Page 1
before the iowa industrial commissioner
____________________________________________________________
:
PAMELA J. WOLVER, :
:
Claimant, :
:
vs. :
: File No. 954492
FRIENDSHIP MANOR CARE CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Pamela Wolver, against her former employer,
Friendship Manor Care Center, and its insurance carrier,
Liberty Mutual Insurance Company. Claimant has alleged a
work-related injury occurring on February 16, 1990.
The matter came on for hearing before the undersigned
deputy industrial commissioner on October 30, 1991, at Des
Moines, Iowa.
The evidence in the case consists of joint exhibits 1
through 9; claimant's exhibits A and B; and, testimony from
the claimant; claimant's mother, Darlene Davis; claimant's
husband; Raymond Wolver; the former director of nursing,
Jackie Cochran; certified nurse's aide, Camella Ent;
rehabilitation assistant Laura Bergman; certified
medications aide, Charlotte Fleming; staff nurse Kathleen
Herman; secretary Patty Gasper; and, the health care
administrator, Patrick Luft.
issues
The prehearing report indicates the following issues
were presented for resolution:
1. Whether claimant received an injury on February 16,
1990, which arose out of and in the course of her
employment;
2. Whether there is a causal relationship between the
alleged injury and the disabilities;
3. Whether claimant is entitled to temporary
disability or healing period benefits, or permanent partial
or total disability benefits;
Page 2
4. Whether claimant is entitled to medical benefits as
governed by Iowa Code section 85.27; and,
5. Whether claimant is an odd-lot employee.
Defendants have raised the affirmative defense of lack
of timely notice of the injury as provided for under Iowa
Code section 85.23.
findings of fact
The undersigned deputy, having reviewed all the
evidence received, finds the following facts:
Pamela Wolver was born on July 6, 1959. At the time of
the hearing, she was 32 years of age.
She is a 1977 graduate of Grinnell High School, in
Grinnell, Iowa. She continued her education by taking night
courses at the Marshalltown Community College through
employment with GTE. She received certificates in
information, data and word processing. She also has
obtained a nurse's aide certificate.
During high school, claimant worked as a waitress.
Upon graduation, she worked for her GTE in the automation
department.
In March of 1989, claimant began working for Friendship
Manor Care Center, beginning as a nurse's aide and in
October 1989, a certified nurse's aide. Her job duties
consisted of the overall care of patients.
Claimant testified that on February 16, 1990, as she
was leaning over a bed trying to change the sheets and
undergarments of a resident, Velma Burnham, the resident hit
her several times on the lower back. Claimant testified
that she heard a "crack" in her low back. Claimant
proceeded to finish her work, and reported the incident to
Jackie Cochran, director of nursing at the facility.
According to the claimant, Ms. Cochran told her to report to
the head nurse, Kathy Herman, to fill out an incident
report.
Claimant testified that she told numerous co-employees
about the incident, including: Cam Ent; Laura Bergman;
Patty Gasper; and, Jackie Cochran. Claimant also stated
that when she spoke to Jackie Cochran regarding the
incident, she also showed Ms. Cochran her back which,
according to claimant, had red spots which were due to the
incident with the resident.
Next, claimant went to her mother's house at
approximately 1:00 p.m. Darlene Davis, claimant's mother,
stated that she observed welts on claimant's back, which
were red, white and blue in color. Ms. Davis stated that
when claimant entered the house, she could barely walk and
told her mother that she had been hit at work.
Page 3
Mrs. Davis called Jerome Wehr, M.D., a family
practitioner, in Grinnell, Iowa. Although claimant stated
that she told both the nurse and Dr. Wehr of the incident at
work, Dr. Wehr's notes, dated February 16, 1990, indicate:
"Low back pain secondary to strain with radiation of pain
into the legs with negative neurologic exam. Negative
straight leg raise." (Joint Exhibit 1, page 96)
In his deposition, Dr. Wehr indicated that if claimant
had told him of a work-related incident, he would have
documented the information in his notes (Jt. Ex. 7, pp. 23-
24, 33).
Apparently, claimant's husband, Raymond Wolver, also
accompanied claimant to the doctor. He testified that he
did not see any marks on claimant's back prior to or during
Dr. Wehr's examination.
Claimant was given a prescription for Voltaren and was
to return to Dr. Wehr if the symptoms persisted.
Claimant returned to work and on February 17, 18, 19
and 21, 1990, and worked seven and one-half hour shifts on
each day. Her last day of work at the facility was March 1,
1990, when she worked one hour and subsequently took a
medical leave of absence (Jt. Ex. 4).
Claimant continued to see Dr. Wehr and underwent a CT
scan on March 6, 1990. The results of the CT scan revealed
a bulging disc at the L4-L5 level, with possible lateral
herniation at the L5-S1 level. She was referred to R.P.
Reschly, M.D., for further treatment. She was initially
treated on March 16, 1990, and Dr. Reschly's notes indicate:
"This 30-year-old female is referred by Dr. Wehr regarding a
back problem. The patient works as a certified nurse aide
at Friendship Manor. She has had no previous problems, and
she had the gradual onset of low back pain on March 1st.
She has no known injuries that she can recall at the present
time." (Jt. Ex. 1, p. 92)
Upon examination, claimant displayed pain in the low
back, left buttock and down the lateral side of the left
thigh. Objective findings were "equivocal," but Dr. Reschly
contemplated an MRI scan or a myelogram (Jt. Ex. 1, p. 92).
Claimant returned to Dr. Reschly one week later, and
his notes indicate the following:
This patient simply does not strike me as being
as painful as apparently is true, but it may be
one of those failures of communication between the
doctor and the patient. I am going to go ahead
and get an epidural injection for the patient, and
I have asked her back in ten days. We will get an
MRI scan in the future if she has no relief from
the epidural injection. Obviously the patient
needs to stay off work.
(Jt. Ex. 1, p. 92)
Page 4
Claimant continued to treat with Dr. Reschly, and on
follow-up visits, he noted that she had gained some
additional mobility in her low back following the epidural
injections. His notes indicate that claimant continued to
complain of pain around both ankles, although he indicated
that this pain was independent of the back pain. In May of
1990, claimant was released from Dr. Reschly's care with a
lifting restriction of not more than 30 pounds (Jt. Ex. 1,
pp. 90-92).
In August of 1990, claimant returned to Dr. Wehr,
apparently requesting a disability impairment rating. Dr.
Wehr recommended physical therapy and that she see an
orthopedic surgeon for the rating (Jt. Ex. 1, p. 82).
Claimant underwent physical therapy at Grinnell General
Hospital for approximately one month (Jt. Ex. 1, pp. 7-79).
In September of 1990, claimant saw Robert Hayne, M.D.,
a neurological specialist. Upon his review of the CT scan,
he recommended surgical treatment for a herniated disc at
the fifth lumbar interspace on the right side (Jt. Ex. 1, p.
76).
She was scheduled for surgery on November 13, 1990, and
on October 17, 1990, again visited Dr. Hayne having
encountered another episode of low back pain which radiated
into both lower extremities (Jt. Ex. 1, pp. 74-75).
Although no hospital records were offered into
evidence, apparently claimant underwent a successful
laminectomy performed by Dr. Hayne, who later on felt that
claimant had sustained an 8 percent impairment to the body
as a whole "as a result of the symptomatology requiring a
laminectomy on December 13, 1990." (Jt. Ex. 2)
Claimant has a history of mental illness, including two
hospitalizations for a chemical imbalance which produces
schizophrenia. Symptoms displayed by claimant have been
visual and auditory hallucinations (Jt. Ex. 1, pp. 97-135).
Physically, claimant's past history is unremarkable, al
though she was involved in an automobile accident at the age
of 16 or 17. For the injury sustained, she underwent
physical therapy for approximately three years following the
accident. However, there is no evidence that claimant
sustained any type of permanent injury in the automobile
accident.
analysis and conclusions of law
The first issue to be addressed is whether claimant
received an injury on February 16, 1990, which arose out of
and in the course of her employment with the defendant
employer, Friendship Manner Care Center.
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).
Page 5
Claimant has the burden of proving by a preponderance
of the evidence that the injury arose out of and in the
course of the employment. McDowell v. Town of Clarksville,
241 N.W.2d 904 (Iowa 1976).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63.
"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
Defendants' case included testimony from Jackie
Cochran, who held the position of director of nursing at the
time of the alleged incident. As director of nursing, she
was familiar with the claimant and stated that she
thoroughly reviewed with the claimant the procedures to
follow in case of a workers' compensation injury. Ms.
Cochran said that claimant told her she had been hit and
hurt by the resident, Velma Burnham. The witness also
denied that claimant contacted her in the office on February
16, 1990, and Ms. Cochran denied that she told claimant to
report to Nancy Herman, the charge nurse on duty.
Additionally, the witness offered that she specifically
asked the claimant if she had been injured at work, and
claimant stated she did not remember getting hurt at work.
