Insurance Carrier,
Defendants.
___________________________________________________________
51803
Claimant has failed to show by a preponderance of the evidence
that his work injury resulted in permanent disability.
Claimant was working in a manbasket on a fork lift when it
dropped and fell 20 feet to the ground. He injured his chin and
left elbow. Dental work was required. Claimant lost no time
from work but was temporarily put on light duty for about four
months. Thereafter, he returned to his usual job and worked 14
months until he voluntarily quit on November 15, 1990. Claimant
was given no work restrictions. He had persistent complaints of
back pain but an orthopedic examination revealed normal range of
motion and negative straight leg raising. Claimant received
chiropractic treatments from July 1990 through January 1991. In
June 1992, claimant's chiropractor gave him a 20 percent
permanent impairment rating but no restrictions. This rating is
discounted as it is unsupported by the objective evidence in the
record.
52500
Claimant requests that defendants pay for wisdom teeth which were
extracted subsequent to his work injury. After his injury,
claimant required dental work because he had a loose tooth which
needed to be extracted. At the same time, the dentist noted that
his wisdom teeth were in bad shape and recommended that they be
extracted. However, the necessity for their removal was not
related to his accident. Accordingly, defendants are not liable
for the bill incurred for this procedure.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ANN SEE, :
:
Claimant, :
:
vs. :
: File No. 950142
TONE BROTHERS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Ann See,
claimant, against Tone Brothers, employer, and Kemper
Insurance, insurance carrier, defendants, to recover
benefits under the Iowa Workers' Compensation Act as a
result of an injury sustained on May 3, 1990. This matter
came on for hearing before the undersigned deputy industrial
commissioner on May 17, 1993, in Des Moines, Iowa. The
record was considered fully submitted at the close of the
hearing. The claimant was present and testified. Also
present and testifying were Kim Schibner and Bernice Couch.
The documentary evidence identified in the record consists
of joint exhibits 1 through 9.
ISSUES
Pursuant to the hearing report and order approving same
dated May 17, 1993, the parties have presented the following
issues for resolution:
. Whether claimant is entitled to temporary total or
healing period benefits and, if so, the dates thereof;
. Whether claimant is entitled to permanent partial
disability and, if so, the extent of such benefits;
. Whether claimant is entitled to payment for an
independent medical examination pursuant to industrial
commissioner 85.39; and
. Whether claimant is entitled to medical expenses
under Iowa Code section 85.27.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
Page 2
contained in the exhibits herein, and makes the following
findings:
Claimant was born on November 16, 1938, and graduated
from high school in 1956. Her work activity prior to June
1978 was as an office worker, typist, clerk, store clerk,
and kitchen helper. In June 1978 she commenced working for
employer. She worked on the line and in the warehouse
preparing orders. On May 3, 1990, while employed by
employer she tripped over some cardboard and fell to the
ground, twisting her lower back. She completed the work day
and worked the entire next day. On May 7, 1990, she
presented to Anthony J. Sciorrotta, D.O., with complaints of
back pain and left lower extremity pain. Dr. Sciorrotta
diagnosed right shoulder strain and left low back strain
with spasm. He recommended a return to work with a 25-pound
lifting restriction. Claimant followed up with Dr.
Sciorrotta on May 8, 1990, and complained that she had
marked discomfort while performing her job. She was taken
off work and prescribed medication and physical therapy.
Claimant's condition remained unchanged and Dr. Sciorrotta
referred her to Mark B. Kirkland, D.O., for an orthopedic
evaluation (exhibit 1, pages 1-5).
Claimant saw Dr. Kirkland on May 23, 1990. On physical
examination she had a normal gait and good toe and heel
walking. With her knee straight, she was able to bend over
and touch her fingers to her toes without any difficulty.
She had some pain in her lower back area. She had negative
straight leg raising in the sitting position. X-rays
revealed some narrowing of the L5-S1 joint space. Dr.
Kirkland's diagnosis was myofascial low back pain and
degenerative disc disease at L5-S1. He concluded that she
did not have a herniated disc because there were no
objective findings. He recommended a continuation on
Voltaren and a work hardening program (ex. 2, p. 1).
