BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DONNA THIEDE,
Claimant,
vs.
File No. 950456
ASGROW SEED COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
PACIFIC EMPLOYERS INSURANCE
CO. (Sued as CIGNA),
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
Claimant appeals from an arbitration decision denying
claimant death benefits under the Iowa Workers' Compensation
Act as a result of the death of her husband, Donald Thiede.
The record on appeal consists of the transcript of the
arbitration hearing; and joint exhibits 1 through 21. Both
parties filed briefs on appeal.
ISSUES
Claimant does not state the issues on appeal.
Claimant, in her appeal brief states the following as Brief
Points I, II III and IV, respectively.
The Deputy Industrial Commissioner erred when
she found that Claimant did not prove that Don
Thiede's work was the factual cause of his major
depressive disorder and subsequent suicide.
The Claimant has shown legal causation also
exists in this case and the Deputy Industrial
Commissioner was in error in finding otherwise.
Defendant's affirmative defense of Don Thiede's
willful intent to injury [sic] himself is not
valid in this case as Mr. Thiede was severely
depressed and not able to enter into a voluntary
act.
The Iowa Supreme Court's decision in Kostelac
signals a more broad expansion of compensable
suicide.
Claimant's Brief Points I, II, III and IV shall be
considered as adequately reflecting the issues claimant
raises in this appeal.
Page 2
FINDINGS OF FACT
Claimant, Donna Thiede, is the surviving spouse of
Donald J. Thiede. Mr. and Mrs. Thiede were married for
almost 38 years and lived in Hampton, Iowa. Mr. Thiede was
63 years old when he died on March 2, 1990.
Don Thiede worked for the defendant, Asgrow Seed
Company, for more than 25 years. Prior to his employment
with the defendant-employer, he had held various sales
positions since 1950.
In 1967, claimant began working for the Farmers Hybrid
Corn Company, a subsidiary of the Monsanto Company.
Initially, he worked in the chemical department and after
three or four years he transferred to the corn department.
In 1975, the defendant-employer purchased the
subsidiary, and claimant began to work as a regional sales
manager. He later became a district sales manager where he
supervised approximately ten sales representatives as well
as solicited and serviced seed- corn customers. Mr. Thiede
was so employed when he died.
In November 1989, the Upjohn Company, the owner of
Asgrow Seed Company, sent information about an early
retirement program to individuals the company deemed
qualified to participate in the program. The program was
implemented as a part of Upjohn's headcount management
program and was designed to contribute to the company's
overall productivity and profitability. Program costs would
be charged against 1989 fourth quarter earnings. A company
memorandum of November 7, 1989, generally described the
program. The new retirement program offered enhanced
retirement benefits plus six months salary, both of which
were features the old plan had not included. To participate
in the enhanced program, an employee had to be at least 55
years old and have had at least 20 years of service with the
company.
Mrs. Thiede testified that she was not sure whether Mr.
Thiede had received this information. She speculated that
he had not received any information before December 8 or 10,
1989. Janice Millholland, a benefits specialist with the
company, testified that usual procedures were used in
mailing the notices and that the notice was sent to Mr.
Thiede on or about November 7, 1989.
This November 7 memorandum broadly explains several
aspects of the retirement program, including the incentive
program, deadlines associated with electing to participate
in the program, and a general question and answer section.
Individuals qualified for the early retirement package
were sent additional materials on or about November 13,
1989. Those materials contained retirement forecasts and
several retirement election forms that employees were to
return to the company by December 22, 1989. If the company
did not receive these forms by December 22, 1989, otherwise
eligible employees were excluded from the early retirement
Page 3
program. The program was strictly voluntary. Intracompany
memoranda in evidence strictly prohibited supervisory
attempts to influence any employee's retirement decision.
Once an employee decided to participate in the retirement
package, the decision was irrevocable after December 22,
1989, however.
On December 5, 1989, employees eligible for the program
received additional correspondence advising them that the
company was offering professional preretirement financial
planning and a one hour individual counseling session. Each
Asgrow facility was provided with a four-hour seminar tape
which discussed pre-retirement financial planning and
counseling. A manual from Arthur Andersen & Company
regarding retirement strategies was also provided as were
comparisons of retirement benefits under both the old and
the early retirement program.
Mrs. Thiede testified that she first became aware of
the proposed retirement program during the 1989 Thanksgiving
holiday. She and her husband did not discuss the program or
the decision of whether to retire in great detail. Mrs.
Thiede did advise her husband he was not yet ready to
retire, however.
Mrs. Thiede stated that her husband had not received
the video tapes regarding the retirement program and
booklets explaining options of the program until December
10, 1989. Both Mr. and Mrs. Thiede were aware that Mr.
Thiede needed to make a decision about the program on or
before December 22, 1989. Mr. Thiede expressed concern
about the quantity of materials to be reviewed and his lack
of time in which to review them. The initial retirement
documents of November 7, 1989, had advised that employees
who believed they qualified for the program contact Jan
Millholland as soon as possible if they had not received a
retirement packet on or before November 27, 1989. Mr.
Thiede apparently never contacted Ms. Millholland. Between
December 10 and December 22, 1989, Mr. and Mrs. Thiede had
general discussions about retirement. They had no
particular discussion about electing to retire under the new
incentive program, however. Mr. Thiede expressed monetary
concerns, and stated he had heard the Asgrow Seed Company
Division of Upjohn might be sold.
Mr. Thiede continued working during this time. Dennis
Waddle, Mr. Thiede's direct supervisor, met with Mr. Thiede
at least weekly to discuss business. They discussed the
retirement option and Mr. Thiede's concern about lacking
time to review and consider the option. Mr. Waddle told Mr.
Thiede to take as much time as necessary to make the
decision about whether to participate in the retirement
program even if taking this time made it necessary for Mr.
Thiede to devote less time to his regular work duties. On
December 18, 1989, Mr. Waddle met with Mr. Thiede in Ames.
Mr. Waddle then knew that Mr. Thiede would be submitting his
election to participate in the retirement program to Upjohn.
Mr. Waddle remembered that Mr. Thiede knew that if Mr.
Thiede changed his mind after the election, he would be able
to rescind the election on or before December 22, 1989 and
Page 4
not thereafter. Mr. Waddle expressed his belief that Mr.
Thiede was very positive about his decision to retire. Mr.
Waddle's impression was that Mr. Thiede did not feel rushed
or pressured into retirement. Several exhibits confirm that
Mr. Thiede had carefully considered his option to retire and
had decided to retire as of April 2, 1990. Notations in
joint exhibit 6 show that Mr. Thiede remained uncomfortable
with his decision, however. On December 18, 1989, Mr.
Thiede faxed his election to retire to Jan Millholland. He
requested forecasts of his payments.
On December 21, 1989, Mr. Thiede told his wife that he
had signed the retirement papers. During the Christmas
holiday, Mrs. Thiede noticed a change in her husband's
behavior and noted that he made several remarks that there
was "nothing good about retirement." After Christmas, Mr.
Thiede kept repeating that he had made a mistake by electing
to participate in the early retirement program.
In January 1990, Mr. Thiede attended a companywide
sales meeting at the Upjohn home office in Kalamazoo,
Michigan. At a cocktail hour at the end of the day's
regular business events, Jerry Welch, a home office
supervisor, joked that the company was "finally getting rid
of two old turkeys," Mr. Thiede and another employee, both
of whom had elected to retire. Although Mr. Thiede publicly
accepted the comment as goodnatured joking, Mr. Thiede
privately was upset about the comment. In context, the
remark was made in jest and was not intended to cause Mr.
Thiede or the other party insult or distress.
When Mr. Thiede returned from the meeting in Kalamazoo,
Mrs. Thiede felt he continued to "fight with himself" about
his decision to retire. On or about February 8, 1990, Mrs.
Thiede suggested her husband call Upjohn to see if he could
rescind his retirement election. Although Mrs. Thiede felt
that Mr. Thiede was uncomfortable with admitting that he
mistakenly had elected to retire, Mr. Thiede did call James
Fetrow, executive director of Northern and Latin America
Agronomic Operations for Upjohn, to ask if Mr. Thiede could
rescind his election. Mr. Fetrow testified his "heart
dropped in his throat" at Mr. Thiede's request and that Mr.
Fetrow advised Mr. Thiede that Mr. Fetrow believed
rescinding the retirement was not possible. The employer's
charging of retirement costs to the fourth quarter 1989
earnings supports Mr. Fetrow's testimony. Mrs. Thiede
testified Mr. Fetrow had indicated to Mr. Thiede that Fetrow
"thought he could get [Mr. Thiede's] job back." Mr. Thiede
was apparently elated with that news. The record overall
demonstrates that Mr. Thiede had misinterpreted Mr. Fetrow's
remarks. Two days after the initial phone conversation, Mr.
