Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RONALD TARR, :
:
Claimant, : File No. 951330
:
vs. :
: A R B I T R A T I O N
JOHN DEERE WATERLOO WORKS, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
introduction
This is a proceeding in arbitration brought by Ronald
Tarr against John Deere Waterloo Works, self-insured
employer, defendant, for benefits as the result of an
alleged injury which occurred on March 15, 1989. A hearing
was held in Waterloo, Iowa, on January 27, 1992, and the
case was fully submitted at the close of the hearing.
Claimant was represented by Robert D. Fulton. Defendant was
represented by John W. Rathert. The record consists of the
testimony of Ronald Tarr, claimant; Steve Lee, claimant's
friend; Richard Smith, former coemployee; Charles Buck,
M.D., defendant's medical director; and joint exhibits 1
through 13 (transcript page 27). The deputy ordered a
transcript of the hearing. Both parties submitted excellent
posthearing briefs.
issues
The parties submitted the following issues for
determination at the time of the hearing:
Whether claimant sustained an injury on March 15, 1989,
which arose out of and in the course of employment with
employer;
Whether the injury was the cause of either temporary or
permanent disability;
Whether claimant is entitled to either temporary or
permanent disability benefits, and if so, the nature and
extent of benefits to which he is entitled, to include
whether claimant sustained a scheduled member injury or an
injury to the body as a whole; and
Whether defendant is entitled to an apportionment of
disability.
preliminary matters
Claimant presented a medical bill for payment at the
Page 2
beginning of the hearing, from Orthopaedic Specialists
(exhibit 5, tr. pp. 6-13). Medical benefits were not
designated as a hearing issue on the hearing assignment
order nor do the notes of the prehearing deputy indicate
that this issue was raised at the prehearing conference and,
therefore, this decision will not address this issue.
Presswood v. Iowa Beef Processors, file number 735442
(Appeal Decision 1986). Moreover, the prehearing report
signed by both attorneys indicates that claimant's enti
tlement to medical benefits was no longer in dispute.
The parties agreed that they did not need a
determination of the issue of whether defendant is entitled
to a credit pursuant to Iowa Code section 85.38(2) as shown
on the hearing assignment order because in the event of an
award of benefits they would be able to work this out
between themselves (tr. p. 13).
Defendant withdrew the issues of notice under Iowa Code
section 85.23 and timely commencement of action under Iowa
Code section 85.26 which were shown as hearing issues on the
hearing assignment order (tr. p. 14).
findings of fact
injury
It is determined that claimant sustained an injury to
his right shoulder on or about March 15, 1989, which arose
out of and in the course of employment with employer.
Claimant testified that he braced himself with his foot
and pulled with both hands and all of his body weight of 250
pounds on a large wrench to tighten an overhead nut on a
machine when he felt a crunch in the front of his right
shoulder. He further testified that he mentioned the
incident to his coworker, Richard Smith, at the time of the
injury (tr. pp. 53-70). Smith, a 27-year employee of
employer, testified that claimant did, in fact, report the
injury to him at the time that it occurred. He said that
claimant told him that he pulled something or something
snapped in his shoulder when he was pulling on the large
heavy wrench. Smith instructed claimant to report the
injury to the medical department (tr. pp. 156-171). Smith
verified that he and claimant, as machinists, performed
heavy work (tr. pp. 159-161).
Claimant testified that he reported the injury to the
medical department (tr. p. 70). The medical department
notes for March 16, 1989, show that claimant was to be
restricted from firm gripping or twisting of the right hand
through March 17, 1989 (ex. 6, p. 32).
March 15, 1989, was a Wednesday; March 16, 1989, was a
Thursday and March 17, 1989, was a Friday.
The medical notes of C. D. Bendixen, M.D., the company
physician, for March 16, 1989, verify that claimant did
receive a right shoulder injury as described by claimant on
Wednesday, March 15, 1989. Dr. Bendixen's note reads as
Page 3
follows:
Complains of discomfort in his right shoulder.
Apparently yesterday he was pulling on a wrench
and pulled hard on his shoulder and then today was
reaching up to operate some type of button on a
machine, and noted discomfort and a popping
sensation in the shoulder.
On examination, I see no evidence of dislocation
of teh [sic] shoulder and see no swelling or
marked tenderness of the muscle over the shoulder.
He is able to run the arm thruogh [sic] full ROM
but notes a slight popping sensation. I do not
feel he has had an appreciable injury, but simply
may have slightly stretched the shoulder muscles.
I restricted him for today to no firm gripping and
twisting and limited use of the right arm. If he
has problems by Monday, he should let me know.
(exhibit 6, page 42)
Claimant testified that he continued to have difficulty
over the weekend on Saturday, March 18, 1989, and Sunday,
March 19, 1989, which continued into Monday, March 20, 1989.
Claimant testified that the right shoulder pain became worse
because of an increased workload that occurred at that time
and that he went to the emergency room and Covenant Medical
Center on Tuesday, March 21, 1989 (tr. p. 72).
The emergency trauma record for Covenant Medical Center
on Tuesday, March 21, 1989, verifies that on March 15
claimant thought his right shoulder was dislocated, saw John
Deere medical who decreased his workload. Claimant reported
to the trauma center that he was pulling on a wrench and
heard a crunching sound in his shoulder (ex. 3, p. 84). The
emergency room physician, John Littler, M.D, verified that
claimant had a sensation of "crunching" and right shoulder
pain since last Thursday. The onset was when he was working
overhead at John Deere. Dr. Littler assessed, "Right
shoulder pain, capsulitis versus acromion bursitis." (ex.
3, p. 86).
Claimant's long-time friend, Steve Lee, testified that
claimant reported the shoulder injury to him at the time it
occurred and that it imposed several limitations on the use
of his right arm (tr. pp. 147-156). Claimant testified that
he saw James E. Crouse, M.D., an orthopedic surgeon, for
this injury (tr. p. 73). The office notes of Dr. Crouse for
Thursday, March 23, 1989, show that he saw claimant for
discomfort in his neck, shoulder and upper back. Dr. Crouse
found that he had a full range of motion of the shoulder,
but tenderness in the subacromial area down into the
shoulder into the axillary area. X-rays of the cervical
spine, thoracic spine and shoulder were normal. His
impression was overuse syndrome with strain of the shoulder.
Bursitis, tendenitis. Cervical strain. He took claimant
off work and prescribed physical therapy for his neck and
shoulder (ex. 2, p. 15). Dr. Crouse treated claimant until
September of 1989.
Page 4
Claimant testified that he next saw Arnold E.
Delbridge, M.D., an orthopedic surgeon, for a second opinion
about whether he should have surgery on his right shoulder
(tr. p. 77). The notes of Dr. Delbridge for September 13,
1989, record, "He was working as a mill operator until March
of this year when he jerked his shoulder and since then he
has been unable to work because he can't lift his shoulder
up past about 90 degrees....He probably has a rotator cuff
injury with perhaps even a tear on the right side." (ex. 1,
p. 7). Dr. Delbridge recommended against surgery because
claimant had previously received an amputation of the left
arm just distal to the elbow and that a rotator cuff repair
may very well cause real problems for claimant in taking
care of himself. Dr. Delbridge prescribed physical therapy
(ex. 1, p. 7).
This evidence of right shoulder injury from pulling on
the wrench at work on or about March 15, 1989, is not
rebutted, controverted, contradicted, or refuted by any
other evidence in the record.
Robert Buck, M.D., the medical director, acknowledged
that the company made the decision that claimant had not
sustained a work-related injury and refused to handle it as
a workers' compensation claim (tr. p. 208). Employer's
records show that they thought his back problems were a
continuation of past back problems, but neither the records
nor Dr. Buck gave any explanation or basis for their denial
of the shoulder injury (ex. 6-12).
Wherefore, it is determined that claimant sustained an
injury to his right shoulder on or about March 15, 1989,
which arose out of and in the course of employment with
employer.
causal connection-entitlement-temporary disability
It is determined that the injury was the cause of
temporary disability and that claimant is entitled to
temporary disability benefits from March 21, 1989, to
October 11, 1989, a period of 29.143 weeks.
Dr. Littler took claimant off work when he saw him at
the emergency room on March 21, 1989. He recommended that
he rest as much as possible until claimant could see Dr.
Crouse in two days (exs. 3-85 & 3-86). Claimant also
testified to this (tr. p. 73).
In a letter dated May 22, 1989, Dr. Crouse wrote that
by March 23, 1989, claimant had developed discomfort so that
any light activities with reaching at shoulder level and
above were giving him severe pain. An x-ray of the shoulder
was normal, an EMG of the right upper extremity was normal
as to the shoulder, but showed an ulnar nerve decompression
of the right forearm for which Dr. Crouse eventually
performed surgery. Dr. Crouse concluded this letter by
stating, "[I]t would certainly appear to me that the neck,
back and shoulder symptoms are related to the work." (ex. 2,
p. 8).
Page 5
Dr. Delbridge proceeded on the history given to him by
claimant for the right shoulder history as if it were, in
fact, the cause of the right shoulder injury. He described
the injury that occurred at work and stated that he has been
unable to work since then (ex. 1, p. 1).
Wherefore, it is determined that the injury to the
right shoulder on or about March 15, 1989, was the cause of
temporary disability.
As previously stated, Dr. Crouse continued claimant off
work on March 23, 1989 (ex. 2, p. 15). Claimant continued
to have neck, upper back and right shoulder complaints, and
on April 13, 1989, Dr. Crouse said that claimant should
continue on restricted activities (ex. 2, p. 10). On May 8,
1989, Dr. Crouse said claimant is going to continue with
restricted activities, progressing activities as tolerated
(ex. 2, p. 10). On May 22, 1989, Dr. Crouse proceeded with
the ulnar nerve decompression of the right arm (ex. 2, p.