Claimant returned to Dr. Sciorrotta and a conservative
therapy program was instituted which included pool therapy
(ex. 1, pp. 5-6). Claimant continued to experience pain in
her lower back and left leg with some stiffness in her lower
back and intermittent numbness and tingling in both legs,
the left worse than the right and some muscle spasms and
with intermittent cough and sneeze aggravation. She had
difficulty sitting or standing for prolonged periods of
time. Therefore, Dr. Sciorrotta recommended an MRI scan
(ex. 1, p. 7). On June 25, 1990, claimant underwent an MRI
of the lumbar spine at Mercy Hospital Medical Center. This
showed degenerative disc disease at L4-5 with diffuse disc
protrusion and lateral extension into the left
intervertebral foramen (ex. 3, pp. 1-2).
Based on the results of the MRI scan, Dr. Sciorrotta
recommended epidural injections to be performed at Mercy
Block Center. These resulted in no significant relief and
she was referred to Kevin Smith, M.D., for institution of a
work hardening program. On August 7, 1990, she had a third
of her cortisone shots into the back and was seen by Dr.
Smith on August 14, 1990. He recommended a general
conditioning program and discussed the possibility of a
Page 3
return to work. However, she obtained no improvement of her
symptoms and was then referred to Joshua D. Kimmelman, D.
O., for evaluation (ex. 3).
On July 30, 1990, Kemper Insurance assigned claimant's
case to Louise Lear, R.N., B.S.N., M.A., medical
rehabilitation coordinator for Professional Rehabilitation
Management. Claimant was interviewed by Ms. Lear on August
6, 1990. Ms. Lear followed claimant in August 1990 and
accompanied her on her appointment with Dr. Kimmelman which
was scheduled for September 12, 1990. According to Ms.
Lear, Dr. Kimmelman ordered another MRI examination (ex. 4,
pp. 1-16).
A repeat MRI of the lumbar spine was performed on
January 8, 1991, at Mercy Hospital Medical Center. It
revealed degenerative disc disease at L4-L5 with associated
facet arthropathy and diffuse asymmetrical disc protrusion
greater on the left side with no evidence of progression or
new abnormality in comparison to the prior study of June 25,
1990 (ex. 3, pp. 3-4).
Ms. Lear's notes indicate that claimant was in
California from September 26 to December 19, 1990, due to
her father's emergency surgery and her mother's medical
problems. Therefore, she was not seen again by Dr.
Kimmelman until January 15, 1991. Unfortunately, the record
does not contain Dr. Kimmelman's office notes from either
September 12, 1990 or January 15, 1991. However, Ms. Lear
reports that Dr. Kimmelman ordered pool therapy (ex. 4, pp.
17-20).
The record does contain progress notes written by Dr.
Kimmelman pertinent to a February 15, 1991, visit with
claimant. He reported that most of claimant's pain tends to
be in her leg. It was his opinion that she had reached
maximum medical improvement since she continued to be
symptomatic despite efforts at rehabilitation. On February
19, 1991, Dr. Kimmelman opined that claimant is 5 percent
permanently impaired as to her herniated nucleus pulposa.
He certified that she had recovered sufficiently to return
to light regular duties with restricted lifting over 10
pounds and no bending or twisting (ex. 5, pp. 1-2).
Subsequent to Dr. Kimmelman's assessment, Ms. Lear
contacted employer to determine whether there was a job
available for claimant within her restrictions. She was
informed that employer was unable to provide claimant with a
light duty position. Claimant's case was then transferred
to Bernice Couch, a vocational rehabilitation coordinator,
for assistance in vocational planning (ex. 4, pp. 21-24).
On April 10, 1991, claimant was again seen by Dr.
Kimmelman. It was his opinion that she could return to work
in a restricted or sedentary, light duty-type capacity. He
also recommended vocational rehabilitation (ex. 5, p. 3).
Claimant's symptoms continued. On April 30, 1991, she
was seen by Martin S. Rosenfeld, D.O. She was diagnosed as
having chronic facet syndrome with left sciatica. His
Page 4
treatment included a weight reduction program of
approximately 35 pounds and back exercises (ex. 2, p. 3).
Claimant returned to Dr. Kimmelman on June 18, 1991.
He felt that she had an unchanged physical examination with
increasing level of symptoms. Physical therapy was again
recommended. She continued to see Dr. Kimmelman in
follow-up, and more epidural or cortisone shots in the back
were recommended. On August 29, 1991, Dr. Kimmelman
released her to light duty with a 10-pound lifting
restriction (ex. 5, p. 6).