Fetrow called Mr. Thiede and told him that reversal of the
procedures for early retirement was not possible.
A letter from Mr. Fetrow to Mr. Thiede of February 20,
1990, reiterates that the retirement election could not be
rescinded. The letter offered Mr. Thiede professional
counseling to help him cope with both financial and personal
impact of retirement. Specifically, Mr. Fetrow indicated
that psychological counseling was available in either
Page 5
Kalamazoo, Michigan or in the Hampton, Iowa area. Mrs.
Thiede testified that after Mr. Thiede had received the
letter, he was upset at the employer's suggestion of
counseling and became more depressed. Mrs. Thiede, at one
point, had suggested that Mr. Thiede discuss his concerns
regarding retirement with his parish priest. Mr. Thiede had
declined to do so although he apparently was not upset with
her suggestion. Both the employer's suggestion and Mrs.
Thiede's suggestion were reasonable attempts to assist Mr.
Thiede in coping with his concerns regarding retirement.
Objectively, neither suggestion can be interpreted as
intended to hurt, harm, or insult Mr. Thiede.
After February 10, 1990, Mrs. Thiede noticed that Mr.
Thiede's habits and personality changed dramatically. The
only thing he could talk about was retirement; he had a loss
of appetite; he was unable to concentrate; and he found it
difficult to continue working. Mr. Thiede was scheduled for
a business meeting in Arizona from February 27 through March
1, 1990. He returned home one day early. Mrs. Thiede
noticed another change in his persona, as Mr. Thiede was
very quiet about his impending retirement. Mr. Thiede spent
most of the day following his return with his wife; he
helped her with errands and jobs around the house; they
attended a church meeting that evening. Both went to bed in
the early morning of March 2, 1990.
The morning of March 2, 1990, Mrs. Thiede woke up at
approximately 8:30 a.m. Usually, Mr. Thiede was the first
to wake up, would prepare coffee, and begin working in his
office located in the lower portion of their home. When
Mrs. Thiede arose, she noticed that Mr. Thiede had not made
coffee. She went to her husband's office to check his
schedule and found an envelope addressed "Personal to
Donna." She knew something was wrong and called a neighbor
who found Mr. Thiede's body in the garage. He had died from
self-inflicted gunshot wounds.
Mr. Thiede left notes which demonstrate he was very
distraught over his decision to retire. He felt that the
retirement program created a "financial disaster" for his
family. Various notes found in his desk show that Mr.
Thiede blamed the company for rushing him into making the
decision to retire. Mr. Thiede felt that the retirement
program was an "entrapment" and felt that the company had
not given him assistance in making his decision as to
whether he should retire. His notes indicate he felt unable
to face people because of his decision to retire, and some
notations state that "many people" told him to "take [the
retirement program] and run." Notes also show that Mr.
Thiede was contemplating legal action against the employer
relative to his retirement decision. Several days after Mr.
Thiede's death, Dennis Waddle and another employee removed
company displays from Mr. Thiede's garage. They detected
bullet holes in the displays.
The record taken as a whole does not support Mr.
Thiede's perceptions as expressed in his notes and
Page 6
conversations with Mrs. Thiede. The record overall
demonstrates that the employer dealt with Mr. Thiede fairly
and reasonably. As noted, intracompany employer memoranda
expressly directed that employees not be pressured to retire
and that all retirement decisions be wholly voluntary.
Additionally, some 600 other Upjohn employees chose the
early retirement option within the same time frame as was
available to Mr. Thiede. Only one other employee asked for
reconsideration of the retirement decision after December
22, 1989. That request, apparently, also was not granted.
Two board certified psychiatrists, Michael Taylor,
M.D., and James Gallagher, M.D., offered opinions as to the
cause of Mr. Thiede's mental state and subsequent suicide.
Neither Dr. Taylor nor Dr. Gallagher had treated Mr. Thiede
before his death.
Dr. Taylor diagnosed Mr. Thiede's condition, in the
months of January, February and March 1990, as major
depressive disorder. Dr. Taylor stated that Mr. Thiede's
"loss of his job" and his subsequent inability to rescind
the retirement papers caused his depression. Dr. Taylor
described Mr. Thiede as someone for whom "his job was his
life"; who had very few interests outside his work and
family. Dr. Taylor offered that retirement is a situation
that all workers face at some point in their employment
life. Dr. Taylor stated that Mr. Thiede was exposed to
pressures in addition to the normal day-to-day stresses of
retirement that all workers encounter, however. Dr. Taylor
identified these additional stressors as being: Mr.
Thiede's limited time frame in which to make a decision as
to whether to retire; his perception that the employer did
not support him or provide proper help to him in making a
good decision about the retirement program; and his
perception that the company thought of him as an "old
turkey." As noted above, the record overall does not support
Mr. Thiede's perceptions in these regards. Information
supplied Dr. Taylor included a conversation with Mrs. Thiede
and notes Mr. Thiede had written. Dr. Taylor apparently was
unaware that Mr. Thiede voluntarily chose to retire.
Dr. Gallagher testified at hearing. Dr. Gallagher had
reviewed two depositions from Dr. Taylor; a deposition of
Donna Thiede; interviews from co-employees and supervisors;
information from Mr. Thiede's personnel file with Asgrow
Seed Company; statements from relatives and acquaintances;
information regarding the early retirement offer; a copy of
Mr. Thiede's calendar; and medical records. Dr. Gallagher
diagnosed Mr. Thiede as having an adjustment disorder with
depressed moods. He explained that that diagnosis was not
dramatically different from Dr. Taylor's diagnosis. Dr.
Gallagher surmised that Mr. Thiede's suicide was the result
of his unhappiness with his decision to retire. Dr.
Gallagher agreed retirement is stressful but stated
retirement is not a stressor beyond the range of human
events such that it should be so overwhelming as to result
[in suicide]. He expressed difficulty in understanding
Page 7
[how] the opportunity to voluntary decide to retire and a
voluntary decision to retire would result [in suicide]. He
stated Mr. Thiede's voluntary decision to retire contributed
towards Mr. Thiede's death. On cross-examination, Dr.
Gallagher admitted that retirement would not be a usual
stress in a day-to-day activity of most employees, however.
He opined that the transition from a working life to
retirement is difficult for many people and cited financial
worries and domestic problems as concerns persons who are
ready to retire may experience. Dr. Gallagher characterized
Mr. Thiede as a hard worker who was loyal to his company;
who was very much invested in his job; who felt he would not
have a great deal of worth if he were not working; and who
was angry with the employer over the entire [retirement]
matter.
Neither doctor could point to other stresses in Mr.
Thiede's life. There were no evident financial problems;
Mrs. Thiede opined that she and her husband had had a good
marriage.
APPLICABLE LAW AND ANALYSIS
Claimant's Brief Point I, II and IV, generally, may be
considered as addressing the issue of whether claimant's
depressed condition and his successful suicide can properly
be characterized as an injury arising out of and in the
course of claimant's employment.
In the recent case of Kostelac v. Feldman's, Inc., 497
N.W.2d 853 (Iowa 1993), the Iowa Supreme Court expressly
overruled the case of Schofield v. White,, 95 N.W.2d 40
(Iowa 1959). Schofield has stood for the proposition that a
claimant could recover workers' compensation benefits on
account of an employee's traumatically induced mental injury
which culminated in suicide only where the claimant could
prove that the mental condition of the claimant's decedent
at the time of the suicide was such that the decedent was
motivated by an uncontrollable impulse or in a delirium of
frenzy, without conscious volition to produce death. In
place of the Schofield rule, the court in Kostelac held that
recovery of workers' compensation benefits would be possible
subsequent to a decedent's suicide upon proof of a chain of
causation directly linking an employment injury to the
worker's "loss of normal judgment and domination by
disturbance of the mind, causing suicide." Hence, under the
rule announced in Kostelac, the claimant must prove that but
for the claimant's decedent's employment injury, the
deceased employee would not have committed suicide. The
Kostelac court reaffirmed, however, that for a claimant to
recover workers' compensation benefits, the employee's
suicide must be traced directly to some injury arising out
of and in the course of the employment.
In Kostelac, the Iowa Supreme Court again declined to
rule on both the question of whether mental injury, standing
alone, will give rise to a workers' compensation claim and
on the issue of what degree of work-related stress would
justify an award of benefits on account of nontraumatic
Page 8
mental injury. See also Newman v. John Deere Ottumwa Works
of Deere & Co., 372 N.W.2d 203 (Iowa 1985); Schreckengast v.
