BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JUDY LOUGHRY,
Claimant,
File No. 956513
vs.
A B R I T R A T I O N
K-MART CORPORATION,
D E C I S I O N
Employer,
Self-Insured
Defendant.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Judy
Loughry, claimant, against K-Mart Corporation, employer, for
benefits as the result of an injury which occurred on July
30, 1990. A hearing was held in Des Moines, Iowa, on
September 30, 1993, and the case was fully submitted at the
time of the hearing. The hearing was scheduled for five
hours but actually consumed eight hours, from 8:30 a.m.
until 4:30 p.m. Claimant initially presented more than 50
pages of exhibits and was requested to eliminate irrelevant
and immaterial exhibits prior to hearing. Both parties
introduced a number of the same exhibits and this could have
been eliminated if the attorneys or their legal assistants
had conversed about the exhibits shortly before the hearing.
The record consists of the testimony of Judy Loughry,
claimant, Barbara Wosmansky, loss control district manager,
and Brenda Martin, personnel manager, claimant's exhibits A,
B, C, E, and J, and defendant's exhibit 1, pages 1-33. The
deputy ordered a transcript of the hearing.
STIPULATIONS
The parties stipulated that claimant did sustain an
injury on July 30, 1990, which arose out of and in the
course of employment and that the injury was the cause of
temporary disability during a period of recovery.
The parties further stipulated that claimant's gross
earnings were $230.00 per week and that she was married, but
the number of exemptions was in dispute. It was stipulated
that the rate of compensation would be $165.01 if claimant
was entitled to four exemptions. It was further stipulated
that in the event of an award of benefits that defendant is
entitled to a credit for two weeks of workers' compensation
benefits paid to claimant prior to hearing at the rate of
$163.34 per week.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing:
Whether claimant is entitled to temporary disability
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benefits, and if so, the nature and extent of benefits to
which she is entitled.
Whether the injury was the cause of permanent
disability.
Whether claimant is entitled to permanent disability,
and if so, the nature and extent of benefits to which she is
entitled.
Whether claimant is entitled to medical benefits.
Whether claimant is entitled to penalty benefits.
What is the proper rate of compensation.
FINDINGS OF FACT
ENTITLEMENT TO TEMPORARY DISABILITY BENEFITS
It is determined that claimant is entitled to two weeks
of temporary total disability benefits for the period from
July 30, 1990, the date of the injury, until August 13,
1990, the date on which the authorized treating physician
released claimant to return to work and the date on which
claimant did in fact return to work at her regular pay even
though she was on light duty to only attend meetings between
August 13, 1990 and August 20, 1990. She returned to full
duty on August 20, 1990 (Claimant's Exhibit A, pp. 16 & 17;
Defendant's Exhibit 1, pp. 13 & 14; Iowa Code sections 85.32
and 85.33).
CAUSAL CONNECITON-ENTITLEMENT-PERMANENT DISABILITY
It is determined that the injury of July 30, 1990 was
not the cause of permanent disability and that claimant is
not entitled to permanent disability benefits.
Claimant, born January 14, 1948 was 42 years old at the
time of the injury and 45 years old at the time of the
hearing. She started to work for employer part-time in June
of 1989, then became a full-time employee. Claimant was
still employed with employer at the time of the hearing
(Transcript pages 34-39, 40, & 45; Ex. 1, p. 2). Claimant
is a well respected employee and has received good reviews
(Tran. pp. 43, 141, 143, 154, & 158; Ex. C, p. 46).
As a loss prevention manager it was claimant's duty to
watch for and apprehend shoplifters (Tran. pp. 38 & 41).
The parties stipulated that claimant sustained an
injury on July 30, 1990, that arose out of and in the course
of employment with employer when claimant was thrown to the
pavement on the parking lot while attempting to apprehend a
shoplifter (Tran. p. 47). Claimant testified that she
landed on her chest and left shoulder (Tran. pp. 47 & 48).
The assistant manager took claimant to the Mercy
Medical Clinic in Ankeny, Iowa, where she was seen by Kevin
L. Moore, M.D., one of several doctors at the clinic. Dr.
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Moore treated claimant for pulled muscles in the chest area
around the sternum. Claimant testified that the most
excruciating pain was the chest pain (Tran. p. 49).