Being dissatisfied with this determination, claimant's
attorney referred her to Jerome G. Bashara, M.D., orthopedic
surgeon for an independent medical examination. Dr. Bashara
evaluated claimant on November 14, 1991, and his evaluation
is part of the record in this case (ex. 6, pp. 1-4). Dr.
Bashara also testified in a deposition on March 8, 1993.
His deposition is also part of the record in this case (ex.
9). He diagnosed a herniated lumbar disc at L4-5, central
and left. He recommended a 10-pound lifting restriction
with no excessive or repetitive bending, stooping or
twisting of the lower back. He suggested a treatment
regimen of nonsteroidal anti-inflammatory drugs, epidural
steroid injections, restricted activity and physical
therapy, as necessary. He gave claimant a 9 percent
permanent partial physical impairment rating related to her
disc injury. He testified that her herniated disc was
directly related to her work accident on May 3, 1990.
Claimant returned to Dr. Kimmelman on January 21, 1992.
On examination, she was able to heel and toe stand without
evidence of weakness. She had good extension, side bending
and rotation without paravertebral spasm. While seated,
straight leg raising was negative. Dr. Kimmelman was unable
to explain why claimant had not responded to conservative
therapy over the last 20 months. He felt that an evaluation
by Daniel McGuire, M.D., was appropriate. He reiterated
that she had reached maximum medical improvement on February
15, 1991 (ex. 5, pp. 7-8).
Claimant saw Dr. McGuire on January 27, 1992. Claimant
presented with complaints of low back and left buttock pain,
extreme pain in her left hip and down her left leg. EMG
studies were obtained and showed no nerve damage. Based on
a review of prior laboratory tests and current physical
examination, Dr. McGuire's impression was persistent low
back and right leg pain consistent with degenerative
spondylolisthesis/spinal stenosis. He considered surgery
for relief of pain but first recommended a myelogram/CT scan
for further evaluation (ex. 7, pp. 1-4).
Dr. McGuire testified in a deposition on April 21,
1993. He indicated that he saw claimant on three occasions:
January 27, February 7 and May 18, 1992. Exhibit 7 contains
his office notes from the January 27 and May 18, 1992
appointments. In reference to the February 7, 1992 visit,
Dr. McGuire testified that he discussed the diagnostic
studies (myelogram/CT scan) with claimant. He explained
that the tests showed degenerative spondylolisthesis (a
Page 5
long-standing problem which was at the root of her leg and
back pain). He offered surgery and explained the risks and
success rate (ex. 8, p. 19).
On May 18, 1992, claimant followed up with Dr. McGuire.
She reported increasing symptoms in her back and leg. He
advised her that he would be willing to do a decompression
to take the pressure off the nerve roots and a fusion (ex.
7, p. 5).
On July 17, 1992, claimant returned to Dr. Bashara. He
testified that he agreed with Dr. McGuire's assessment that
a lumbar laminectomy would decrease claimant's back and left
leg pain. He stated that in his opinion, the degenerative
changes were directly related to the May 3, 1990 injury,
because in claimant's case, she had no pre-injury complaints
of back pain (ex. 9, pp. 16-17).
Dr. McGuire testified that claimant's back pain is due
to disc degeneration which was present prior to the May 1990
fall at work and if she had not fallen she would eventually
have had symptoms in view of the magnitude of the changes
seen on the myelogram/CT scan (ex. 8, pp. 35-37).
CONCLUSIONS OF LAW
The first issue to be determined is the extent of
claimant's entitlement to healing period benefits.
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
The record indicates that Dr. Kimmelman released
claimant to return to work on February 15, 1991, and at that
time gave her a 5 percent permanent impairment rating (ex.
5, p. 1). Bernice Couch scheduled an appointment with Dr.
Kimmelman on April 10, 1991, to clarify work restrictions.
A report of this consultation was made by Ms. Couch on April
12, 1991. She reported as follows, "...Dr. Kimmelman is
not recommending that she secure employment where she sits
for an eight hour period. Employment where Ann can
alternate sit, stand and walk option. He is also not
limiting her to no bending or twisting but is limiting her
to the repetitive lifting, bending, twisting...." (ex. 4, p.