Hammermills, Inc., 369 N.W.2d 809 (Iowa 1985).
The industrial commissioner has found that work-related
mental injuries are compensable; and, in the case of mental
injuries where mental stress without physical trauma is
alleged, has applied the so called "Wisconsin rule." Under
the "Wisconsin rule", a nontraumatically-caused mental
injury is compensable only when the injury "resulted from a
situation of greater dimensions than the day-to-day mental
stresses and tensions which all employees must experience."
Roche v. Dept. of Community Corrections, Appeal Decision,
June 17, 1993; Swiss Colony v. Dep't of Indus., L. & H. R.,
72 Wis. 2d 46, 240 N.W.2d 128 (1976). In other words, both
medical and legal causation must be resolved before finding
an injury arising out of employment. The medical causation
issue involves an examination into the cause and effect
relationship between the stresses and tensions at work and
the mental difficulties. If the medical causation issue is
resolved in favor of the claimant, legal causation is
examined. Legal causation involves a determination of
whether the work stresses and tensions, when viewed
objectively and not as perceived by claimant, were "out of
the ordinary from the countless emotional strains and
differences that employees encounter daily without serious
mental injury." School Dist. #1 v. Dep't of Indus., L. & H.
R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974).
This is the first claim involving an alleged mental
stimulus causing a mental or nervous injury the Industrial
Commissioner is deciding since the court's ruling in
Kostelac. While it possible to analyze this case under
the Wisconsin rule as the deputy did in her initial
decision, that it not necessary. Our own court has left us
sufficient guidance under its application of the chain of
causation standard to decide this case without inquiry into
the Wisconsin rule. In Kostelac, Schreckengast and Newman,
our court declined to award workers' compensation benefits
on factual causation grounds such that it was not necessary
to consider the legal causation standard of Swiss Colony.
Newman was a case where claimant asserted that an
alleged physical trauma caused his mental injury. In that
sense, it differs from this case and the Kostelac and
Schreckengast cases since, in each of these cases,
claimants have asserted that mental stress or stimulus
caused the mental or nervous injury. Yet, the court's
finding and ruling in Newman are very consistent with the
direct chain of causation standard that the court in
Kostelac reasserted is the law for recovery in mental
injury cases in the state of Iowa. In Newman, the employee
claimed that a small explosion of a welding rod and
subsequent scalding of his throat produced his mental
injury. The employer had introduced evidence demonstrating
the explosion the employee described was physically
impossible. The Newman court held that if physical trauma
Page 9
was imaginary it could form no basis for recovery because,
on the Newman record, the imaginary physical trauma was a
product of the employee's mental condition and not of his
work. The Newman court stated:
We find no cases that permit recovery when the
employment merely provided a stage for the nervous
injury... [emphasis in the original]
The Newman court then expressly declined to accept the
conclusion that imaginary trauma can be a proximate cause of
a compensable injury. Newman, therefore, demonstrates that
a claimant's internal perceptions must be consistent with
external reality before those perceptions can form the basis
for a compensable work-related injury. Hence, Newman, when
considered with Kostelac, suggests that our court will
follow a strict chain of causation standard in considering
the compensability of any alleged mental injury even when
the alleged injury has its roots in alleged mental and not
alleged physical trauma.
Under the direct chain of causation standard and the
premise that the work environment must in fact contribute to
claimant's mental condition and not merely provide a stage
for its manifestation, claimant's claim must fail. No
direct chain of causation exists between claimant's
decedent's work situation and his ultimate suicide. While
it is undoubtedly true that decedent's suicidal act resulted
from his perceptions that he had made an inappropriate
choice in electing retirement and from his perceptions that
his employer was treating him unfairly both in the matter of
offering the retirement benefit and in declining to rescind
claimant's election of retirement after December 22, 1989,
the record demonstrates that claimant's perceptions in this
regard are not grounded in fact. Decedent's beliefs no
matter how sincerely held are inadequate, of themselves, to
show a causal relationship between his mental condition and
his employment and his ultimate suicide. See, Newman at
202. As noted in the above findings of fact, decedent's
employer offered decedent a voluntary election to retire
under the special benefit program, dealt fairly with
decedent in consideration of the retirement program and
appeared to hold decedent personally in high regard. Given
such, decedent's perceptions as to his employer's treatment
of him and as to the consequences of his retirement arose
out of his own mental state and not out of any actions of
the employer. For that reason, it cannot be said that a
direct chain of causation between claimant's mental
condition and his employment and his ultimate suicide has
been established. Claimant does not prevail.
CONCLUSION OF LAW
Claimant has not established that the decedent
sustained an injury arising out of and in the course of
decedent's employment such that claimant is entitled to
death benefits on account of decedent's suicide.
WHEREFORE, the decision of the deputy is affirmed.
Page 10
ORDER
THEREFORE, IT IS ORDERED:
Claimant take nothing from these proceedings.
Claimant pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of September, 1993.
______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies to:
Mr. David D. Drake
Mr. Tom Drew
Attorneys at Law
West Towers Office
1200 35th St. Ste. 500
West Des Moines, IA 50265
Mr. Raymond Drew
Attorney at Law
320 Central Ave. E
P.O. Box 516
Hampton, IA 50442
Mr. Charles E. Cutler
Ms. Correen K. Sweeney
Attorneys at Law
729 Ins. Exch. Bldg.
Des Moines, IA 50309
1108.20; 2204; 1805
Filed September 2, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DONNA THIEDE,
Claimant,
vs.
File No. 950456
ASGROW SEED COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
PACIFIC EMPLOYERS INSURANCE
CO. (Sued as CIGNA),
Insurance Carrier,
Defendants.
___________________________________________________________
1108.20; 2204; 1805
Claimant did not establish that decedent had sustained
a mental injury arising out of and in the course of
decedent's employment such that claimant was entitled to
death benefits on account of decedent's suicide. The
decision does an extensive analysis of the Iowa Supreme
Court treatment of mental injury claims as gleamed from
Kostelac v. Feldman's, Inc., 497 N.W.2d 853 (Iowa 1993);
Newman v. John Deere Ottumwa Works of Deere & Co., 372
N.W.2d 203 (Iowa 1985); and Schreckengast v. Hammermills,
Inc., 369 N.W.2d 809 (Iowa 1985). The decision concludes
that while the Iowa Supreme Court has consistently declined
to rule on the applicability of the so called "Wisconsin
rule," the court has consistently applied a strict direct
chain of causation standard and required that the work
environment must in fact contribute to claimant's mental
condition and not merely provide a stage for that
condition's manifestation. In other words, a claimant's
internal perceptions that work conditions are causing the
claimant mental or emotional stress must be consistent with
the external realities of the work environment before those
perceptions can form the basis for a compensable
work-related injury.
In this case, while claimant perceived that his
employer had treated him unfairly and had contributed to his
stress by offering an enhanced retirement program, the
Page 2
acceptance of which was nonrevocable after an expressed time
period; the record established that the employer's dealings
with the employee were both fair and reasonable and could
not objectively be considered to be the types of
employer-employee dealings which would result in significant
mental distress for the employee.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DONNA THIEDE, :
:
Claimant, :
:
vs. :
: File No. 950456
ASGROW SEED COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
PACIFIC EMPLOYERS INSURANCE :
CO. (Sued as CIGNA), :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Donna
Thiede. Mrs. Thiede seeks death benefits under the Iowa
Workers' Compensation Act.
The matter came on for hearing before the undersigned
deputy industrial commissioner on April 7, 1992, at Des
Moines, Iowa.
The record in this case consists of live testimony from
Donna Thiede, Janice Millholland, James Fetrow and Dennis
Waddle; and, joint exhibits 1 through 21, which include the
deposition testimony of Michael Taylor, M.D., Ruth Graf and
Wayne Paige.
ISSUE
The parties submit the following issue for resolution:
Whether claimant is entitled to death benefits under Iowa
Code section 85.31.
FINDINGS OF FACT
The undersigned deputy, having reviewed all the
evidence received, finds the following facts:
Claimant, Donna Thiede, is the surviving spouse of
Donald J. Thiede. Married for almost 38 years, Mr. and Mrs.
Thiede lived in Hampton, Iowa.
Don Thiede worked for the defendant, Asgrow Seed
Company, for more than 25 years. Prior to his employment
with the defendant, he had held various sales positions for
several companies since 1950.
In 1967, claimant began working for the Farmers Hybrid
Page 2
Corn Company, a subsidiary of the Monsanto Company, in
Minnesota. Initially, he worked in the chemical department
and in three or four years was transferred to the corn
department.