Dr. Moore recorded on July 30, 1990 that the chief
complaint was left sided chest wall pain with shortness of
breath. His physical examination disclosed (1) diminished
bilateral breath sounds, (2) mild swelling and tenderness
over the left pectoral chest wall, (3) tenderness to
palpations of the left shoulder, and (4) full range of
motion of the neck without crepitus or tenderness (Ex. 7;
Ex. A, p. 16).
Plain x-rays revealed no pneumothorax nor appreciable
rib fractures. Dr. Moore's diagnosis was "Left chest wall
contusion." (Ex. 1, p. 7; Ex. A, p. 16). Dr. Moore took
claimant off work that same day on July 30, 1990.
On August 1, 1990, the doctor recorded that there was
slight improvement but because of continuing symptoms he
ordered detailed x-rays of the ribs and these were read as
being unremarkable (Ex. 1, p. 6; Ex. A, p. 17). On August
6, 1990, the doctor said claimant felt somewhat better but
because of continued discomfort she was continued off work
(Ex. 1, p. 6; Ex. A, p. 17). On August 13, 1990, claimant
was not in acute distress, her lungs were clear and she had
a full range of motion in both shoulders without tenderness.
There was moderate tenderness to palpation of the anterior
sternum. Claimant was released to return to work on August
13, 1990, with the limitation that she was only to attend
meetings that week and that she was released to full duty as
of August 20, 1990 (Tran. p. 50). Also on August 13, 1990,
Dr. Moore ordered two more x-rays and a bone scan and
scheduled a follow-up appointment for a recheck of her
condition in one week (Ex. 1, p. 6; Ex. A, p. 17).
Claimant said that she did not go back to Dr. Moore
after August 13, 1990, "Because he said I was a big baby and
I needed to get back to work." (Tran. p. 51). There is no
evidence that the bone scan or x-rays that Dr. Moore ordered
were ever taken. Claimant also contended that she was not
happy with what Dr. Moore's nurse told her about a bone
infarct that had occurred previously in January of 1990,
when her stepdaughter struck her in the upper left arm in
the course of a domestic dispute (Tran. pp. 67, 68 & 98).
Claimant clarified that she was not claiming an injury or
any disability from the infarct. She related that she was
not claiming that the infarct was caused or aggravated by
this injury (Tran. p. 52).
Thus, although defendant was offering continued care
and treatment as well as additional objective tests,
claimant, nevertheless, elected to refuse this care and to
seek care from her own choice of physicians, Ronald A.
Shirk, D.O., Kelly S. Bast, M.D., and Paul R. Holzworth,
M.D. (Tran. pp. 52 & 53). Claimant was previously employed
by Dr. Shirk as his office nurse from January of 1966 until
June of 1985, a period of approximately nine and one-half
years (Ex. 1, p. 1). Claimant was also employed as the
office nurse for Dr. Holzworth from the Fall of 1985 until
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the Spring of 1988, a period of approximately two and
one-half years, when she quit in order to work fewer and
more flexible hours (Ex. 1, p. 2; Tran. pp. 27, 28, 30, 86 &
87).
The records of the Holzworth, Bell, Shirk, Bast firm
show that an appointment was made with Kirk D. Green, D.O.,
an orthopedic surgeon, on September 13. On September 15,
1990, Dr. Shirk saw claimant for an infected eye and
diagnosed acute conjunctivitis. No mention is made of the
injury of July 30, 1990 at this time. An office note from
Dr. Shirk's clinic dated October 11, 1990 records that
claimant complained of (1) chest pain and discomfort from
the accident of July 30, 1990 after being thrown on the
parking lot and (2) left arm pain from an injury of January
2, 1990, when she was hit by her stepdaughter. This is in
handwriting and is probably the nurse's note that was
presented to the doctor. On that same date Dr. Bast
diagnosed (1) depression, (2) osteoarthritis, (3) left
humeral bone infarct and (4) post-valium irritative
phlebitis of the right arm vein. There is no evidence that
any of these four diagnoses were attributable to the injury
of July 30, 1990, according to his records (Ex. A, p. 11).
Dr. Shirk's notes for October 26, 1990 and November 6,
1990, indicated left sternum pain. On October 26, 1990, a
clinic note said claimant had multiple rib fractures which
was diagnosed costochondritis. On May 6, 1991, Dr. Shirk
said that claimant had ten ribs broken and complained of
chest pain, back pain, rib pain, sore knees and hip
discomfort. His impression was (1) multiple old fractures
and (2) chronic pain syndrome with degenerative arthritis.