32). On January 21, 1992, Dr. Kimmelman reiterated that
claimant has been at maximum medical improvement since
February 15, 1991 (ex. 5, p. 8).
In discussing the concept of healing period as
contemplated by Iowa Code section 85.34(1), the Kubli court
Page 6
observed that recuperation refers to that condition in which
healing is complete and the extent of the disability can be
determined. 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. 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. William Knudson & Sons, Inc., 349
N.W.2d 124, 126 (Ia. Ct. App. 1984). The finding of a
determination of healing period necessarily precludes the
discussion of a running award. Hoskins v. Quaker Oats, Vol
2. No. 1 Iowa Industrial Commissioner Decisions, 181, 185
(App. 1985).
Based on the medical records and the opinion of
claimant's treating physician, claimant's healing period
ended on February 15, 1991 (ex. 5, pp. 1-2 & 7-8).
The next issue to be determined is the extent of
claimant's permanent disability. Claimant's disability is
an industrial disability.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of May 3, 1990, is causally related to the disability on
which she now bases her claim. Bodish v. Fischer, Inc., 133
N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility is
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The supreme court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
Since claimant has an impairment to the body as a
whole, an industrial disability has been sustained.
Industrial disability was defined in Diederich v. Tri-City
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
'disability' to mean 'industrial disability' or loss of
earning capacity and not a mere 'functional disability' to
be computed in the terms of percentages of the total
Page 7
physical and mental ability of a normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
The claimant was born on November 16, 1938. She was 52
years old at the time of the injury and is currently 54
years old. Claimant is an individual of advanced age and
her proximity to normal retirement age affects her
industrial disability. Compared to a younger worker with
the same injury, claimant has lost less future earning
capacity as a result of her injury. Becke v. Turner-Busch,
Inc., Thirty-fourth Biennial Report of the Industrial
Commissioner 34 (Appeal Decision 1979); Merrill v. Eaton
Corp., file 777565 (Appeal Decision 1990). Claimant has
functional impairment ratings of 5 percent and 9 percent.
Her treating physician limited her to lifting 10 pounds and
no repetitive bending or twisting. Claimant has
self-limiting restrictions and testified that there is no
work activity she is able to perform in view of her constant
pain.
As to claimant's pain, on November 20, 1992, she filed
an original notice and petition under Iowa Code section
85.27 and rule 343 IAC 4.48 requesting defendants to
authorize the surgical procedure recommended by Dr. McGuire.
However, at the hearing, claimant testified that she was no
longer interested in undergoing a lumbar laminectomy but
instead wanted the money in order to pursue laser surgery in
Omaha, Nebraska. No physician who has treated and/ examined
claimant has recommended this procedure. In fact, Dr.
McGuire characterized it as "experimental" and did not
foresee that she would be a candidate for laser surgery. He
recommended a laminectomy because the main pressure causing
pain is coming from the thick ligament and the big overgrown
spurs that are pushing on the nerves (ex. 8, p. 61). Dr.
McGuire explained claimant's problem as a facet joint
arthropathy where the facet joints get big with spurs and
spinal stenosis where the canal space gets smaller by the
disc bulging out. He testified that such surgery is usually
effective in alleviating some of the back and leg symptoms
(ex. 8, pp. 15-19). Dr. Bashara concurred with Dr. McGuire
that surgery would improve claimant's condition (ex. 6, p.
8).
Page 8
As previously noted, claimant at the present time has
refused to undergo the surgery recommended by Dr. Bashara
and Dr. McGuire. Defendants request a reduction in
industrial disability due to her refusal. A reduction in
benefits is justified only if the refusal is unreasonable.
To determine if a refusal is unreasonable, a balancing test
is used, weighing the risks of the procedure versus the
predicted benefits. Here, both physicians acknowledge that
surgery would improve claimant's condition and minimize her
restrictions. Since no doctor can force an individual to
undergo surgery, surgery is always an option to be accepted
or rejected by the claimant. However, in this case,
claimant contends that she is unable to work due to severe
pain. She contends that the combination of pain and an
inability to work makes her 100 percent disabled. The
medical evidence does not support her contentions. Claimant
was released for light duty in February 1991 by her treating
physician. Dr. Kimmelman did not consider her permanently
and totally disabled. In other words, he felt that despite
her pain, she was able to work, albeit with restrictions.