In 1975, the defendant purchased the subsidiary, and
claimant began to work as a regional sales manager. Later,
he began duties as a district sales manager, which included
supervising approximately 10 sales representatives,
soliciting and serving corn seed customers.
Mr. Thiede held this position until his death in March
of 1990.
In November of 1989, Upjohn Company, the owner of
Asgrow Seed Company, sent information about an early
retirement program to individuals they deemed qualified to
retire. The program was implemented as a part of Upjohn's
headcount management program and was designed to contribute
to the company's overall productivity and profitability.
Joint exhibit 1, a document dated November 7, 1989, is
a company memorandum regarding the program. The new
retirement program offered enhanced retirement benefits plus
six months salary, features that the old plan did not
include. In order to participate in the enhanced program,
an employee had to be at least 55 years of age, and have at
least 20 years of service with the company. The memo
explains the special early retirement program, and attempts
to answer common questions raised about the program.
Although Mrs. Thiede testified that she was not sure whether
Mr. Thiede received this information, and at one point
during her testimony speculated that Don had not received
any information before December 8 or 10, Janice Millholland,
a benefits specialist with the defendant company, indicated
that usual procedures were used in mailing the notices, and
that the notice would have been sent to Mr. Thiede on or
about November 7, 1989.
This initial document broadly explained several aspects
of the retirement program, including an explanation of the
incentive program, the various deadlines associated with
electing to participate in the plan, and a general question
and answer section. Additional materials were to be sent on
or about November 13, 1989.
Joint exhibit 2, dated November 13, 1989, is the second
set of information sent to individuals qualified for the
early retirement package and contains retirement forecasts
and several retirement election forms that were to be
returned by December 22, 1989. If these forms were not
received by the company by December 22, eligible employees
were excluded from the early retirement program. The
program was strictly voluntary, but once an employee decided
to participate in the retirement package, the decision was
irrevocable after December 22, 1989.
On December 5, 1989, employees eligible for the
retirement program received additional correspondence
advising them that the company was offering professional
Page 3
pre-retirement financial planning and a one hour individual
counseling session. Each Asgrow facility was provided with
a four-hour seminar tape which discussed pre-retirement
financial planning and counseling. Also provided was a
manual from Arthur Andersen & Company regarding retirement
strategies. Eligible employees were also provided with
comparisons of retirement benefits under the old program and
benefits under the early retirement program (Jt. Ex. 2, pp.
7-8).
Mrs. Thiede testified that she first became aware of
the proposed retirement program during the 1989 Thanksgiving
holiday. Although she and her husband did not discuss in
great detail the program or the decision of whether to
retire, Mrs. Thiede stated that she told Don he was not yet
ready to retire.
Mrs. Thiede also stated that information consisting of
two video tapes regarding the retirement program and two
booklets explaining options of the program were not received
by Don until December 10, 1989. Both Mr. and Mrs. Thiede
were aware that Don needed to make a decision about the
program on or before December 22, 1989. Mr. Thiede
expressed concern about the amount of materials needed to be
reviewed and the lack of time to review them.
Between December 10 and December 22, 1989, Mr. and Mrs.
Thiede had general discussions about retirement. She stated
that Mr. Thiede discussed monetary concerns, and had heard
about the possible sale of the Asgrow Seed Company Division
of Upjohn. However, they had no particular discussion about
electing to retire under the new incentive program.
Mr. Thiede continued working during this time frame.
Dennis Waddle, Mr. Thiede's direct supervisor, met with Don
at least weekly to discuss regular business. The subject of
retirement came up, and Mr. Waddle told Mr. Thiede to take
as much time as necessary to make his decision about whether
to participate in the retirement program. On December 18,
1989, Mr. Waddle met with Don Thiede in Ames and was aware
that Mr. Thiede was going to send in his election to
participate in the retirement program. Mr. Waddle
remembered that Don was aware that if he changed his mind
about the election, he would be able to rescind the election
on or before December 22, 1989. Mr. Waddle stated that he
felt Don was very positive about his decision to retire, and
it was his impression that Don did not feel rushed or
pressured into retirement. Several of the joint exhibits
confirm that Don Thiede had carefully considered his option
and reached a decision to retire on April 2, 1990 (Jt. Ex.
4, pp. 1-3). However, notations shown in joint exhibit 6
show that Mr. Thiede was still uncomfortable with his
decision (Jt. Ex. 6, pp. 1-3).
On December 18, 1989, Don Thiede faxed to Jan
Millholland his election to retire. He requested forecasts
of his payments (Jt. Ex. 4).
On December 21, 1989, Don told Mrs. Thiede that he had
signed the retirement papers. During the Christmas holiday,
Page 4
she noticed a change in his behavior and noted that Don made
several remarks that there was "nothing good about
retirement." After Christmas, Don kept repeating that he
had made a mistake by electing to participate in the early
retirement program.
In January of 1990, Mr. Thiede attended a company-wide
sales meeting at the home office of Upjohn in Kalamazoo,
Michigan. Apparently, one of the speakers at the meeting,
while addressing a large group of sales representatives,
made an insensitive comment about Mr. Thiede's retirement,
and "joked" that the company was "finally getting rid of two
old turkeys," Don Thiede and another employee, both of whom
had elected to retire. Although publicly Don accepted the
comment as good natured joking, privately, he was upset
about the comment (Jt. Ex. 10, p. 5).
When Don returned from the meeting in Kalamazoo, Mrs.
Thiede felt that he continued to fight with himself about
the decision he had made to retire. On or about February 8,
1990, Mrs. Thiede told Don to call Upjohn to see if he could
rescind his election to retire. Mrs. Thiede felt that Don
was uncomfortable with admitting that he had made a mistake
in electing to retire.
Mr. Thiede decided to call James Fetrow, executive
director of Northern and Latin America Agronomic Operations,
to try to rescind his election for early retirement.
According Mrs. Thiede, Mr. Fetrow indicated that "he thought
he could get Don's job back." Apparently, Don was elated
with the news, but two days later Mr. Fetrow called Don and
told him that he was unable to reverse the procedures for
early retirement.
After February 10, 1990, Mrs. Thiede noticed a dramatic
change in Mr. Thiede's habits and personality. Although he
tried to be positive, the only thing he could talk about was
retirement. He had a loss of appetite, was unable to
concentrate and found it difficult to continue working.
At the end of February of 1990, Mr. Thiede went to a
company function in Arizona. After he returned, Mrs. Thiede
noticed another change in his persona, as Don was very quiet
about his impending retirement.
A letter from James Fetrow, dated February 20, 1990, is
included in the evidence as joint exhibit 8. Mr. Fetrow's
letter reiterates that Mr. Thiede's election of retirement
could not be changed but offered professional counseling to
help cope with both the financial and personal impact of
retirement. Specifically, Mr. Fetrow indicated that
psychological counseling was available in Kalamazoo or in
the Hampton area. Mrs. Thiede testified that after Don had
received the letter, he was upset at the suggestion of
counseling and became more depressed.
From February 27 through March 1, 1990, Mr. Thiede was
scheduled for an out-of-town business meeting. He returned
home one day early. Don spent most of the following day
with his wife, and helped her with errands and jobs around
Page 5
the house. Both went to bed in the early morning.
The following morning, Mrs. Thiede stated that she woke
up at approximately 8:30 a.m. Usually, Mr. Thiede was the
first to wake up, would prepare coffee, and begin working in
his office located in the lower portion of their home. When
Mrs. Thiede got up on March 2, 1990, she noticed that the
coffee had not been made. She went down to Don's office to
check on his schedule and found an envelope addressed
"personal to Donna." She knew something was wrong and
called her neighbor who found Mr. Thiede's body in the
garage. He had died from self-inflicted gunshot wounds.
Mr. Thiede's suicide notes indicate that he was very
distraught over his decision to retire, and he felt that the
program created a "financial disaster" for his family.
Various notes found in his desk show that Mr. Thiede blamed
the company for rushing him into making the decision to
retire (Jt. Ex. 10, pp. 1-17). Mr. Thiede felt that the
program was an "entrapment" and felt that he was not given
any personal help to aid in his decision as to whether he
should retire. His notes indicate he felt unable to face
people because of his decision to retire, and some notations
state that "many people" told him to "take [the retirement
program] and run." (Jt. Ex. 10, p. 16) Finally, his notes
show that Mr. Thiede was contemplating some type of legal
action against the company (Jt. Ex. 10, p. 16).
Several days later, as Dennis Waddle and another
employee, were removing company displays from Mr. Thiede's
garage, they detected bullet holes in the displays.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether Don Thiede
sustained an injury on March 2, 1990, which arose out of and
in the course of his employment with Asgrow Seed Company.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that the decedent received an injury on
March 2, 1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
The words "in the course of" refer to the time and
Page 6
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63.