10). Along with his right shoulder problems, claimant was
encountering back problems which also prompted Dr. Crouse to
keep claimant off work on May 30, 1989 (ex. 2, p. 6). On
June 29, 1989, Dr. Crouse stated that with any reaching
claimant's shoulder hurts him as well as his neck and back
and Dr. Crouse continued claimant on restricted activities
until August (ex. 2, p. 6).
Dr. Crouse stated that on July 28, 1989, that claimant
was restricted from all but light labor and sedentary type
of activities (ex. 2, p. 4). On August 29, 1989, Dr. Crouse
said, with respect to sorting microfilm, that claimant
shouldn't lift more than five pounds occasionally and should
do no heavy pushing, pulling, twisting, or gripping (ex. 2,
p. 3). These restrictions show that claimant was not able
to return to work nor was he able to return to substantially
similar employment. Iowa Code section 85.34(1). Even
though Dr. Crouse said that claimant's condition was
unchanged on August 14, 1989, he apparently did anticipate
some possible improvement because on August 29, 1989, he
approved a return to work sorting microfilm (ex. 2, pp. 3 &
4). Dr. Bendixen's note for August 17, 1989, says that
claimant is off for shoulder and vascular problems (ex.
6-30).
Claimant then changed physicians to Dr. Delbridge who
apparently had some hope of future improvement. On
September 13, 1989, Dr. Delbridge stated, "I think I will
put him on some therapy for his shoulder and see how that
works out and see if he can regain some motion here." (ex.
1, p. 7). On September 27, 1989, Dr. Delbridge ordered an
MRI of the shoulder (ex. 1, p. 7). On October 11, 1989, Dr.
Delbridge said the MRI of the shoulder was negative. He did
not recommend surgery for the right shoulder. He said that
at this point claimant is not able to lift a wrench up on
top of a mill which is what he has to do at work. Dr.
Delbridge stated, "...I don't think he can do that kind of
work." (ex. 1, p. 7).
Thus, Dr. Delbridge had not completed his diagnostic
Page 6
studies, ruled out surgery, and determined that claimant
could not return to his old job until October 11, 1989.
Therefore, the medical notes of Dr. Delbridge on October 11,
1989, contain the first evidence that significant medical
improvement was no longer anticipated (Iowa Code section
85.34(1). This is further confirmed by his note of November
8, 1989, where he stated that claimant's shoulder is about
the same (ex. 1, p. 6). None of the remaining notes by Dr.
Delbridge on December 4, 1989; December 12, 1989; January
17, 1990; February 28, 1990; April 25, 1990; or June 20,
1990; show any signs of improvement after October 11, 1989.
Dr. Buck testified that claimant told him that his
condition stabilized in about December of 1989 (tr. p. 180).
Wherefore, it is determined that claimant is entitled
to 29.143 weeks of healing period benefits for the period
from March 21, 1989, when Dr. Littler took claimant off work
until October 11, 1989, the point at which Dr. Delbridge
failed to see any further improvement in claimant's
condition as demonstrated by his office notes and prescribed
no new diagnostic tests or therapies.
The fact that claimant filed for and received weekly
indemnity benefits for treatment for narcolepsy, vascular
by-pass surgery and ulnar nerve surgery (ex. 12, pp. 2-4),
during a period of proven temporary disability for this
injury, is immaterial for the reason that claimant
established that he is entitled to temporary disability
benefits for this injury from March 21, 1989 to October 11,
1989. Dr. Littler took claimant off work for his shoulder.
Dr. Crouse and Dr. Delbridge continued to keep claimant off
work for his shoulder. Claimant is entitled to healing
period benefits until one of the events in Iowa Code section
85.34(1) occurs to terminate it. Claimant is entitled in
this case to healing period benefits until he reached
maximum medical improvement. This deputy knows of nothing
in the workers' compensation statute or cases that requires
a reduction or apportionment of healing period benefits (nor
has defendant cited any such authority) because claimant
also is suffering some other concurrent disability.
casual connection-entitlement-permanent disability
It is determined that the right shoulder injury of
March 15, 1989, was the cause of permanent disability, that
claimant has sustained an industrial disability of 35
percent to the body as a whole and that claimant is entitled
to 175 weeks of permanent partial disability benefits.
As shown above, Dr. Crouse specifically stated that
claimant's right shoulder complaints were caused by his work
and Dr. Delbridge proceeded to treat claimant on the basis
of the right shoulder injury which occurred on or about
March 15, 1989, when he injured his shoulder tightening a
nut with a large wrench. Dr. Delbridge persisted in his
diagnosis of rotator cuff injury on June 20, 1990, at which
time he stated, "He still has rotator cuff problems of his
right shoulder." (ex. 1, p. 4).
Page 7
In his final letter, dated January 28, 1991, Dr.
Delbridge stated, "Mr. Tarr indicated that he had been
working as a mill operator at Deere & Company until March of
1989 when he jerked his shoulder and since then has been
unable to work because he can't lift his shoulder past about
90 degrees." (ex. 1, p. 1). Dr. Delbridge added, "When he
was seen on 9-13-89, I made note that he had only one upper
extremity and was doubtful that he would return to work."
(ex. 1, p. 2). Dr. Delbridge further stated on January 28,
1981:
On 1-17-90, I note that Mr. Tarr has a job as a
machinist which requires a great deal of use of
his right upper extremity. He was noted on
1-17-90 to have a loss of abduction of about 30
degrees of his arm and weakness in abduction as
well.
By 2-28-90, I was convinced that he was not
going to return to work. I was also very hesitant
recommending operative intervention for his right
upper extremity since he would have to have
virtually total care if this were done.
...
Mr. Tarr continued to have considerable
weakness in his right shoulder. On 9-25-90 he
could, as a result of rehabilitation and therapy,
go through almost a virtual entire range of motion
of his shoulder but he was very weak against any
resistance whatsoever. Ronald Tarr's diagnosis as
of 9-25-90 was impingement syndrome, right
shoulder, and rotator cuff injury, right shoulder
with possible partial thickness or small rotator
cuff tear.
As a result of his injury to his right shoulder
which incurred while at Deere & Company in March
of 1989. He has an impairment of 8% of the right
upper extremity. Since this involves a rotator
cuff, an 8% impairment of the right upper
extremity converts to a 5% whole man impairment.
It is unlikely that Mr. Tarr will recover
enough to return to his job. Because of his
opposite arm being amputated, impairment of his
right upper extremity virtually disqualifies him
from any job that requires more than minimal
abduction and flexion strength of his right upper
extremity.
(exhibit 1, pages 2 & 3)
Wherefore, it is determined that the injury of on or
about March 15, 1989, was the cause of permanent disability
and claimant has sustained a 5 percent physical impairment
to the body as a whole.
Charles Buck, M.D., the medical director for defendant,
Page 8
who is also board certified in occupational medicine, a
subspeciality of preventative medicine (tr. pp. 173-174),
originally testified that he did not believe that claimant
had a serious or permanent injury (tr. pp. 202, 203 & 206),
but later acknowledged that he did believe claimant
sustained a significant problem (tr. p. 203) and permanent
impairment (tr. p. 220). However, it was his opinion that
claimant had sustained bicipital tendenitis and that
claimant's injury was confined to the humerus (tr. pp.
183-189; ex. 11). Dr. Buck also did not think that the
records of Dr. Bendixen, Dr. Crouse or Dr. Delbridge
indicated a rotator cuff tear (tr. p. 201). Dr. Buck did
not believe that claimant had sustained a rotator cuff
injury because x-rays of the shoulder on September 13, 1989,
basically showed no bony abnormalities (ex. 1, p. 9). An
arthrogram on the right shoulder on September 19, 1989, was
negative and showed no evidence of a tear (ex. 2, p. 2). An
MRI of the right shoulder, requested by Dr. Delbridge and
performed on September 28, 1989, reported that the rotator
cuff appeared to be in tact and the joint otherwise appeared
to be normal (ex. 1, p. 8; tr. pp. 187, 189-194 & 224). Dr.
Buck said that claimant's complaints were consistent with a
rotator cuff injury (tr. p. 182) and compatible with it (tr.
p. 187), but there was no evidence to support a rotator cuff
tear (tr. p. 194). Moreover, he said if claimant had a
rotator cuff tear it was located in the humerus or arm bone
(tr. pp. 195 & 221).
Dr. Delbridge only testified to rotator cuff injury and
possible rotator cuff tear.
Dr. Buck granted that he examined claimant on January
2, 1992, just a few days prior to hearing (tr. p. 176) at
the request of employer's attorney (tr. pp. 214-215).
Claimant's attorney contended in his brief and at hearing
that it is difficult to determine whether Dr. Buck conducted
a medical examination or a legal examination (tr. pp.
214-215; claimant's brief p. 13). Dr. Buck admitted that
bicipital tendonitis was within the rotator cuff (tr. p.
235). Dr. Buck admitted claimant had crepitation in his
shoulder and did not have normal fluid motion with the right
shoulder.
This conflict of testimony between these two medical
experts, Dr. Buck and Dr. Delbridge, is resolved in favor of
Dr. Delbridge who was the treating orthopedic surgeon for
over one year because he had the best opportunity to observe
claimant and had the ultimate responsibility for the success
or failure of his treatment. Dr. Delbridge saw claimant on
several occasions whereas Dr. Buck only saw claimant for a
few minutes on one occasion just a few days prior to hearing
for litigation purposes. Rockwell Graphics Systems, Inc. v.
Prince, 366 N.W.2d 187, 192 (Iowa 1985). Also an experts
qualifications must be taken into consideration and the
opinion of a practicing orthopedic surgeon is preferred over
the medical director of the defendant who had no experience
in the field of orthopedic medicine. Reiland v. Palco,
Inc., Thirty-second Biennial Report of the Industrial
Commissioner 56 (1975); Dickey v. ITT Continental Baking
Co., Thirty-fourth Biennial Report of the Industrial
Page 9
Commissioner 89 (1979); Lemon v. Georgia Pacific Corp., I
Iowa Industrial Commissioner Report 204, 205 (App. Dec.
1981); Clement v. Southland Corp, I Iowa Industrial
Commissioner Report 56, 58 (1981).