Claimant has refused surgery despite the 50-50 chance of
success in alleviating her symptoms. This is claimant's
choice.
Employer's are responsible for the reduction in
earnings capacity caused by the injury. They are not
responsible for a loss of actual earnings because the
employee resists or refuses to return to work. Williams v.
Firestone Tire and Rubber Co., III Iowa Industrial
Commissioner Report 279 (1982).
Employer offered claimant private vocational
rehabilitation and assistance in finding work. Ms. Couch
testified that claimant's motivation to return to work is
suspect. Although claimant has listed numerous jobs for
which she has applied, the seriousness of her attempt to
find work in the competitive employment market is
questionable, especially in view of the fact that she has
applied for social security disability benefits and it is to
her advantage not to be employed during the process.
An employee making a claim for industrial disability
will benefit from a serious attempt to find work in the
competitive employment market. Hild v. Natkin & Co., I Iowa
Industrial Commissioner Report 144 (Appeal Decision 1981);
Beintema v. Sioux City Engineering Co., II Iowa Industrial
Commissioner Report 24 (1981); and Cory v. Northwestern
States Portland Cement Company, Thirty-third Biennial Report
of the Industrial Commissioner 104 (1976).
Based upon the foregoing factors and all the factors
used to determine industrial disability, and employing
agency expertise, it is determined that claimant sustained a
25 percent industrial disability.
The next issue to be determined is whether claimant is
entitled to $475 for the medical examination of Dr. Bashara
as an independent medical examination under Iowa Code
section 85.39.
Page 9
Section 85.39 permits an employee to be reimbursed for
subsequent examination by a physician of the employee's
choice where an employer-retained physician has previously
evaluated "permanent disability" and the employee believes
that the initial evaluation is too low. The section also
permits reimbursement for reasonably necessary
transportation expenses incurred and for any wage loss
occasioned by the employee's attending the subsequent
examination.
Defendants are responsible only for reasonable fees
associated with claimant's independent medical examination.
Claimant has the burden of proving the reasonableness of the
expenses incurred for the examination. See Schintgen v.
Economy Fire & Casualty Co., File No. 855298 (App. April 26,
1991). Defendants' liability for claimant's injury must be
established before defendants are obligated to reimburse
claimant for independent medical examination. McSpadden v.
Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
It is determined that claimant is entitled to $475 for
the medical examination of Dr. Bashara as an independent
medical examination under Iowa Code section 85.39. It is
not necessary for claimant to obtain the prior approval of
defendants or file an application with the industrial
commissioner's office prior to seeing an independent
examiner. It is not necessary for claimant to apply for
reimbursement for an independent medical examination by a
physician of her choice prior to the examination or prior to
hearing. Pirozek v. Swift Independent Packing and Second
Injury Fund of Iowa, file nos. 753643, 753642, 724893 (App.
Dec. 1987). The only condition precedent is a medical
examination by an employer retained physician.
Reimbursement comes into play when, as in this case,
defendants' liability is established. McSpadden, 288 N.W.2d
181.
An application for an independent medical examination
under Iowa Code section 85.39 need not precede the
examination if the claimant is satisfied to wait until the
hearing to be reimbursed provided that this is designated as
a hearing issue on the hearing report and order. Dr.
Kimmelman gave claimant a permanent impairment rating in
February 1991. Dr. Bashara's evaluation was in November
1991, which was subsequent to Dr. Kimmelman's evaluation.
Iowa Code section 85.39 entitles claimant to be reimbursed
for Dr. Bashara's evaluation.
The final issue to be determined is whether claimant is
entitled to payment of submitted medical costs in the amount
of $416.50.
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
Page 10
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
Construction Specialists, Inc., file number 850096 (Appeal
Decision July 31, 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for referral from defendant 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 should be diagnosed,
evaluated, treated or other matters of professional medical
judgement. Assman v. Blue Star Foods, Inc., file no. 866389
(declaratory Ruling, May 18, 1988).
Medical expenses contained in claimant's summary of
outstanding medical bills were reviewed. The dates of
service were compared with the description of services
contained on the bills and the identity of the providers.
The same are found to be consistent with the treatment that
claimant received for her work-related back condition.
Defendants are therefore responsible for full payment of
those expenses.
