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before the iowa industrial commissioner
____________________________________________________________
:
DONNA P. SPURBECK, :
:
Claimant, :
:
vs. :
: File No. 954462
CITY BUILDERS & SUPPLY, INC., :
: A R B I T R A T I O N
Employer, :
Defendant. : D E C I S I O N
:
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Donna P.
Spurbeck, claimant, against City Builders & Supply, Inc.,
employer, for benefits as a result of an alleged injury
which occurred on May 18, 1990. A hearing was held in
Dubuque, Iowa, on August 13, 1992 and the case was fully
submitted at the close of the hearing. Claimant was
represented by Stephen D. Lombardi. Defendant was
represented by Robert L. Rausch. The record consists of the
testimony of Donna P. Spurbeck, claimant, Kelly Hanson
Russell, secretary, Keith Harris, manager of the
telemarketing room, Michael Roberson, defendant's witness,
Brian Hunt, defendant's witness, James Way, former neighbor
of claimant, Dennis Wildeboer, defendant's
secretary-treasurer and general manager, and Bill Miller,
former co-employee of claimant, claimant's exhibits 1, 2 and
3, and defendant's exhibits A through H. The deputy ordered
defendant to maintain custody of defendant's exhibit I, a
telephone headset, until the expiration of all the appellate
periods at which time this exhibit was to be returned to
claimant. Defendant requested and the deputy permitted
defendant to file an offer of proof and these exhibits are
marked J, K, L, M and N. They were not examined or
considered in the determination of the issues in this case.
They are found in the industrial commissioner's file in the
exhibits as offers of proof. The deputy ordered a
transcript of the hearing.
issues
The parties submitted the following issues for
determination at the time of the hearing.
Whether claimant sustained an injury on May 18, 1990,
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 temporary or permanent
disability benefits, and if so, the extent of benefits to
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which she is entitled.
Whether claimant is entitled to medical benefits
pursuant to Iowa Code section 85.27.
Whether claimant is entitled to penalty benefits
pursuant to Iowa Code section 86.13(4).
findings of fact
Claimant, age 31, was hired as a telemarketer for
employer on April 27, 1990 (Transcript, Pages 14 & 20). She
was employed by employer for a period of 33 days through May
29, 1990 (Tran., pp. 58 & 59).
Her past employments include waitressing, busboy,
hostess, dishwasher, cook, janitor and shipping and
receiving clerk (Tran., p. 16).
In April of 1990, approximately three weeks before
beginning this employment with employer, claimant fell on
some ice in the break room with her previous employer and
injured her ankle, neck and back (Tran., pp. 18, 164 & 165).
Keith Harris, manager of the telemarketing room,
testified that approximately two or three days after
claimant reported for work she complained that she had had a
bad back for a long time. She wanted to use a headset and
she wanted a different chair to accommodate her back pain.
Claimant was permitted to bring her own headset from home
(Exhibit I) and a new chair was purchased for her (Tran.,
pp. 133-142, 153 & 154). Harris also testified that
claimant frequently worked in a standing position and would
put one leg in the chair while talking on the telephone
(Tran., pp. 137 & 142). He related that claimant complained
about her back approximately a half a dozen times (Tran., p.
146).
Claimant was also a skilled landscaper and it was
agreed between claimant and employer that she would
landscape the premises at the place of her employment
(Tans., p. 20-22 & 60). Claimant was paid her regular
telemarketer wages for this landscaping work (Tran., p. 26).
Claimant testified that she kept a daily log or journal of
her daily landscaping activities. These activities covered
the period from Tuesday, May 15, 1990 through Friday, May
25, 1990 (Tran., pp. 22, 23, 26-28, 65-67 & 71). Claimant
was instructed to complete the job no later than Friday, May
25, 1990, which was the last working day prior to the
Memorial Day weekend. The Memorial Day weekend was
Saturday, Sunday and Monday, May 26, May 27, and May 28,
1990. Claimant testified about what she did each day from
her journal, log or notes as they were variously called.
Referring to her notes, claimant testified that on
Tuesday, May 15, 1990, she purchased materials (Tran., p.
22).
On Wednesday, May 16, 1990, she purchased additional
materials, dug up sod, worked the dirt breaking up the
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clumps, laid the plastic and built up the border for the
front of the building (Tran., p. 25).
On Thursday, May 17, 1990, she purchased dirt and
shoveled it out of the pickup truck into the flower bed and
flower boxes that she had made (Tran., pp. 26-30). Claimant
testified that she also leveled a hill of dirt that was
approximately six to eight inches high, one foot wide and
about 30 foot long on this same day (Tran., pp. 31 & 32).
Claimant testified that on the evening of May 17, 1990,
she left a full load of uncovered dirt in the parking lot.
She said that it rained hard that night and the dirt in the
back of the pickup truck became mud (Trans., p. 33).
On Friday, May 18, 1990, claimant related that post
holes were dug and she put in a split-rail fence because the
ground was wet and easy to dig the post holes. Employer
assigned a man to assist her on Friday, May 18, 1990.
Claimant stated that he dug the holes and she put the posts
into the ground. She assembled the split-rails into the
posts and held them while the man put the dirt back in the
post holes and packed it around the posts (Tans., pp. 33 &
34).
Claimant further testified that she brought a
wheelbarrow from home to use it to move the dirt from the
post holes to the flower beds on May 18, 1990 (Tran., pp. 75
& 76). Claimant also testified that she used the
wheelbarrow two or three times on May 16, May 17, and May
18, to level hills of dirt (Tran., pp. 77 & 86). She
testified that she did not use the wheelbarrow on May 25,
except to move it from the front to the side of the building
(Tran., p. 77).
On the afternoon of Friday, May 18, 1990, claimant
testified that she shoveled the mud out of the pickup truck
into the flower beds that she had prepared. She related
that at break time her back was hurting. Claimant testified
that she reported this to Bill Miller, another employee,
Kelly Hanson Russell, the secretary, Keith Harris, the
manager of the telemarketing room and Jerry Wildeboer, one
of the owners and managers of the company (Tran., p. 35).
Claimant testified that Jerry Wildeborer told her to lay off
the digging for awhile and to plant flowers for the time
being (Tran., p. 36). Claimant testified that she shoveled
all of the mud out of the pickup truck. No one helped her.
She said that she worked about 11 or 12 hours on Friday, May
18, 1990 (Tran., p. 37).
Claimant related that on Monday, May 21, 1990, she was
having a difficult time sitting and so she planted flowers
that day and went home early (Trans., p. 38).
On Tuesday, May 22, 1990, she said her back was still
hurting and so she only purchased more flowers and planted
some grass seed and worked a short day on that day (Tran.,
p. 38).
On Wednesday, May 23, 1990, claimant said that (1) she
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finished planting the flowers, (2) she picked up four bags
of lava rock off of the plastic in the front of the building
and put them in the wheelbarrow because Jerry did not want
to use lava rock because it was too expensive, and (3) she
picked up her tools and moved the wheelbarrow off to the
side.
Claimant also testified that on Wednesday, May 23,
1990, Jerry Wildeboer asked her to landscape the north side
of the building even though he knew that her back was
bothering her. Claimant stated that she also shopped for
additional materials for the north side of the building on
this day (Tran., p. 39).
Claimant said that on Thursday, May 24, 1990, she
purchased timber and dirt for the north side of the
building. She related that she told Jerry Wildeboer that
her back was really hurting and he told her to go home and
take a day of rest (Tran., p. 39).
Claimant testified that on Friday, May 25, 1990, (the
last day of the landscaping project) that she was present
but was in too much pain to work. This is her account of
what happened that day.
"Q. All right. Did you do any landscaping on the
25th of May?
A. On the 25th when I went in I told Jerry that
my back was hurting and that there was just no way
I was going to be able to shovel this dirt, that
my back was in too much pain and I was not going
to be able to do it.
He had three gentlemen sitting in the office there
and he kind of jokingly told them that "Go on out
there and help her." And a couple of guys kind of
hesitated a little bit and he says, "Oh, come on,
it isn't going to hurt you, go on out there and
help her. She's been shoveling the dirt out
there, she hurt her back. She's going to need to
finish. I want you guys to go out and help her.
See where she wants the shrubs planted, plant them
where she tells you to plant them."
We go out and I showed the guys how I wanted the
timber nailed together and put for the flowers,
the bedding, the box. They laid down the plastic
and nailed the boards up and planted all the
shrubbery and put in the lights and all I
basically did was just stand there and watch them
and tell them what I wanted to do. And they also
-- I also drove to Benton's then and got some
gravel like I had had in the front and they did
shovel that into where I had the shrubs planted
also.
Q. So you didn't really do much physical labor
that day?