Claimant demonstrated several times at hearing and to
various doctors that the pain was in the front of his right
shoulder and he did not point to his arm. Claimant always
complained to the doctors about his shoulder; he never
complained about his arm or the bicipital tendon.
A rotator cuff injury is considered to be an injury to
the body as a whole. Payton v. Sheller Globe Corp., file
895808 (filed December 10, 1991) (on appeal); Tompkins v.
John Morrell, file 946532 (filed December 23, 1991) (on
appeal); Nazarenus v. Oscar Mayer & Co., II Iowa Industrial
Commissioner Report 281 (1982); Godwin v. Hicklin GM Power,
II Iowa Industrial Commissioner Report 170 (1981); Alm v.
Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161
(1949).
All of the doctors, even Dr. Buck, referred to the
injury as a shoulder injury. None of them, including Dr.
Buck, called it an arm injury when talking about it. On
January 7, 1990, Dr. Delbridge noted a loss of abduction of
about 30 degrees and weakness in abduction as well (ex. 1,
pp. 2 & 6). Former Industrial Commissioner Robert C.
Landess determined that a loss of range of motion was
sufficient to cause an injury to the shoulder to be an
injury to the body as a whole. Fullerton v. Caterpiller
Tractor Co., IV Iowa Industrial Commissioner Report 135
(App. Dec. 1984).
Claimant's greatest impairment and disability is his
limited ability to reach out with his arm or to elevate his
arm. These are functions of the entire shoulder, both sides
of the glenohumeral joint, and not just the arm alone.
Therefore, it is determined that the injury to claimant's
shoulder is an injury to the body as a whole. Merritt v.
Quaker Oats, file 705825 (filed March 7, 1988) (aff'd
November 9, 1989); Brant v. Iowa Power and Light Company,
file 492024 (filed April 9, 1987).
Wherefore, it is determined that the injury to the
right shoulder which claimant sustained on or about March
15, 1989, is an injury to the body as a whole and claimant
is entitled to industrial disability benefits.
Claimant, born July 15, 1946, was 42 years old at the
time of the injury and 44 years old at the time of the
hearing. Claimant's industrial disability is increased
because it occurred during the peak years in his earnings
career. McCoy v. Donaldson Company, Inc., file numbers
782670 & 805200 (App. Dec. 1989); Walton v. B & H Tank
Corp., II Iowa Industrial Commissioner Report 426 (1981);
Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report
of the Industrial Commissioner 34 (Appeal Decision 1979).
Claimant has the advantage of a high school education
and a neuropsychological consultant, Richard J. Robert,
Page 10
Ph.D., determined on August 6, 1989, that claimant has above
average intelligence (ex. 3, p. 62). In addition, claimant
has received general machinist training, some welding
training and some marketing training (tr. pp. 41-42).
Therefore, claimant's education and general intelligence
level should not be an impairment to finding new employment
(tr. p. 40).
The evidence shows that claimant has a enormous number
of health problems and prior injuries (ex. 10, pp. 21-22;
ex. 3, pp. 62-65). As a result of an automobile accident in
1979, claimant's left arm was amputated distal to the left
elbow. Claimant also suffers from a vascular problem in the
extremities and had one operation prior to this injury and
has had 11 vascular surgeries since this injury. Dr. Crouse
also performed ulnar nerve surgery on the right arm after
this injury. Claimant has been treated for narcolepsy,
elbow problems, neck problems and back problems (tr. pp. 87,
90, 95 & 113).
Claimant's counsel pointed out in his opening remarks
that claimant continued to work following all of his
injuries and accidents (tr. p. 29). Claimant testified that
in spite of all of his health problems, he always returned
to work prior to this injury (tr. pp. 89 & 95). After this
injury, Dr. Crouse restricted claimant's activities
specifically due to this injury to his shoulder, even though
claimant had cervical and thoracic and lumbar complaints at
the same time and even though he had the ulnar decompression
subsequent to this injury.
All of claimant's prior ailments and injuries are taken
into consideration in the determination of industrial
disability in this case. However, as defendant's counsel
pointed out, the amputation of the left arm should not
properly increase industrial disability owed by employer
because claimant's proper remedy for that injury now is the
Second Injury Fund of Iowa (tr. p. 36). Iowa Code section
85.64 provides as follows:
If an employee who has previously lost, or lost
the use of, one hand, one arm, one foot, one leg,
or one eye, becomes permanently disabled by a
compensable injury which has resulted in the loss
of or loss of use of another such member or organ,
the employer shall be liable only for the degree
of disability which would have resulted from the
latter injury if there had been no pre-existing
disability.
The Second Injury Fund of Iowa is not a defendant in
this case.
All of the other ailments and injuries are taken into
consideration and it is determined that they do not increase
claimant's industrial disability for the reason that he
always returned to work until this injury.
This injury does prevent claimant from returning to his
work as a machinist for employer. Claimant is a career
Page 11
employee of employer starting to work for employer when he
was age 18 right after graduation from high school (tr. p.
43).
One of the major items of industrial disability is the
fact that claimant is foreclosed from performing his former
employment with employer. Rohrberg v. Griffin Pipe Products
Co., I Iowa Industrial Commissioner Report 282 (1984);
Michael v. Harrison County, Thirty-fourth Biennial Report of
the Industrial Commissioner 218, 220 (Appeal Decision
January 30, 1979).
Dr. Delbridge was aware of claimant's health history
and specifically tailored his permanent impairment to the
injury to his right shoulder (ex. 1, p. 2).
Claimant's plans for retirement are taken into
consideration in the determination of industrial disability
(tr. p. 40). There is no evidence that claimant made any
attempt to find work within his remaining capabilities. He
did not seek employment with employer, nor did employer
attempt to accommodate claimant with work which he could do.
On October 7, 1989, claimant was awarded social
security disability benefits beginning in September 1989,
based upon a determination that claimant had become disabled
on March 21, 1989 (ex. 8, p. 1). It should be noted that
the determination of permanent disability by the social
security administration was based on claimant's entire
health condition and not simply the right shoulder injury.
Also, the Social Security Administration follows different
standards. Thus, it clearly appears that claimant has
retired due to his overall health condition and receives
$936 a month from the Social Security Administration and
$757.90 from employer's disability pension plan (tr. p. 40).
The social security amount of $936 has probably been
increased for cost of living a number of times since October
7, 1989. Thus, claimant is probably receiving in excess of
$1700 per month in disability retirement benefits.
Claimant testified that his primary disability is that
he cannot elevate his right arm and he cannot reach forward
with it (tr. pp. 79, 85, 86 & 135).
Wherefore, based upon () an impingement syndrome, right
shoulder; and rotator cuff injury, right shoulder with
possible partial thickness or small rotator cuff tear; ()
that caused claimant to be off work from March 21, 1989,
until October 11, 1989; () which caused claimant to sustain
an 8 percent permanent impairment to the right upper
extremity which Dr. Delbridge stated was a 5 percent
permanent impairment to the body as a whole; () which
foreclosed claimant from returning to his 34-year career
employment with employer since 1965; () when claimant was in
his early 40's and near the peak years of his earnings
career; () and limiting this award to the amount of
impairment to the shoulder alone, independent of claimant's
other health problems; () considering claimant's retirement
on disability due to his health; () and based upon all of
the other factors used to determine industrial disability,
Page 12
Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa
Industrial Commissioner Decisions 529 (Appeal Decision March
26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3
State of Iowa Industrial Commissioner Decisions 654, 658
(Appeal Decision February 28, 1985); () based upon all of
the evidence in this case; and () based upon agency
expertise, [Iowa Administrative Procedure Act 17A.14(5)], it
is determined that claimant has sustained a 35 percent
industrial disability to the body as a whole and is entitled
to 175 weeks of permanent partial disability benefits.
apportionment
No apportionment is required for the reason that the
allowance in this case is based entirely upon the right
shoulder injury which occurred on or about March 15, 1989.
It is not based on claimant's numerous other injuries and
health complaints. With respect to the amputated left arm,
the proper resource is the Second Injury Fund. With respect
to all other illnesses and injuries, claimant did not
demonstrate that they increased his industrial disability
because he always returned to work and was able to perform
his job. He has the same ability now, except he is
foreclosed from this job due to this injury. Moreover,
defendant did not demonstrate what portion, if any, of
claimant's disability is identifiable and independently
attributable to his condition prior to the instant injury.
Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Voshell v.
William Roy's Remodeling, file 805464 (App. Dec. February
27, 1991); Tussing v. George A. Hormel & Co., 417 N.W.2d 457
(Iowa 1990); Varied Industries v. Sumner, 353 N.W.2d 407
(Iowa 1984).
conclusions of law
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant sustained an injury to his right shoulder
on or about March 15, 1989, which arose out of and in the
course of employment with employer. Iowa Code section
85.3(1); McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
That the injury was the cause of temporary disability.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d
607 (1945).
That claimant is entitled to 29.143 weeks of healing
period benefits for the period from March 21, 1989 to
October 11, 1989.
That the injury was the cause of permanent disability.
Bodish, 257 Iowa 516, 133 N.W.2d 867; Lindahl, 236 Iowa 296
18 N.W.2d 607.
That the injury is an injury to the body as a whole and
is not a loss to a scheduled member.
Page 13
That claimant has sustained a 35 percent industrial
disability to the body as a whole. Olson v. Goodyear
Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W.
899 (1935).
That claimant is entitled to 175 weeks of permanent
partial disability benefits. Iowa Code section 85.34(2)(u).
That no apportionment is required to be made in this
case.
order
THEREFORE, IT IS ORDERED:
That defendant pay to claimant twenty-nine point one
four three (29.143) weeks of healing period benefits for the
period from March 21, 1989 to October 11, 1989, at the
stipulated rate of four hundred forty-three and 78/100
dollars ($443.78) per week in the total amount of twelve
thousand nine hundred thirty-three and 08/100 dollars
($12,933.08) commencing on March 21, 1989.