ORDER
THEREFORE IT IS ORDERED:
That defendants pay to claimant thirty-seven point two
eight six (37.286) weeks of healing period benefits at the
rate of two hundred sixteen and 06/100 dollars ($216.06) per
week for the period from May 30, 1990 through February 15,
1991.
That defendants pay to claimant one hundred twenty-five
(125) weeks of permanent partial disability benefits at the
rate of two hundred sixteen and 06/100 dollars ($216.06) per
week commencing February 16, 1991.
That defendants pay four hundred seventy-five dollars
($475) for an independent medical examination conducted by
Jerome E. Bashara, M.D.
That defendants pay medical expenses of four hundred
sixteen and 50/100 dollars ($416.50) pursuant to Iowa Code
section 85.27.
That defendants receive credit for all benefits
Page 11
previously paid.
That defendants pay all costs pursuant to rule 343 IAC
4.33.
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 the agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ____ day of June, 1993.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. W. Michael Murray
Attorney at Law
2323 Grand Ave.
Des Moines, Iowa 50312
Mr. Joseph S. Cortese, II
Attorney at Law
500 Liberty Bldg.
Des Moines, Iowa 50309
51802 51803 52502 52501
Filed June 7, 1993
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ANN SEE,
Claimant,
vs.
File No. 950142
TONE BROTHERS,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
KEMPER INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
51802
Claimant awarded healing period benefits from May 30, 1990, the
date of her injury, to February 15, 1991, when her treating
physician indicated that she had reached maximum medical
improvement.
51803
Claimant awarded 25 percent permanent partial disability
benefits. Claimant, a 54-year-old woman, sustained a back injury
in May 1990. She was released for light duty in February 1991
with restrictions but employer had no job for her to perform.
She was assigned a vocational rehabilitation counselor with whom
she was less than cooperative. Claimant admitted at the hearing
that she was reluctant to undergo surgical intervention which
would improve her back and leg pain. She felt that she was
unable to work with this pain and was less than aggressive in
finding work.
52502
Claimant awarded $475 for an independent medical examination
performed by Jerome E. Bashara, M.D. A prior evaluation and
permanency rating was made by employer's physician. Claimant was
dissatisfied with the 5 percent functional impairment rating from
employer's physician and sought an independent medical
examination.
52501
Claimant found entitled to medical expenses under Iowa Code
section 85.27. Defendants had previously denied liability and
therefore could not direct claimant's medical care. Expenses
incurred were related to treatment of claimant's work injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT FIEDLER, :
:
Claimant, :
:
vs. :
: File No. 950290
WILSON FOODS, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant :
:
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Robert
Fiedler, claimant, against his employer, Wilson Foods
Corporation. Claimant's petition alleges that he sustained
an injury on May 2, 1990, which arose out of and in the
course of his employment. While defendant admits that
claimant sustained a work-related injury, it argues that it
was a cumulative injury, claimant stopped working on October
10, 1991, and that the correct date of injury is October 10,
1991.
The record in the case consists of testimony from the
claimant, Jean Cummins and Michael Payne; and, joint
exhibits 1-42. The matter came on for hearing on February
8, 1994, at Storm Lake, Iowa.
ISSUES
The parties submit the following issues for resolution:
1. Whether claimant sustained an injury to a scheduled
member, or whether claimant sustained an injury to the body
as a whole; and,
2. Whether claimant is entitled to permanent partial
disability benefits.
FINDINGS OF FACTS
The undersigned, having reviewed all of the evidence
received, finds the following facts:
Claimant, Robert Fiedler, was born on March 6, 1949.
At the time of the hearing, he was 44 years of age.
Claimant attended school at Remson St. Mary's through
the eighth grade. He was 13 years old when he left school
to help his father on the farm. Claimant is dyslexic, and
has difficulties working with numbers, which also prompted
him to leave school.
Page 2
From 1967 to 1968, claimant worked as a stick welder at
Lundall Manufacturing in Cherokee, Iowa. He received
on-the-job training.
In 1968, claimant was drafted into the United States
Navy. He served for almost two years, and was stationed in
Japan. He received additional training in welding.
When claimant was discharged, he returned to work at
Lundall's, but within one or two weeks applied for and was
offered a position with the defendant, Wilson Foods.
Claimant explained that Wilson provided some of the best
paying jobs in the area. A pre-employment physical was
passed without the imposition of work restrictions.