Claimant argues that Mr. Thiede sustained a
mental-mental injury which arose out of and in the course of
his employment and led to his suicide. The standard for
determining whether a mental injury arose out of and in the
course of employment was discussed in the recent case of
Ohnemus v. John Deere Davenport Works (Appeal Dec.,
February 26, 1990). The case stated, in relevant part:
In order to prevail claimant must prove that he
suffered a non-traumatically caused mental injury
that arose out of and in the course of his
employment. This matter deals with what is
referred to as a mental-mental injury and does not
deal with a mental condition caused by physical
trauma or a physical condition caused by mental
stimulus. The supreme court in Schreckengast v.
Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985),
recognized that issues of causation can involve
either causation in fact or legal causation. As
stated in footnote 3 at 369 N.W.2d 810:
We have recognized that in both civil
and criminal actions causation in fact
involves whether a particular event in
fact caused certain consequences to
occur. Legal causation presents a
question of whether the policy of the
law will extend responsibility to those
consequences which have in fact been
produced by that event. State v. Marti,
290 N.W.2d 570, 584-85 (Iowa 1980).
Causation in fact presents an issue of
fact while legal causation presents an
issue of law. Id.
That language was the basis of the language in
Desgranges v. Dept. of Human Services, (Appeal
Decision, August 19, 1988) which discussed that
there must be both medical and legal causation for
a nontraumatic mental injury to arise out of and
in the course of employment. While Desgranges
used the term medical causation the concept
involved was factual causation. Therefore, in
this matter it is necessary for two issues to be
resolved before finding an injury arising out of
and in the course of employment - factual and
legal causation. Proving the factual existence of
an injury may be accomplished by either expert
testimony or nonexpert testimony.
....
Not only must claimant prove that his work was
the factual cause of his mental injury, claimant
must also prove that the legal cause of his injury
was his work. In order to prove this legal
Page 7
causation claimant must prove that his temporary
mental condition "resulted from a situation of
greater dimensions than the day to day mental
stresses and tensions which all employees must
experience." Swiss Colony v. Department of ICAR,
240 N.W.2d 128, 130 (Wisc. 1976).
In the instant case, two psychiatrists have provided
opinions as to the cause of Mr. Thiede's depression and
subsequent suicide.
Michael Taylor, M.D., a psychiatrist who served as
claimant's witness, was of the opinion that Mr. Thiede's
mental state could be diagnosed as a major depressive
disorder in the months of January, February and March of
1990 (Jt. Ex. 19, pp. 7-8). Dr. Taylor indicated that Mr.
Thiede's depression was caused by the loss of his job and
the subsequent inability to rescind the retirement papers
(Jt. Ex. 19, p. 8). Dr. Taylor also offered that retirement
is something that all workers face at some point in their
employment life (Jt. Ex. 21, p. 9). However, Dr. Taylor
also stated that Mr. Thiede was exposed to other pressures
in addition to the normal day-to-day stresses of retirement
that workers encounter (Jt. Ex. 19, p. 12).
In Mr. Thiede's case, these additional stressors
included a limited time frame to make a decision as to
whether he wanted to retire; his perception that the company
was not supporting him or providing proper help to him so
that he could make a good decision about the retirement
program; and, his perception that the company thought of him
as an "old turkey." (Cl. Ex. 19, pages 12-13). Information
supplied to Dr. Taylor included a visit with Mrs. Thiede and
various notes written by Mr. Thiede. Dr. Taylor
characterized Mr. Thiede as someone who viewed his job as
his life, with very few interests outside of work; a person
proud of his work; and a dedicated employee (Jt. Ex. 19, pp.
7,13).
James Gallagher, M.D., a psychiatrist, testified on
behalf of defendants. Dr. Gallagher reviewed two
depositions from Dr. Taylor; a deposition of Donna Thiede;
interviews from co-employees and supervisors; information
from Mr. Thiede's personnel file from Asgrow Seed Company;
statements from relatives and acquaintances; information
regarding the early retirement offer; a copy of Mr. Thiede's
calendar; and, medical records. Dr. Gallagher diagnosed Mr.
Thiede as having an adjustment disorder with depressed
moods. He explained that his diagnosis was not dramatically
different than that of Dr. Taylor's (Transcript, page 163).
Dr. Gallagher surmised that Mr. Thiede's suicide was the
result of his unhappiness with his decision to retire (Tr.,
p. 163). Dr. Gallagher also admitted on cross-examination
that retirement would not be a usual stress in the
day-to-day activities of most employees (Tr., p. 179). He
also indicated that the transition from a working life to a
retirement life is difficult for most people, and cited
financial worries and domestic problems as some of the
concerns experienced by people who are ready to retire (Tr.,
p. 181). Dr. Gallagher also characterized Mr. Thiede as a
Page 8
hard worker who was loyal to his company (Tr., p. 181).
It is interesting to note that neither doctor could
point to any other stresses in Don Thiede's life that may
have or could have caused him to commit suicide. There were
no evident financial problems, and Mrs. Thiede offered that
she and her husband had a good marriage.
Both physicians are credible, and both had essentially
the same material to review in order to form opinions
regarding Mr. Thiede's mental state and suicide. One fact
that was not made known to Dr. Taylor prior to making his
assessment of the case is that Don Thiede knew that once a
decision was made to elect the early retirement package, the
decision was irrevocable (Jt. Ex. 19, p. 18). Additionally,
Dr. Taylor's opinions are based on his assumption that Mr.
Thiede lost his job, as opposed to making a voluntary
decision to retire. Although claimant argues that Mr.
Thiede's decision was in fact not voluntary, nothing in
record suggests that the company applied pressure in an
effort to make Mr. Thiede retire. There is no doubt that
Dr. Taylor blames Mr. Thiede's suicide on his decision to
retire; however, the crux of the issue revolves around the
fact that it was Mr. Thiede's decision to retire. As a
result, Dr. Gallagher's opinion is more reliable, and
claimant has not proved that Mr. Thiede's work was the
factual cause of his major depressive disorder and
subsequent suicide.
Even if Mrs. Thiede had proven that her husband's work
was the factual cause of his mental condition, she must also
prove that it was the legal cause. The standard for making
this determination is whether claimant proved that Mr.
Thiede's mental condition resulted from a situation of
greater dimensions than day-to-day mental stresses and
tensions which all employees must experience.
The evidence in this case shows that Mr. Thiede was
certainly troubled and equivocal about his decision to
retire, although there is some evidence that shows he had
been considering his retirement at age 65, approximately one
year after his death. Although Mr. Thiede blamed the
company for his retirement, he had as much notice about the
early retirement program as all other employees who were
eligible to participate in the program, the plan offered
enhanced retirement benefits for eligible employees, and Mr.
Thiede knew that once he made the decision to retire, the
decision was irrevocable after December 22, 1989. It is
unfortunate that his own perception of his decision appears
to be so distorted that he became depressed. Although it is
difficult to determine whether his situation was greater in
dimension than situations all employees must experience,
both physicians in the case testified that the decision to
retire, and retirement itself will most likely be introduced
to all employees. And, all employees who met the criteria
developed by the company were offered the same options as
Mr. Thiede. Although company representatives admitted that
one other employer had changed his or her mind about the
retirement program, there is no evidence which suggests all
of them felt stress overwhelming enough so as to cause
Page 9
depression or mood disorders.
In summary, Mrs. Thiede has not proven that her husband
suffered an injury that arose out of and in the course of
his employment.
Even if she had shown that he had suffered an injury
that arose out of and in the course of his employment, she
would not be able to recover if the defendants could prove
an affirmative defense. Under Iowa law, benefits are not
allowed if defendants can prove that the injury was a result
of a willful intent to injure oneself. The standard to be
used under Iowa law is whether the suicide was from a
"voluntary willful choice determined by moderately
intelligent mental power which knows the purpose and
physical effect of the suicidal act." See Schofield, 95
N.W.2d at 40. Again, both physicians had different opinions
regarding Mr. Thiede's ability to form the requisite willful
intent to injure himself. Other evidence, particularly Mr.
Thiede's notes which define and locate various records and
financial information, and which admit his plans to commit
suicide, support Dr. Gallagher's opinions. Again, Dr.
Gallagher's opinions are relied upon. He indicates that
claimant's actions amounted to a calculated effort by Mr.
Thiede to take his own life. His suicide meets that
standard of affirmative defense. Therefore, even if Mr.
Thiede had suffered an injury which arose out of and in the
course of his employment, Mrs. Thiede's claim is not
allowed.
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That defendants shall pay the costs of this claim.