Also testifying on behalf of the defendants was Camella
Ent, a certified nurse's aide at the Friendship Manor Care
Center. She was familiar with claimant, and had worked with
her for approximately two years. Ms. Ent testified that
claimant never told her about the episode with Velma Burnham
or any other residents, and that she was unaware that
claimant had sustained an injury to her low back while at
work. The witness was also familiar with the resident,
Velma Burnham, and described her as being approximately four
feet four inches tall and weighing 130 pounds. She did
indicate that the resident had a reputation of trying to hit
or slap people.
Laura Bergman also testified for the defendants. She
is a rehabilitation assistant with the Friendship Manor Care
Center. She is familiar with the claimant, and testified
that claimant never told her about the incident with Velma,
Page 6
and was unaware that claimant had been hurt or injured while
at work. Ms. Bergman was also familiar with Velma Burnham
and stated that this resident would try to swat at people,
but was unable to hit hard. Although she described the
resident as at times being difficult, she stated that it was
not so much as to fear safety. This witness described Velma
as weighing approximately 100 pounds.
Another witness and employee of the Friendship Manor
Care Center was Charlotte Fleming who works as a certified
medications aide. She also offered that she was never told
by the claimant that claimant was injured while at work, and
was unaware of any low back injury claimant had sustained.
She also was aware that the resident, Velma Burnham, had a
reputation of trying to swat people, but would never hurt
anyone. She described the resident as being approximately
four feet tall, and weighing 124 pounds.
The staff nurse, Kathleen Herman, also testified at the
hearing. She was claimant's supervisor in February of 1990.
She testified that claimant did not report the injury to
her, and she did not remember any incident involving the
claimant and the resident. She stated that incident reports
are filled out for even the most minor incident, and that
the report is then given to the director of nursing.
Patty Gasper, a secretary and bookkeeper for defendant
Center, also testified. She indicated that she was familiar
with the claimant, and stated that the claimant did not
report any work-related injury. She did state that a first
report was filled out in July of 1990, which she stated was
the first she knew of any incident regarding the claimant
and a work-related injury. She described the resident as
being approximately four feet tall, and weighing between 115
to 120 pounds. The witness stated she had no knowledge of
the incident.
Finally, Patrick Luft, the health care administrator at
the facility, also testified on behalf of the defendants.
He remembers that on March 1, 1990, he was involved in a
discussion with Jackie Cochran and the claimant and
discussed a medical leave of absence. He stated that
claimant was asked whether the injury was work related, and
claimant stated that it was not. He also remembered a
meeting with the claimant and her husband in his office on
or about March 15, 1990, and that both the claimant and her
husband both asked whether the injury would be covered by
workers' compensation. He testified that he told them to
proceed to the nurse's station to fill out an incident
report if claimant believed it was work related. He further
stated that claimant never returned to the center after
March 15, 1990, and at no time explained to him the incident
with Velma Burnham, the resident accused of striking and
hurting claimant. Mr. Luft stated that the first time he
knew a claim was being made was in July of 1990 when he
received a letter from claimant's attorney.
As is many times the case, claimant presents a
completely different version of the incident than what is
remembered by the defendant. Initially, claimant's own
Page 7
attorney was unsure of the date claimant was injured, as he
sent a notice to the employer that claimant was injured on
April 24, 1990. It would seem logical that the attorney
received this information from the claimant herself.
Likewise, claimant applied for unemployment benefits in May
of 1990, and stated that she sustained a ruptured disc in
her back, and went on to state that "the lifting aggravated
the condition." Claimant wrote on the unemployment appli
cation that "on February 16, [1990], I started having back
pain. On February 22, 1990, [I] started seeing doctor."
(Cl. Ex. B, pp. 36-37)
Patty Gasper also testified that during the
unemployment hearing, claimant did not mention the attack by
the resident, Velma Burnham.
In determining whether claimant has sustained her
burden of proof, it is necessary for the undersigned to look
at both the consistency and credibility of claimant's
rendition of the facts.
Both Dr. Reschly's and Dr. Wehr's notes are in direct
conflict with claimant's recollection and testimony
regarding the events that led to her physical problems and
medical treatment. As stated under the Facts section of
this decision, Dr. Wehr's notes make no reference to a work-
related incident which caused the back pain. Likewise, Dr.
Reschly's notes indicate that claimant was unable to
remember an injury which caused a "gradual" onset of low
back pain. If claimant had sustained an injury while at
work on February 16, 1990, it seems reasonable that she
would remember the incident one month later, when she first
visited Dr. Reschly.
Likewise, his notes are inconsistent with claimant's
description of the injury, which she stated produced
immediate pain and necessitated medical treatment.
Although the descriptions of the resident, Velma
Burnham, were varied, it seems that the resident would be
unable to seriously hurt someone while in a prone position
having her undergarments changed. Likewise, claimant's
story has several versions, and although it would be
acceptable to the undersigned to have a variance of several
days of when an incident actually occurred, it seems
unfortunate that claimant testified that she told a group of
co-employees who later testified at the hearing stating that
she did not tell any of them that she had been injured by
the resident. Although it has been the experience of the
undersigned deputy that nurses' assistants are likely to
injure their lower backs while working, unfortunately,
claimant has failed to sustain her burden of proof and show
that she was injured while working at the care center. As a
result, claimant takes nothing from these proceedings.
order
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
Page 8
That defendants shall pay the costs of this proceeding.
Signed and filed this ____ day of December, 1991.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Joel Greer
Attorney at Law
112 W Church St
Marshalltown IA 50158
Mr James C Huber
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309
Mr John C Heinicke
Attorney at Law
920 Main St
Grinnell IA 50112
5-1100
Filed December 5, 1991
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
PAMELA J. WOLVER, :
:
Claimant, :
:
vs. :
: File No. 954492
FRIENDSHIP MANOR CARE CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100
Claimant failed to sustain her burden of proof to show that
she sustained an injury which arose out of and in the course
of her employment. The history given to several doctors
made no mention of a work-related injury, and claimant's
testimony was inconsistent with the documentary evidence
presented.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JOANN SEVERINO,
Claimant,
vs. File No. 954502
RUAN TRANSPORTATION CORP., A P P E A L
Employer, D E C I S I O N
and
RELIANCE INSURANCE COMPANY,
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 February 10, 1994 is affirmed and is adopted as the
final agency action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of July, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harry W. Dahl, Sr.
Attorney at Law
974 73rd St., Suite 16
Des Moines, Iowa 50312
Ms. Iris J. Post
Attorney at Law
P.O. Box 10434
Des Moines, Iowa 50306
1803; 1802; 2701; 4100; 5-1700
Filed July 20, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JOANN SEVERINO,
Claimant,
vs. File No. 954502
RUAN TRANSPORTATION CORP., A P P E A L
Employer, D E C I S I O N
and
RELIANCE INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
1803; 1802
Found claimant incurred a 40 percent industrial disability
and a healing period of June 8, 1990 through March 10, 1992
except for a period beginning July 22, 1991 through October
6, 1991, as a result of her June 7, 1990 work injury.
2701
Found claimant is entitled to go to inpatient or outpatient
pain clinic recommended by Dr. Friedgood. The employer may
choose one of the pain clinics recommended by the doctor and
defendants shall pay the costs.
4100
Found claimant is not an odd-lot candidate.
5-1700
Found defendants are entitled to credit for the long-term
disability benefits claimant received from a policy solely
paid for by the defendants.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JOANN K. SEVERINO, :
:
Claimant, :
:
vs. :
: File No. 954502
RUAN TRANSPORTATION CORP., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
RELIANCE INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on December 28, 1993 at
Des Moines, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of an alleged injury
occurring on June 7, 1990. The record in the proceeding
consists of the testimony of the claimant and Jack Reynolds;
claimant's exhibits 1, 2(a) through 2(s), 3, 4, 5, 6; and,
defendants' exhibits A through K. There are two additional
defendants' exhibits 1 and 2 which were offered in evidence
concerning the argument on the hearing report filed in this
case. Those two exhibits strictly have to do with said
hearing report issue that was ruled upon at the hearing.
ISSUES
The issues for resolution are:
1. The nature and extent of claimant's permanent
disability and entitlement to disability benefits and the
commencement of any benefits, awarded;
2. An 85.27 alternate care issue;
3. Under 85.38(2( whether defendants are entitled to
credit for payments made to claimant under a disability
policy; and,
4. Whether claimant is an odd-lot candidate.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant testified in person and through her deposition
(Defendants' Exhibit B) taken March 23, 1992. Claimant is a
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44-year-old high school graduate. She related her work
history up to the time she began working for defendant
employer in November of 1979, where she is still employed.
Her past history involved working in a discount chain doing
bookkeeping and accounting, working for Bankers Life, which
is now Principal, in the group insurance department. She
also worked at a lounge which was owned by an individual
whom she later married and worked there until her husband
closed it and went out of business.
Claimant described what her eight hour day was
comprised of in connection with her job with defendant
employer in the accounts receivable department.