He prescribed Prednisone, Amitriptyline and Prozac. On
March 13, 1991, Dr. Shirk sent claimant to see Lawrence
Rettenmeier, M.D., a rheumatologist at Mercy Arthritis
Center (Ex. A, pp. 9-11; Tran. p. 57).
On May 14, 1991, Dr. Rettenmeier reported to Dr. Shirk
that claimant had polyarthralgias in all of her extremities
with no indication that they were related to this injury.
With respect to this injury Dr. Rettenmeier reported that
claimant believed, "That the chest pain related to the rib
fractures has improved some over time." (Ex. A, p. 25).
On February 18, 1992, Dr. Rettenmeier wrote to Dr.
Shirk that his impression was that claimant had (1)
periarthritis of the left shoulder, (2) polyarthralgias
which is resolved, (3) myofascial neck and shoulder girdle
pain and (4) granuloma. This injury of July 30, 1990 was
mentioned in the letter, but Dr. Rettenmeier did not make a
specific statement of causal connection about any one of
these four impressions (Ex. 1, p. 22).
Radiology ordered by Dr. Shirk on July 16, 1991, showed
only the bone infarct, otherwise the left shoulder was
negative (Ex. 1, p. 20). Radiology ordered by Dr. Shirk on
March 3, 1992, by way of a bone scan for claimant's
complaints of back pain showed only (1) a normal spine and
(2) an enchondroma as a result of the bone infarct (Ex. 1,
p. 21). On March 16, 1992, Dr. Rettenmeier reported the
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same diagnosis to Dr. Shirk of periarthritis,
polyarthralgias, myofascial neck and shoulder pain, and
granuloma. Dr. Rettenmeier does not give any statement of
causal connection of these conditions to the injury of July
30, 1990 (Ex. 1, p. 24).
Claimant was examined by Scott Neff, D.O., an
orthopedic surgeon, who wrote to Dr. Shirk on July 14, 1991,
that the infarct predated this injury. He also said the
radiologist felt that the significantly increased uptake on
the bone scan represented fractured ribs. Dr. Neff added,
"She says that since her injury, she has now begun to hurt
all over, and she has pain in her knees, ribs, neck,
shoulder, and even her wrist." (Ex. 1, p. 26; Ex. A, p. 11).
Dr. Neff was unable to causally connect all of these
complaints to this injury. Dr. Neff wrote, "I am not
certain what direct relationship might be between her injury
which, apparently, was confined to the chest wall and her
left shoulder, and the symptoms she is having all over her
body. She has gone back to work, and, apparently, was off
work for only 2 to 3 weeks." (Ex. 1, p. 27; Ex. A, p. 19).
Dr. Neff thought she might have a mildly unstable shoulder
due to deconditioning. Dr. Neff concluded, "At this time, I
do not believe she is in definite need of any type of
orthopaedic surgical treatment. I would recommend a
rheumatological evaluation." (Ex. 1, p. 27; Ex. A, p. 19).
Claimant testified that she was evaluated by William
Koenig, M.D., a rehabilitation doctor, on one occasion
(Tran. p. 58). His records show that he reported on March
10, 1992, that "Her main complaints, however, are
significant difficulties with pain between the shoulder
blades and in the cervical region, and at times extending
nearly down to the hip region." (Ex. 1, p. 38). Dr. Koenig
diagnosed, "Post-traumatic myofascial pain syndrome." (Ex.
A, p. 38).
On April 24, 1992, employer denied claimant's medical
treatment that was performed after she discontinued seeing
Dr. Moore with the following letter to claimant's attorney.
Our records indicate that Ms. Loughry was
injured on July 30, 1990 at our Kmart store in Des
Moines, IA. She was provided with medical care at
that time. On August 13, 1990, she was released
to return to work. Our records indicate no
fracture of any ribs, no mention of any other
injuries.
Since August, we have received no further
medical reports, bills or communication that Ms.
Loughry was still treating or having any
continuing problems related to her injuries
sustained on July 30, 1990.
From your attached medical report, it would
appear that Ms. Loughry has continued to treat for
a condition that pre dated her work accident.
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At this time, I am respectively declining to
accept liability for this treatment and condition
(Ex. B, p. 40).
At the request of Dr. Holzworth claimant was examined
by James L. Blessman, M.D., director of the Mercy Hospital
Medical Pain Center for intractable pain in her posterior
thorax and right hip. He reported on May 20, 1992, that her
chest and thorax pain have improved considerably but her low
back pain and right hip pain were getting worse. In the
course of his examination Dr. Blessman found that her
ability to perform physically was inconsistent. On a number
of his examination tests he found that she exhibited symptom
magnification. Dr. Blessman concluded, "My diagnostic
opinion is that she has chronic myofascial pain syndrome
with some components of symptom magnification." (Ex. 1, p.