Signed and filed this ____ day of June, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr David D Drake
Mr. Tom Drew
Attorneys at Law
West Towers Office
1200 35th St Ste 500
West Des Moines IA 50265
Mr Raymond Drew
Attorney at Law
320 Central Ave E
Page 10
P O Box 516
Hampton IA 50441
Mr Charles E Cutler
Ms Coreen K Sweeney
Attorneys at Law
729 Ins Exch Bldg
Des Moines IA 50309
5-1100; 5-1805; 5-2204
Filed June 29, 1992
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DONNA THIEDE, :
:
Claimant, :
:
vs. :
: File No. 950456
ASGROW SEED COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
PACIFIC EMPLOYERS INSURANCE :
CO. (Sued as CIGNA), :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100; 5-1805; 5-2204
Claimant's decedent, Donald Thiede, worked for defendant
seed company for more than 25 years. In early November
1989, defendant company offered a retirement program with
enhanced benefits. Election to participate in the program
was voluntary, but once an election was made, the decision
became irrevocable after December 22, 1989. Claimant's
decedent chose to retire, with an effective date of April 2,
1990.
Claimant became very unhappy with his decision and tried to
revoke the decision in February 1990. The company refused,
but offered psychological and financial help.
Claimant's decedent killed himself on March 2, 1990.
Claimant, surviving spouse, alleged a mental-mental injury
that led to death.
Benefits denied, as claimant failed to prove that decedent's
mental condition (depression) resulted from a situation of
greater dimensions than the day-to-day mental stresses and
tensions which all employees must experience.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ARMANDO SOLIS, :
: File No. 950490
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
IBP, INC., :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Armondo G. Solis, against his self-insured employer,
IBP, defendant. The case was heard on March 29, 1993 at the
Bicentennial Building in Davenport, Iowa. Ms. Rosa Knapp served
as a certified interpreter in the Spanish language.
The record consists of the testimony of claimant. The
record also consists of the testimony of Kent A. Jayne, certified
rehabilitation counselor, and the testimony of Mr. Terry
Zimmerman, medical case manager at defendant's establishment in
Louisa County, Iowa. Additionally, the record consists of
claimant's exhibits 1-3, defendant's exhibit A and joint exhibits
A-J.
ISSUES
The sole issue to be determined is:
The nature and extent of claimant's permanent partial
disability.
FINDINGS OF FACT
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant is a 27-year-old married father of five-month-old
twin daughters. He was born in Durango, Mexico. He immigrated
to the United States in 1983.
Prior to coming to Iowa, claimant worked as a migrant field
hand where he was engaged in picking strawberries. He also
worked as a dishwasher in Arizona. Claimant had no special work
skills. His formal education had been minimal, at best. He
started seventh grade when he lived in Mexico, however, he never
completed that grade. When he arrived in the United States,
claimant took a basic English course. Nevertheless, at the time
of the hearing, he was unable to speak, read or write English.
An interpreter was provided to claimant during the hearing
Page 2
proceeding.
Approximately four years ago, claimant moved to Iowa from
California. In September of 1989, he was hired by defendant to
work in its meat packing plant. There he removed by hand lard
from animal carcasses. He was hired as a full time employee and
often he worked 48 hours per week.
After approximately one month of employment, claimant began
experiencing pain in the bilateral shoulder area, the hands, and
in the right mid-back area. Claimant sought medical treatment
from Dr. Honold, M.D., (first name unknown) who diagnosed
claimant's condition as myofascial strain. Several months later,
claimant saw Dr. Honold's associate, Forrest Dean, M.D.
Dr. Dean diagnosed claimant's condition as systemic inflam
matory joint disease which was aggravated by claimant's employ
ment. According to Dr. Dean, the inflammatory joint disease
affected claimant's arms, hands and back (Exhibit B-1, page 9).
Claimant was treated conservatively with anti-inflammatory medi
cations and given work restrictions (Ex. B-21). During his
course of treatment, claimant saw Dr. Dean on a number of
occasions.
A note in claimant's medical file, which was maintained by the
employer, contained a quotation which was attributable to Dr.
Dean. The note stated: "You are unsuited for repetitive move
ment activities and your body does not tolerate these well. I
would recommend that you seek alternative less physical activity
for employment so you do not injure your body in any permanent
way." (Exhibit I-8)
Dr. Dean noted in his office record of October 23, 1990:
I feel he has failred [sic] to improve with any medical
management and will not improve any in the future. It
is my impression that he is permanently medically
impaired and will be unable to be employable with any
repetitive gripping, grasping, lifting, bending, stoop
ing, laboring-type of endeavor. Since Armando has no
demonstrable impairment in range of motion at this
time, I would arbitrarily give him a 10% whole-body
permanent medical impairment due to his exacerbation of
his pain.
(Ex. B-21)
Dr. Dean reiterated his impairment rating in his deposition
which was taken on November 20, 1992. He opined that: "It's a
summary of Mr. Solis' treatment trials, of his objective labora
tory, x-ray, clinical findings, I have the results and his cur
rent state as far as range of motion and physical limits and then
a conclusion about cause and effect." (Ex. B-8, lines 10-15).
On July 12, 1990, claimant was placed on a medical leave of
absence due to his work injury. He remained on the medical leave
of absence for one year. Then claimant was terminated. Mr.
Zimmerman testified that for the past fifteen months there had
been a program at the plant where employees who had been on
medical leave for a year and who had medical restrictions, could
Page 3
bid on other positions in the plant. He testified that only one
employee, in the history of the program, had ever been successful
in bidding into a position. Claimant, as of March 2, 1993,
requested another plant position which would be within claimant's
medical restrictions (Ex. D). As of the date of the hearing,
claimant had not been offered a position with defendant.
Claimant was sent to Rouben Mirbegian, M.D., for another
examination and evaluation. Dr. Mirbegian opined that:
[T]here was no asymmetry of his right or left upper
extremities. I could not find any muscle atrophy in
his upper or lower extremities. He had full range of
motion of the neck, upper extremity, lower extremity.
The only positive findings was grinding both in AC
joint in range of motion of both shoulders. This also
is questionable to me if it is causing his discomfort,
because he had same type of grinding in the right
side.... I believe all his problems go along with
overuse syndrome, maybe once he started working at IBP
he was not used to type of work he was supposed to do.
In summary, I do not find any objective findings that
would allow me to let this patient stay on light work
except for restriction for 8 weeks. I do not believe
that he has any permanent impairment damages. I
believe he should be able to return to his work without
any restriction anytime.
(Ex. H)
Claimant was examined by R. F. Nieman who ordered an EMG.
The results of the test showed that:
IMPRESSION: Despite a clinical examination which is
nonrevealing and the EMG study which is likewise
normal, he still might have some degree of a chronic
strain about his shoulders. I see no structural
pathology. X-rays of the neck are likewise entirely
normal. I do not have any easy answer for him. I
suggest he have light duty at work if possible.
(Ex. G)
For purposes of an evaluation, claimant was also examined by
James B. Worrell, M.D. In his report of July 19, 1991, Dr.
Worrell opined the following relative to claimant's condition
following his employment at IBP:
Impression: Mr. Solis, therefore, has a diffuse aches
and pains disorder compatible with a myofascial syn
drome. He has had this disorder now since early 1990
anyway and it does not appear that he will improve or
be able to get back to work. There is no sign of any
other underlying neuromuscular disease. It would be my
recommendation, therefore, that he be assigned a perma
nent partial impairment rating of perhaps 8 per cent of
the body as a whole because of his pain. I see no
other tests that need to be done or the like. If any
Page 4
further questions come up with this, please let me
know.
(Ex. C-2)
Testimony at the hearing indicated that claimant had been
employed subsequent to the date of his termination from defen
dant. Claimant testified he worked at El Charro's Restaurant on
two separate occasions. While employed there, he was hired to
place cheese onto plates and to wash dishes. The periods of
employment were in October and November of 1992, and again in
January of 1993. Claimant testified he terminated his employment
at the restaurant because his hands began to hurt. At the time
of the hearing claimant was not employed.
In anticipation of the pending hearing, both parties hired
vocational rehabilitation counselors to study claimant's employa
bility. Neither counselor was hired to find a position for
claimant. Kent A. Jayne was hired by claimant to evaluate
claimant's employability and potential. Maggie Reelfs was
retained by defendant to study claimant's access to the labor
market. Given their respective clients, the opinions of the
vocational rehabilitation counselors were quite predictable.
Ms. Reelfs opined that:
In summary, from the available labor market informa
tion, Mr. Solis should be able to find a job in the
Iowa City area or perhaps Muscatine to accommodate his
light duty work and also to fit in with what he can do.