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A. No, I couldn't. I was in extreme pain (Tran.,
pp. 42 & 43).
Claimant pinpointed the date of the injury as Friday,
May 18, 1990, in these words:
Q. I should ask you this: What do you think you
were doing when you injured your back?
A. When the pain first started I had been
shoveling the mud. When my back first started
hurting me it was the day before when I was
shoveling the dirt, my back seemed more like a
muscle hurt, like I strained, my muscle hurt. It
was on the 18th when I was shoveling the mud
that's when I got this first pain down in my lower
back.
Q. Can you think of any other incident that you
were doing other than the work at City Builders
that could have caused you injury that resulted in
this back and disc problem?
A. No, Sir, not unless it was moving the
wheelbarrel the day that I had been cleaning up.
The wheelbarrel was heavy but my back was already
sore and I had already had pain before that so I
couldn't blame it on the wheelbarrel.
Q. Moving the wheelbarrel where?
A. From the front of the building over to the
side of the building.
Q. That was at City Builders?
A. Yes, sir (Tran., pp. 57 & 58).
Claimant admitted that she did not seek medical
attention for this injury on Friday, May 18, Saturday, May
19, or Sunday, May 20, 1990 (Tran., pp. 72 & 73). Claimant
also granted that she did return to work on Monday, May 21,
1990 and worked the rest of the week through Friday, May 25,
1990. Claimant further acknowledged she did not seek
medical treatment on Saturday, May 26, or Sunday, May 27,
1990 (Tran., pp. 80 & 81).
Claimant testified that she returned to work on
Tuesday, May 29, 1990, after the Labor Day weekend, however,
she stated that she had to work laying on the floor in the
telemarketing room because she was not able to work in a
sitting position (Tran., pp. 45, 81 & 82).
Claimant testified that she first sought medical
treatment on Wednesday, May 30, 1990, when her back gave out
on her at home in the morning while she was preparing to go
to work. She was putting on her shoes, her back gave out
and she fell to the floor (Tran., pp. 49, 72-82).
Claimant testified that she called Kelly Hanson
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Russell, the secretary, and asked about insurance numbers to
use at the hospital. Claimant testified, "I asked her if I
needed any insurance numbers or how did I -- what was I to
tell the hospital what kind of insurance was it that they
had." (Tran., p. 82).
Russell testified that she began working as a secretary
for employer in January of 1990 and she was still employed
there in that position at the time of the hearing (Tran., p.
100). Russell testified that claimant called on the morning
of May 30, 1990 to report that she had bent over to get her
shoes, had fallen to the floor and her husband was on the
way home to pick her up. Russell further testified that
claimant called back a short time later and made the
following statement to Russell:
"A. She said that her husband had come home and
could not get her off the floor and she had called
the ambulance and they were on their way to get
them. And she said, "When I get to the hospital,
can I tell them I hurt my back at work?" (Tran.,
pp. 105, 106, 114 & 115).
Russell testified that she relayed this question to
Dennis Wildeboer who responded, "No, absolutely not."
(Tran., p. 106).
Claimant was asked to relate what happened when she
called the employer on the morning of Wednesday May 30, 1992
and claimant testified as follows:
"Q. Tell the Deputy what you asked Kelly Russell
Hanson (sic).
A. I asked her if I needed any insurance numbers
or what I was supposed to do, did I just tell them
it was a workman's comp. case when I got to the
hospital or did they need some kind of a number
for their insurance. And she said she would have
to speak with Denny and she put me on hold. She
came back and she says, "No, Denny says we have no
workmen's comp. insurance and therefore he says
just tell them that you did hurt your back at home
and then your husband's insurance will cover it."
So I hung the phone up and I called back just not
even a minute later and I spoke with Denny. I
spoke with Kelly, Kelly put Denny on the telephone
and I spoke with Denny personally on the 30th, and
I asked him, "Is it true that we do not have any
workmen's comp. insurance?" And he says, " I
never knew I had to have it."
I said, "Well, how do I go about telling them when
I get to the hospital, the ambulance is on the
way." And he says "Just tell them you did it at
home." I said, "I can't do that." He said,
"That's how the insurance can pay for it. If you
did it a home your husband's insurance will pay
for it and then we can discuss what we'll do with
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the rest after that." He specifically told me on
the 30th that you knew you did not have workmen's
comp. insurance." (Tran., pp. 238 & 239)
Russell further testified that she did not recall that
claimant requested the account numbers for the workers'
compensation carrier (Tran., p. 125).
Claimant further testified that when she talked to
Jerry Wildeboer on May 30, 1990 that he told her to say that
she hurt her back at home and then her husband's medical
insurance carrier would pay the medical bills and whatever
her husband's insurance would not cover that employer would
pick up (Tran., p. 54).
Claimant further testified that after she got out of
the hospital she went to see Jerry and Dennis Wildeboer to
see about getting her medical bills paid. Claimant
testified that they told her to collect under her husband's
insurance at work. Claimant said that she then told them
that her husband's insurance representative had said that if
the husband's carrier paid the bills, then it would be
necessary for them to sue claimant's employer to collect the
money from them. Claimant testified that at this point
Jerry Wildeboer became very angry, very profane and shouted
at her (Tran., pp. 239-243).
Harris testified that he checked the Waterloo airport
weather bureau and radio station KWWL and that they told him
there was no rain on May 16 or May 17, 1990. The only rain
was on Friday, May 18, 1990 between 9 p.m. and midnight and
early Saturday morning May 19, 1990 (Tran., pp. 149-151 &
157). Defendant did not introduce any weather records into
evidence in order to verify the accuracy of Harris's
testimony on this point.
Harris denied that claimant reported a back injury to
him on May 18, 1990. Harris further testified that he saw
claimant shovel dirt out of the back of the pickup truck on
May 18, 1990 but that there was no mud (Tran., 157). Harris
further testified that claimant's only back complaints were
about her preexisting bad back (Tran., pp. 142 & 143).
Harris testified that he never saw claimant working laying
on the floor in the telemarketing room (Tran., p. 142).
Harris testified that he never saw a wheelbarrow during the
landscaping project (Tran., p. 139). Harris added that it
was not necessary to use a wheelbarrow in this project
(Tran., p. 158).
Russell denied that claimant reported back pain to her
on May 18, 1990. On the contrary, Russell testified that
claimant told her May 25 that her back was bothering her
(Tran., p. 130). Russell testified that she never saw
claimant working while lying on the floor (Tran., p. 110).
Russell also testified that she did not observe a
wheelbarrow while claimant was landscaping for employer
(Tran., pp. 103 & 112). She did hear claimant say on
Monday, May 21, 1990, that claimant had worked with a
wheelbarrow over the weekend at home. Russell said claimant
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related that she declined help from her husband and made the
statement that she could do anything that a man could do
(Tran., p. 108). Russell said that this was the Monday
after Friday, May 18, 1990 and it was before Friday, May 25,
1990 (Tran., p. 109).
Brian Hunt testified that he and Clay Bowles worked
with claimant for about two hours on the afternoon of
Friday, May 25, 1990, unloading rock out of the pickup and
digging holes for the shrubs on the north side of the
building. Hunt testified that claimant made no complaints
about her back to him and he did not see a wheelbarrow in
the vicinity of the landscaping site (Tran., pp. 169-180).
At one point Hunt said that claimant dug holes (Tran., p.
173) and at another point he said that he Bowles dug the
holes (Tran., p. 175).
Harris related that claimant requested to use the
company pickup truck on the Memorial Day weekend because she
wanted to do some landscaping at home that involved moving
some heavy dirt (Tran., p. 140). The dates again, of the
Memorial Day weekend were Saturday, Sunday and Monday, May
26, 27 and 28 (Tran., p. 148).
Claimant testified that she borrowed the pickup truck
so her husband could haul dirt to level some ground at home
(Tran., p. 78). Claimant testified, "... I spent the whole
weekend on the couch, I wasn't able to move." (Tran., p. 44
& 81). Claimant denied that she performed any work in her
yard at home on the Memorial Day weekend of May 26, 27 and
28, 1990 (Tran., p. 44). Claimant asserted, "No, Sir, I was
stuck on the couch." (Tran., p. 44 & 93). Claimant also
denied that she had done any work in her yard at home
between May 15, 1990 and May 25, 1990 (Tran., p. 44).
James R. Way, a neighbor of claimant from across the
street for about four years, testified that he recalled
seeing claimant and her husband working in their yard on the
Memorial Day weekend of May 26, 27 and 28, 1990. Way
testified, "Well, she had, they had a truck over there and
they were digging dirt out of the ditch and they were taking
it over into a flower bed which is right in the middle by
the garage. And they were shoveling dirt into the, she was
shoveling dirt off of the truck into the flower bed."