17; Ex. A, p. 30).
Claimant testified that she was examined and evaluated
by John H. Kelley, M.D., an orthopedic surgeon, who gave her
a very complete examination. The purpose of Dr. Kelley's
examination was to determine whether her continuing
complaints, after Dr. Moore's treatment, were caused by this
injury and were therefore entitled to coverage under
workers' compensation, or whether they were unrelated to
this injury and that she was entitled to coverage under the
group health insurance policy with Travelers Insurance
Company. Claimant testified that Dr. Kelley determined that
her symptoms were not work-related (Tran. p. 61).
Dr. Kelley examined claimant on August 6, 1992, as well
as her medical records and he reported on the same date (Ex.
1, p. 20; Ex. A, p. 31). Dr. Kelley accurately reviewed
claimant's injury and subsequent treatment and examination
by the several practitioners summarized above. He said that
her current complaints were in her thoracic spine and lumbar
spine extending into her right buttock which was aggravated
by working and relieved by rest. His impression was (1)
myofascial strain of the left shoulder, (2) contusion of the
left chest wall, (3) status post biopsy enchondroma of the
left humerous and (4) chronic myofascial pain of the lumbar
dorsal spine.
Dr. Kelley questioned whether the bone scan represented
fractured ribs. He said the increased bone uptake may
represent some evidence of injury at the costochondral
region, however, increased uptake in this area was not
uncommon. Dr. Kelley stated, "Since the uptake was noted in
both the left and right anterior ribs, and is not associated
with x-ray findings of rib fractures; I am not certain of
its significance. X-rays at this time show no evidence of
callus formation in the ribs indicating an old healed
fracture. (Ex. A, p. 34, Ex. 1, p. 23).
Moreover, it is noted that the injury that occurred on
July 30, 1990 injured only the left chest and that claimant
had a previous injury to both her right and left ribs on May
5, 1986, when her husband gave her a hug and there was a pop
and Dr. Holzworth thought she had a separation or a cracked
rib on the right costochondral area (Tran. p. 67; Ex. J,
Page 7
Dep. Ex. 2).
With respect to claimant's first numbered diagnosis,
myofascial strain of the left shoulder, he found that
claimant did not have any permanent impairment or disability
in her left shoulder. He made no comment about his second
numbered diagnosis, contusion of the left chest wall, and in
all probability the contusion of the left chest wall had
cleared up three years later. With respect to his third
diagnosis the enchondroma of the left humerous, the parties
are in agreement that this was not caused by this injury,
but rather was caused when claimant was struck by her
stepdaughter.
With respect to his fourth numbered impression, chronic
myofascial pain of the lumbar dorsal area, Dr. Kelley
stated,
In reviewing her records, it seems that the
thoracic and lumbar back pain is of recent origin
and is probably not related to her injury. She is
not in good physical condition and does not get
very much exercise other than what she does at
work. It is my opinion that most of her back pain
is secondary to poor conditioning and overweight.
Since complaints of low back and low thoracic pain
do not appear in the record until 1-1/2 years
after her injury, I doubt there is any
relationship (Ex. 1, p. 24; Ex. A, p. 35).
Dr. Holzworth referred claimant to S. Randy Winston,
M.D., a neurosurgeon, for evaluation. He saw claimant and
reported on September 30, 1992. He said her chief complaint
to him was low back pain and pain/numbness to the right foot
which she experienced in March and August of 1992. Dr.
Winston responded to Dr. Holzworth as follows.
I think most of her problems seem to be
musculature but she does have some complaints of
numbness in the entire limb and so forth. I
understand this dates and she has had intermittent
difficulty since she was assaulted during an
attempted shoplifting incident in 1990.
For the most part, she has good reflexes with
no pathologic signs and I have reassured her that
her MRI shows no evidence of any surgical problem
that we would need to be treating (Ex. A, p. 36;
Ex. 1, p. 27)
Dr. Winston gave his understanding that someone had
related to him that these problems dated to the time she was
assaulted. However, Dr. Winston did not give his own
independent, professional medical opinion that the injury of
July 30, 1990 was the cause of her current complaints.