On June 7, 1990, claimant was putting a large box on
the desk and filling it and was to set it on the floor near
her desk. Someone indicated to her that she couldn't leave
it there so she carried it 20 feet. When she picked it up
she felt a pain in her lower back. She called her husband
to come and get her. Claimant then related the medical
services she sought. Claimant indicated that Thomas
Carlstrom, M.D., performed surgery on her in December of
1990. Claimant related that she had back surgery in 1987
from which she said she received good results and that she
had gotten over it and had no restrictions except she had a
work weight limit of 25 to 40 pounds. She said normally
nothing at work exceeded that limit.
Claimant said that her problems were different from her
December 1990 surgery and that her left leg was like it was
dead and she drags it. Claimant had her first surgery in
July 1990 as a result of this June 7, 1990 injury and after
that she was still having low back pain.
Dr. Carlstrom referred claimant to Craig DuBois, M.D.,
who did various tests and prescribed certain therapy.
Becky Johnson, from Principal Financial, a
rehabilitation individual, talked to claimant on December
23, 1990, and she had no job or suggestions for claimant but
indicated she was still trying to find something claimant
could do. Claimant said she has had no contact with the
rehabilitation person since June 1992 and was given no job
prospects. Claimant said she knows of no job opportunities
but would like to do a job at home.
Claimant said David L. Friedgood, D.O., a neurologist,
wanted claimant to get into a pain management program.
Claimant indicated she never did go through this type of
program.
Claimant acknowledged she received long-term disability
from an insurance policy with Principal Insurance Company
that was totally contributed to by the employer and was a
benefit provided for her. She indicated that she originally
was getting $755.04 per month until June of 1993, at which
time it was ultimately reduced to $600.04 net as the
insurance company began taking the required tax withholding,
etc., out of the gross amount.
Page 3
It appears claimant was receiving workers' compensation
benefits in a weekly amount of $198.82 to and including
October 11, 1991, and since that time the long-term
disability referred to above began.
Claimant acknowledged that in February 1987 she had a
low back injury at defendant employer and received workers'
compensation weekly benefits and 10 percent permanent
partial disability. She said Dr. Carlstrom was the treating
physician and surgeon. She had surgery in March 1987.
Claimant said she returned to work in June 1987 and kept
treating with the doctor but does not know how long
thereafter but acknowledged that if the medical records show
that she saw the doctor until January 1988 she would not
dispute that. Claimant acknowledged that she had a weight
lifting restriction of 25 to 40 pounds as a result of that
injury.
Claimant indicated that when she was released to return
to work after her June 7, 1990 injury, she intended to work
full-time eight hours a day but could only do four hours and
she said the doctor agreed to that. Claimant acknowledged
that in 1992 she flew to visit her husband's brother.
Claimant said her husband is currently disabled.
Claimant said she has never had a driver's license so she
took the bus to her work.
David L. Friedgood, D.O., testified through his
deposition on December 21, 1993, that he is a neurologist
and that he first saw claimant in November of 1992. He
understood at that time that claimant had had two additional
low back surgeries at L4-5 performed by Dr. Carlstrom
pursuant to an injury on June 7, 1990.
The doctor agreed with Dr. Carlstrom that claimant's
two surgical procedures in 1990 were precipitated by a
lifting incident in June of 1990 at claimant's place of
employment. He also indicated that claimant had a
preexisting injury to her back which made it more likely
that she would injure it a second time. He again emphasized
that the cause of the second surgery and the ultimate third
surgery was caused by the claimant's injury in 1990.
(Claimant's Exhibit 4, pages 6-7) He acknowledged that the
claimant indicated to him that she had good results from the
1987 L4-5 surgery with a return to work but that the
subsequent two surgeries were not as successful.
His examination indicated claimant had decreased
sensation in the left leg and no left ankle reflex. He
concluded that she had damage to the left fifth and lumbar
fifth and first sacral nerve roots. He opined that claimant
did have pain resulting from the June 1990 injury and
subsequent surgery.
He was referred to his November 20, 1992 report (page
2) in which he indicated claimant was in quite a bit of
difficulty functioning anywhere at normal level because of
her pain. He prescribed the pain center but he understood
it was not provided to her. The doctor said he is very
Page 4
familiar with the pain center and works with them on a
regular basis. He indicated they do work in a general
sense. He said they don't cure people but they give a
patient understanding of their problem and work with them to
get them more functional in teaching him to deal with their
incurable symptoms. The doctor opined that claimant is a
candidate for the pain center and that she should get
involved with it.
The doctor then described subsequent visits with
claimant. He indicated that on her next visit she was
having right-sided pain which she indicated likely resulted
from her overcompensating and using her right leg a little
differently due to her left leg problem.
The doctor described the various other visits and exams
claimant had with him, the last being November 22, 1993. He
indicated claimant continued to have pain in her low back
and down her left leg and that she was still getting
residuals of her 1990 injury and two resulting surgeries.
The doctor opined that claimant cannot work because of her
severe pain and that he was still recommending a pain clinic
in which she would also get a vocational counselor and
psychological counselor, therapy and exercise in connection
with said program. He further stated that if his
recommendation for treatment was carried out claimant should
expect a lot less pain and discomfort and that she would be
more functional and he would expect her to get back to a
point where she would be able to work on a part-time basis
and hopefully eventually a full-time basis. He saw nothing
on her physical examination that would preclude that. The
doctor indicated that claimant cannot work because of her
severe pain. He indicated he did not believe Dr. Carlstrom
assumed any of claimant's pain in his evaluation but based
his permanent impairment strictly on a functional
impairment. The doctor emphasized again that he did not
think everything has been done for this woman that could be
done and he mentioned several places in which there are good
pain clinics.
The doctor indicated he had given claimant the
restriction of 25 pounds and no repetitive lifting. He
further indicated that claimant's job as an accounting clerk
at defendant employer fell within these restrictions and
there is nothing functionally that prevents claimant from
returning to her employment but that it is her complaints of
pain. He further indicated that his recommendation of a
pain clinic to deal with claimant's chronic pain helped
people get back to work in employment whereas if they are
unable to deal with their pain they tend not to be
functional. (Cl. Ex. 4, pp. 21-23)
John M. Severino, claimant's husband, testified through
his deposition taken January 7, 1993. (Def. Ex. A) Mr.
Severino indicated that he and his wife watch their
grandchildren on occasion but that his wife will not watch
them alone if he is not there because they want to be picked
up. Two of the grandchildren are ages 4 and 2 and she has
not picked them up since her injury. He also indicted they
have another grandchild who is less than a year old and she
Page 5
has carried that child. He said his wife has a concern
regarding her back in relation to picking up the kids. He
said she walks with a limp, dragging motion, and sometimes
walks with a cane. He said she performs very few activities
around the home. Mr Severino said that claimant has not
worked since her injury other than trying to go back to
defendant employer on one occasion and she applied at a
telemarketing job.
Randy J. Sackett testified through his deposition taken
June 28, 1993. (Def. Ex. C) Mr. Sackett is the director of
human resources for defendant employer and has held this
position approximately three and one-half years at the time
of his deposition. He indicated he had nothing that
indicated claimant should not return to employment and that
if she was released to return to work he would make every
effort to find a position for claimant and it wouldn't
necessarily be the same position she had at the time of her
injury but would be comparable. He acknowledged that the
wages would be the same. He acknowledged that he attempted
to bring claimant back at shorter hours per day in 1991 and
it was to be for approximately four hours per day and would
gradually increase. He indicated that in fact claimant's
hours decreased to the point that they were not getting in
the hours so he understood it was suggested claimant go back
for some more rehabilitation. She then went back on
workers' compensation leave. He understood there was
nothing derogatory as to claimant's work or employment
history with defendant employer.
Linda Cornell testified through her deposition on June
20, 1993, that she is employed with defendant employer as
accounts receivable supervisor and has worked there for 19
1/2 years. She was acquainted with the claimant as a fellow
employee and worked in the same area as claimant. She
described the nature of claimant's business which was
working basically with Avis Rental Agreements. This job
required her to take files from the file cabinet, put then
in a box, box them up and send them over to the annex once a
month. She further described the size of the boxes,
approximate number of files, etc.
She said claimant did a good job and was very
knowledgeable about the job as she had been at it for
several years.
When claimant came back to work to try initially four
hours a day, Ms. Cornell indicated the jobs were sort of
make work for the claimant and Ms. Cornell knew claimant
couldn't lift and understood that was the instruction from
the doctor. She said claimant was slower at moving. She
said the claimant did the work fine and didn't notice any
difference on the way she did the work before the injury
complaint.
Defendants' exhibit I, page 9, is the department of
radiology report of Iowa Methodist which indicates that in
February of 1987 claimant had a disc herniation protruding
centrally and on the left side at the 4-5 interspace. It
would appear to the undersigned from the evidence that
Page 6
claimant recovered at least from this event as far as Dr.
Carlstrom's February 18, 1988 opinion in which he indicated
claimant had a 10 percent body as a whole impairment. The
evidence seems to indicate that claimant got along well and
this condition that existed at that time up through the
February 1988 letter of Dr. Carlstrom was not bothering
claimant at the time of her June 7, 1990 injury.