(Tran., p.183).
Referring to exhibit C, a photograph of claimant's
yard, Way testified
"Yes, right in this flower bed here in front of --
there's a great big circle there where she planted
a bunch of moss roses and that's the flower bed
they were working on, both of them. * * * Mainly
I think she was more or less putting it in the
flower bed. Bob was down getting it in the ditch
most of the time. I didn't see a lot of it, just
a little. I didn't pay that much attention to
it." (Tran., p. 184 & 185).
This colloquy then transpired between the witness and
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counsel:
"A. But you did see her work?
Q. Yeah.
Q. When you saw her working, did you ever see her in
the bed of the pickup?
A. Yeah, she was standing up in there shoveling dirt
off one time when I looked over there." (Trans, p. 185).
Way testified that he had a telephone conversation with
claimant on Tuesday morning, May 29, 1990. Way asserted,
"Tuesday morning she called and talked to me. And
she was trying to get me to apologize to her
husband so we could be back to being good friends.
And she had mentioned that she borrowed the truck
where she works, City Builders, and she was doing
her flower bed during the weekend and she had hurt
her back when she done her flower bed. And that's
what she had discussed on the phone, she had
mentioned she had hurt her back." (Tran., p. 186).
Way further testified that after her injury that he
observed claimant and photographed claimant drag railroad
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ties out of flood water up to her patio (Tran., p. 188);
(Ex. G).
Way identified exhibits E and F as photographs that he
took of claimant shoveling a walk after her injury in a snow
storm. He said he took the pictures because he heard that
claimant had brought a lawsuit against her employer and she
was out there working all of the time (Tran., pp. 189-192,
199 & 202).
Way gave his opinion of claimant's credibility in the
following words: "Do you have an opinion as to whether or
not Donna Spurbeck is a truthful person?
A. Very untruthful.
Q. And, Mr. Way, what do you base that on?
A. Just knowing them, very manipulating." (Tran., p.
193).
Way denied that he and the Spurbecks were enemies. Way
testified "I liked them, they were mad at me. *** I was
never mad at them." (Tran., p. 195).
On cross-examination, Way denied that he had anything
to do with (1) starting their house on fire, (2) blowing up
their mail box, (3) cutting the transmission lines on their
car, (4) killing their dog, (5) breaking all the mirrors on
their truck and their car, (6) sticking a knife in the tires
of their car and (7) threatening to kidnap their daughters
and sell them into prostitution. Way also denied he had any
knowledge of who might have done these things (Tran., pp.
193-197). Way denied that he was present when his son
stated "Next time I start your house on fire I'm going to
make sure you're in it." (Tran., pp. 197 & 198).
Way acknowledged that when Spurbecks moved from the
neighborhood they had a police escort because there were
several people in Way's yard drinking beer and yelling at
them (Tran., p. 203). Way testified that several people in
the neighborhood did not like them (Tran., p. 205). Way
gave the names of several people who did not like claimant.
Way said they were trouble makers down at the neighborhood
bar (Tran., pp. 205 & 206).
Claimant testified that James Way, his two sons, and
their friends and another neighbor shot guns at them,
destroyed their property and vandalized them (Tran., p.
229). She said that the fire marshall told her that the
cause of the fire was unfounded and unsuspicious (Tran., p.
228). She alleged that the son of James Way stated that the
next time he set their house on fire he was going to make
sure they were in it (Tran., p. 228). Claimant alleged they
blew up her mailbox (Tran., p. 227). She alleged that one
or more of them threatened to steal her children and sell
them in Florida for prostitutes (Tran., p. 229).
Claimant alleged that they kicked her little dog and
killed her big dog; it had been hit on the head with a blunt
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object and died of drowning. It was found a few feet behind
Jim Way's yard (Tran., pp. 229 & 230). Claimant described a
physical altercation where Jim Way, Ronnie Way and Johnnie
Way beat-up her husband and tried to drown him in the flood
waters and Johnnie Way physically struck her and kicked her
(Tran., pp. 230 & 231).
Claimant said as a result of the fight she had to go to
the hospital and when she returned she found that they had
been vandalized. The dog was gone and the Ways and their
friends were across the street calling the dog's name
(Tran., p. 232 & 233). Claimant said she also noticed that
the satellite dish was damaged, the mirrors and gas cap was
missing off of the truck, the tires on the car had been
slashed, the mirrors on the car had been broken and part of
the fence was down behind the tool shed (Tran., p. 233). On
another occasion transmission lines on their truck had been
cut in several places (Tran., p. 233). Claimant alleged
that one of the Ways shot a rabbit in their yard underneath
the swing set where the children play (Tran., p. 234).
Claimant denied that she was shoveling snow in the
photographs (exhibits E & F) but rather, claimant testified
that she was walking with a cane (Tran., pp. 236 & 237).
Claimant denied that she moved railroad ties at the time of
the flood (Tran., p. 237).
Claimant denied that she had worked in the yard on
Memorial Day weekend. She testified that she spent the
weekend on the couch because she was not able to go to bed
upstairs in her bedroom (Tran., p. 238). Claimant denied
that she asked Russell if she could say she hurt her back at
work (Tran., pp. 238 & 239).
Dennis Wildeboer, testified that he is the
secretary-treasurer and general manager of employer. He
corroborated Russell's testimony that claimant called the
company on Wednesday, May 30, 1990, talked to Russell and
asked if she could say that she hurt her back at work and
Wildeboer said no. Wildeboer had no information that
claimant had ever hurt herself at work. He testified that
he did not find out that the company did not have workers'
compensation until later in June of 1990 (Tran., pp.
206-210).
Wildeboer denied that he talked to claimant on the
telephone on May 30, 1990 (Tran., p. 211). He contended
claimant was not hurt at work and so evidently it must have
happened at home (Tran., p. 212). He acknowledged that
Jerry Wildeboer did get upset when she threatened to sue the
company (Tran., pp. 213 & 214). Wildeboer said that he
never saw claimant working while laying on the floor in the
telemarketing room (Tran., p. 215). He acknowledged that
employer owned no landscaping tools or wheelbarrow (Tran.,
pp. 208 & 217). Claimant testified several times that she
provided the wheelbarrow and all of the landscaping tools
(Tran., pp. 224 & 225).
Bill Miller testified that he is a six-year employee of
employer (Tran., p. 248). He said that claimant brought a
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headset to work and was provided a different chair because
of back problems (Tran., pp. 248 & 249). Miller did not
recall claimant telling him that she hurt her back at work
(Tran., p. 250). He contended that he drove by claimant's
house on the Memorial Day weekend and saw her working in the
yard scooping dirt with a shovel (Tran., p. 253).
On rebuttal, claimant was asked if she worked in the
yard on Memorial Day weekend and she replied, "No, sir, I
swear to God I wasn't." (Tran., p. 256).
The paramedics who transported claimant to the hospital
on May 30, 1990, recorded "She said she sustained a work
related injury approx 6 days ago. She states she was
shoveling dirt." (Ex. 2-10).
Six days prior to May 30, 1990, would have been either
May 24 or May 25 depending upon whether you count May 30 as
one of the days. In her testimony claimant said that on May
24, 1990, she purchased timber and dirt and Jerry Wildeboer
told her to go home and take a day of rest on account of her
back (Tran., p. 39). Claimant further testified that on May
25, 1990, she did not do much physical work because
Wildeboer assigned three gentlemen to help her. She said
they did the physical work and basically she just stood
around and told them what to do (Tran., p. 43).
A medical form completed in the hospital emergency
department shows that the date of injury was May 24, 1990,
which was a Thursday. The admitting notes record, "States
shoveling dirt Thurs et felt pulling in lower back - Fri was
pushing a wheelbarrel et noted [increased] discomfort - "
(Ex., 2-14). The emergency room physician also recorded
"Strained low back Thursday ..." (Ex., 2-14). This exhibit
places the injury date on Thursday, May, 24 or Friday, May
25, 1990.
An x-ray on May 31, 1990 reported that the alignment of
her lumbar spine was normal, the vertebral body heights and
disc spaces are intact, no degenerative change or
spondylolysis was detected. The impression was a normal
lumbar spine (Ex. 2, p. 2-15).
James E. Crouse, M.D., recorded on the admission
history and physical examination form dated May 30, 1990:
"Two days ago, she was shoveling dirt and running a
wheelbarrow when she felt a catch in her back." (Ex., p.
2-13). Two days prior to May 30, 1990, was either May 29 or
May 28 depending on whether you count May 30 as one of the
days. May 28 was Monday, Memorial Day and claimant did not
work for employer on that day. May 29, was Monday and
claimant worked as a telemarketer that day because the
landscaping project was completed on Friday, May 25, 1990.