That defendant pay to claimant one hundred seventy-five
(175) weeks of permanent partial disability benefits at the
stipulated rate of four hundred forty-three and 78/100
dollars ($443.78) per week in the total amount of
seventy-seven thousand six hundred sixty-one and 50/100
dollars ($77,661.50) commencing on October 11, 1989.
That defendant is entitled to a credit for any pay that
claimant received when he attempted to return to work for a
few days in May and September of 1989.
That all accrued benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the cost
of the transcript, are charged to defendant pursuant to
rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
In addition, claimant is allowed two thousand four hundred
eight dollars ($248) in costs attached to the prehearing
report for the following items: Medical report of
Orthopaedic Specialists - $18; industrial commissioner
filing fee - $65 and the medical evaluation and report of
Dr. Delbridge - $165. The charges for medical records and a
conference with a doctor are trial preparation expenses for
which claimant should bear the burden and are not considered
to be allowable costs pursuant to rule 343 IAC 4.33.
That defendant file claim activity reports as requested
by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1992.
Page 14
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Robert D. Fulton
Attorney at Law
600 First National Bldg
PO Box 2634
Waterloo, IA 50704-2634
Mr. John W. Rathert
Attorney at Law
PO Box 178
Waterloo, Iowa 50704-0178
Page 1
51107 51108.50 51401 51402.20
51402.30 51801 1402.40 1402.40
1803.1 1803 51806
Filed March 5, 1992
Walter R. McManus, Jr.
before the iowa industrial
commissioner
____________________________________________________________
:
RONALD TARR, :
:
Claimant, : File No. 951330
:
vs. :
: A R B I T R A T I O N
JOHN DEERE WATERLOO WORKS, :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
51107 51108.50 51401 51402.20 51402.30
It was determined that claimant sustained an injury arising out
of and in the course of employment with employer when his right
shoulder went crunch while tightening a large bolt on his machine
with a very large wrench.
51801
Claimant awarded healing period benefits from the date he was
taken off work until it was determined by a detailed look at the
medical records and doctor's notes that he attained maximum
medical improvement. He was unable to return to work or
substantially similar work.
1402.40
It was determined that claimant was entitled to healing period
benefits for the period he proved he was entitled to. The fact
that he suffered other health problems and disabilities during
this period is immaterial. The workers' compensation statute and
case law contains no reduction or apportionment of healing period
benefits simply because claimant is concurrently disabled for
other reasons or is entitled to other disability benefits for
some other reason.
1402.40 1803.10
A shoulder injury was determined to be an injury to the body as a
whole. A loss of range of motion of the shoulder qualifies a
shoulder injury as an injury to the body as a whole. The fact
that claimant could not reach out with his arm or elevate his arm
are indications that the shoulder injury is an injury to the body
as a whole because these are functions of the entire shoulder,
both sides of the glenohumeral joint, and not just the arm alone.
Further, a rotator cuff injury is generally considered to be an
injury to the body as a whole. Several cites.
Page 2
1803
The fact that claimant had sustained an amputated left arm prior
to this injury to his right shoulder could not be used to
increase his industrial disability because the resource for that
recovery would be the Second Injury Fund of Iowa.
Claimant had an enormous amount of other accidents, injuries, and
health impairments to his neck, back, elbow, narcolepsy and a
vascular disease that caused 12 surgeries. These were taken into
consideration but did not increase the industrial disability
because claimant had always been able to work and to return to
work after each of these specific problems. He was awarded
substantial industrial disability because this injury to the
right shoulder foreclosed claimant from returning to his old
employment as a machinist because of this injury alone and not
coupled with any other factors. Claimant was age 40, had a high
school education with some additional training, he was a career
employee of this employer since age 18, who had sustained an
impingement syndrome, right shoulder, rotator cuff injury, with a
possible partial thickness tear, rated at 8 percent of the right
upper extremity and 5 percent of the body as a whole.
Claimant had applied for and was receiving social security
disability benefits and employer disability retirement benefits
in the amount of approximately $1,700 per month and thus, he was
considered to be retired. He made no search for new employment.
It was determined that claimant sustained a 35 percent industrial
disability to the body as a whole.
51806
Defendant is not entitled to an apportionment because the award
was based entirely on this injury and because defendant did not
show any independent identifiable portion of preexisting
disability.
52907
Some costs allowed. Some costs disallowed.
52906
A medical bill raised for the first time at hearing was not
addressed because (1) it was not raised at the prehearing
conference, (2) medical benefits were not designated as hearing
issues on the hearing assignment order, and (3) the prehearing
report showed that medical benefits were no longer in dispute.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
THOMAS F HART, :
:
Claimant, : File No. 951370
:
vs. : A R B I T R A T I O N
:
ARCHER DANIELS MIDLAND, : D E C I S I O N
:
Self-Insured, :
Employer, :
Defendant. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding brought by Thomas F. Hart against
his employer Archer Daniels Midland Company seeking
determination of the extent of permanent partial disability
caused by the injury of June 17, 1990. It was stipulated
that claimant has a 5 percent disability of his left leg and
the award is to be made under section 85.34(2)(s).
Claimant's petition for a commutation which was
originally filed in this proceeding is dismissed without
prejudice.
The case was heard at Davenport, Iowa, on March 31,
1994. The record consists of testimony from Thomas F. Hart,
claimant's exhibits 1 through 10 and defendant's exhibits 1
through 5.
FINDINGS OF FACT
Thomas F. Hart fell from a ladder and sustained a
compound fracture of his right lower leg on June 17, 1990.
He underwent surgical fixation of the fracture. He was
hospitalized until August 8, 1990. (claimant's exhibit 6,
page 9). After an extended period of recuperation he
resumed work on January 25, 1991. Xerxes R. Colah was the
primary treating physician and surgeon. The fractures
healed. Claimant has developed arthritis and the tibia and
fibula have grown together. He has residual problems with
swelling and restricted motion at his ankle joint. (cl. ex.
7, p. 20; cl. ex. 10, pp. 12, 15 and 27; defendant's exs. 1,
2).
Claimant is able to stand and walk but he has problems
with pain and swelling in his lower leg. He is unable to
run, turn sharply or climb ladders. He has difficulty on
stairs and uneven ground.
Claimant has been evaluated by Dr. Colah as having a 70
percent impairment of his right lower extremity. (cl. ex.
10, pp. 24-26). Claimant has also been evaluated by Camilla
Page 2
J. Frederick, M.D., and by John S. Kock, M.D., who have both
determined that claimant has a 35 percent impairment of his
right lower extremity.
It appears that Drs. Frederick and Kock performed their
evaluations solely upon range of motion. It does not appear
that they assigned any impairment for the arthritis which is
developing and the swelling problem which affects claimant's
use of his leg. On the other hand, Dr. Colah indicated that
he gave claimant the same rating as though an amputation had
occurred.
It is found that the principle uses of a foot and leg
are standing and ambulation. The claimant is clearly
impaired in this regard. It is only the extent of
impairment that is disputed. As indicated by Dr. Colah, the
AMA Guides are an arbitrary means of determining a rating of
impairment. Impairment is not the same as disability. It
is found that Thomas Hart has a 45 percent disability of his
right leg as a result of the injury he sustained on June 17,
1990.
CONCLUSIONS OF LAW
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Permanent partial disabilities are classified as either
scheduled or unscheduled. Compensation for scheduled
permanent partial disability is determined under Iowa Code
section 85.34(2)(a) - (t) according to the functional loss
of use of the member without considering the impact of the
injury upon the individual's earnings or earning capacity.
Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983);
Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983);
Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95
(1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819,
184 N.W. 746 (1921).
It is well recognized that in section 85.34(2)(o) and
(s) of the Code the words which appear are "loss of." The
words "impairment" or "disability" do not appear. The term
"loss of" has been construed by the Iowa Supreme Court to
mean "loss of use." The statute is not designed to be
limited to ratings provided by any standardized table or
guide. Soukup, 222 Iowa 272, 268 N.W. 598 (1936). Agency
rule 343 IAC 2.4 is not mandatory or exclusive. It is
merely a permissive guide which may be used. In this case
it is noted that Thomas Hart has retained the ability to use
his right leg for walking and standing, the things for which
legs are commonly used. He has lost the ability to run,
jog, climb ladders, and perform similar functions. He is
afflicted with swelling if he sits for extended periods. It
is determined that Thomas Hart has experienced a 45 percent
loss of use of his right leg under the provisions of Iowa
Code section 85.34(2)(o).
Page 3
Benefits for permanent partial disability of two
members caused by a single accident is a scheduled benefit
under section 85.34(2)(s); the degree of disability must be
computed on a functional basis with a maximum benefit
entitlement of 500 weeks. Simbro, 332 N.W.2d 886.
The 5 percent disability of the left leg is equivalent
to 2 percent of the whole person. The 45 percent disability
of the right leg is equivalent to 18 percent of the whole
person. These combine to a 20 percent disability which,
under section 85.34(2)(s), entitles claimant to 100 weeks of
compensation for permanent partial disability.
Claimant is entitled to recover the costs set forth on
his affidavit of costs except that the fee for Dr. Colah
should be limited to $150 pursuant to Code section 622.72.
The net result is therefore $343.26.
ORDER
IT IS THEREFORE ORDERED that defendant pay Thomas Hart
one hundred (100) weeks of compensation for permanent
partial disability at the stipulated rate of three hundred
seventy-three and 36/100 dollars ($373.36) per week.
Defendant is entitled to credit for the eighty (80) weeks of
permanent partial disability compensation previously paid.
The balance of twenty (20) weeks shall be paid in a lump sum
together with interest pursuant to section 85.30.
It is further ordered that defendant pay the costs of
this action in the amount of three hundred forty-three and
26/100 dollars ($343.26).
It is further ordered that defendant pay the filing fee
of sixty-five dollars ($65) to this agency within twenty
(20) days of the filing of this decision.
It is further ordered that defendant file claim
activity reports as requested by this agency.