The reports of Dr. Carlstrom are confusing and there
are some of the same but also different correspondence from
Dr. Carlstrom that is presented by the defendants and the
claimant.
An October 10, 1991 report of Dr. Carlstrom shows he
opined a 20 percent body as a whole impairment. On March
10, 1992, he opined a 20 percent body as a whole impairment.
On April 30, 1992, he opined a 10 to 12 percent body as a
whole impairment. On June 18, 1992, he opined a 10 to 12
percent body as a whole impairment and indicated there was
no change since April 1992. In October 1992, he indicated
in his report that he thought that part-time light duty
activity would be in order and he recommended it. The
undersigned did not see anything in the record to show any
noticeable change between the March 10 and April 30 reports
in which he went from 20 percent down to 10 to 12 percent.
In Dr. Friedgood's December 19, 1993 deposition
(Claimant's exhibit 4), he referred to Dr. Carlstrom's
October 1991 impairment rating of 20 percent of the body as
a whole. There is no indication that the doctor disagreed
with that. In the doctor's April 1992 letter (Cl. Ex. 2(L),
p. 117) he went on to indicate that claimant also sustained
an impairment due to other procedures and he considered
those separately. This seems to indicate that there would
be additional impairment to the 10 to 12 percent or 20
percent body as a whole but there is no further indication
of that being specifically set out as an add-on.
Page 22 of defendants' exhibit H (answers to
interrogatories), the claimant answered interrogatory number
24 by indicating that Dr. Carlstrom opined that claimant had
sustained a 10 to 12 percent permanent partial disability to
the body as a whole and that she sustained a 20 percent
permanent partial disability rating to the body as a whole
which is separate and above from the leg injury rating. The
undersigned wonders if the doctor was trying to take the
place of the deputy and determine claimant's industrial
disability or was he confusing disability with impairment
which is often done by the medical profession. There is
still nowhere in the record that indicates two separate
impairments, one 10 to 12 and another add-on which would
reach a 20 percent permanent partial impairment. Where the
claimant is getting the idea that there is two separate
impairment ratings on two different parts of the body is
unknown to the undersigned.
It does appear to the undersigned that Dr. Carlstrom in
his impairment opinions is not taking into consideration
claimant's pain which it appears from the evidence is real
and that he was strictly relying on the impairments
Page 7
resulting from the two surgeries in 1990 which has clearly
been indicated by the record to have resulted from the June
1990 work injury.
The doctor did in his March 1992 letter indicate that
future work activity of the claimant will need to be
significantly restricted with avoidance of heavy lifting, 20
pounds being about the maximum, and avoidance of forward
bending, twisting, prolonged sitting, or standing an hour in
any one position being considered about maximum.
Claimant's exhibit 1 is Dr. Friedgood's reports and
notes to which is referred to in his deposition and the
undersigned sees no reason to further set them out herein.
The undersigned is surprised that with the number of reports
Dr. Friedgood wrote, he did not give his own individual
impairment rating. It is clear that he strongly suggested
claimant enter a structured pain clinic program and that she
will need regular physical therapy support and psychological
care and vocational rehabilitation counseling. (Cl. Ex. 1,
June 16, 1993 report, page 2)
Jerome B. Bashara, M.D., made an evaluation on August
5, 1993, and opined that claimant had a 17 percent permanent
partial impairment of the body as a whole related to her
injury at work in June of 1990, and recommended a permanent
lifting restriction but no excessive repetitive bending,
stooping or twisting of her lower back. (Cl. Ex. 2(A))
Claimant's exhibit 2(B) is the records from the Iowa
Methodist Hospital and the Pain Management Center. It
appears to the undersigned that this is not the pain clinic
or type of treatment Dr. Friedgood was recommending. It
appears claimant was getting more or less consulting-type
recommendations and guidance as a result of going to this
Iowa Methodist Pain Management Center under the care of Dr.
DuBois.
Claimant's exhibit 2(D) is a report of the Crawford
Health and Rehabilitation Services. It would appear on page
31 of said report that they opine that claimant may have
benefit from a formal rehabilitation/pain management
program, however, they said she was currently enrolled with
Dr. DuBois. It would appear to the undersigned that they
are recommending something similar to Dr. Friedgood and not
necessarily what she was having done through Iowa Methodist
Pain Management or Dr. DuBois. This opinion was reiterated
in later reports (Cl. Ex. 2(D), pp. 34 and 39). In that
same February 10, 1992 report, they refer to Dr. Carlstrom's
20 percent permanent partial disability rating to the body
as a whole. The undersigned believes they mean permanent
impairment rating.
Defendants' Exhibit K is the disability policy and it
is obvious to the undersigned this is a policy totally paid
for by the employer.
There is no dispute that claimant incurred a work
injury on June 7, 1990 which arose out of and in the course
of her employment and there is a dispute as to the extent of
Page 8
any temporary total disability or healing period.
Defendants agree that there is some permanent disability and
it is the extent of said disability which is one of the
issues in dispute.
The undersigned finds that claimant has a permanent
impairment and permanent restrictions. As indicated
earlier, there is a question as to the extent of that
impairment but it appears to the undersigned to be as high
as 20 percent and under no circumstances less than 10
percent of claimant's body as a whole. Claimant has had two
back surgeries resulting from her June 7, 1990 injury.
Claimant has worked very little since her injury, having
gone back to work and attempted to work initially four hours
a day and hoping to work up to full employment but never
reached that goal. In fact, she was unable to comply with
the four hours per day. It appears the defendant employer
tried to accommodate the claimant. It appears that the
nature of the work the employer provided to accommodate the
claimant was within her restrictions but the pain claimant
was having affected her concentration and affected her
ability to actually do the work that was otherwise within
her restrictions.
Dr. Friedgood recommended some qualified pain clinics
that claimant should go to. He emphasized this would not
cure claimant but would and could very well help her in her
pain management and with the proper counseling, that would
enable her to go back to full-time employment. It appears
this had been recommended by another doctor but never
approved by defendants. Dr. Carlstrom seemed to indicate
that claimant did have some pain management but it is
obvious to the undersigned that the type of pain management
was ineffective and was not the type that could be effective
and as the type recommended by Dr. Friedgood who had special
knowledge in working with the proper type of pain clinic
that would fit within his idea of a qualified pain clinic.
It appears the pain management that claimant may have had at
Iowa Methodist was more on a consulting and
recommending-type of situation and was not the type of pain
clinic that claimant needed or would benefit from.
The employer, of course, can reduce the industrial
disability if in fact a proper pain clinic inpatient or
outpatient program was used. Defendants apparently felt it
was not necessary or took risks that they would rather take
their chances with the extent of claimant's industrial
disability without making an attempt. This must have been
an economic decision and yet at this stage it is yet to be
seen whether it was a good economic decision on behalf of
defendants.
The undersigned finds that in regard to the issue of
alternate care, claimant is entitled to go to one of the
pain clinics recommended by Dr. Friedgood and that
defendants shall have the right to pick one of those
suggested by Dr. Friedgood. It appears to the undersigned
that with claimant not being employed, an inpatient program
would be the best under the circumstances. Therefore, if
Dr. Friedgood suggests that an inpatient pain clinic under
Page 9
the circumstances would be the best, then claimant is
entitled to have an inpatient pain clinic program versus an
outpatient program set up and she shall have the right to go
to it. Of course, hopefully, this will help claimant and
may reduce claimant's ultimate industrial disability and may
result in a reopening of this matter. Claimant shall comply
with the requirements and dictates of the pain clinic and
follow the procedures without fail and without missing any
sessions.
The undersigned finds that the claimant has a severe
permanent impairment and restrictions and that she also has
a loss of income and earning capacity. The undersigned
further finds that claimant is not an odd-lot candidate and
is not totally permanently disabled and that claimant has
not made a strong effort to find employment or make
application or inquire as to employment. The undersigned
believes that claimant is feeling more at ease now at home,
particularly with her husband being disabled and that it is
more convenient for her to stay at home and not seek
employment and continue to be on long-term disability and/or
workers' compensation. The undersigned believes that
claimant needs more motivation and more effort to try to
help improve herself.
There is an investigative report and two surveillance
videos represented by defendants' exhibit G. Those do raise
a question as to the extent of claimant's ability to do
things and yet claimant is not totally disabled and should
be expected to carry on certain normal life functions and
should be able to do those same functions even though she
may be in pain in doing them. Claimant is not an invalid.
The undersigned is concerned that claimant may convince
herself eventually that she is totally disabled if she does
not motivate herself and make further attempts for
employment or to improving herself.
Taking into consideration claimant's medical history
prior to and after her injury; her work experience; her
transferable skills; the extent of her permanent impairment;
her age and education; the location and severity of her
injury; the extent of her healing period; her motivation;
and the employer's attempt to accommodate her and inability
to accommodate her due to her injury, the undersigned finds
that claimant has incurred a 40 percent industrial
disability. The undersigned further finds that any
preexisting condition claimant had was not affecting her at
the time of her injury and that under Bearce v. FMC
Corporation, 465 N.W.2d 531 (Ia. App. 1991), there is no
offsetting of any prior permanent impairment against any
ultimate impairment and its effect on the ultimate
conclusion and determination of claimant's industrial
disability.