Dr. Crouse repeated his statement that claimant's injury
occurred two days prior to her hospitalization on May 30,
1990 on the discharge summary dated June 1, 1990 (Ex.,
2-11). Thus, Dr. Crouse was under the impression that the
injury occurred either on Monday, May 28, 1990 or Tuesday,
May 29, 1990.
Page 13
On July 19, 1990, Roswell M. Johnston, D.O.,
F.A.A.O.S., an associate of Dr. Crouse, wrote that this
injury was consistent with heavy strain on the back such as
shoveling dirt and that it was not something that would be
caused by bending over (Ex., 2-54).
On May 6, 1991, Dr. Crouse wrote "Donna Spurbeck
sustained a lumbar disc herniation while working on May 25,
1990." (Ex., p. 2-56). There was no further explanation for
his use of the date May 25, 1990. Dr. Crouse further said
that he agreed with Dr. Johnston that this was related to a
work injury (Ex., 2-56). By comparison, however, claimant
testified that she did not perform any physical labor on May
25, 1990 but that the three gentlemen that were assigned to
help her performed the physical labor on that date (Tran.,
p. 58).
On May 13, 1992, Dr. Crouse wrote that the injury
occurred while shoveling and running a wheelbarrow and that
the landscaping work that she was doing was the cause of the
injury Ex. 2-57). There is no indication whether Dr. Crouse
knew that claimant was alleged to have performed landscaping
work at home as well as at work at this time. All
indications are that the only landscaping Dr. Crouse knew
about was the landscaping that claimant performed at work.
Claimant, however, testified that she injured her back
on May 18, 1990, from shoveling mud at work on that date
(Tran., p. 57). Thus, claimant's very definitive testimony
for the date of the injury based on her journal, that she
maintained at that time, is at odds with the all of medical
records in this case.
Claimant was hospitalized for conservative treatment on
May 30, 1990. Subsequently she had a lumbar laminectomy on
August 22, 1990. Subsequent to that claimant had a lumbar
fusion on April 2, 1991.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on May 18, 1990
which arose out of and in the course of her employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976);
Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
Claimant did not sustain the burden of proof by
preponderance of the evidence that she sustained an injury
to her back on May 18, 1990. Claimant's account of when the
injury occurred, where the injury occurred and how the
Page 14
injury occurred is controverted, contradicted, rebutted and
refuted on so many points that it simply cannot be
conscientiously determined that she sustained the burden of
proof by preponderance of the evidence that the injury arose
out of and in the course of her employment with employer on
May 18, 1990.
It is true that claimant's testimony could be
influenced by the fact that she has a very serious back
condition and that she is asserting a very large workers'
compensation claim. The medical bills alone amount to
$24,036.54 (Ex., 1-1). She had three hospitalizations and
two major surgeries, lost time from work and is limited in
what she can do at the present time.
It is also true that the testimony of Dennis
Wildeboer, Keith Harris, Kelly Hanson Russell and Bill
Miller could be influenced by the fact that they were and
still are currently employees of employer. It was asserted
by claimant that an award in this case would wipe out the
employer financially for the reason that they had no
workers' compensation insurance at the time of the alleged
injury. In that event these witnesses would lose their
employment with employer. This assertion is quite
reasonable, plausible and understandable.
Jerry Wildeboer did not testify and was not present in
the courtroom at the time of the hearing although several
other spectators were present. Claimant's husband was
present in the courtroom but did not testify.
It could be stated that the testimony of James Way was
influenced by (1) the many years he was a neighbor, (2) the
many and numerous traumatic incidents and (3) the physical
altercation that occurred between him and his sons and
claimant and her husband. There was clear evidence of a
great deal of animosity and hostility between the Ways and
the Spurbecks.
At the same time the burden is on claimant and most of
her testimony was very definitely controverted and rebutted,
even though there may be some question about the credibility
of the witnesses that testified against her.
In the final analysis, claimant clearly, definitively
and unequivocably testified that the injury occurred on May
18, 1990. Her testimony was supported by the notes in her
journal made at the time of the injury. The medical records
indicate that the injury occurred on May 24, May 25, or May
28, May 29 of 1990. None of these dates given in the
medical evidence support an injury on May 18, 1990.
Therefore, it is determined as a matter of fact that
claimant did not sustain an injury to her lumbar spine on
May 18, 1990, which arose out of and in the course of her
employment with employer based on the evidence of record in
this case.
conclusions of law
Wherefore, based upon the foregoing and following
Page 15
principles of law these conclusions of law are made.
That claimant did not sustain the burden of proof by
preponderance of the evidence that she sustained an injury
to her lumbar spine on May 18, 1990, performing landscaping
work for her employer which arose out of and in the course
of her employment with employer. 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). Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
In view of this finding, all other issues in the case
become moot.
order
THEREFORE, IT IS ORDERED:
That no amounts are owned by defendant to claimant for
workers' compensation benefits.
That each party is to pay their own respective costs,
but that employer is to pay the cost of the attendance of
the court reporter at hearing and for the transcript of the
hearing. Iowa Code sections 86.19(1) and 86.40 and rule 343
IAC 4.33.
That defendant return to claimant the headset placed in
its custody at the hearing at the expiration of all
appellate periods.
Signed and filed this ____ day of January, 1993.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Stephen D. Lombardi
Attorney at Law
Suite 202, 10101 University
Des Moines, IA 50325
Mr. Robert L. Rausch
Attorney at Law
P.O. Box 905
Waterloo, IA 50704
51106, 51401, 51402.20, 51402.30,
52902
Filed January 27, 1993
Walter M. McManus, Jr.
before the iowa industrial commissioner
____________________________________________________________
:
DONNA P. SPURBECK, :
:
Claimant, :
:
vs. :
: File No. 954462
CITY BUILDERS & SUPPLY, INC., :
: A R B I T R A T I O N
Employer, :
Defendant. : D E C I S I O N
:
___________________________________________________________
51106, 51401, 51402.20, 51402.30, 52902
Claimant failed to prove a work injury.
Practically all of her evidence was controverted.
There was reason to suspect the credibility of all
witnesses.
Claimant had a serious back problem that involved three
hospitalizations, two major surgeries, much time lost from
work and serious limitations on her ability to work which
constituted a large and serious workers' compensation claim.
Employer had no workers' compensation insurance and it was
asserted that an award would wipe out employer financially
and all of the witnesses who worked for employer would lose
their jobs.
claimant denied that she shoveled dirt at home on the
Memorial Day weekend or that she hurt her back at home. A
neighbor, with whom claimant and her husband had a great
deal of bitter controversy, testified that claimant did
shovel dirt on the Memorial Day weekend and that she told
him that she hurt her back doing it.
In the final analysis, claimant's testimony about the date
of the injury was controverted by the medical records in the
case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LEO C. POTTEBAUM, :
: File No. 954480
Claimant, :
: A P P E A L
vs. :
: D E C I S I O N
JOHN DEERE DUBUQUE WORKS OF :
DEERE & COMPANY, :
:
Employer, :
Defendant. :
___________________________________________________________
The record, including the transcript of the hearing
before the deputy and all exhibits admitted into the record,
has been reviewed de novo on appeal. The decision of the
deputy filed December 11, 1991 is affirmed and is adopted as
the final agency action in this case, with the following
additional analysis:
The instant case can be distinguished from Furry v.
John Deere Dubuque Works of Deere & Co., File No. 760430
(Appeal Decision November 12, 1986). In Furry, the
audiograms showed a steady increase of binaural hearing loss
from 1976 to 1984. Also, in that case there was an
audiogram conducted by Dr. Harrison prior to Furry's
retirement which indicated a binaural hearing loss of 29.04
percent. Furthermore, there was evidence that Furry
consistently worked at noise levels of 82 and 85 dba. Also,
none of Furry's audiograms were conducted after 1984. (All
employees were required to wear hearing protective devices
at all times after 1984.) The instant case can also be
distinguished from the facts of John Deere Dubuque Works v.
Meyers, 410 N.W.2d 255 (Iowa 1987). In Meyers there was
evidence of noise exposure as high as 90-105 dba and later
78-89 dba. Also, in Meyers the court at 410 N.W.2d 255, 256
stated: "At Deere's referral, he was examined by an
otolaryngologist on March 18, 1982, who diagnosed
high-frequency sensorineural hearing loss related to noise
exposure at work." (Emphasis added)
In the instant case, the audiograms show hearing loss
which apparently continued to increase after claimant's
retirement and then decreased. There was no audiogram
conducted by anyone other than the employer prior to
claimant's retirement. Importantly, it was the medical
opinion of Dr. McClenahan that noise in the employer's plant
was not sufficient to have caused claimant's hearing loss.