Signed and filed this __________ day of April, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. John J. Wolfe, Jr
Attorney at Law
402 6th Ave S
Clinton, Iowa 52732
Mr. James E. Shipman
Attorney at Law
115 3rd St SE STE 1200
Cedar Rapids, Iowa 52401
1402.40 1808 52907
Filed April 15, 1994
Micheal G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
THOMAS F HART,
Claimant, File No. 951370
vs. A R B I T R A T I O N
ARCHER DANIELS MIDLAND, D E C I S I O N
Self-Insured,
Employer,
Defendant.
------------------------------------------------------------
1402.40 1808
Where opinions of physicians differed, claimant was found to
have a 45 percent loss of use of his right leg and a 45
percent disability under section 85.34(2)(s).
52907
Expert witness fee limited to $150 pursuant to section
622.72.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT GLENN NEWELL, :
:
Claimant, : File No. 951662
:
vs. :
: A R B I T R A T I O N
ARATEX SERVICES, INC., :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Robert
Glenn Newell, claimant, against Aratex Services, Inc.,
self-insured employer, to recover benefits under the Iowa
Workers' Compensation Act as a result of an alleged injury
sustained on March 19, 1990. This matter came on for
hearing before the undersigned deputy industrial
commissioner on August 13, 1992, in Sioux City, Iowa. The
record was considered fully submitted at the close of the
hearing. The record in this case consists of claimant's
exhibits 1 through 44 and defendant's exhibits 45 through
60. The claimant was present and testified. Also present
and testifying were Patricia Newell, Rodney Floyd Sitzmann,
Kenny Hartkopp, and Rick Bryce.
ISSUES
Pursuant to the prehearing report and order dated
August 13, 1992, and statements made by the parties at the
hearing, the following issues have been presented for
resolution:
1. Whether claimant sustained an injury on March 19,
1990, which arose out of and in the course of employment
with employer;
2. Whether the alleged injury is the cause of
temporary and permanent disability;
3. The extent of entitlement to weekly compensation
for temporary total disability or healing period benefits,
if defendants is found liable for the injury;
4. The times off work for which claimant seeks either
temporary total disability or healing period benefits;
5. The extent of entitlement to weekly compensation
for permanent disability, if defendant is liable for the
injury;
6. Whether defendant is liable for Dr. Blume's medical
bill which was in excess of $500;
Page 2
7. Whether claimant's medical expenses are causally
connected to his work injury;
8. Whether claimant is entitled to recover penalty
benefits under Iowa Code section 86.13; and
9. Whether claimant is entitled to vocational
rehabilitation benefits under Iowa Code section 85.70.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on March 21, 1951, and completed the
twelfth grade of school. Upon graduation from high school
in 1969, claimant served one year in the United States
Marines. He was discharged after it was discovered he had
diabetes mellitus. Claimant attended Morningside College in
Sioux City, Iowa, and in 1974 received a bachelor's degree
in business administration. After graduating from college,
claimant worked as an accounting supervisor at a rural
electric cooperative in Estherville, Iowa. He worked there
from 1974 to 1975 and then moved to Sac County Rural
Electric Cooperative for better pay. He worked in Sac
County for approximately one year and returned to Sioux City
in November 1976. In Sioux City he worked seven years as a
general manager for Midtown Music and Amusement Company.
The business was sold in 1983 and he then took a job with
Iowa Beef Processors in Dakota City, Nebraska. He was hired
as a supply supervisor. He worked there about one year. On
July 23, 1984, he commenced working for Aratex. Claimant
was hired as a branch manager and worked in this capacity
for two and a half years. He was then made a special
projects coordinator and put in charge of Iowa Beef accounts
receivable. Generally, claimant's duties with employer
during his five years of service included personnel
training, direct sales and route running.
Claimant's deposition was taken on March 5, 1992, and
admitted into evidence in lieu of extensive testimony at
hearing. In his deposition testimony, claimant thoroughly
described the duties of a route driver. He stated that even
though he was a special projects coordinator, he was
required to run a weekly route in the summertime and less
frequently during the wintertime. Claimant admitted that he
wasn't very fond of route work. The job consisted of being
on the road an entire day, picking up and delivering
clothes, towels and rugs. This involved heavy lifting and
carrying of items over the shoulder.
Claimant testified that on March 19, 1990, he was
unloading a truck, throwing bags, mats and mops, and other
items off the truck when he felt pain in his hips, back and
neck. In his deposition he stated that while he didn't have
any pain in his arm, he felt pain every time he raised his
left shoulder. Claimant testified that he sought medical
Page 3
treatment from his family physician, J.S. Burgfechtel, M.D.,
and Mark S. Taylor, D.O., one of his partners. Despite his
symptoms, claimant missed no time from work. On May 24,
1990, claimant was asked to do a route by himself and he
refused because of his medical problems. He was immediately
suspended by Kenneth Hartkopp, general manager. On June 8,
1990, the suspension was lifted and claimant was placed on
six months medical leave. Because claimant was not able to
return to work after six months, he was terminated on
November 19, 1990. Claimant has not worked since May 24,
1990. He received workers' compensation benefits from May
24, 1990 through March 6, 1991.
The pertinent medical evidence of record reveals that
claimant was diagnosed with diabetes mellitus in 1974. The
medical records indicate that claimant has been treated by
J.S. Burgfechtel, M.D., at Midtown Medical Clinic since
February 10, 1983, for various medical problems. He was
hospitalized on June 12, 1984, with complaints of back and
neck pain after falling down three steps. Lumbosacral spine
x-rays revealed spina bifida. In January 1987, he hurt his
back while unloading laundry. X-rays of the dorsal and
cervical spine taken February 17, 1987, were normal. In
August 1987 claimant was hospitalized due to complications
from diabetes. On April 27, 1989, claimant was admitted to
St. Luke's Regional Medical Center for evaluation of chest
pain and shortness of breath. A treadmill exercise test was
negative. Pulmonary function studies were normal. Coronary
artery disease was ruled out (exhibits 44-49).
The record contains a first report of injury indicating
that claimant reported to employer that he suffered lower
back strain on March 19, 1990, during the course of
employment with employer (ex. 3).
Claimant presented to the emergency room at St. Luke's
Medical Center on March 19, 1990, with complaints of low
back discomfort. Lumbosacral spine x-rays revealed minimal
spurring at L3, L4 and L5 with intact bones and disc spaces
and normal alignment. A diagnosis of acute lumbosacral
sprain with spasm was made (ex. 4).
Claimant testified that he took vacation from March 20
through April 1, 1990. The medical records indicate that
Dr. Burgfechtel took claimant off work on March 23, 1990,
and released him to return to work on April 2, 1990, with a
30-pound lifting restriction for one week then, as
tolerated. Follow-up evaluations were conducted on April 6
and April 20, 1990. Claimant was given pain medication and
back care exercises (ex 5, pages 1-5).
Claimant testified that he last worked for employer on
May 23, 1990. On May 24, 1990, claimant was asked by Kenny
Hartkopp, general manager at Aratex, to run a route by
himself. Claimant refused unless someone was assigned to
help him because of his 30-pound lifting restriction. He
was told by Mr. Hartkopp to make smaller bundles but
claimant refused. Therefore, he was suspended indefinitely,
without pay, pending investigation. A copy of the
suspension notice is contained at exhibit 30.
Page 4
On May 24, 1990, claimant saw Dr. Burgfechtel with
complaints of left neck and shoulder pain. On examination,
his neck was stiff and tight. He was very sensitive in the
left posterior lower paracervical muscles of the left
trapezius and left shoulder. Abduction of the left shoulder
was accomplished to about 80 degrees. Conservative therapy
and medication were prescribed (ex. 5, p. 5).
Dr. Burgfechtel referred claimant to St. Luke's for
physical therapy on May 31, 1990.
On June 8, 1990, after investigation of claimant's
medical condition, Mr. Hartkopp lifted claimant's
suspension. Claimant was then placed on medical leave of
absence effective May 25, 1990. His note stated that
"Aratex Company Policy provides all employees with a medical
leave of absence up to 180 days in any one year period if
the leave is authorized by a competent physician." He
informed claimant that his medical leave expired on November
20, 1990, and his employment would be terminated at that
time unless he was released by his physician to return to
full duty (ex. 31).
Claimant continued to see Dr. Burgfechtel for
complaints of neck and left arm pain. He also continued
with physical therapy at St. Luke's. On June 21, 1990,
claimant underwent EMG studies which revealed no
electrodiagnostic evidence of left upper extremity
peripheral entrapment neuropathy plexopathy or cervical
radiculopathy (ex. 7).
On July 3, 1990, Henrietta Scholten, physical therapist
at St. Luke's, reported that claimant was seen for 11
physical therapy visits. His pain now appeared to be
localized in the left shoulder along the supraspinatus with
the low back and neck pain improved (ex. 6).
Because of claimant's persistent neck, left trapezius
and left shoulder complaints, Dr. Burgfechtel referred
claimant to W.O. Samuelson, M.D. Dr. Samuelson saw claimant
on July 25, 1990. On examination he had tenderness with
external rotation of the left shoulder and was limited in
the last 30 degrees of external rotation. X-rays showed no
abnormality of the glenohumeral joint. Dr. Samuelson
diagnosed rotator cuff strain and impingement syndrome.
Claimant was prescribed Motrin and offered steroid
injections (ex. 9).
On October 9, 1990, claimant underwent a vocational
rehabilitation physical examination and history with the
Iowa Division of Vocational Rehabilitation. It was
recommended that he avoid employment requiring heavy arm
lifting or other activity which would produce neck or back
symptoms (ex. 10).
On July 31, 1990, Janet Palmer, claims adjuster for
Alexsis, wrote to Dr. Burgfechtel requesting an assessment
of claimant's status. Dr. Burgfechtel referred her to Dr.