There is a dispute regarding claimant's healing period
to the extent that claimant contends if claimant is not
totally disabled her healing period ended June 16, 1993.
Defendants contend it ended on October 10, 1991, at which
time the doctor opined claimant had a 20 percent permanent
impairment. The undersigned notes that on claimant's
Page 10
exhibit 2(L), page 119, the doctor also indicates in the
October 11, 1991 report that he did think her symptoms might
improve somewhat. The undersigned does not believe that
claimant in fact had reached maximum healing on October 10,
1991. As indicated earlier, Dr. Carlstrom's reports are
somewhat confusing as to what in fact he finally concluded
claimant's permanent impairment is and what made him change
in certain letters the extent of claimant's permanent
impairment to her body as a whole.
The undersigned finds that the March 10, 1992 letter
(Cl. Ex. 2(L), p. 118) is a better date to determine that
claimant reached maximum healing. In that same letter, he
indicated that claimant was to begin vocational
rehabilitation in October 1991 and he hadn't seen her since.
It would appear that he thought it might help claimant and,
therefore, the undersigned finds that claimant's healing
period ended on March 10, 1992. The undersigned further
finds that claimant did attempt to return to work part-time
and was unable to continue. Therefore, said healing period
was interrupted July 22, 1991 through October 6, 1991.
As to the 85.38(2) issue, the evidence is clear that
the long-term disability policy was paid for by the
defendants and there was no contribution to the premium by
the claimant. Defendants are therefore to be given credit
for any benefits paid under the group plan. Any credit to
be given shall be the net long-term disability payments. In
other words, the undersigned understands that the gross
payment was $755.04 and that after deducting the required
withholding taxes and social security, the claimant's net
amount she was to receive is $600.04. The evidence
indicates that claimant was receiving the gross amount at
one time until later it was determined that these benefits
were taxable and subject to the normal withholding of taxes.
There was a discussion at the hearing and the undersigned
emphasizes that it is the net amount that is the offset
against any workers' compensation benefits as a credit and
the parties are responsible for determining the amount that
has been paid and the extent of the credit following the
guidelines of decision set out herein.
CONCLUSIONS OF LAW
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
Page 11
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa
1985), the Iowa court formally adopted the "odd-lot
doctrine." Under that doctrine a worker becomes an odd-lot
employee when an injury makes the worker incapable of
obtaining employment in any well-known branch of the labor
market. An odd-lot worker is thus totally disabled if the
only services the worker can perform are "so limited in
quality, dependability, or quantity that a reasonably stable
market for them does not exist." Guyton, 373 N.W.2d at 105.
The burden of persuasion on the issue of industrial
disability always remains with the worker. When a worker
Page 12
makes a prima facie case of total disability by producing
substantial evidence that the worker is not employable in
the competitive labor market, the burden to produce evidence
of suitable employment shifts to the employer, however. If
the employer fails to produce such evidence and if the trier
of fact finds the worker does fall in the odd-lot category,
the worker is entitled to a finding of total disability.
Guyton, 373 N.W.2d at 106. Even under the odd-lot
doctrine, the trier of fact is free to determine the weight
and credibility of evidence in determining whether the
worker's burden of persuasion has been carried, and only in
an exceptional case would evidence be sufficiently strong as
to compel a finding of total disability as a matter of law.
Guyton, 373 N.W.2d at 106.
Apportionment of disability between a preexisting
condition and an injury is proper only when some
ascertainable portion of the ultimate industrial disability
existed independently before an employment-related
aggravation of disability occurred. Bearce v. FMC
Corporation, 465 N.W.2d 531 (Iowa 1991); Varied Enterprises,
Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where
employment is maintained and earnings are not reduced on
account of a preexisting condition, that condition may not
have produced any apportionable loss of earning capacity.
Bearce, 465 N.W.2d at 531. Likewise, to be apportionable,
the preexisting disability must not be the result of another
injury with the same employer for which compensation was not
paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450
(Iowa 1990).
The burden of showing that disability is attributable
to a preexisting condition is placed upon the defendant.
Where evidence to establish a proper apportionment is
absent, the defendant is responsible for the entire
disability that exists. Bearce, 465 N.W.2d at 536-37;
Sumner, 353 N.W.2d at 410-11.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Iowa Code section 85.27.
Holbert v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-reopen
1975).
It is further concluded that:
Claimant's work injury on June 7, 1990, caused claimant
to incur a 40 percent industrial disability.
Claimant is entitled to alternate care.
Defendants shall pay for claimant to go through a pain
clinic and defendants have the right to choose the pain
Page 13
clinic from those recommended by Dr. Friedgood and claimant
is entitled to an inpatient or outpatient clinic.
Defendants shall receive credit under the provisions of
Iowa Code section 85.38(2) for the disability benefits paid
by the defendant employer's long-term disability plan and
that said credit shall be the net amount of said disability
payments after the required taxes are deducted.
Claimant's healing period began on June 8, 1990 through
April 10, 1992, except for a period of time beginning July
22, 1991 through October 6, 1991.
Claimant is not an odd-lot candidate.
ORDER
THEREFORE, it is ordered:
That defendants shall pay unto claimant healing period
benefits at the rate of one hundred ninety-eight and 82/100
dollars ($198.82) per week for the period beginning June 8,
1990 up to July 21, 1991, and October 7, 1991 up through
March 10, 1992, totaling eighty point two eight six (80.286)
weeks.
That defendants shall pay unto claimant two hundred
(200) weeks of permanent partial disability benefits at the
rate of one hundred ninety-eight and 82/100 dollars
($198.82) beginning March 11, 1992.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. It appears the defendants
paid one hundred point two eighty-six (100.286) weeks of
benefits. Also, as indicated in said decision, there would
be credit to be determined by the parties for the net
long-term disability benefits that have been paid to
claimant that may be within the one hundred point two eight
six (100.286) weeks of benefits referred to herein.
That defendant shall provide alternate care as provided
herein.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1994.
Page 14
------------------------------
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Virgil Moore
Attorney at Law
2454 SW Ninth St
Des Moines IA 50315
Mr Harry W Dahl III
Attorney at Law
974 73rd St Ste 16
Des Moines IA 50312
Ms Iris J Post
Attorney at Law
2222 Grand Ave
P O Box 10434
Des Moines IA 50306
1803; 1802; 2701
4100; 5-1700
Filed February 10, 1994
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JOANN K. SEVERINO, :
:
Claimant, :
:
vs. :
: File No. 954502
RUAN TRANSPORTATION CORP., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
RELIANCE INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1803; 1802
Found claimant incurred a 40 percent industrial disability
and a healing period of June 8, 1990 through March 10, 1992
except for a period beginning July 22, 1991 through October
6, 1991, as a result of her June 7, 1990 work injury.
2701
Found claimant is entitled to go to inpatient or outpatient
pain clinic recommended by Dr. Friedgood. The employer may
choose one of the pain clinics recommended by the doctor and
defendants shall pay the costs.
4100
Found claimant is not an odd-lot candidate.
5-1700
Found defendants are entitled to credit for the long-term
disability benefits claimant received from a policy solely
paid for by the defendants.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
PHYLLIS SMITH, :
:
Claimant, :
: File Nos. 991514
vs. : 954626
:
PAMIDA, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CRUM & FORSTER INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on February 23, 1993, at
Fort Dodge, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of two alleged injuries, one
occurring on May 30, 1990 (file No. 954626), and another on
July 8, 1991 (file No. 991514. The record in the proceeding
consists of the testimony of the claimant and claimant's
husband, Jerry Smith; joint exhibits 1 through 10; and,
claimant's exhibits I and II, and defendants' exhibits A, B
and C.
ISSUES
The issues for resolution as to the May 30, 1990 claim
are:
1. Whether claimant incurred a permanent disability
which is causally related to the May 30, 1990 injury; and,
2. Claimant's entitlement to 85.27 medical benefits,
the issue being whether there is a causal connection as to
the medical incurred.
The issues for resolution as to the alleged July 8,
1991 injury are:
1. Whether claimant incurred an injury that arose out
of and in the course of her employment on July 8, 1991;
2. Whether there is a causal connection as to
claimant's alleged disability and her July 8, 1991 alleged
work injury;
3. The nature and extent of claimant's disability and
entitlement to disability benefits; and,
Page 2
4. Claimant's entitlement to 85.27 medical benefits,
the issue being authorization and causal connection.
FINDINGS OF FACT
The undersigned deputy having heard the testimony and
considered all the evidence, finds:
Claimant is a 37-year-old high school graduate who has
no other post high school education other than she took a
medical assistant class at a community college.
Claimant testified as to her work history prior to
beginning employment with the defendant employer on August
20, 1981. None of these prior jobs helped her develop any
particular skill but they did involve claimant having to do
certain lifting and various manual labor jobs. Claimant
said she also played basketball in high school from which
she graduated in 1975.