During claimant's tenure with the employer, he has
witnessed the company progress through many changes.
Claimant spent nearly 17 years on the cut floor, where
his job required him to process carcasses by cutting them
into loins, hams and picnics. He worked 40 to 45 hours per
week. Claimant described his department as a "labor pool"
where workers were dispatched to any area which needed help
on a particular day. As such, claimant has experience on
the kill floor, in the pace boning area, and on the loading
dock. In fact, claimant has worked in every department in
the plant with the exception of the rendering, livestock
receiving and boning areas.
In the 70s, Wilson stopped the beef kill operations,
and in 1986, discontinued the hog kill operations.
Currently, it is strictly a processing plant.
In 1987, claimant was working in the plant stylexing
hams. This required him to use a meat hook in his right
hand, grab a ham (weighing 17 to 50 pounds) from the line in
front of him, use a whizzer knife to defat the ham, and send
the ham down the line. He stylexed approximately 125 hams
per hour.
The repetitive nature of claimant's work led him to
undergo bilateral carpal tunnel release surgery in May of
1990. (Joint Exhibits. 11-14) The treating physician
(Thomas Ferlic, M.D.) determined that he had sustained five
percent impairment to each hand due to the syndromes. (Jt.
Ex. 15) A second opinion was secured from Thomas DeBartolo,
M.D. He determined claimant had sustained a 10 percent
impairment to the right upper extremity and a 6 percent
impairment to the left upper extremity due to the carpal
tunnel syndromes. (Jt. Ex. 16) Claimant started to notice
pain and numbness in his right shoulder and upper arm area.
It should be noted that at this time, claimant was working
on the hot dog line. The job duties required of a worker
on the hot dog line include retrieving empty boxes from a
shelf located six to eight inches overhead, placing the
boxes on a conveyor belt, scooping up hot dogs with both
hands and filling the boxes, and shoving the boxes down the
line. Claimant uses his right upper extremity to retrieve
the boxes, and his left upper extremity to push the box down
the line.
Page 3
Claimant reported the condition to the company. (Jt.
Exs. 1, 41) He received sporadic treatment, including
physical therapy at the plant. Eventually, he was referred
to Scott Neff, M.D., who performed an arthrogram, and
diagnosed a torn rotator cuff in the right shoulder.
Claimant underwent surgery in October of 1991 to repair the
condition. (Jt. Exs. 31 and 32)
Claimant was released to return to light duty work in
December of 1991, and returned to full duty in February of
1992. He returned to the hot dog line, the same job he held
prior to the surgery. Claimant believed that his work
restrictions included no lifting with his right arm of more
than 25 pounds at or above shoulder level, and no lifting
with both arms greater than 50 pounds at or above shoulder
level. Claimant was given a 6 percent impairment to the
right upper extremity, which equates to a 3 percent
impairment to the body as a whole. This information was
provided in various reports submitted by Dr. Neff, as well
as Dr. Neff's deposition testimony. (Jt. Exs. 17-29; 36)
While claimant is able to perform his duties, he stated that
reaching up to get the boxes aggravates the constant pain in
his right shoulder and upper arm. Overall, claimant has
demonstrated normal range of motion of the shoulder, but
still feels pain on a regular basis.
Claimant underwent an independent medical examination,
performed by Michael Crane, M.D. He believed claimant's
work at Wilson Foods caused claimant's shoulder problems.
He determined that claimant had sustained a 10 percent
impairment to the right upper extremity. (Jt. Exs. 34 and
35)
Claimant has been an excellent employee, having missed
little time from work as demonstrated by his attendance
records. (Jt. Ex. 39)
During the past five years, claimant has earned the
following wages: $25,445.00 (1988); $25,213 (1989); $22,162
(1990); $20,350 (1991); and $20,942 (1992). These figures
do not reflect the workers' compensation payments received
by claimant during these years. (Jt. ex. 40) Claimant
continues to work a substantial amount of overtime,
including 577 hours during 1993. Most of the overtime has
been voluntary.
ANALYSIS AND CONCLUSIONS OF LAW
After reviewing the evidence, it is determined that
defendant's argument regarding the injury date is correct.
Claimant has sustained a cumultive injury, and he left work
due to the injury on October 10, 1991. October 10, 1991 is
the correct injury date, and claimant's petition is amended
to reflect the correct date. See, Johnson v. George Hormel
& Company (App. Dec. June 21, 1988).