Page 5
With a small amount of training, he should be able to
do some of these jobs.
(Ex. J-6)
Mr. Jayne opined that:
It is therefore my opinion that Armando Solis has suf
fered close to a total loss of earning capacity as a
result of his disability.
If Mr. Solis chooses to pursue employment in the Mid
west, recommendations would include English as a Second
[sic] language classes [sic], Adult Basic Education
classes leading to a possible GED, and an extended
evaluation through the Division of Vocational Rehabili
tation to determine if any residual capacities or apti
tudes may be significant enough for enhancement through
retraining efforts.
CONCLUSIONS OF LAW
The sole issue in this case is the nature and extent of
claimant's permanent partial disability. 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).
While a claimant is not entitled to compensation for the
results of a preexisting injury or disease, its mere existence at
the time of a subsequent injury is not a defense. Rose v. John
Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is mate
rially aggravated, accelerated, worsened or lighted up so that it
results in disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d
299 (1961).
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of earn
ing capacity, but consideration must also be given to the injured
employee's age, education, qualifications, experience and inabil
ity 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 func
tional 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
Page 6
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; earn
ings prior and subsequent to the injury; age; education; motiva
tion; 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 trans
fer for reasons related to the injury is also relevant. Like
wise, 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 mat
ters 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 func
tional 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 Commis
sioner Decisions 529 (App. March 26, 1985); Peterson v. Truck
Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commis
sioner 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.
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 reaso
Page 7
nably stable market for them does not exist." Guyton, 373 N.W.2d
at 105.
The burden of persuasion on the issue of industrial disabil
ity 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 mar
ket, 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 com
pel a finding of total disability as a matter of law. Guyton,
373 N.W.2d at 106.
Defendant does not deny that claimant has sustained a perma
nent partial disability to the body as a whole as a result of a
work-related cumulative injury. The fighting issue here is the
nature and extent of that permanent partial disability.
Claimant's education is minimal, at best. He is a very
young man but he does not have a working knowledge of the English
language. It is doubtful whether additional schooling will bene
fit claimant or whether additional training will enhance
claimant's marketability. Claimant's access to the labor market
has always been limited, given his substandard language skills.
Now that he has a permanent impairment with severe restrictions,
his access will be even more limited.
Defendant has made little effort to accommodate claimant in
the workplace. It is true defendant has instituted a program to
return injured employees to work, once the injured employees have
been given permanent work restrictions. However, the program is
nominal, in that only one employee in fifteen months has ever
been successful in bidding into a job. It is highly unlikely
claimant will ever be accommodated, although he has requested a
job within his medical restrictions.
Claimant argues that he is an odd-lot employee under Guyton,
supra. As aforementioned, 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. Here, claimant has produced some evidence that he is
not employable in the competitive labor market. However, defen
dant has produced evidence of suitable employment. Claimant is
still capable of working as an institutional cook, kitchen
helper, laundry worker, or housekeeper. The undersigned finds
claimant, with his language deficit, is probably not capable of
working at all of the potential jobs provided by Ms. Reelfs. It
is difficult to imagine that an employee who cannot read or write
English can work as a material handler or that he is capable of
making light deliveries in a truck.
It is acknowledged that at all times prior to the work
Page 8
injury, claimant has worked at jobs which pay at or near minimum
wage levels. Given the fact that his access to minimum wage
level jobs has decreased, claimant has encountered a loss of
earning capacity as a result of his work injury. Claimant has
also sustained a loss of actual earnings.
Therefore, in light of the foregoing, as well as in light of
the testimony, and this deputy's observations of claimant, it is
the determination of the undersigned that claimant has a 30 per
cent permanent partial disability. He is entitled to 150 weeks
of permanent partial disability benefits at the stipulated rate
of $125.83 per week and commencing on October 24, 1990.
ORDER
Claimant is entitled to one hundred fifty (150) weeks of
permanent partial disability benefits at the stipulated rate of
one hundred twenty-five and 83/l00 dollars ($125.83) per week and
commencing on October 24, 1990.
Accrued benefits are to be paid in a lump sum together with
statutory interest at the rate of ten percent(10%) per year.
Costs are taxed to defendant pursuant to rule 343 IAC 4.33.
Defendant shall file a claim activity report as requested by
this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1993.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. William J. Bribriesco
Attorney at Law
2407 18th Street
Suite 202
Bettendorf, Iowa 52722
Mr. John M. Comer
Attorney at Law
P O Box 515
Dakota City, Nebraska 68731
1400; 1803; 4100
Filed May 18, 1993
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ARMANDO SOLIS,
File No. 950490
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
IBP, INC.,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
1400, 1803, 4100
Claimant argued he was an "odd-lot employee", under Guyton v.
Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). Claimant
produced some evidence there was no suitable employment in the
competitive labor market. However, defendant then produced
evidence that employability was possible.
Claimant was awarded a 30 percent permanent partial disability as
a result of the repetitive activities he performed in the
workplace.
Claimant had little objective evidence to support a finding of
permanent impairment. However, two physicians, including the
treating physician, rated claimant as having from 8 to 10 percent
permanent impairment. The treating physician placed severe
restrictions upon claimant. He was to avoid all repetitive,
gripping, grasping, lifting, stooping and bending.
Claimant was 27 years old. He could not read, write, or speak
English, despite the fact he had been in the United States for
more than ten years. There was little hope that claimant would
ever master the English language. Additional education did not
seem to be a viable prospect for claimant.
Throughout claimant's work history, he had always been employed
in unskilled type labor positions, usually at a minimum wage
level. His access to the labor market had been reduced because
of his work injury. His earning capacity had been reduced as a
result of the work injury.
Defendant had not done much in the way of accommodating claimant
in the workplace. While defendant had instituted a program in
the workplace whereby injured employees could bid into other
positions if the injured employees were under permanent work
restrictions, only one employee in fifteen months had been
successful at bidding into a job. Claimant had requested to be
rehired by defendant but at the time of the hearing defendant had
not rehired claimant.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MILO BROKAW,
Claimant,
vs.
File No. 950588
SCHMIDT DAIRY EQUIPMENT,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL 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 September 30, 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 March, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Thomas M. Wertz
Attorney at Law
4089 21st Ave. SW, Ste 114
Cedar Rapids, Iowa 52404
Mr. E.J. Giovannetti
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
5-1108.40; 5-1401; 5-1402.20
5-1402.30; 5-2206; 5-2209
Filed March 17, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
MILO BROKAW,
Claimant,
vs.
File No. 950588
SCHMIDT DAIRY EQUIPMENT,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1108.40; 5-1401; 5-1402.20; 5-1402.30; 5-2206; 5-2209
Claimant failed to prove an injury arising out of and in the
course of employment. Claimant suffered (1) a left wrist
ganglion; (2) a tear of the scapholunate ligament; and (3) a tear
of the lunotriquetal ligament.
Claimant awoke in the sleeper of the cab of his truck with severe
left wrist pain. He did not describe either a traumatic event or
a cumulative injury either in his testimony at hearing or to any
of the doctors. On the contrary he related a history of either
(1) pushing up on a table; or (2) leaning with both hands on a
table at his mother's place, when he first experienced wrist
pain. Claimant had been off work for three months and had only
worked five days when the incident occurred. The second wrist
became symptomatic a year after claimant no longer drove trucks,
loaded or unloaded, tarped, strapped and chained.
Treating surgeon's attempt to say that driving a truck, loading
and unloading, tarping, strapping and chaining aggravated his
condition may have made him more susceptible was not supported by
his own medical notes, letters or reports. Moreover, the burden
of proof is probability. A possibility is not sufficient. No
other evidence corroborated the physicians "possible" scenario.
Neither the treating surgeon at the Mayo Clinic nor any of the
local physicians could determine the etiology or cause of
claimant's wrist problems. The reason for his wrist problems was
unexplained.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TERRY SILLIMAN,
Claimant, File No. 950589
vs. A P P E A L
DRIVER DISPATCH, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed November 27, 1991 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
Although claimant's attorney signed the pre-hearing report
indicating that certain issues were stipulated, the report
was not signed by defendant's attorney. Defendant's
attorney did not attend the hearing and in fact had not
filed an answer or otherwise responded in this case. The
alleged stipulations were claimant's estimates of his own
disability and healing period.
Claimant's attorney incorrectly equates a lack of active
resistance with a stipulation. A stipulation is a conscious
agreement that an issue will not be contested. Defendant's
nonparticipation falls far short of such an agreement.