Claimant testified as to an August 14, 1987 back injury
which she incurred as a result of lifting, carrying and
stacking cases of oil that were delivered to defendant
employer. Claimant testified that from September 1987 to
June 1990, she had no medical treatment for her back and her
condition had cleared up by September 1987.
Claimant indicated that she did not have a problem with
her back on the jobs she had done prior to beginning work
for the defendant employer.
Claimant described her various jobs at defendant
employer and indicated that her present job as an area
leader is the same job she has had since 1982. This job
involves taking care of the automotive, sporting goods,
toys, holiday items, artificial flowers and the pet
departments. She ordered the supplies, stocked shelves, set
up ads, etc.
Claimant described what occurred on May 30, 1990, when
she incurred her alleged injury. Claimant stated that at
that time they had a greenhouse outside of the store. She
was requested by the manager to pick over and sort certain
plants, trees and shrubs, condense them together on certain
pallets, coordinate them in a certain place and water them
sufficiently. After the claimant had done this for two or
three hours the manager changed his mind and told her to
bring all the plants up to the front of the building which
was a distance of approximately 50 to 60 feet from where she
had just finished organizing them. Claimant indicated that
the plants were in certain groupings and that the trees were
in one, two or five gallon buckets and some were in burlap
balls. She indicated that she would drag the burlap ball
trees one by one and those items on pallets she would pull
by tying a rope and taking turns pulling backwards and
forwards.
Claimant said that she had moved eight or ten of these
pallets plus moving some other items when her back started
to hurt. She indicated that the weather was hot and that
Page 3
she worked all day outside from 9:00 to 5:00 p.m. Claimant
said that just before 5:00 she went inside and her back
still ached and she was hurting from her shoulders to her
hips so she went home and used a heating pad. She indicated
she saw a chiropractor the next day and went for three or
four treatments. Claimant then saw Maurice L. Northup,
M.D., on June 14, 1990, and was taken off work and was off
work up to and not including October 17, 1990. She was paid
workers' compensation benefits for this period of time which
involves 16.714 weeks plus $399.83 temporary partial
disability through November 2, 1990. Claimant indicated
that Dr. Northup has been her family doctor since she was in
kindergarten.
Claimant then was asked questions and referred to
claimant's exhibit I which is a chronological list of events
from August 20, 1981 through October 21, 1992, and involves
visits to the doctor, etc. Claimant was released to work on
October 18, 1990, and at first there was a 10 pound lifting
restriction but by November 14, 1990, the lifting limit was
20 pounds (Claimant's Exhibit II, pages 7-10).
Claimant testified that on a return to work in October
1990, she tried to follow the restrictions but was not
always able to do so. She gave an example of an instance in
which on July 8, 1991, her assistant manager at the time
requested her to move some oil cases that were in the back
of the store and to fill the aisle as there was apparently
another shipment of oil coming in. Claimant related that
her restrictions were still in place and that there were
other high school boys there to help but that she was told
to move this oil, so she did what the employer told her.
She indicated it took her about an hour or an hour and a
half to move the cases of oil. She indicated that her back
began aching that evening.
Claimant indicated that when she got home she went to
the bedroom and attempted to plug in the alarm clock. She
was not able to reach the electric cord so she got down on
the floor on all fours and felt a sudden pain in her back
and fell completely to the floor. She then got back on her
hands and knees and her back began tightening up.
Claimant indicated that between October 1990 and July
8, 1991, she had felt good and back to her old routine of
house duties and doing her job at work despite her
restrictions. She said that during these nine months she
was doing okay within her restrictions and that the manager
would have someone else do the lifting for her so she could
keep within her restrictions. She basically indicated that
she was having no back trouble until the July 8, 1991
incident. She said the pain occurred in the same place in
July 1991 as it did in May 1990.
Claimant said she went back to work the following
Monday (one week later) and the employer told her that it
was too much of a risk for her to work until she saw a
doctor so she was sent home. She next saw William A.
Roberts, M.D., on August 7, 1991. Claimant was asked why
Dr. Roberts' records reflect that she told him she had an
Page 4
incident involving her back one week previously. Claimant
did not know but emphasized that the incident the doctor had
to be talking about was the alarm clock incident which was
one month earlier.
Claimant indicated that surgery was necessary and
called defendant insurance company as to setting up this
surgery. She indicated she heard nothing from the insurance
company by a return reply so she went through the one week
of blood workup and two or three days before surgery was to
occur she received notice from the insurance company that
workers' compensation would not pay for her surgery (Cl. Ex.
I, p. 16). Claimant referred to the fact that said
September 3, 1991 letter and exhibit referred to a May 30,
1990 injury and not the July 8, 1991 incident. Claimant
said she went ahead with the surgery anyway as she couldn't
take the pain any longer.
Claimant described the nature of her surgery which
involved putting rods and plates in her back and fusing bone
in the L5-S1 area. She said the rods and anchors are still
in her back and pelvis. Claimant referred to joint exhibit
6, page 4, as to the description of the surgery. Said
exhibit describes the procedure performed as a spinal
decompression of the L5-S1 nerve roots with reduction of
spondylolisthesis and stabilization utilizing pedicular
screws and isola rods utilizing the Lugac Galveston
technique for pelvic fixation (Jt. Ex. 6, p. 4) Claimant
referred to joint exhibit 7, page 19, as to her
restrictions, one which is lifting no more than 20 pounds.
She indicated her restrictions were the same in 1992 as they
were before her surgery and that she is working today with
the same restrictions. Claimant indicates that the
defendant employer provides her with help in lifting and any
repetitiveness but her area of responsibility at work is the
same. She likes her current manager and if defendant
employer continues its present situation concerning her she
could continue to work without problems.
Claimant then asked about her appointment with Daniel
J. McGuire, M.D., an orthopedic surgeon, on December 22,
1992. She related that she had her meeting with him and the
exam recorded and had asked ahead of time whether it was
okay and she got permission. She was then alarmed when the
doctor mentioned in his notes, page 5 of defendants' exhibit
B, that he was incredibly despondent because the claimant
tape recorded the process that day. The undersigned finds
that comment rather amusing and strange, since on page 3 of
said notes he stated that claimant was taping that office
interview. On page 1 of defendants' exhibit B, the doctor
indicated he was about ready to cry because he was
embarrassed concerning the story that he obtained from the
claimant. Such comment is rather startling. Page 7 of
defendants' exhibit B, which is the transcript of the
recorded meeting with the doctor on December 22, 1992,
specifically shows that Dr. McGuire at the very beginning of
the meeting said it was fine to tape record the
conversations. The undersigned gives no weight to Dr.
McGuire's report as he leaves the impression he is too
emotionally involved with the patient's exam. He appears
Page 5
despondent and in a crying mood when dealing with this case
for no logical reasonable medical reason.
Claimant said that she continued her activities of
bowling, playing softball and water-skiing after the 1987
incident but that she has not bowled now for several years,
has played no softball since 1990. She has not skied since
1987 nor played any softball after 1987 She then indicated
that she and her husband owned a boat and she has skied one
or two times but not in 1990.
On cross-examination, claimant was asked as to her
testimony that she had no back problems prior to 1987. She
said no and hesitated for some time and indicated she was
confused and does not remember. She was then asked about a
July 20, 1978 record of Dr. Roberts (Jt. Ex. 6, p. 10) in
which she referred to a low back pain. Claimant was also
referred to joint exhibit 2, page 31, in which she marked
that she had received workers' compensation for small back
injury. This document is dated March 12, 1981. When asked
again whether she had ever had back injury prior to 1981,
she indicated she didn't remember and then indicated she
possibly saw a chiropractor one or two times for her
shoulder. Claimant appeared very confused. Claimant did
not ever recall receiving workers' compensation. When asked
about a back brace and if she ever wore one, she was very
confused and initially seemed to indicate that she had never
worn a back brace but eventually upon questioning and
because there was a reference to a brace in her medical
records which would involve a period prior to 1990, claimant
seemed to indicate that there was a type of brace or cloth
corset that she had worn but she could not recall any
particulars concerning it. The undersigned is alarmed at
the lack of recall and the claimant's inability to recall
certain events, particularly since there are other events
that she can recall. Claimant did not admit to any memory
or mental problems.
Claimant indicated that she then could recall a
workers' compensation matter in which she hurt her finger in
a door but again had no recollection of her having stated on
a document that she had received workers' compensation for
an injury to her lower back in 1978. It is hard to believe
that claimant mixed up a finger injury with a back injury.
Basically, claimant does not remember a 1978 back problem.
Claimant then was questioned concerning Dr. Roberts'
July 1991 visit in which there is nothing in his record
showing a history as to claimant loading an aisle with oil
(Jt. Ex. 6, pp. 3 and 4). She indicated she remembered
telling him about it but it is obvious he didn't write it
down. The undersigned notes that she had a difficult time
remembering many things that may be important and yet seems
to remember that she told him this even though the doctor
didn't write it down. Claimant again seemed very confused.