On December 22, 1992, it appears in another office note
of Dr. Winston that claimant had a hobbled gait in her right
lower extremity, discomfort on raising her right leg, and
give-away weakness in all of her major muscle groups in her
Page 8
right lower extremity. He said, objectively, however,
straight leg raising was negative, her reflexes were
symmetric, there were no pathologic or neurlogic signs. His
impression was lumbar pain syndrome, chronic recurrent. He
reviewed an MRI and it was negative for surgical pathology.
Thus, Dr. Winston could not find an injury problem that
warranted surgery nor did he specifically relate any of
these symptoms, which were quite remote from the original
chest wall pain and left shoulder tenderness, to the injury
of July 30, 1990.
On June 7, 1993, Dr. Holzworth wrote to claimant's
attorney as follows:
Her final diagnosis is:
(1) Costochrondritis post traumatic to the chest.
(2) Multiple rib fractures.
(3) Myositis of the left shoulder.
(4) Cervical myositis.
(5) Muscle tension cephalgia.
(6) Lumbosacral myositis.
(7) Tennis elbow bilateral.
(8) Right sciatic neuritis.
* * *
All of these conditions were caused by the
accident of 7-30-90 or represent aggravations of
pre-existing conditions.
* * *
Due to long duration and persistency of her
injuries Judi Loughry will be unable to engage in
any full time gainful employment. She will have
to avoid lifting over 20 lbs. No sitting,
standing or lifting for periods of over one-half
hour duration. This patient will need physical
therapy, medication and examinations and treatment
on a regular basis. If her symptoms increase in
nature she will need surgical consultation and
corrective surgery.
I have taken care of this patient since 1973.
I have also had her as a nursing assistant in my
office. I found her to be honest and reliable
(Ex. A, p. 2 & 3)
On August 30, 1993, Dr. Holzworth provided an
impairment rating to claimant's attorney, "This patient has
on a functional basis a sixty percent disability. She will
be seen in my office for a disability rating according to
the A.M.A. guidelines." (Ex. A, p. 1).
On August 31, 1993, Dr. Holzworth gave a more detailed
breakdown of his evaluation and it resulted in a 53 percent
impairment (Ex. A, pp. 4 & 5).
Page 9
Dr. Holzworth gave a deposition on September 27, 1993,
three days prior to hearing, in which he gave the background
for his opinions, explained them in more detail and in which
he reaffirmed these opinions (Ex. J).
In conclusion, in reviewing the foregoing medical
evidence and testimony of claimant, it is determined that
the opinion of Dr. Moore, the authorized treating physician
is preferred over the opinion of Dr. Holzworth, the
unauthorized treating physician, who has treated claimant
since 1973 and he or his firm was her employer for
approximately 13 years. Rockwell Graphics Systems, Inc. v.
Prince, 366 N.W.2d 187, 192 (Iowa 1985). Likewise, the
opinion of Dr. Kelley is preferred over the opinion of Dr.
Holzworth for the reason that it appears to be more
objective and comports best with claimant's original
diagnosis and treatment by Dr. Moore. Rockwell Graphics
Systems, Inc., 366 N.W.2d 187, 192 (Iowa 1985).
The opinions of Dr. Green, Dr. Neff, Dr. Blessman, Dr.
Koenig, and Dr. Winston failed to specifically causal
connect claimant's myriad symptoms to this injury.
Furthermore, it is noted that claimant has had multiple
health problems and symptoms prior to this injury,
especially osteoarthoritis, and she continues to have the
same symptoms after this injury.
Claimant testified at the hearing that her left
shoulder pain was "nearly gone" (Tran. p. 57).
Claimant admitted that she was diagnosed with having
osteoarthoritis in March of 1989 (Tran. p. 97). Claimant
also admitted that Dr. Holzworth records showed that she was
complaining of arthritis and an ache in the wrist, knees and
the back in April of 1990 (Tran. p. 99).
Wherefore, based upon the foregoing evidence it is
determined that the injury of July 30, 1990 was not the
cause of permanent disability based upon the reports of Dr.
Moore, Dr. Kelley, Dr. Green, Dr. Neff, Dr. Blessman, Dr.
Koenig, and Dr. Winston. Neither did any of these doctors
find that claimant had sustained any permanent impairment or
permanent disability and none of these doctors issued a
permanent impairment rating. Therefore, it is determined
that the injury of July 30, 1990 was not the cause of
permanent disability and claimant is not entitled to any
permanent disability benefits.