Claimant bears the burden of proof, and has failed to offer
evidence to support his claim for healing period or
permanency benefits.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of October, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 2
Copies To:
Mr. Tom Drew
Attorney at Law
West Towers Office Complex
1200 35th St., Ste 500
West Des Moines, Iowa 50265
Drivers Dispatch
414 E. 5th St.
Des Moines, Iowa 50309
CERTIFIED AND REGULAR MAIL
9999
Filed October 9, 1992
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TERRY SILLIMAN,
Claimant, File No. 950589
vs. A P P E A L
DRIVER DISPATCH, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
9999
Summary affirmance of deputy's decision filed November 27,
1991, with short additional analysis.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
TERRY SILLIMAN, :
:
Claimant, :
:
vs. :
: File No. 950589
DRIVER DISPATCH, :
: 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 the
claimant, Terry Silliman, against his former employer,
Driver Dispatch, as defendant. A review of the file shows
that the defendant was properly served and received the
original notice and petition, but has failed to file an
answer, and failed to appear at the hearing which was held
on October 15, 1991, in the Industrial Commissioner's
Office, in Des Moines, Iowa.
The evidence in this case consists of claimant's
exhibit 1, and the testimony of the claimant.
findings of fact
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
On July 13, 1990, claimant, Mr. Silliman, was working
for the defendant employer. His immediate supervisor was
Gary McDowell. Claimant stated that on July 13, 1990, he
was injured when he was involved in a truck accident in
Baltimore, Maryland. Claimant described the accident as
driving off of a ramp from the interstate, when he noticed a
truck at the bottom of the hill. Claimant slid into the
truck, and broke the windshield with his head.
Claimant received no medical treatment immediately
following the accident. While driving home, he began to
feel pain in his head, and spasms down his back. He
received medical treatment at the Mercy emergency room when
he returned to Des Moines, Iowa. Claimant was treated by
the emergency room personnel at Mercy Hospital Medical
Center in Des Moines, Iowa. Claimant's exhibit 1, pages 6-9
shows that claimant received medical treatment on July 15,
1990. The bill indicates that claimant underwent cervical
spine x-rays, new patient service and one outpatient visit.
Additional notations made on the Mercy Hospital Medical
Center billing information indicate that claimant went in
for additional x-rays of the lumbar and dorsal spine on July
Page 2
27, 1990.
Claimant received further treatment in September of
1990, as he was admitted to the emergency room at Mercy
Hospital Medical Center, and received prescription drugs and
medical services (Cl. Ex. 1, p. 7).
Claimant's complaints centered on headaches, and neck
problems.
In January and February of 1991, claimant returned to
the emergency room at Mercy Hospital Medical Center to
receive additional medications and service. Claimant's
exhibit 1, page 1, indicates that two diagnoses were made,
headache and toxic encephalopathy. The latter term
envisions some type of poisoning and degenerative changes of
the brain.
In March of 1991, claimant was treated by Steven R.
Adelman, D.O., at Neurological Associates of DM, P.C. Once
again, the evidence submitted shows claimant displaying head
and neck symptoms and headache (Cl. Ex. 1, p. 2).
Finally, the evidence shows that claimant was admitted
to the Clarke County Hospital in Osceola, Iowa, on May 17,
1991. The evidence submitted does not reflect why claimant
sought treatment from Clarke County Hospital although his
testimony indicated that he was again suffering from
headaches (Cl. Ex. 1, p. 3).
analysis and conclusions of law
The first issue to be addressed is whether claimant sus
tained an injury on July 13, 1990, which arose out of and in
the course of his employment with Drivers Dispatch.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on July 13, 1990,
which arose out of and in the course of his employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa
1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
Page 3
402, 68 N.W.2d 63.
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
Without evidence to the contrary, claimant through his
testimony established that on July 13, 1990, he was working
for the employer as a truck driver. Claimant indicated that
while he was in Baltimore, Maryland hauling a load for the
defendant, he was involved in a motor vehicle accident.
Claimant testified that he was performing the duties
required by his job position. His testimony indicates that
he was performing his duties at the time, place and manner
required by the employer. As a result, it is found that
claimant received an injury which arose out of and in the
course of his employment.
The next issue to be addressed is whether claimant is
entitled to medical benefits as provided for under Iowa Code
section 85.27.
The Code states, in relevant part:
The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation,
nursing, ambulance and hospital services and
supplies therefor and shall allow reasonably
necessary transportation expenses incurred for
such services.
Claimant retains the burden of proving by a
preponderance of the evidence that there is a causal
connection between the injury sustained and the medical
treatment rendered. Auxier v. Woodward State Hospital
School, 266 N.W.2d 139, 144 (Iowa 1978). In order to prove
that the medical treatment claimant received is causally
connected to the injury, claimant must show that the causal
connection is probable rather than merely possible.
Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (Iowa
1980).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Page 4
Claimant has provided no expert testimony which makes a
causal connection between the services rendered to claimant
and the injury. Two days following the accident, claimant
received medical treatment from Mercy Hospital Medical
Center. The notes indicate that claimant made repeated
phone calls to Mercy Hospital regarding the submission of
the bills to the employer's workers' compensation insurance
carrier. At that point, the employer denied liability, and
claimed that the injuries were sustained in an incident
unrelated to work.
Claimant waited two days to seek medical treatment.
According to the limited information contained in the
notations to the medical bills, the history given by
claimant is consistent with his testimony.
However, the more remote the securing of medical
services becomes, the more necessary it is for claimant to
provide expert opinion that the services rendered have been
rendered because of the work-related incident.
Of particular concern is the medical services provided
to claimant after January of 1991. Although the complaints
and treatments appear to be identical, the diagnosis changed
to "toxic encephalopathy" in February of 1991. From the
evidence received, it is only possible that the continuing
medical services were treating claimant for injuries he
received in the work-related accident.
Medical bills from Dr. Adelman provide no guidance as
to whether claimant was seeking treatment due to the work-
related injuries. Likewise, Clarke County Hospital billings
do not indicate claimant had sustained an injury while
working, and required medical treatment.
As a result, medical services rendered prior to
February 1, 1991, are compensable, and defendant is ordered
to pay claimant's bills totaling $1,121.52. Mileage, paid
at a rate of $.21 per mile, shall be paid to claimant for
round trips made to Mercy Hospital Medical Center from July
1990 through January 1991.
The next issue to be addressed is whether claimant is
entitled to temporary total or healing period benefits, or
permanent partial disability benefits.
As a general rule, temporary total disability benefits
are awarded where claimant has sustained no permanent loss
due to a work-related injury. Healing period benefits are
awarded where there is an indication that a claimant, due to
a work-related injury, sustained some type of permanent
functional impairment.
Claimant prays for healing period benefits from the
date of the accident, July 13, 1990, through August 7, 1990.
Claimant has provided the undersigned with no medical
documentation that verifies it was necessary for claimant to
be off of work from July 13, 1990 through August 7, 1990.
In fact, if claimant's accident occurred on July 13, 1990,
and claimant had to return to Des Moines, Iowa, and claimant
Page 5
did so return on July 15, 1990, claimant was still working
on July 14 and July 15, 1990. Without expert medical
testimony or documentation indicating it was necessary for
claimant to be off of work, claimant will not be awarded any
type of benefits for this period. Likewise, claimant has
shown no permanent functional impairment, nor has he shown
any medical restrictions which would prevent him from
working. As a result, claimant has failed to prove by a
preponderance of the evidence that he is entitled to
temporary total or healing period benefits or permanent
partial disability benefits.
order
THEREFORE, it is ordered:
That defendant is ordered to file a first report of
injury, as required by Iowa Code sections 86.11 and 86.12.
Failure to file the first report may result in penalties
under Iowa Code section 86.12.
That claimant received an injury on July 13, 1990,
which arose out of and in the course of his employment.
That defendant shall pay medical benefits totaling one
thousand one hundred twenty-one and 52/100 dollars
($1,121.52) and mileage, as required by Iowa Code section
85.27.
That claimant has failed to prove by a preponderance of
the evidence that he was required to be off work due to
medical reasons related to the work-related injury from July
13, 1990 through August 7, 1990.
That claimant has failed to prove by a preponderance of
the evidence that he sustained any type of permanent injury.
That defendant shall pay the costs of this proceeding.
Page 6
Signed and filed this ____ day of November, 1991.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Tom L Drew
Attorney at Law
West Towers Office
1200 35th St Ste 500
West Des Moines IA 50265
Drivers Dispatch
414 E 5th
Des Moines IA 50309
CERTIFIED & REGULAR MAIL
5-1108
Filed November 27, 1991
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
TERRY SILLIMAN, :
:
Claimant, :
:
vs. :
: File No. 950589
DRIVER DISPATCH, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
5-1108
Claimant was awarded medical benefits.