The first issue to address is whether claimant has
sustained an injury to his right arm or whether claimant has
sustained an injury to the body as a whole.
Page 4
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).
When disability is found in the shoulder, a body as a
whole situation may exist. Alm v. Morris Barick Cattle Co.,
240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar
Mayer & Co., II Iowa Industrial Commissioner Report 281
(App. 1982), a torn rotator cuff was found to cause
disability to the body as a whole.
Apparently, defendant is of the view that claimant's
shoulder injury has caused disability only to the upper
extremity, and should be compensated as a scheduled loss.
Claimant believes his disability is to the body as a whole,
and should be compensated industrially.
Evidently, defendant relies on a recent agency decision
which determined that a claimant, who sustained a shoulder
injury, should be compensated by one schedule. See, Prewitt
v. Firestone Tire and Rubber Company (Appl. Dec., August 12,
1992). In Prewitt, medical testimony and documentation was
used to show that claimant's actual disability was confined
to the arm, and specifically denied that the disability was
to the body as a whole. Prewitt confirmed that it is the
situs of the impairment which determines whether the
schedules in section 85.34(2)"a" -"t" are applied. Lauhoff
Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986).
In the case at bar, it is determined that claimant's
impairment extends to the body. He is restricted from some
lifting activities at or above shoulder level. The surgery
involved the muscles and joints on the body side, rather
than the arm. Claimant's residual pain is in his shoulder.
As a result, he has sustained an injury to the body as a
whole, and should be compensated industrially.
The next issue to be determined is claimant's
industrial disability.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
Page 5
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).
At the time of the hearing, claimant was 44 years of
age, and he anticipated working at Wilson Foods until he
retires at the age of 62. If his past performance is any
indication of his future work habits, claimant will continue
to be an extremely productive employee for Wilson Foods for
the next 18, or more, years.
Claimant has sustained a serious condition due to the
repetitive nature of his work. Yet, he has had a very
successful surgery and overall rehabilitation. Much of this
success can be attributed to claimant's motivation.
Mr. Fiedler's wages have stayed fairly constant
throughout the past five years. While claimant has held
jobs that demanded a higher bracket rating, at the time of
his shoulder injury, he was working at a two bracket job.
Presently, claimant still holds the same job he held at the
time he left work for shoulder surgery.
Claimant's overall recovery time was relatively short,
having had surgery in October of 1991 and having been
released for full-duty work in February of 1992. Again,
much to the claimant's credit, he has had a successful
return to work, and has missed little, if any, time from
work due to his physical condition.
Page 6
After considering all of the factors enumerated above,
including claimant's ability to perform the same job he
performed prior to the injury; claimant's earnings; the
success of the surgery; his overall physical condition,
including the residual impairment from the carpal tunnel
releases; and, claimant's motivation to work, the
undersigned determines that claimant has sustained a 5
percent industrial disability.
ORDER
THEREFORE, it is ordered:
That claimant has sustained a cumulative injury and
left work on October 10, 1991.
That defendant shall pay claimant permanent partial
disability benefits for twenty-five (25) weeks at the rate
of two hundred seventy-eight and 85/100 dollars ($278.85)
per week beginning April 6, 1992.
That defendant shall receive credit for permanent
partial disability benefits previously paid.
That defendant shall pay interest on the award as
governed by Iowa Code section 85.30.
That defendant shall pay the costs of this action.
That defendant shall file a claims activity report as
provided by the agency.
Signed and filed this ____ day of February, 1994.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Steve Hamilton
606 Ontario St
Attorney at Law
P O Box 188
Storm Lake IA 50588
Mr Charles T Patterson
John D. Ackerman
Attorneys at Law
701 Pierce St Ste 200
P O Box 3086
Sioux City IA 51102
5-1803
Filed February 22, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT FIEDLER, :
:
Claimant, :
:
vs. :
: File No. 950290
WILSON FOODS, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant :
:
___________________________________________________________
5-1803
Claimant sustained a cumulative injury to the shoulder. The
situs of his impairment was to the shoulder and body.
Claimant awarded 5% industrial disability based on a 3%
functional impairment to the body as a whole; 25-50 pound
lifting restriction; ability to successfully return to his
former job; and, a very successful surgery.