PENALTY BENEFITS
It is determined that (1) since claimant was paid
temporary total disability benefits promptly and (2) that
she is not entitled to any permanent partial disability
benefits, that no penalty benefits are due to claimant for a
delay in the commencement or in the termination of benefits
without reasonable or probable cause or excuse. Iowa Code
section 86.13 unnumbered paragraph 4.
Page 10
MEDICAL BENEFITS
Claimant has attached a statement of medical expenses
to the prehearing report dated September 27, 1993.
Defendant is liable for the $209.00 of medical expenses
charged by the Mercy Ankeny Medical Clinic for treatment on
July 30, 1990, August 1, 1990, August 6, 1990 and August 15,
1990.
Defendant is also liable for the $665.00 charged by Dr.
John Kelley, M.D., on August 6, 1992 because defendant
ordered this examination.
Claimant has not demonstrated that the remaining
expenses were caused by this injury. Therefore, claimant is
not entitled to payment of the charges of the Iowa
Orthopaedic Center in the amount of $467.00, the charges of
Mercy Hospital in the amount of $3,934.52, the charges of
Drs. Holzworth, Bell, Shirk & Bast in the total amount of
$1,179.00, the charges of the Therapy Center in the amount
of $721.25, the Lab charges in the amount of $65.00, the
charges of the Mercy Arthritis Center in the amount of
$406.00, the charges of Dr. Neff in the amount of $217.00,
the charges of South Des Moines Sports Medicine in the
amount of $916.00, the charge of Dr. Winston in the amount
of $90.00 and the charges of Gregory Norton, D.C., a
chiropractor in the amount of $368.00.
According to claimant all of these expenses total
$9,237.37. However, claimant is only entitled to be paid
for the Mercy Ankeny Medical Clinic in the amount of $209.00
and the charge of Dr. Kelly in the amount of $665.00.
Furthermore, the physicians that claimant retained
after Dr. Moore were not authorized treating physicians.
Iowa Code section 85.27. Dr. Kelley admittedly was not
employed by claimant, but rather by defendant, and therefore
they owe for his charges.
Brenda Martin, personnel manager, testified that Dr.
Moore was the only authorized treating physician (Tran. p.
151). Martin also testified that Dr. Holzworth or his group
who gave claimant medical attention were not authorized by
employer (Tran. p. 152).
That fact that defendant may have erroneously shown in
an interrogatory that Dr. Holzworth was an authorized
treating physician and may have erroneously made one payment
to Dr. Holzworth does not in fact, or in law, make Dr.
Holzworth an authorized treating physician (Ex. A, p. 48).
Claimant knew that Dr. Holzworth was not an authorized
treating physician.
RATE OF COMPENSATION
It is determined that the proper rate of compensation
is $165.01 based upon a married person with four exemptions
whose gross earnings were $230.00 per week at the time of
this injury.
Claimant has two children. Lucas was adopted by her
Page 11
and her first husband. Kari is her stepdaughter, who is
apparently the daughter of her current husband (Tran. p. 20
& 81). Both children were living with claimant and her
husband at the time of this injury (Tran. pp. 81 & 83).
Claimant admitted that she and her first husband were under
a decree where they would alternate on who would take a
deduction for Lucas on their tax returns (Tran. p. 83).
Defendant contended that claimant was not entitled to an
exemption or deduction for Kari because as a stepdaughter,
claimant was not legally obligated to provide her support
(Tran. p. 85). However, defendant's contention is not
correct.
The dependency exemption depends upon whether claimant
was eligible to claim both children as an exemption for
actual dependency on her income tax return at the time of
the injury. Iowa Code section 85.61(6). Hootman v. Mercy
Hospital, file no. 903234 (Appeal Decn. March 9, 1994).
Claimant did not actually prove, as a matter of fact,
that she and her husband were entitled to claim both
children as dependents and take an income tax deduction at
the time of the injury. However, defendant's counsel in his
closing statement stipulated that the stepdaughter was
always claimed as a dependent and an exemption was taken for
that dependency (Tran. p. 175).
Wherefore, it is determined that claimant was married
and was entitled to four exemptions, herself, her husband,
Lucas and Kari at the time of the injury.
The Guide to Iowa Workers' Compensation Claim Handling,
in effect on July 30, 1990 at page 23 shows that the proper
rate for a person earning $230.00 per week who is married
and entitled to four exemptions is $165.01. The income tax
rules do not require a person to have a support obligation
under the law in order to claim that person as an exemption
and take a deduction.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant is entitled to two weeks of temporary
total disability benefits for the period from July 30, 1990
to August 13, 1990, a period of two weeks. Iowa Code
sections 85.32 and 85.33.