Samuelson (ex. 10). On November 26, 1990, Dr. Samuelson
Page 5
wrote to Ms. Palmer:
Robert Newell has continued to have problems
with recurrent pain and stiffness in the shoulder
which limits him in overhead lifting and overhead
type work as well as lifting. At this point in
time, he has not reached maximum medical
improvement and he is not ready for any partial
impairment rating. Most people with a rotator
cuff strain have the symptoms resolve over the
course of a several months up to a year or two.
(exhibit 9)
Claimant was referred by Alexsis to John J. Dougherty,
M.D., for evaluation on December 11, 1990, with reference to
his left shoulder complaints. Dr. Dougherty was unclear as
to the cause of claimant's shoulder complaints,
nevertheless, he injected his shoulder and saw him again on
December 26, 1990. At this time, he recommended an
arthrogram. This was performed on December 28, 1990, at
Marian Health Center. The radiologist's impression was
rotator cuff tear (ex. 12).
Dr. Dougherty saw claimant on January 4, 1991, and at
this time recommended tomograms. He speculated that
claimant probably had a torn rotator cuff. Tomograms taken
at St. Luke's on January 7, 1991, were negative.
Nevertheless, Dr. Dougherty recommended repair of the
rotator cuff (ex. 11).
On January 9, 1991, Ms. Palmer wrote to Dr. Samuelson.
He responded on January 29, 1991. Dr. Samuelson stated that
claimant had a rotator cuff syndrome but would not rate him
as having any permanent partial impairment at this time nor
plan any surgical procedures at this time (ex. 51, p. 2).
Apparently there was some communication between Dr.
Dougherty, Alexsis and claimant's attorney. By way of
clarification on February 15, 1991, Dr. Dougherty wrote to
claimant's attorney that, "I did not disagree with Dr.
Samuelson's findings that his rotator cuff problems came
from his employment." He also stated that in view of the
fact that claimant's problem has persisted for a long period
of time, surgery may be indicated if he desires to have it
done.
During the course of the above events, Alexsis, the
workers' compensation administrator for Aratex Services, was
handling claimant's workers' compensation case. Benefits
were instituted on May 24, 1990. On February 4, 1991, Ms.
Palmer, claims adjuster, notified claimant that in view of
recently received medical information, claimant's benefits
will be terminated 30 days after receipt of her letter or
upon return to work. The reason cited for termination is
that doctors indicate that his current condition is not work
related. Claimant was advised that he could submit any
evidence or documents disputing or contradicting the reasons
given for termination (ex. 41).
Page 6
On February 16, 1991, claimant's attorney sent Ms.
Palmer a copy of Dr. Dougherty's letter of February 15, 1991
(SEE: ex. 14). Mr. Mahr, claimant's attorney, stated, "We
believe that your Auxier notice is totally inappropriate and
that Mr. Newell should remain on temporary total disability
until such time as he recuperates from this surgery." (ex.
42). On April 16, 1991, Ms. Palmer responded to claimant's
attorney and stated that, "At this time, we have reviewed
the above-captioned claim and are standing by our denial of
benefits beyond March 6, 1991." (ex. 43).
Since claimant's workers' compensation benefits and
medicals were cut off by Alexsis, claimant had no
alternative but to seek treatment at the Veteran's
Administration Medical Center in Sioux Falls, South Dakota.
He presented there on August 26, 1991, October 7, 1991 and
January 7, 1992, for treatment of left shoulder problems and
diabetes mellitus (ex. 15, pp. 1-7).
Claimant's attorney referred him to Pat Luce, D.C., for
evaluation on January 13, 1992. Claimant presented with
left shoulder complaints and after examination, Dr. Luce
found that these complaints were consistent with the
objective findings. He stated that claimant has reached
maximum medical improvement but qualified that with an
opinion that he may need surgical intervention. He gave him
a 10 percent permanent impairment rating to the left upper
extremity 5 percent the body as a whole (ex. 18).
Subsequently, claimant developed depression and
presented to the VAMC on March 17, 1992, with psychological
symptoms. Diagnosis of adjustment disorder with depression
and dysthymia was made (ex. 20).
On March 24, 1992, claimant had an MRI examination of
the left shoulder at Bishop Clarkson Memorial Hospital in
Omaha, Nebraska. The results revealed supraspinatus
tendonitis with evidence of tendon degeneration and a
partial tearing of the articulating surface of the
supraspinatus and a possibility of a small perforation
within the supraspinatus tendon (ex. 21).
Claimant returned to Dr. Dougherty on April 7, 1992,
requesting surgery for treatment of his left shoulder
problems. Dr. Dougherty noted that he offered claimant
surgery in January of 1991, but he did not want it at that
time. Based on this examination, Dr. Dougherty conjectured
that claimant sustained about 7 percent permanent impairment
of his left upper extremity. He suggested exploration of
the shoulder and repair of the rotator cuff. He also
recommended arthroscopy to evaluate the size of the tear and
to determine whether anything could be done
arthroscopically. He noted, "If he were to undergo one or
both of these the impairment rating may change soon. Also,
he would have to be re-evaluated after he reached his
maximum medical improvement following the surgery." (ex.
22).
Claimant's attorney referred him to Horst G. Blume,
M.D., for evaluation on March 16, 1992, Dr. Blume sent
Page 7
claimant to Bishop Clarkson Hospital for the MRI scan
referred to above. On May 29, 1992, Dr. Blume reported
that, in his opinion, claimant has a permanent partial
impairment to the left upper extremity of 12 percent which
would convert to 7 percent to the body as a whole. His
restrictions included an inability to use his left hand for
simple grasping, crawling, climbing ladders, reaching
overhead, lifting more than 20 pounds and carrying or
frequently lifting more than 10 pounds. (exs. 24, 54).
At the request of defendant's attorney, Paul From,
M.D., reviewed claimant's records and opined that claimant's
depression is not the result of his rotator cuff tear and
his physical problems are basically due to his diabetes (ex.
55).
CONCLUSIONS OF LAW
The first issue to be determined is whether claimant
sustained an injury on March 19, 1990, arising out of and in
the course of his employment with employer.
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on March 19,
1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904,
908 (Iowa 1976); Musselman v. Central Telephone Co., 154
N.W.2d 128, 130 (Iowa 1967). The words "arising out of"
have been interpreted to refer to the cause and origin of
the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consolidated School District,
68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of"
refer to the time, place and circumstances of the injury.
McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. 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 the employee is doing work assigned
by the employer or something incidental to it. Cedar Rapids
Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa
1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at
130.
The supreme court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers Compensation Act, which comes about,
not through the natural building up and tearing down of the
human body, but because of a traumatic or other hurt or
damage to the health or body of an employee. The injury to
the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist court further observed that while a
personal injury does not include an occupational disease
under the Workmen's Compensation Act, yet an injury to the
Page 8
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
The supreme court has also recognized that a cumulative
injury may occur over a period of time. The injury in such
cases occurs when, because of pain or physical disability,
the claimant is compelled to leave work. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).
Moreover, claimant's last employer becomes liable for the
cumulative injury, even if the incidents that lead to the
ultimate injury do not occur while a claimant is employed
with the last employer. McKeever, 379 N.W.2d at 376; See
also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428,
434-35 (Iowa 1984).
The greater weight of the uncontroverted medical
evidence is that claimant was asymptomatic as to left
shoulder pain prior to March 19, 1990. At that time, he
initially experienced back and neck pain which resolved with
treatment. As early as May 24, 1990, he manifested left
shoulder symptomatology (ex. 5). Three treating physicians,
Dr. Burgfechtel, Dr. Samuelson and Dr. Dougherty relate
claimant's symptoms to his work activity. Defendant has
presented no evidence to the contrary.
Accordingly, claimant has met his burden of proof in
this regard and has shown by a preponderance of the evidence
that he sustained a left shoulder injury arising out of and
in the course of employment with employer.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. Claimant has the burden of proving by
a preponderance of the evidence that the injury of March 19,
1990, 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 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
Page 9
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.
The total evidence in this case supports the finding
that claimant suffered a back, neck and left shoulder injury
arising out of and in the course of employment with
employer. Claimant's back and neck symptoms resolved,
however, his left shoulder symptomatology has persisted.
Physicians who have treated and/or examined claimant have
causally connected claimant's impairment to his work
activity. There is evidence that claimant has sustained
some form of permanent disability. However, at this time, a
determination of the extent of claimant's permanent
disability would be premature. Claimant has not returned to
any form of gainful employment since May 24, 1990.
Claimant, at the present time is not medically capable of
returning to his prior work or substantially similar
employment and he has not achieved maximum medical recovery.
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).
Defendant paid claimant healing period benefits from
May 24, 1990 through March 6, 1991. Defendant shall pay
claimant a running healing period award at the rate of
$320.43 per week until the requirements of section 85.34(1)
are met.
Claimant shall promptly undergo appropriate surgical
treatment as outlined by Dr. John Dougherty in exhibit 22.
The cost of such treatment shall be borne by defendant under
the terms of Iowa Code section 85.27.
The next issue to be determined is whether claimant is
entitled to penalty benefits under Iowa Code section 86.13
since employer terminated claimant's benefits on March 6,
1991.
Iowa Code section 86.13 provides in pertinent part:
If a delay in commencement or termination of
benefits occurs without reasonable or probable
cause or excuse, the industrial commissioner shall
award benefits in addition to those benefits
payable under this chapter, or chapter 85, 85A, or
85B, up to fifty percent of the amount of benefits
that were unreasonably delayed or denied.
Page 10
In Auxier v. Woodward State Hospital School, 266 N.W.2d
139 (Iowa 1978), the Iowa Supreme Court declared a
claimant's interest in workers' compensation a property
right which cannot be taken without due process of law.
Auxier also set out minimum requirements to achieve due
process for notice of termination in cases other than those
in which the employee has returned to work. Lawyer and
Higgs, Iowa Workers' Compensation--Law and Practice, (2d
ed.) section, page 141.