Claimant's husband, Jerry Smith, testified that he knew
claimant for the last seven or eight years and that after
living together approximately two years, they married in
1988. He said that claimant played volleyball, softball and
Page 6
they also bought a Tri-Hull boat in the summer of 1988. He
indicated that they had purchased a Torpedo to ride on and
also skis.
He said claimant water-skied in July and August of 1989
but did not play softball after 1988 season because the city
league dissolved.
He recalled claimant's 1987 back problems but indicated
that after seeing the doctor a couple of time he doesn't
remember claimant having more physical problems until June
of 1990 after she was moving the trees at her employer's
place of business.
He recalled that claimant wore a canvas-type corset
prior to 1987 but never wore it more than one week at a
time. He said he didn't know anything about a brace and
didn't know that one had been prescribed.
William A. Roberts, M.D., an orthopedic surgeon,
testified through his deposition on January 25, 1993
(Defendants' Ex. A). He indicated that he specializes in
spine surgery and 75 percent of his practice deals with
spinal disorders.
His first contact with claimant was on September 26,
1990, and the referral to him was through a relative of
claimant's and not through another doctor.
He related the history that claimant gave him and
indicated that by the time she had come to see him at the
office her symptoms had improved and were minimal at the
time. He indicated the various tests and the nature of the
examination he gave her and it appears that her examination
was normal and he felt her symptoms at the time of the
initial evaluation were those of mechanical low back pain
secondary to her Grade II isthmic spondylolisthesis of the
lumbosacral junction (Def. Ex. A, p. 8).
The doctor was asked concerning the history he had
written down that claimant indicated she had low back
discomfort over the past 12 years. He was not able to tell
when the spondylolisthesis came into existence in claimant's
low back and indicated pain is not a determining factor when
it begins. He said the vast majority occurs during the
person's teen years but may not develop until the patients
are in their 20's or 30's.
In September 1990, he did not consider claimant a
surgical candidate and it would be the patient determining
whether she wanted the ultimate surgery and not the doctor
in this type of situation.
He related that her functional capacity assessment was
done around October 1990 at a self limiting lifting weight
of 20 pounds. He indicated that claimant's threshold of
pain was such that at the 20 pound limit she was no longer
able to lift because of her pain (Def. Ex. A, p. 10).
The doctor indicated he next saw claimant in May of
Page 7
1991, at which time he told the claimant that if she became
incapacitated she could see him on an as-needed basis.
Other than that, it appeared he could do nothing for her.
The doctor then testified he saw claimant next time
around August 7, 1991, at which time she related to him that
she had an episode approximately one week earlier in which
she had extreme pain and could not get up off the floor and
needed assistance of two or three individuals in order to
get up. It is obvious this is the event that occurred when
she was down on all fours trying to plug in an alarm clock.
It is also reflected in the doctor's office notes of August
7, 1991, on joint exhibit 6, page 3. There is nothing in
the doctor's notes that would indicate the work injury or
event earlier that day at defendant employer's in which
claimant testified that she was moving cases of oil and felt
some discomfort. Claimant indicated on this August date
that she was desirous of surgery and on September 17, 1991,
the doctor performed a decompression and fusion of L4 to the
sacrum with isola rods. The procedure performed was
described as spinal decompression of the L5-S1 nerve roots
with reduction of spondylolisthesis and stabilization
utilizing pedicular screws and isola rods utilizing the
Lugac Galveston fixation (Jt. Ex. 6, p. 4). In March of
1992, the doctor put a weight restriction of 30 pounds and
also opined on August 21, 1992, that claimant had a 10
percent impairment as a result of the two level fusion for
spondylolisthesis without residual symptoms and an
additional 7 percent due to the limitation of the lumbar
motion which resulted in a total of 17 percent permanent
functional impairment (Jt. Ex. 6, pp, 6; Def. Ex. A, p. 15).
The doctor indicated that a person going through the
surgical procedure usually desires such when the situation
gets so bad that the claimant can no longer stand the pain.
The doctor indicated that with this type of
spondylolisthesis, a particular mechanical problem with the
back results because of or as a reflection of cumulative
trauma. The repetitive loading of soft tissue would
eventually lead to in certain patients soft tissue failure
and increasing pain, decreasing function and subsequent
incapacitation. The doctor wasn't surprised that claimant
ended up with a surgical procedure. The doctor could not
say it was this particular incident or that particular
incident that resulted in the procedure but that each
episode has a role to play that only results in a person's
decision to have surgery. The doctor could not apportion it
out to say one had a greater impact than another.
The doctor was asked and emphasized again that the only
history he had of an incident that was away from the work
place was when he saw claimant on August 7, 1991, and the
claimant had given him her history update. He has no other
record of an incident. The undersigned might note the
record shows that this one incident the doctor noted had to
be the incident in which claimant was attempting to plug in
an alarm clock. It appears the letter of October 3, 1991
(Jt. Ex. 6, p. 17) sums up the problem and difficulty in
this case as to trying to determine a causation of
claimant's difficulty. The doctor related that it was
Page 8
indeed difficult to determine what particular event has led
to the fact that claimant has decided to undergo surgical
stabilization. He believed that it was a culmination of
repeated loading and stress across the lumbosacral junction,
some which has occurred at work and some which has not. He
indicated it was impossible for him to clearly tell what
percent of her symptoms are a reflection of aggravation due
to work and which are a reflection of aggravation of
activities not performed at work.
Claimant's exhibit C is a transcript of a telephone
conversation on July 10, 1990 between the claimant and a
representative of the defendant insurance company. There
had been questions asked of the claimant concerning whether
she ever wore a back brace. There has been some mention of
this earlier in this decision. Claimant basically could not
recall of any back brace and this exhibit was then offered
into evidence. On page 4 of said exhibit claimant
specifically referred to the fact that she was fitted for a
back brace and wore it for several years. She then lost it
but then was later fitted with another brace and wore it for
awhile. The undersigned has a hard time believing that the
claimant could not recall having a brace and particularly
could not recall wearing anything until this exhibit was
brought forth. She later acknowledged that she had a
corset-type brace made of canvas-like material. She was
also asked if she had any other injuries to her back at any
other time and she indicated on page 7 that she was not
aware of any even though it was obvious she had a back
injury from a trauma in 1987 besides having her other back
problems from her back condition. In the same telephone
conversation, she indicated that she does very little
swimming and hardly any water-skiing. In her testimony in
court, she indicated she had not water-skied after 1987
(Def. Ex. C, p. 8).
Joint exhibit 2, page 9, reflects an answer to
interrogatory in which the defendant employer related two
incident in 1991 in which they were notified that claimant
was having problems with her back. One was on June 24,
1991, in which claimant called the employer that her back
was bothering her as a result of a long drive coming back
from a vacation in Minnesota. Testimony during the trial
indicated that claimant was on a several day fishing trip in
Minnesota and when she came back she asked to take off four
days as vacation because of her back being stiff and pain
after her trip. The other incident in the answer to
interrogatory reflects claimant called defendant employer on
July 8, 1991, informing them that she had injured her back
while attempting to put a plug into an outlet at home.
There is nothing concerning notifying the employer that she
was injured moving cases of oil.
Joint exhibit 4, page 4, is a September 10, 1987 x-ray
report that shows claimant had a stage I spondylolisthesis
and a spondylosis of L5 and osteoarthritis involving both
sacroiliac joints. X-rays done on June 4, 1990, represented
by joint exhibit 4, page 5, show that at that time claimant
had a grade II spondylolisthesis of L5 on S1 and there
appears to be bilateral spondylolysis at the pars
Page 9
interarticularis of L5 and the disc space of the L4-5 level
is narrowed. Page 8 of said exhibit reflects that on June
14, 1990, claimant gave a history of only a July 28, 1978
low back pain but mentioned nothing of her prior back
history or her 1987 injury.
Joint exhibit 5, page 2, reflects that on July 13,
1990, Edwin A. Crowell, M.D., who officed with Dr. Northup,
indicated that claimant has had back trouble off and on for
many years and that she has an obvious spondylolisthesis
with a big step-off. His notes further indicate that
claimant's spine is unstable and that she has had trouble
for many years and will probably not do well.
As to claimant's May 30, 1990 injury, the parties
stipulated that claimant incurred an injury that arose out
of and in the course of her employment and paid 16.714 weeks
of healing period or temporary total disability benefits.
These were paid at a rate of $129.90 but the parties agreed
that they should have been paid at $145.99 and defendants
agreed that the difference will be paid.
Claimant contends that she incurred another injury on
July 8, 1991. It appears in both cases claimant contends
permanent disability was incurred.
Claimant has had a long history of back problems
extending for several years before her May 30, 1990 injury.
Claimant is currently 37 years of age and at age 32 she
already had a diagnosed grade I spondylolisthesis condition.
By June of 1990, she had reached a grade II.