That claimant did not sustain the burden of proof by a
preponderance of the evidence that the injury of July 30,
1990 was the cause of permanent disability and therefore she
is not entitled to permanent disability benefits. Iowa Code
section 85.34; Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296
18 N.W.2d 607 (1945).
That claimant did not sustain the burden of proof by a
preponderance of the evidence that she is entitled to
penalty benefits. Iowa Code section 85.13(4).
Page 12
That claimant did sustain the burden of proof by a
preponderance of the evidence that she is entitled to the
medical expenses of Mercy Ankeny Medical Clinic in the
amount of $209.00 and the expense of the examination by Dr.
Kelley in the amount of $665.00. Iowa Code sections 85.27
and 85.39.
That claimant did not sustain the burden of proof by a
preponderance of the evidence that any of the other
physicians were authorized physicians nor did claimant prove
that their treatment was caused by this injury. Iowa Code
section 85.27; Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965);
Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945).
That defendant stipulated that claimant's stepdaughter,
Kari, was taken as a dependency exemption on claimant's
income tax return at the time of this injury and therefore
claimant is entitled to a rate based upon married and four
exemptions which resulted in a rate of $165.01 per week.
ORDER
THEREFORE, IT IS ORDERED:
That defendant pay to claimant two weeks of temporary
total disability benefits at the rate of one hundred
sixty-five and 01/100 dollars ($165.01) per week commencing
on July 30, 1990, in the total amount of three hundred
thirty and 02/100 dollars ($330.02).
Page 13
That defendant is entitled to a credit for two weeks of
workers' compensation benefits paid to claimant prior to
hearing at the rate of one hundred sixty-three and 34/100
dollars ($163.34) per week in the total amount of three
hundred twenty-six and 68/100 dollars ($326.68).
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That defendant pay to claimant or the provider of
medical services two hundred nine dollars ($209.00) for the
charges of Mercy Ankeny Medical Clinic and six hundred
sixty-five dollars ($665.00) for the charges of Dr. Kelley.
That each party is to pay their own separate costs of
this action, except that defendant is to pay the cost of the
attendance of the court reporter at hearing and the cost of
the transcript of hearing, pursuant to rule 343 IAC 4.33 and
Iowa Code sections 86.19(1) and 86.40.
That defendant file claim activity reports as requested
by this agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of May, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Kent M. Peterson
Attorney at Law
West Towers Office Complex
1200 35th Street, Suite 500
West Des Moines, IA 50265
Mr. Joel T. S. Greer
Attorney at Law
112 West Church Street
Marshalltown, IA 50158
1108.50, 1401, 1402.40, 1803,
1802, 2500, 2503, 2700, 4000.22
3002, 3003
Filed May 3, 1994
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JUDY LOUGHRY,
Claimant,
File No. 956513
vs.
A B R I T R A T I O N
K-MART CORPORATION,
D E C I S I O N
Employer,
Self-Insured
Defendant.
___________________________________________________________
1802
Claimant, a loss prevention manager, was thrown to the
pavement while attempting to apprehend a shoplifter. She
suffered a chest contusion and tenderness of the left
shoulder.
Claimant was awarded two weeks of temporary total
disability for two weeks that she was taken off work by the
authorized treating physician.
Claimant was not allowed temporary total disability for
her first week back to work when she was only allowed to
attend meetings because she received full pay for this
period of time.
1108.50, 1401, 1402.40, 1803
It was determined that the injury was not the cause of
permanent disability and that claimant was not entitled to
permanent disability benefits.
Claimant abandoned her authorized treating physician
and sought care from the medical clinic doctors for whom she
had worked for 13 years in the past. The leading doctor in
this firm diagnosed eight conditions either caused or
aggravated by this injury. He made these determinations
about three years after the injury and just a short time
before hearing. This firm also referred claimant out to
five other specialists for myriad health conditions, mostly
arthritic in nature. None of these five doctors provided
any specific causal connection to this injury even though
they mentioned it by way of history.
Claimant was evaluated, for defendant, by an
independent orthopedic surgeon to determine if workers'
compensation was liable for certain benefits or whether the
group health policy was liable for certain benefits. This
Page 2
doctor determined that her complaints were not work-related.
He and the original authorized treating physician were
preferred as more objective and reliable than the firm for
which she previously had worked.