There is no contrary medical opinion. The only medical
opinion on causal connection is that there was not a causal
Page 2
connection.
Evidence in this case cannot be reconciled with
claimant's burden of proving entitlement to benefits. The
audiogram conducted by the employer in 1988 approximately
2-3 months prior to claimant's retirement showed a hearing
loss of 28.125 percent. In his final months of employment
it appears claimant may have worked in a relatively low
level of noise. (See Exhibit 7, Transcript pages 34-35, and
the fact that hearing protection devices were used beginning
in 1984). An audiogram also conducted by the employer in
1990 approximately two years after claimant's retirement
showed a hearing loss of 45.5625 percent. The difference in
the results of the two tests can be characterized as a
significant increase. There is no adequate explanation for
this increase. Claimant's work exposure and duration just
noted (2-3 months) is, at best, a possible cause of the
increase.
It is not the responsibility of the industrial
commissioner to rule out all possible causes of compensable
injury other than employment. It is claimant's
responsibility to prove that his work was the probable cause
of his alleged disability. Claimant has failed to meet his
burden of proof in this case.
Claimant shall pay the costs of the appeal, including
the preparation of the hearing transcript.
Signed and filed this ____ day of July, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Michael J. Coyle
Attorney at Law
200 Security Building
Dubuque, Iowa 52001
Mr. Leo A. McCarthy
Attorney at Law
222 Fischer Building
P O Box 239
Dubuque, Iowa 52004
1402.30; 2208
Filed July 13, 1992
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LEO C. POTTEBAUM, :
: File No. 954480
Claimant, :
: A P P E A L
vs. :
: D E C I S I O N
JOHN DEERE DUBUQUE WORKS OF :
DEERE & COMPANY, :
:
Employer, :
Defendant. :
___________________________________________________________
1402.30; 2208
Uncontroverted expert testimony was relied upon in finding
that the claimant's hearing loss might possibly have been
work related, but the evidence failed to show any such
relationship to be probable. Worsening of hearing after
retirement relied upon to corroborate expert opinion that
hearing loss was not work related. The instant case was
distinguished from the facts in Furry v. John Deere Dubuque
Works, File No. 760430 (Appeal Decision November 12, 1986)
and John Deere Dubuque Works v. Meyers, 410 N.W.2d 255 (Iowa
1987).
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LEO C. POTTEBAUM, :
:
Claimant, : File No. 954480
:
vs. : A R B I T R A T I O N
:
JOHN DEERE DUBUQUE WORKS OF : D E C I S I O N
DEERE & COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Leo C.
Pottebaum against his former employer, John Deere Dubuque
Works of Deere & Company, seeking compensation for hearing
loss under chapter 85B of The Code of Iowa. The primary
issues to be determined are whether the claimant's hearing
loss is an occupational hearing loss for which compensation
is payable under chapter 85B and, in particular, whether the
hearing loss was caused by or arose out of his employment.
The case was heard at Dubuque, Iowa, on November 22,
1991. The evidence in the case consists of exhibits 1
through 16 and testimony from Mervin Lee McClenahan, M.D.,
Leo C. Pottebaum, Thomas Robson, Karl Rigdon, John D. Cook
and Bernard M. Boland.
findings of fact
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made.
Leo C. Pottebaum is a 59-year-old man who retired from
the John Deere Dubuque Works on October 31, 1988, after 32
years of employment. During the first year of his
employment with John Deere, he was a turret lathe operator.
He next worked in the foundry on the clean-up crew for
approximately a year. He then resumed work as a turret
lathe operator for approximately one year. In 1960, he
obtained employment in the tool room, which has been
referred to as Department 31. He remained in Department 31
throughout the remainder of his career.
There are basically two functions performed by
employees in Department 31. One function is to perform
fabrication, grinding and other machine work on metal in the
tool room area itself. The other function is repairing and
maintaining industrial machines throughout the John Deere
Page 2
plant.
The noise exposure experienced by an employee in
Department 31 can vary according to the machines the
employee operates, the machines which are operating in close
proximity to the employee and the portion of the plant in
which the employee is working. The claimant testified at
length to having experienced a great deal of noise exposure
in each of the positions he has held with John Deere. The
employer's noise exposure testing data shows that
individuals in Department 31, the department in which the
claimant was employed, typically have noise exposures which
have been measured in the range of the high-70's to the
mid-80's in dBA. Some of the test results show some of the
employees to have been exposed to noise in excess of 115 dBA
for unstated periods of time during which the testing was
conducted (exhibits 7 and 10; exhibit 12, interrogatory
number 9). This claimant's individual noise exposure was
never tested.
Commencing in 1984, all employees in the John Deere
plant were required to wear hearing protective devices at
all times.
When originally employed, Pottebaum was administered a
preemployment physical which identified no hearing problems
(exhibit 16). The claimant's hearing has been tested on
four different occasions. The first test was conducted in
1975 and showed a 17.1875 percent binaural hearing loss
(exhibit 3). The second test was conducted in October of
1988, only ten days prior to the claimant's retirement, and
showed a 28.125 percent binaural hearing loss. The third
test was conducted on August 15, 1990, nearly two years
after the claimant had been removed from whatever noise
exposure the John Deere plant had provided to him, and his
hearing loss was shown to be 45.5625 percent. Approximately
two weeks later, the fourth test was administered by the
personnel at Dubuque Otolaryngology and showed a 36.25
percent binaural hearing loss. According to the plant
physician, Mervin Lee McClenahan, M.D., the last hearing
test is the most accurate (exhibit 11, page 3). The three
previous tests were all conducted by John Deere's own
personnel.
Page 3
Otolaryngologist James W. White, M.D., has reported that
claimant has a moderate sensorineural hearing loss which is
compatible with noise-induced hearing difficulty (exhibit
6). That opinion was expressed based upon the examination
and testing performed by his office on or about August 27,
1990. Dr. McClenahan agreed that the claimant's hearing
loss is attributable to noise (exhibit 11, page 4).
It is found that Drs. White and McClenahan are probably
correct in their assessments that the hearing loss which
afflicts Leo C. Pottebaum was probably induced by noise.
Dr. White does not express any opinion with regard to
the source of the noise which was likely to have caused the
hearing problem. Dr. McClenahan stated that, in his
opinion, based on the industrial hygiene reports of noise
levels in the plant, the noise which Leo Pottebaum was
subjected to in the John Deere plant was not sufficient to
have caused his hearing loss (exhibit 11, pages 4 and 5).
The record in this case suggests no source of continued
or long-term high noise level exposure to which the hearing
loss can be attributed other than the John Deere plant.
While the record does show some other incidents of high
noise level exposure, those incidents appear to be
relatively infrequent in duration in comparison to the
duration to which this claimant was exposed to noise in the
John Deere plant. Those incidents likewise appear to have
not necessarily produced a level of noise which would have
been higher or more injurious to the claimant than the level
which was present in the plant. It is particularly noted
that the chain saw use does not appear to have begun until
well after 1975 when this claimant's hearing loss was first
identified.
On the other hand, this claimant's hearing loss appears
to have progressed and worsened markedly after he retired
and was no longer exposed to whatever noise was present in
the employer's plant. The fact of post-retirement worsening
of the hearing loss is a very strong indication that the
hearing loss was not necessarily caused by the employment.
That fact strongly corroborates the opinion expressed by Dr.
McClenahan. There is no evidence in the record of this case
from any health care professional which attributes the
hearing loss to the noise exposure at John Deere. The only
expert opinion is that of Dr. McClenahan which states that
it probably is not related to the employment at John Deere.
Under the state of this record, it can be fairly stated that
it is certainly possible that Leo C. Pottebaum has a hearing
loss which is noise induced and that the hearing loss is
Page 4
attributable to his employment at John Deere. The state of
this record does not, however, show it to be probable that
the hearing loss is attributable to noise exposure at the
John Deere plant. The cause of claimant's hearing loss is
probably noise. The source of that noise cannot, however,
be identified.
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury which arose out
of and in the course of his employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent.
Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
The words "arising out of" refer to the cause or source
of the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa
402, 68 N.W.2d 63 (1955). The "arising out of" requirement
is satisfied by showing a causal relationship between the
employment and the injury. Sheerin v. Holin Co., 380 N.W.2d
415, 417 (Iowa 1986).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is causally
related to the disability on which he now bases his claim.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607
(1945). A possibility is insufficient; a probability is
necessary. Burt v. John Deere Waterloo Tractor Works, 247
Iowa 691, 73 N.W.2d 732 (1955). The question of causal
connection is essentially within the domain of expert
testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375,
101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
Page 5
Section 85B.8 provides for a delay of six months following
removal from the noisy employment setting before filing a
claim. The primary reason for that delay is in order to
allow the hearing loss to be evaluated without the influence
of fatigue. 1B Larson Workmen's Compensation Law, section
41.50 et seq. Typically, the hearing improves somewhat upon
removal from the noisy environment. That portion of the
hearing loss is generally attributed to fatigue from the
immediate effects of recent noise. In this case, not only
was there no improvement in the hearing following removal
from the noisy environment, there was in fact a marked
worsening. That marked worsening is highly inconsistent
with noise at the John Deere plant being a substantial
factor in producing the hearing loss. It greatly
corroborates the opinion expressed by Dr. McClenahan which
states that the employment at John Deere is probably not the
cause of the hearing loss. There is no expert opinion
evidence in this record which contradicts that from Dr.
McClenahan. The claimant's burden of proof is a
preponderance of the evidence or a probability. While the
evidence in this case certainly shows a possibility that the
hearing loss is work related, it fails to rise to the level
of probability.
It is therefore concluded that Leo C. Pottebaum has
failed to prove, by a preponderance of the evidence, that
his hearing loss, or any substantial part thereof, was
proximately caused by his employment at the John Deere
Dubuque Works. The claimant is therefore not entitled to
receive any recovery in this proceeding.
order
IT IS THEREFORE ORDERED that claimant take nothing from
this proceeding.
IT IS FURTHER ORDERED that the costs of this action are
assessed against the claimant pursuant to rule 343 IAC 4.33.
Signed and filed this ______ day of ____________, 1991.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Page 6
Copies To:
Mr. Michael J. Coyle
Attorney at Law
200 Security Building
Dubuque, Iowa 52001
Mr. Leo A. McCarthy
Attorney at Law
222 Fischer Building
P.O. Box 239
Dubuque, Iowa 52004-0239
1402.30; 2208
Filed December 11, 1991
MICHAEL G. TRIER
before the iowa industrial commissioner
____________________________________________________________
:
LEO C. POTTEBAUM, :
:
Claimant, : File No. 954480
:
vs. : A R B I T R A T I O N
:
JOHN DEERE DUBUQUE WORKS OF : D E C I S I O N
DEERE & COMPANY, :
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
1402.30; 2208
Uncontroverted expert testimony was relied upon in finding
that the claimant's hearing loss might possibly have been
work related, but the evidence failed to show any such
relationship to be probable. Worsening of hearing after
retirement relied upon to corroborate expert opinion that
hearing loss was not work related.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DENNIS SCHLEGEL,
Claimant,
vs.
File No. 954481
UNITED PARCEL SERVICE,
A P P E A L
Employer,
D E C I S I O N
and
LIBERTY MUTUAL INS. CO.,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
October 14, 1992 is affirmed and is adopted as the final agency
action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of March, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Nick J. Avgerinos
Attorney at Law
135 South LaSalle St., #1527
Chicago, IL 60603
Mr. Greg A. Egbers
Mr. Mark Woollums
Attorney at Law
600 Union Arcade Bldg.
111 East Third St.
Davenport, Iowa 52801-1596
5-1803
Filed March 29, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DENNIS SCHLEGEL,
Claimant,
vs.
File No. 954481
UNITED PARCEL SERVICE,
A P P E A L
Employer,
D E C I S I O N
and
LIBERTY MUTUAL INS. CO.,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DENNIS SCHLEGEL, :
:
Claimant, :
:
vs. :
: File No. 954481
UNITED PARCEL SERVICE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INS. CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Dennis
M. Schlegel, claimant, against United Parcel Service,
employer, hereinafter referred to as UPS, and Liberty
Mutual, insurance carrier, defendants, for workers' compen
sation benefits as a result of an alleged injury on November
11, 1988. On August 31, 1992 a hearing was held on
claimant's petition and the matter was considered fully sub
mitted at the close of this hearing.
The parties have submitted a prehearing report of con
tested 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 prehearing report, the parties have
stipulated to the following matters:
1. On November 11, 1988 claimant received an injury
arising out of and in the course of employment with UPS.
2. Claimant is not seeking additional temporary total
or healing period benefits beyond what has been paid in this
proceeding.
3. If the injury is found to have caused permanent dis
ability, the type of disability is an industrial disability
to the body as a whole.
4. If permanent partial disability benefits are
awarded, they shall begin as of May 19, 1992.
Page 2
5. At the time of injury claimant's gross rate of
weekly compensation was $629.60; he was married; and he
was entitled to four exemptions. Therefore, claimant's
weekly rate of compensation is $389.82 according to the
Industrial Commissioner's published rate booklet for this
injury.
6. It was stipulated that the providers of the
requested medical expenses would testify as to their reason
ableness and defendants are not offering contrary evidence.
Also it was agreed that the medical expenses requested in
the prehearing report are causally connected to the medical
condition upon which the claim herein is based but that the
issue of this condition to a work injury remains an issue to
be decided herein.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
I. The extent of claimant's entitlement to disability
benefits.
II. The extent of claimant's entitlement to medical
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is unnecessary to this decision.
Defendant did not refute claimant's symptomatology. The
fighting issue was the cause of these symptoms.
Claimant, age 42, has worked for UPS since 1978 and
continues to do so at the present time. Claimant started as
a package car driver unloading semi trucks, loading cars and
delivering the loads. In 1982, he moved to night washer
cleaning package cars with a cleaning wand and brush
attached to a hose. This required a considerable amount of
overhead work using both arms as the vehicles were tall. In
1985, he moved to the day shift as a washer, cleaning semi
tractors. This required more use of the arms and hands as
the trucks needed to be hand washed. He was also assigned
janitorial duties consisting of cleaning floors, offices and
bathrooms; emptying trash receptacles; and, scrubbing and
waxing floors. In addition, the UPS union contract provides
for "work as directed." This provision allows management
to assigned work to employees that is not usually assigned
to their jobs. In the case of claimant, this was driving a
semi tractor trailer truck because he was a licensed commer
cial driver. Claimant received additional pay whenever he
performed this special duty. Claimant continues as a day
washer today. His current weekly earnings are more than at
Page 3
the time of injury due to negotiated union pay increases.
The injury of November 11, 1988 involved numbness of
the hands and arms along with back & shoulder strain.
Claimant filed two reports of injury for the same approxi
mate time period. The first report involved back and shoul
der strain after lifting at work on November 10, 1988. The
second occurred on December 8, 1988 referring back to an
injury of November 1, 1988. There is no specific instance
of injury. Claimant explains that his arm and hand difficul
ties began when he was assigned to special truck driving
duty in November 1988 which required him to do heavy lifting
of UPS packages weighing from 1-70 pounds.
Initially claimant was treated for the hand and arm
numbness by Jerome Hughes, M.D. Dr. Hughes felt that
claimant's problems stemmed from epicondylitis (tennis
elbow). After a couple of years of conservative treatment
by Dr. Hughes and others, claimant continued to experience
sore elbows and hand numbness but he continued to work at
UPS. He then was referred to Douglas Schmid, M.D. Dr.
Schmid felt claimant's problems may be due to thoracic
outlet syndrome (TOS) and he referred claimant to the Uni
versity of Iowa Hospitals and Clinics for evaluation.
University doctors concluded that claimant's difficulties
were not TOS but a herniated disc in the cervical portion of
the back. Surgery to fuse this area of the back was per
formed by University physicians. Claimant returned to his
regular job in April 1991. Claimant states that the surgery
corrected his hand numbness but that his elbows continued
to hurt. Claimant's physicians state that he should mini
mize bumpy rides, heavy lifting and frequent bending but
they have not imposed formal work restrictions.
There is little question that the herniated disc and
fusion surgery is a cause of permanent impairment from 7-20
percent according to the physicians in this case. With ref
erence to causation of this impairment, Christopher Loftus,
M.D., professor of neurology at University Hospitals, states
that claimant's condition treated by him was due to degener
ative disc disease with a "long history of bilateral arm,
elbow and lateral hand tingling and numbness." But upon
inquiry he states that it is "likely" that claimant's heavy
work "could" have caused or aggravated the disc problem sur
gically corrected by University staff. Dr. Schmidt states
that claimant's degenerative disc and tennis elbow "could
be related to his work." A one time evaluator and neurosur
geon who never actually examined claimant opines that
claimant's work was not the cause of his cervical and degen
erative disc problems. Dr. Hughes states that he has diffi
culty relating claimant's symptoms to his work. Obviously,
there is little medical opinion support in this record for
this claim.
Looking at the lay evidence, claimant does indeed have
a long history of upper extremity problems. In 1980,
claimant injured his right shoulder when a box fell on it
Page 4
and was treated with a cortisone injection. In July 1986,
claimant complained of left shoulder pain which was eventu
ally teated with a surgical resection of the clavicle. In
February 1988, six months before the claimed injury herein,
claimant was treated for bilateral epicondylitis upon com
plaints of numbness and aching in his arms and night pain.