On February 4, 1991, Alexsis, Aratex Services workers'
compensation administrator, sent claimant an Auxier notice
stating that his benefits would terminate in 30 days because
doctors indicate that his current condition was not work
related (ex. 41). Claimant was given an opportunity to
submit evidence disputing Alexsis' contentions. On February
16, 1991, claimant's attorney requested reconsideration
based on Dr. Dougherty's letter of February 15, 1991, which
stated that claimant's shoulder injuries are related to his
employment (ex. 42). On April 16, 1991, Alexsis responded
to claimant's attorney stating that, "At this time, we have
reviewed the above-captioned claim and are standing by our
denial of benefits beyond March 6, 1991." (ex. 43).
It appears from the record that Alexsis either
misconstrued or ignored Dr. Dougherty's February 15, 1991
letter in which he stated in part, "I did not disagree with
Dr. Samuelson's findings that his rotator cuff problems came
from his employment." (ex. 14). The only medical records
available to Alexsis at the time they sent the Auxier notice
were those of Dr. Burgfechtel, Dr. Samuelson and Dr.
Dougherty. The undersigned can find no reference in the
medical evidence through February 4, 1991, which indicates
that claimant's left shoulder problems were not work
related. Therefore, it is concluded that claimant's healing
period benefits were terminated without reasonable or
probable cause or excuse and a penalty in the amount of 50
percent of benefits unreasonably denied is hereby awarded to
claimant. Thus, claimant is entitled to penalty benefits
for the period from May 24, 1990 until such benefits are
reinstituted.
The next issue to be determined is whether the fees
charged for medical services or supplies by Dr. Blume are
fair and reasonable. Defendant's agreed to pay Dr. Blume
$500 for his services. In addition, defendant received a
bill for $200 for his report.
Dr. Blume examined claimant on March 16, 1992, for
purposes of providing an independent medical examination
under Iowa Code section 85.39. Pursuant to his examination,
Dr. Blume referred claimant to Bishop Clarkson Memorial
Hospital for an MRI evaluation. The charges for the
hospital evaluation totaled $470. In addition, Dr. Blume
submitted a bill for $200.
Witnesses called to testify only to an expert opinion
shall receive compensation to be fixed by the deputy
commissioner not to exceed $150 per day while so employed.
Page 11
Iowa Code section 622.72 and Miller v. Lauridsen Foods,
Inc., file numbers 801804 & 837426 (App. Dec. 1992).
Accordingly, defendant shall pay to claimant $150 as costs
for Dr. Blume's report dated May 29, 1992, found at exhibit
24.
The final issue to be determined is whether claimant is
entitled to vocational rehabilitation program benefits in
accordance with Iowa Code section 85.70.
In order to be eligible for 85.70 benefits, claimant
must demonstrate that his injury resulted in some degree of
permanent disability. Since a determination regarding
permanent disability is premature at this time, awarding of
vocational rehabilitation benefits is also premature.
Therefore, such benefits are denied at this time.
ORDER
THEREFORE, IT IS ORDERED:
That defendant pay claimant a running healing period
award commencing March 6, 1991, and continuing until the
requirements of Iowa Code section 85.34(1) are met, at the
rate of three hundred twenty and 43/100 dollars ($320.43)
per week.
That claimant promptly commence surgical treatment as
proposed by Dr. John Dougherty in exhibit 22.
That defendant pay the costs of surgical exploration
and repair or arthroscopic evaluation.
That defendant pay a penalty in the amount of fifty
(50) percent of healing period benefits for wrongfully
suspending such benefits commencing March 6, 1991, and
continuing until such benefits are paid. Iowa Code section
86.13.
That defendant pay accrued weekly benefits in a lump
sum.
That defendant pay interest on weekly benefits awarded
pursuant to Iowa Code section 85.30.
That defendant pay the costs of this action pursuant to
rule 343 IAC 4.33.
That defendant file claim activity reports as required
by the agency pursuant to rule 343 IAC 3.1.
That defendant pay to claimant one hundred fifty
dollars ($150) as costs for Dr. Blume's report dated March
16, 1992.
Signed and filed this ____ day of September, 1992.
Page 12
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Dennis J. Mahr
Attorney at Law
318 Insurance Centre
507 7th St
Sioux City, Ia 51101
Mr. Fred L. Morris
Mr. Stephen Spencer
Attorneys at Law
PO Box 9130
Des Moines, Iowa 50306-9130
1802 4000 2907
Filed September 10, 1992
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERT GLENN NEWELL,
Claimant, File No. 951662
vs.
A R B I T R A T I O N
ARATEX SERVICES, INC.,
D E C I S I O N
Employer,
Self-Insured,
Defendant.
___________________________________________________________
1802
Claimant awarded a running period of healing period benefits
from March 6, 1991 (the day he was terminated from benefits)
until the criteria for ending such benefits under Iowa Code
section 85.34(1) occurs.
Claimant's left shoulder problems found to arise out of and
in the course of employment with employer. Employer refused
to pay for rotator cuff repair and terminated claimant's
healing period benefits despite overwhelming medical
evidence indicating that claimant needed surgery.
4000
Claimant awarded 50 percent penalty benefits commencing
March 6, 1991 and continuing until benefits are
reinstituted.
Defendant terminated claimant's healing period benefits
allegedly based on medical opinion that claimant's injury
was not work related. Claimant submitted evidence to the
contrary but defendant refused to reinstitute benefits.
Termination of benefits was found to be unreasonable and
without probable cause.
2907
The cost of an IME report limited to $150 pursuant to Iowa
Code section 622.72. Miller v. Lauridsen Foods, Inc., file
numbers 801804 & 837426 (App. Dec. 1992).
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JACKIE CARPENTER, :
:
Claimant, :
:
vs. :
: File Nos. 972644
IMI CORNELIUS f/k/a SCHNEIDER : 951732
METAL MFG. CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
SENTRY INSURANCE, :
:
Insurance Carrier, :
Defendants. :
______________________________________________________________
STATEMENT OF THE CASE
This is a consolidated proceeding in arbitration for
workers' compensation claims brought by Jackie Carpenter,
claimant, against IMI Cornelius, employer, hereinafter referred
to as IMI, as insured by Sentry Insurance Company for an alleged
injury on August 3, 1988 and as self-insured for an alleged
injury on October 9, 1990. On March 10, 1994, a hearing was held
on claimant's petition and the matter was considered fully
submitted at the close of this hearing. Apparently, there is no
dispute as to IMI's insurance status at the time of these
injuries.
The parties have submitted a hearing report of contested
issues and stipulations which was approved and accepted as a part
of the record of this case at the time of hearing. The oral
testimony and written exhibits received during the hearing are
set forth in the hearing transcript.
According to the hearing report, the parties have stipulated
to the following matters:
1. IMI as insured by Sentry admitted that on August 3, 1988
claimant received an injury arising out of and in the course of
employment with IMI.
2. Additional temporary total or healing period benefits
beyond what has already been paid are not being sought in this
proceeding.
3. If permanent partial disability benefits are awarded as
a result of the August 3, 1988 injury, they shall begin as of
January 29, 1990. If permanent partial disability benefits are
Page 2
awarded as a result of the October 9, 1990 injury, they shall
begin as of September 23, 1991.
4. At the time of the injury on August 3, 1988 claimant's
gross rate of weekly compensation was $334.00; she was married;
and she was entitled to four exemptions. Therefore, claimant's
weekly rate of compensation is $222.61 according to the
Industrial Commissioner's published rate booklet for this injury.
5. At the time of the injury on October 9, 1990, claimant's
gross rate of weekly compensation was $350.00; she was married;
and she was entitled to four exemptions. Therefore, claimant's
weekly rate of compensation is $233.42 according to the
Industrial Commissioner's published rate booklet for this injury.
6. Entitlement to medical benefits is not in dispute.
ISSUE
The only issue submitted by the parties for determination in
this proceeding was the extent of claimant's entitlement to
permanent disability benefits and penalty benefits, if any.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during cross-
examination as to the nature and extent of the injury and
disability. From her demeanor while testifying, claimant is
found credible.
Claimant has worked for IMI, a manufacturer of ice machines,
since 1980 and continues to do so at the present time. Prior to
the second alleged injury, claimant was assigned to assembly and
warehouse work. This work routinely required heavy lifting,
pushing and pulling. After the second alleged injury, she was
assigned to retrofit in which already assembled machines are
modified to fit specific customer orders.
On or about August 3, 1988, claimant injured her left
shoulder while lifting a heavy compressor. Claimant at the time
experienced a sudden sharp pain. Chronic shoulder pain and
numbness continued thereafter. Claimant was primarily treated by
physicians at the Park Clinic--K. B. Washburn, M.D., an
occupational medicine specialist; M. W. Crane, M.D., an
orthopedic surgeon; and, A. J. Wolbrink, M.D., an orthopedic
surgeon. Claimant's condition was eventually diagnosed as
tendonitis and impingement syndrome. After unsuccessful
conservative therapy, on May 3, 1989 claimant underwent
arthroscopic surgery in which there was excision of the superior
labrum and the bursa in the left shoulder. Claimant then
returned to her assembly work at IMI but continued to experience
shoulder problems. No permanent work restrictions were imposed
upon claimant's return to work but Dr. Wolbrink, her treating
Page 3
physician at the time, stated that she would continue to
experience symptoms with certain heavy activity.
On or about October 9, 1990, claimant suffered another
injury to her left shoulder which arose out of and in the course
of her employment at IMI. She again experienced sudden pain
while dragging a heavy metal plate. She explained that this was
more than her usual pain from her prior injury. Claimant
returned to Dr. Wolbrink for treatment and then was referred to
Rodney Johnson, M.D., another orthopedic surgeon. As before,
conservative therapy failed to improve her symptoms and claimant
underwent a second surgery by Dr. Johnson to further decompress
the shoulder impingement. In this surgery, components in the
shoulder were further rearranged to allow for greater movement of
the shoulder tendons.
Based upon the views of Dr. Johnson, the treating physician,
the injury of October 9, 1990 was an aggravation of the prior
injury but this aggravation significantly worsened the condition.