Spondylolisthesis is not caused by a trauma. It is a
condition that is hereditary and usually begins at least by
the time a person is in their teens and often starts
developing in their 20's and 30's. The medical history and
record in this case shows that claimant was sitting on a
medical condition that could be aggravated by even a small
amount of activity whether it be work or nonwork. The
restrictions that claimant ultimately was given pursuant to
her injuries or alleged injuries were actually restrictions
that would have been advisable for claimant to follow even
prior to any real showing of symptoms because of her back
condition which was gradually developing and worsening.
Claimant has been involved in various activities, both work
and nonwork, that could have an aggravating effect on her
spondylolisthesis condition. Claimant has been active in
various athletic events and nonwork situations. As Dr.
Roberts has mentioned, there are many things that could be
causing claimant's problems and he could not pinpoint any
one thing. There is no doctor or medical record that
specifically causally connects any permanent condition that
claimant may have to either the May 30, 1989 or the July 8,
1991 alleged injuries.
The parties agree that claimant did incur an injury on
May 30, 1990, and payments for temporary total disability or
healing period was paid. There is no evidence or medical
record that indicates claimant incurred a permanent injury
or disability as a result of that injury. Claimant had
Page 10
returned to work. She had a 20 pound restriction but this
restriction was advisable because of claimant's condition
which the undersigned also finds to be spondylolisthesis and
finds was not caused by any injury. The undersigned finds
that on May 30, 1990, she had a temporary aggravation of her
preexisting back condition but that no permanency resulted
therefrom.
The undersigned finds that the claimant has not carried
her burden to show there was a causal connection as to a
permanent disability. The undersigned finds, therefore,
that there is no industrial disability incurred because of
the May 30, 1990 low back injury.
As an additional issue, claimant seeks medical
benefits, as represented on joint exhibit 9. Joint exhibit
9 is an itemization of certain bills which includes bills
represented for both alleged injuries. Although no separate
bills were enclosed and the defendants have not specifically
challenged those bills incurred from May 1, 1991,
inclusively back to June 1, 1990, they acknowledged that
they were authorized but contend there is no causal
connection. The undersigned finds that the defendants are
responsible for those bills represented on joint exhibit 9
beginning June 1, 1990 through May 1, 1991.
The undersigned finds that claimant takes nothing
further regarding the May 30, 1990 low back injury.
As to the July 8, 1991 alleged injury, the undersigned
has considerable concern based on the medical record as to
whether an injury occurred that arose out of and in the
course of claimant's employment. Just prior to that date,
claimant had returned from a fishing vacation and requested
four additional days before returning to work after said
vacation because she had back pain and stiffness in her
back. Claimant is known to water ski. Even though the
record is contradictory as to when she last skied it appears
she skied more recently than what she testified to. There
were several areas in her testimony and in a telephone
conversation in which she did not appear to honestly state
the same or similar facts, depending on to whom she was
talking to or giving a history to, and also her lack of
memory in certain areas is suspicious.
Claimant contends that on July 8, 1991, she injured her
back at work while moving cases of oil. Yet, when she saw
the doctor on August 7, 1991, she indicated she was having
increased discomfort and referred to an episode a week
earlier in which she could not get up off the floor and
needed the assistance of two individuals to help her get up.
It is obvious the incident that was referred to one week
earlier had to have been the incident that claimant
testified to in which she was crawling on the floor in order
to plug an alarm into the wall socket. In claimant's
testimony in court, she seemed to indicate that the incident
of crawling on the floor occurred the evening of the same
day at work that she claimed she moved cases of oil. The
undersigned believes that taking the record as a whole and
Page 11
other things concerning claimant's testimony that the
doctor's record is accurate and reflects the fact that
claimant was in there on August 7, 1991 because of this
alarm clock incident in which she felt sharp pain in her
back and had to be helped to get up off the floor and that
it wasn't as a result of moving cases of oil. One would
think that she would have mentioned that to the doctor.
Claimant's next visit to the doctor was in September 1991
and she shortly thereafter had her surgery.
It appears to the undersigned that this surgery was
something that stabilized her increasing, damaging
spondylolisthesis condition and that this condition needed
to be stabilized because of claimant's preexisting condition
and that this preexisting condition was not substantially or
materially aggravated or lighted up by a July 8, 1991
alleged injury.
Claimant now has 30 pound restrictions. As indicated
earlier, this would not be an unreasonable restriction
taking into consideration claimant's condition prior to May
30, 1990, due to her back condition.
There is no medical doctor or report that specifically
causally connects claimant's current condition or need for
surgery to a specific injury on July 8, 1991. The record
indicates that there could be one or more of several causes
for claimant's problems. In addition thereto, claimant did
not fully disclose her true medical history to some of the
doctors. These could have been important in the ultimate
decision or conclusion or opinion by the doctor. We do not
have here a latent, inactive preexisting condition. We have
a situation which one could describe as a time bomb ready to
explode and that there were just as many nonwork activities
or incidents that could cause claimant's problems as there
is work activities. Again, it is clear from Dr. Roberts'
notes that claimant was in to see him because of the
incident in which she was attempting to plug in the alarm
clock, the incident she was referring to as happening one
week before August 7, 1991.
Claimant requested medical bills to be paid by
defendants. Said bills are represented on joint exhibit 9
and those particularly related to this July 8, 1991 alleged
injury would begin July 24, 1991 through September 29, 1991.
The undersigned finds that claimant has failed in her
burden to prove that she incurred an injury that arose out
of and in the course of her employment on July 8, 1991, and
further failed to prove any causal connection as to
claimant's alleged medical condition and ultimate surgery
and any July 8, 1991 alleged injury.
In light of the above ruling, the undersigned therefore
finds that defendants are not responsible for any of
claimant's medical bills incurred as a result of an alleged
July 8, 1991 injury and are not responsible for any of those
bills on joint exhibit 9 beginning July 24, 1991 to the
present.
Page 12
It is therefore found that claimant takes nothing as a
result of an alleged injury on July 8, 1991, and that
claimant pays the costs as to file No. 991514.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on July 8, 1991,
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 claimant has the burden of proving by a
preponderance of the evidence that the injuries of May 30,
1990 and July 8, 1991, are causally related to the
disability on which she now bases her 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 Hospital, 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. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, the mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900,
908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a
preexisting condition or disability that is aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815
(1962).
The Iowa Supreme Court cites, apparently with approval,
the C.J.S. statement that the aggravation should be material
if it is to be compensable. Yeager v. Firestone Tire &
Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S.
Workmen's Compensation sec. 555(17)a.
As to the May 30, 1990 injury, it is further concluded
that claimant was temporary totally disabled and as
stipulated by the parties received 16.714 weeks of
Page 13
compensation at the rate of $129.90, plus claimant received
$399.82 in temporary partial disability benefits through
November 2, 1990. Defendants will pay as agreed the
additional amount between $129.90 and the actual rate of
$145.99.
It is further concluded that defendants are to pay
claimant's medical expenses as shown on joint exhibit 9
beginning June 1, 1990 through May 1, 1991, and that
claimant did not incur any permanent disability or
industrial disability as a result of a May 30, 1990 work
injury.
Claimant takes nothing further from this proceeding.
As to the July 8, 1991 alleged injury, represented by
file No. 991514, it is further concluded that claimant did
not incur a low back injury which arose out of and in the
course of her employment on July 8, 1991, and that there was
no causal connection between claimant's alleged permanent
disability and her ultimate surgery in September 1991 to any
July 8, 1991 alleged work injury.
Claimant did not incur any permanent or industrial
disability as a result of her alleged July 8, 1991 work
injury.
Defendants are not responsible for claimant's medical
bills represented by joint exhibit 9 concerning bills
beginning July 24, 1991 to the present.
Claimant lacked credibility.
Claimant takes nothing in this proceeding.
ORDER
THEREFORE, it is ordered:
That regarding the May 30, 1990 alleged injury (file
No. 954626), claimant takes nothing further from these
proceedings.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That regarding the July 8, 1991 alleged injury (file
No. 991514), claimant takes nothing from these proceedings.
That claimant shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of March, 1993.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Page 14
Copies to:
Mr Tito Trevino
Attorney at Law
801 Carver Bldg
P O Box 1680
Fort Dodge IA 50501
Mr Harry W Dahl
Attorney at Law
974 73rd St Ste 16
Des Moines IA 50312
5-1108; 5-1400; 5-2503; 5-1100
Filed March 5, 1993
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
PHYLLIS SMITH, :
:
Claimant, :
: File Nos. 991514
vs. : 954626
:
PAMIDA, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CRUM & FORSTER INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1108; 5-1404
Found claimant failed to prove she incurred an industrial
disability as a result of her May 30, 1990 low back injury.
Claimant was paid temporary total disability and some
temporary partial disability benefits but took nothing
further from proceedings.
5-2503
Found defendants responsible for some medical expenses
resulting from May 30, 1990 work injury.
5-1100; 5-1108; 5-1400
Found claimant did not prove she incurred an injury that
arose out of and in the course of her employment on July 8,
1991, nor did she prove any causal connection between the
alleged injury and her low back condition.
5-2503
Claimant denied recovery for medical benefits and surgery
as to the alleged July 8, 1991 injury.