Given the above, the undersigned is unable to find that
claimant's work activity in November 1988 was a cause of
claimant's current permanent impairment. Although the
absence of medical expert opinion alone would preclude a
favorable finding, in this case the evidence of pre-existing
similar problems necessitates reliance upon medical opinion
which was clearly quite nebulous.
As the degenerative disc disease condition precipitat
ing the cervical disc surgery could not be found
work-related, the medical treatment claimant received to
treat the disc problems cannot be found work-related.
CONCLUSIONS OF LAW
I. The claimant has the burden of proving by a pre
ponderance of the evidence that the work injury is a cause
of the claimed disability. A disability may be either tem
porary or permanent. In the case of a claim for temporary
disability, the claimant must establish that the work injury
was a cause of absence from work and lost earnings during a
period of recovery from the injury. Generally, a claim of
permanent disability invokes an initial determination of
whether the work injury was a cause of permanent physical
impairment or permanent limitation in work activity. How
ever, in some instances, such as a job transfer caused by a
work injury, permanent disability benefits can be awarded
without a showing of a causal connection to a physical
change of condition. Blacksmith v. All-American, Inc., 290
N.W.2d 348 (Iowa 1980).
The question of causal connection is essentially within
the domain of expert medical opinion. Bradshaw v. Iowa
Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
The opinion of experts need not be couched in definite, pos
itive or unequivocal language and the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
1974). The weight to be given to such an opinion is for the
finder of fact to determine from the completeness of the
premise given the expert or other surrounding circumstances.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal connec
tion, such testimony may be coupled with non-expert testi
mony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966) Such evidence does not, however, com
Page 5
pel an award as a matter of law. Anderson v. Oscar Mayer &
Co., 217 N.W.2d 531, 536 (1974) To establish compensabil
ity, the injury need only be a significant factor, not be
the only factor causing the claimed disability. Blacksmith
at 354. In the case of a preexisting condition, an
employee is not entitled to recover for the results of a
preexisting injury or disease but can recover for an aggra
vation thereof which resulted in the disability found to
exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125
N.W.2d 251 (1963).
In the case sub judice, claimant contends that he has
suffered disability as a result of the work injury due to
additional permanent impairment to the body as a whole. The
evidence established that he suffered a permanent impair
ment. However, the evidence failed to show the requisite
causal connection between the work injury and the permanent
impairment.
II. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. As the requested expenses
involved treatment of a condition which could not be found
work-related, claimant is not entitled to the expenses
requested.
However, claimant appeared credible at hearing and his
claim was arguable and in good faith. He will be awarded
costs.
ORDER
1. Claimant's petition is dismissed.
2. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
Signed and filed this ____ day of October, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Nick J. Avgerinos
Attorney at Law
La Salle Bank Building
Suite 1527
135 South La Salle Street
Page 6
Chicago, Illinois 60603
Mr. Greg A. Egbers
Mr. Mark Woollums
Attorneys at Law
600 Union Arcade Building
111 East Third Street
Davenport, Iowa 52801-1596
5-1803
Filed October 14, 1992
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DENNIS SCHLEGEL,
Claimant,
vs.
File No. 954481
UNITED PARCEL SERVICE,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
LIBERTY MUTUAL INS. CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LARRY D. ANDRIES, :
:
Claimant, :
:
vs. :
: File No. 954483
KASER CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED STATES FIDELITY AND :
GUARANTY COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Larry
Andries, claimant, against Kaser Corporation, employer
(hereinafter referred to as Kaser), and United States
Fidelity and Guaranty Company, insurance carrier, defen
dants, for workers' compensation benefits as a result of an
alleged injury on November 14, 1988. On January 17, 1992, a
hearing was held on claimant's petition and the matter was
considered fully submitted at the close of this hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations contained herein which were
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 prehearing report, the parties have
stipulated to the following matters:
1. On November 14, 1988, claimant received an injury
arising out of and in the course of employment with Kaser.
2. The injury is a cause of absences from work during
recovery from the injury and some degree of permanent
disability.
3. The parties only dispute with reference to healing
period involves the time period from August 16, 1989 through
January 22, 1990.
4. The type of permanent disability is an industrial
disability to the body as a whole.
5. Claimant's rate of weekly compensation shall be
Page 2
$227.47.
6. The medical bills submitted by claimant at the
hearing are fair and reasonable and causally connected to
the medical condition upon which the claim herein is based,
but that the issue of their causal connection to any work
injury remains an issue to be decided herein.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
I. The extent of claimant's entitlement to disability
benefits; and,
II. The extent of claimant's entitlement to medical
benefits.
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 his demeanor while testifying,
claimant is credible.
Kaser operates a rock quarry in southeast Iowa.
Claimant worked for Kaser from 1984 until March 1990 as a
truck driver at this quarry. Initially, he was assigned to
the job of stockpile driver hauling crushed rock from the
plant to the yard. Later on, he was given the job of pit
truck driver. Claimant was performing this pit truck driver
job when he was injured. Pit truck driving involves the
hauling of "shot rock" or large pieces of rock (up to 6 feet
in diameter) from the quarry to the crusher machine.
Claimant states that there is a great deal of vibration
while driving the pit truck especially during loading when
large rocks are dropped into the truck bed. Occasionally,
he was assigned to other work such as scooping rock which
required heavy repetitive bending and lifting. Claimant's
description of his job at Kaser is uncontroverted and found
to be true.
On or about November 14, 1988, claimant injured his low
back when he attempted to throw a 20-30 pound rock from a
road in the quarry. Claimant slipped and fell and experi
enced the immediate onset of sharp low back pain radiating
into his legs. Again, claimant's testimony is uncontro
verted as to the nature of the injury. Claimant informed
management at the quarry of his injury but continued working
thinking the pain would subside. However, the next day,
claimant could not get out of bed and felt "lightning bolts"
in his leg along with continued sharp back pain. Claimant
first sought care from a chiropractor, James Miller, D.C.
He had been treated by Dr. Miller since a 1978 motorcycle
Page 3
accident for arm and shoulder pain. Dr. Miller stated that
claimant had aggravated a prior existing low back weakness.
Claimant's low back problems continued despite Dr. Miller's
adjustments.
Although he continued to experience symptoms, claimant
returned to work at the quarry on November 21, 1988 and
worked until December 24, 1988, at which time he was laid
off. Claimant and his fellow quarry employees were custom
arily laid off over the winter months each year. As in
prior years, claimant drew unemployment compensation bene
fits over the winter months. According to claimant, he
improved over this lay off period but continued to be
treated for low back pain by Dr. Miller.
Claimant returned to work at the quarry the next spring
on March 16, 1989 and worked continuously over the next
several weeks. At times he worked over nine hours a day.
This work still involved the job pit truck driving.
Claimant then experienced an increase in low back pain and
returned to Dr. Miller for additional treatment on April 24,
1989. The next day claimant left work at the quarry and
began treating with Robert Carleton, D.O. This medical
treatment initially remained conservative with rest and
medication. In May 1989, Dr. Carleton referred claimant to
an orthopedic clinic in Iowa City due to continued low back
and leg pain. Mark Mysnyk, M.D., from this clinic, opined
in July 1989 that claimant's problems were most likely due
to a herniated disc at L5-S1 spinal level of the low back.
Dr. Mysnyk recommended that claimant undergo an epidural
steroid injection for diagnostic and therapeutic benefits.
At that time, claimant was seeing a vocational rehabilita
tion counselor retained by defendants from InterCorp,
Annette Tribble, RSW. Claimant stated that she advised him
to question such treatment. Claimant also received some
advice from family members to forego this treatment as
unduly risky. Claimant then refused this treatment despite
agreement to such a procedure by Dr. Carleton.
Over the next several months, claimant continued to
seek chiropractic care during flare-ups and Dr. Carleton
continued his conservative care. On August 16, 1989,
claimant was evaluated by another orthopedic surgeon, Keith
Riggins, M.D. His diagnosis was two herniated discs in the
lower spine stating that claimant was not a candidate for
surgery. He agreed that claimant should undergo the steroid
injection. However, Dr. Riggins opined a very dismal prog
nosis stating that claimant should not return to manual
labor which requires repetitive bending or lifting or seden
tary work which would not allow claimant to move about. In
September 1989, Dr. Riggins opined that claimant suffers
from a 33 percent whole man impairment and that he did not
consider claimant employable due to his inability to sit for
more than brief periods of time or repetitively bend or
lift. The doctor also opined that based upon claimant's
history of the onset of pain, claimant's current low back
symptoms are secondary to the November 14, 1988 injury at
work.