Claimant then returned to work but this time on a permanent
restriction to light duty upon the recommendation of physicians
at the Mayo Clinic. Claimant is now permanently restricted from
lifting over 20 pounds; pushing or pulling over 30 pounds;
anything more than occasional kneeling, squatting, crawling or
bending; and, any twisting with extended arms or working
overhead. Claimant was then assigned to the retrofit department
where she now primarily trains fellow employees. Dr. Wolbrink
has opined that the worsening of claimant's condition after his
surgery may be the result of cumulative trauma from her work
activity rather than any one specific event. Given claimant's
account of a sudden increase in pain level after a single
incident, such a theory is rejected.
Both the injury of August 3, 1988 and October 9, 1990 are
found to be a significant, permanent injuries causing impairment
to the body as a whole, and not an injury or impairment to the
arm. Both Dr. Wolbrink and Dr. Johnson have rated the impairment
from each injury to both the upper extremity and to the body as a
whole. However, a close review of their records indicate that
the only mention of a loss of use was to the operation of the
shoulder subsequent to the injury and surgery, not to the
function or use of the arm structure itself. With reference to
the extent of impairment, an exact percentage is unnecessary in
an industrial disability case. More significant is the work
restrictions following each injury and their effect upon her
ability to work.
Claimant's medical condition before the work injury of
August 3, 1988 was excellent and she had no functional
impairments or ascertainable disabilities. Claimant was able to
fully perform physical tasks involving heavy lifting and
repetitive lifting, bending, twisting or stooping. Claimant was
34 years of age at the time of this injury. Claimant has a high
school education. Claimant's past employment consists of
waitress work, cashier in a department store, packer/shipper and
managing a gas station. Claimant has some potential for
vocational rehabilitation given her age and experience but such
Page 4
was unnecessary as she returned to the same job at IMI because no
permanent restrictions against heavy work were imposed. However,
she did continued to experience chronic pain and swelling with
activity following her return to work which lasted up to the
second injury herein.
From examination of all of the factors of industrial
disability, it is found that the work injury of August 3, 1988
was a cause of only a very mild five percent loss of earning
capacity.
Claimant's medical condition before the work injury of
October 9, 1990 was certainly not excellent given her chronic
pain but she had no formal work restrictions and she was able to
continue in assembly work at IMI even though at times such work
was heavy. Following the injury of October 9, 1990, claimant's
condition dramatically worsened. Claimant is no longer able to
return to her assembly job or any other position which requires
heavy work, bending, twisting or stooping. Claimant's past
employment consisted of waitress work, cashier in a department
store, packer/shipper and managing a gas station. Claimant can
still return to some of these positions but they would be low
paid service jobs. Although she is a high school graduate, she
is now 40 and has only limited potential for vocational
rehabilitation especially now with her permanent restrictions
against heavy work. IMI has accommodated for her disability and
she has not suffered a loss of earnings. However, she is no
longer able to be promoted to many higher paid jobs at IMI due to
her restrictions. On the other hand, claimant is relatively
secure in her union job with high seniority.
From examination of all of the factors of industrial
disability, it is found that the second work injury of October 9,
1990 was a cause of only an additional 15 percent loss of earning
capacity.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a preponderance
of the evidence that claimant received an injury arising out of
and in the course of employment. The words "out of" refer to the
cause or source of the injury. The words "in the course of"
refer to the time and place and circumstances of the injury. See
generally, Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298
(Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68
N.W.2d 63 (1955). An employer takes an employee subject to any
active or dormant health impairments. A work connected injury
which more than slightly aggravates the condition is considered
to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613,
620, 106 N.W.2d 591 (1961) and cases cited therein.
It is not necessary that claimant prove her disability
results from a sudden unexpected traumatic event. It is
sufficient to show that the disability developed gradually or
progressively from work activity over a period of time. McKeever
Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The
McKeever court also held that the date of injury in gradual
Page 5
injury cases is the time when pain prevents the employee from
continuing to work. In McKeever the injury date coincided with
the time claimant was finally compelled to give up his job. This
date was then used by the Court to determine rate and the
timeliness of claimant's claim under Iowa Code section 85.26 and
notice under Iowa Code section 85.23.
In the case sub judice, claimant demonstrated two traumatic
events constituting compensable work injuries. Evidence suggests
possible application of the cumulative trauma rule for the second
injury. However, even if true, such a work injury pathology
would not change the injury date and consequently IMI as self-
insured would remain liable for such an injury.
II. The evidence presented herein demonstrated that the
injury was not confined to the leg. This work injury was found
to be an injury and permanent impairment to the body as a whole
because it involves a loss or loss of use of more portions of the
human body than those specifically scheduled in Iowa Code
sections 85.34(2)(a-t). See Lauhoff Grain v. McIntosh, 395
N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290
N.W.2d 348 (1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10
N.W.2d 569 (1943); Nazarenus v. Oscar Mayer & Co., II Iowa Indus.
Comm'r Rep. 281 (Appeal December 1982); Godwin v. Hicklin, II
Iowa Indus. Comm'r Rep. 170 (Appeal Decision 1981).
As the claimant has shown that the work injury was a cause a
permanent physical impairment or limitation upon activity
involving the body as a whole, the degree of permanent disability
must be measured pursuant to Iowa Code section 85.34(2)(u).
However, unlike scheduled member disabilities, the degree of
disability under this provision is not measured solely by the
extent of a functional impairment or loss of use of a body
member. A disability to the body as a whole or an "industrial
disability" is a loss of earning capacity resulting from the work
injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258
N.W. 899 (1935). A physical impairment or restriction on work
activity may or may not result in such a loss of earning
capacity. Examination of several factors determines the extent
to which a work injury and a resulting medical condition caused
an industrial disability. These factors include the employee's
medical condition prior to the injury, immediately after the
injury and presently; the situs of the injury, its severity and
the length of healing period; the work experience of the employee
prior to the injury, after the injury and potential for
rehabilitation; the employee's qualifications intellectually,
emotionally and physically; earnings prior and subsequent to the
injury; age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss of
earnings caused by a job transfer for reasons related to the
injury is also relevant. See Peterson v. Truck Haven Cafe, Inc.,
(Appeal Decision, February 28, 1985).
A showing that claimant had no loss of actual earnings does
not preclude a finding of industrial disability. See Michael v.
Harrison County, 34 Bien Rep., Ia Ind. Comm'r 218, 220 (Appeal
Page 6
Decision 1979); Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991)
only held that continued employment with no loss of earnings is
significant evidence that should not be overlooked in measuring
loss of earning capacity.
In the case sub judice, it was found that claimant suffered
a five percent loss of her earning capacity as a result of the
August 3, 1988 work injury. Such a finding entitles claimant to
25 weeks of permanent partial disability benefits as a matter of
law under Iowa Code section 85.34(2)(u) which is five percent of
500 weeks, the maximum allowable number of weeks for an injury to
the body as a whole in that subsection. Claimant has already
been paid 12.5 weeks toward this award. IMI, as insured by
Sentry, will be ordered to pay the balance.
It was also found that claimant suffered an additional 15
percent loss of her earning capacity as a result of the October
9, 1990 work injury. Such a finding entitles claimant to an
additional 75 weeks of permanent partial disability benefits as a
matter of law under Iowa Code section 85.34(2)(u) which is 15
percent of 500 weeks, the maximum allowable number of weeks for
an injury to the body as a whole in that subsection. Claimant
has been paid 17.5 weeks toward this award. IMI, as
self-insured, will be ordered to pay the balance due.
II. Claimant seeks additional weekly benefits under Iowa
Code section 86.13, unnumbered last paragraph. That provision
states that if a delay in commencement or termination of benefits
occurs without reasonable or probable cause or excuse, the
industrial commissioner shall award extra weekly benefits in an
amount not to exceed 50 percent of the amount of benefits that
were unreasonably delayed or denied. Defendants may deny or
delay the payment of benefits only when the claim is fairly
debatable. Seydel v. U of I Physical Plant, Appeal Decision,
November 1, 1989. However, not only bad faith but also negligent
conduct can invoke the penalty provisions of section 86.13.
Boylan v. American Motorists Ins. Co., 489 N.W.2d 742, 744 (Iowa
1992).
In the case before us, claimant has neither shown bad faith
or negligent conduct. It is not unreasonable to pay just the
impairment rating to the arm in this case given the status of the
agency precedents and claimant's return to work without loss of
earnings.
ORDER
1. Defendant IMI as insured by Sentry shall pay to claimant
twenty-five (25) weeks of permanent partial disability benefits
at a rate of two hundred twenty-two and 61/l00 dollars ($222.61)
per week from January 29, 1990. Credit shall be given for the
prior payment of twelve point five (12.5) weeks.
2. Defendant IMI as self-insured shall pay to claimant
seventy-five (75) weeks of permanent partial disability benefits
at a rate of two hundred thirty-three and 42/l00 dollars
($233.42) per week from September 23, 1991. Credit shall be
Page 7
given for the prior payment of seventeen (17) weeks.
3. Defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all benefits
previously paid.
5. Defendants shall pay interest on weekly benefits awarded
herein as set forth in Iowa Code section 85.30.
6. Defendant as insured by Sentry and as self-insured each
shall pay 50 percent of the costs of this action pursuant to rule
343 IAC 4.33, including reimbursement to claimant for any filing
fee paid in this matter.
7. Defendants shall file activity reports on the payment of
this award as requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of April, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert S. Kinsey, III
Attorney at Law
P O Box 679
214 North Adams
Mason City, Iowa 50401
Mr. Harry W. Dahl
Attorney at Law
974 73rd Street Suite 16
Des Moines, Iowa 50312
Mr. Stephen W. Spencer
Attorney at Law
P O Box 9130
405 6th Ave STE 700
Des Moines IA 50306
5-1803
Filed April 14, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JACKIE CARPENTER,
Claimant,
vs.
File Nos. 972644
IMI CORNELIUS f/k/a SCHNEIDER 951732
METAL MFG. CO.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
SENTRY INSURANCE,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Non-precedential, extent of disability case.