In November 1989, claimant was evaluated by the Spinal
Page 4
Diagnostic and Treatment Center operated by the orthopedic
department of the University of Iowa Hospitals and Clinics.
Physicians at this clinic recommended that claimant attend
its two week low back rehabilitation program, a rigorous
program of evaluation, physical therapy, work hardening and
vocational counseling. Claimant agreed and completed this
program on January 19, 1990.
At that time, the staff in this clinic found that
claimant was a motivated person; that he is suffering from
disc protrusions of the low back and back spasms; and, that
his work restrictions consisted of no lifting over 35
pounds, no repetitive lifting over 18 pounds and sitting of
only 30 minutes if a back rest is provided. The clinic
recommended that he continue his home exercises and that the
employer should provide occasional chiropractic care during
flare-ups. The clinic did not recommend the epidural
steroid injections. Finally, the clinic stated that
claimant's symptoms are consistent with the November 14,
1988 injury at Kaser.
With reference to claimant's ability to return to work,
the clinic staff concurred with a plan that claimant start
his own painting business but stated that he could return to
work at the quarry but only to driving and not the operation
of dozers.
Claimant then returned to the quarry on February 22,
1990, but was told by the quarry manager that claimant had
to have a full release to duty with no restrictions before
he could return to work. Apparently after discussions with
claimant's counselor at InterCorp, this decision on
claimant's return to work was changed if claimant could work
eight hours a day and if a new seat was provided for the pit
truck. Claimant stated that this new seat was needed to
correct a tilt in the seat rather than to reduce or elimi
nate any vibrations. Claimant's testimony on this point was
uncontroverted. However, a new seat was not readily avail
able and had to be ordered.
During his wait for a new pit truck seat, claimant
returned on March 1, 1990, for a one month follow-up to the
University of Iowa Spine Clinic. At that time, his restric
tions were changed to no lifting over 30 pounds and no
repetitive lifting over 15 pounds and specifically to "no
exposure to vibration more than two hours per day."
Claimant then had a telephone conversation with Kaser's man
ager in Des Moines, Ernest Myers, on March 21, 1990, when
claimant was informed that the new seat arrived and that he
should now return to work. Myers testified in his deposi
tion that claimant voluntarily resigned stating that he was
going after other employment. Claimant's version at hearing
differed. Claimant said that he discussed with Myers
whether or not Kaser could accommodate for the restriction
against vibrations and was told that such an accommodation
was not possible. Whatever was said in this conversation,
it is found that only pit truck driving was offered to
claimant by Kaser and the performance of such a job is
inconsistent with claimant's most recent activity restric
tions imposed by the physicians at the spine clinic.
Page 5
Claimant will probably never return to the type of truck
driving work he performed at Kaser.
About the same time he was released to return to Kaser,
claimant began his own painting business. This business
involves residential, commercial and industrial painting
projects. Claimant must stay within his work restrictions in
his business to avoid severe back pain flare-ups. Claimant
intermittently hires a few persons on an ad hoc basis to
help him in this operation. On one occasion he successfully
bid on a major job in the state of California but sold his
interests in the contract when he felt that he could not
physically handle the job.
With reference to the disputed healing period, claimant
was not working and absent from his job at Kaser from August
16, 1989 through January 19, 1990, upon the advice of his
physicians. It is found that claimant did not reach maximum
healing until his completion of the spine clinic program on
January 19, 1990. Certainly, Dr. Riggins gave an impairment
rating earlier in September 1989, but physicians at the
University of Iowa obviously felt that further physical
therapy was warranted. This therapy proved to be of benefit
to claimant as his condition improved to the point of being
released to light duty type of work. Dr. Riggins had opined
in August 1989, that claimant would not be able to return to
work.
The work injury of November 14, 1988, was a cause of a
seven percent permanent impairment to the body as a whole.
Also, claimant is unable to perform physical activities set
forth by the spine clinic on March 1, 1990. The views of
the spine clinic as the most recent evaluator after its
therapy program is given the greater weight as to the extent
of claimant's abilities. The causal connection between the
November 1988 incident and claimant's current impairment is
based upon the causal connection views of Dr. Riggins and
those of the physicians at the spine clinic. The chiroprac
tor, Dr. Miller, felt that claimant's problems were prior
existing and unrelated to his work. His views cannot be
given greater weight than those of specialists in the field
of orthopedic surgery. The above findings are also based
upon claimant's demeanor at hearing when he testified that
he had no severe low back pain until the November 14, 1988
incident.
Finally, due to resulting permanent impairment and pri
marily the physician imposed work restrictions, the work
injury of November 14, 1988, is a cause of a 75 percent loss
of earning capacity. To date, claimant's earnings have
fallen from over $18,000 to approximately $5,000 annually.
Claimant's only employment history has been in manual labor
occupations of farming and painting. He has had supervisory
experience with a painting contractor but he still was
required to perform physical work in conjunctions with such
duties. Claimant is only able to work as a painter on a
part-time basis. He is unable to return to the quarry work
he was performing at the time of the injury. Kaser has not
offered suitable employment to claimant within his work
restrictions. Claimant is relatively young at age 34 but he
Page 6
is a high school dropout with only a ninth grade education.
He has had no opportunity to obtain his GED. Retraining at
this stage in claimant's life appears unlikely and not fea
sible without major financial assistance. Although he
started his painting business, he has no experience in the
operation of a business. The success of this venture is
impossible to predict at this time. According to his testi
mony at hearing, his earnings in 1991 are not significantly
different than 1990.
CONCLUSIONS OF LAW
I. Claimant must establish by a preponderance of the
evidence the extent of weekly benefits for permanent dis
ability to which claimant is entitled. 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 disabil
ity" is a loss of earning capacity resulting from the work
injury. Diederich v. Tri-City Railway Co., 219 Iowa 587,
593, 258 N.W. 899 (1935). A physical impairment or restric
tion on work activity may or may not result in such a loss
of earning capacity. Examination of several factors deter
mines the extent to which a work injury and a resulting med
ical 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, Feb. 28, 1985).
In the case sub judice, it was found that claimant suf
fered a 75 percent loss of his earning capacity as a result
of the work injury. Such a finding entitles claimant to 375
weeks of permanent partial disability benefits as a matter
of law under Iowa Code section 85.34(2)(u) which is 75 per
cent of 500 weeks, the maximum allowable number of weeks for
an injury to the body as a whole in that subsection.
In this case, a determination of loss of earning capac
ity was made based upon the current earnings of claimant
from his painting business. Obviously, if this business
proves more successful, this agency is available to review
and reopening this award.
Claimant's entitlement to permanent partial disability
Page 7
also entitles him to weekly benefits for healing period
under Iowa Code section 85.34 from the date of injury until
claimant returns to work; until claimant is medically capa
ble of returning to substantially similar work to the work
he was performing at the time of injury; or, until it is
indicated that significant improvement from the injury is
not anticipated, whichever occurs first. As it was found
that claimant was off work and did not reach maximum healing
until January 19, 1990, healing period benefits will be
awarded accordingly to claimant.
II. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. Claimant is entitled to an
order of reimbursement if he has paid those expenses.
Otherwise, claimant is entitled only to an order directing
the responsible defendants to make such payments directly to
the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa
1988). As claimant's current back condition was found work
related and compensable, the parties stipulation as to the
causal connection of the requested medical expenses is
applicable. Such expenses will be awarded accordingly.
ORDER
1. Defendants shall pay to claimant three hundred
seventy-five (375) weeks of permanent partial disability
benefits at a rate of two hundred twenty-seven and 47/l00
dollars ($227.47) per week from January 20, 1990.
2. Defendants shall pay to claimant healing period
benefits from August 16, 1989 through January 19, 1990, at
the rate of two hundred twenty-seven and 47/l00 dollars
($227.47) per week.
3. Defendants shall pay the medical expenses listed in
the prehearing report. Claimant shall be reimbursed for any
of these expenses paid by him. Otherwise, defendants shall
pay the provider directly along with any lawful late payment
penalties imposed upon the account by the provider.
4. 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. Defendants shall pay 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 pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1992.
Page 8
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Page 9
Copies To:
Mr. William Bauer
Attorney at Law
100 Valley St
P O Box 517
Burlington IA 52601
Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Bldg
111 E 3rd St
Davenport IA 52801
5-1803
Filed February 12, 1992
LARRY P. WALSHIRE
before the iowa industrial commissioner
____________________________________________________________
:
LARRY D. ANDRIES, :
:
Claimant, :
:
vs. :
: File No. 954483
KASER CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
UNITED STATES FIDELITY AND :
GUARANTY COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.