2500, 2503, 2700
Claimant was awarded the medical expense of the
authorized treating physician and the independent evaluation
ordered by defendant. The other approximately $9,000 in
medical expenses were not allowed. It was determined that
these physicians were unauthorized and also that their
examination, care and treatment was not for a condition
caused by this injury.
The fact that defendant erroneously stated in a
deposition that an unauthorized physician was an authorized
physician, and may have even paid one of his bills
erroneously, did not in law or in fact constitute an
unauthorized physician as an authorized physician, when
claimant knew he was not authorized.
4000.22
No penalty benefits were awarded. The temporary
benefits were paid promptly. Claimant was not entitled to
permanent benefits.
3002, 3003
There was not enough evidence to accurately determine
the rate issue of dependency of a stepdaughter. In closing
argument, defendant's counsel stated that he stipulated that
in her tax returns that claimant had taken a dependency
deduction for her stepdaughter. This was determined to be
sufficient to allow claimant to be entitled to count the
stepdaughter as a dependent for workers' compensation
purposes.
Defendant's counsel argued that a legal obligation to
support the stepdaughter was required. It was determined
that the test is whether claimant was eligible to claim the
stepdaughter as a dependent on her income tax return. The
latter test depends on income tax rules and not support
obligation rules. The fact claimant had taken an income tax
exemption and deduction for dependency supported a workers'
compensation allowance for the stepdaughter as an exemption.
Hootman v. Mercy Hospital, file no. 902234 (Appeal Decn.
March 9, 1994).
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ELKE STEAHR,
Claimant,
vs.
File No. 956526
PACIFIC COAST FEATHER COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
INSURANCE COMPANY OF NORTH
AMERICA,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Elke Steahr, against her former employer, Pacific
Coast Feather Company and its insurance carrier, Insurance
Company of North America, both as defendants. Claimant has
alleged that she sustained a work-related injury on July 20,
1990.
The evidence in this case consists of testimony from
the claimant; and, joint exhibits 1-14. The case came on
for hearing before the undersigned deputy industrial
commissioner on June 2, 1993 at Davenport, Iowa.
ISSUES
The parties have submitted the following issues for
resolution:
1. Whether claimant sustained an injury on July 20,
1990 which arose out of and in the course of her employment;
and
2. Whether claimant is entitled to temporary
disability benefits or permanent partial disability
benefits.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Elke Steahr was born in Germany on April 26,
1940. At the time of the hearing, she was 53 years of age.
She is married, and has one grown child who is 32 years old.
Claimant has limited formal education, but completed
the seventh grade while in Germany, quitting school at an
early age. She described her course work as general
Page 2
studies, and she did not attend college.
Mrs. Steahr began working once she quit school, and her
first job in Germany was with a paper bag manufacturer. She
worked on the production line emptying and mounting machines
and packing the bags.
She moved to the United States, specifically to North
Carolina, in 1963. When she first arrived in the States,
she could not speak any English, but started watching
television, and learned English from soap operas. Today,
claimant can read some English, but is able to write only
German. She relies upon her husband to write things in
English.
Claimant's first job in the States was ironing men's
shirts for a laundry service located in Muscatine, Iowa.
This position required some twisting and bending movements,
but no lifting.
Next, Mrs. Steahr worked for Thatcher Glass and
Plastics, a company which manufactured plastic tubes for
Avon. Claimant's position involved removing the empty tubes
from the machines and packing them for shipment. The
products were not heavy as the items weighed two or three
pounds, but the shipping boxes weighed much more. She was
required to stand to perform this job, and quit when she was
injured by a box that fell on her head.
Claimant returned to the laundry service in Muscatine
for a short time, and then secured employment with the Heinz
plant where she "poked pickles and vegetables," deboned
meats and sorted tomatoes. This position required her to
stand all day, and perform an extensive amount of twisting
and bending. Most of the heavy lifting was done by the men
at the plant. She worked at the plant for three years, and
eventually moved to Maquoketa, Iowa, where she has lived for
the past 17 years.
Claimant worked for a short time at the hospital in
Maquoketa, and then began working for Wady Welding. Wady's,
now defunct, manufactured and built steel baskets used by
crews in road construction. Claimant performed labor
intensive activities at Wady's, including welding, cutting
steel, sawing steel bars and running a forklift. She
sustained a work-related injury, and was fired when she went
to see a physician about her injuries. Later, she was
rehired by the company. Claimant testified that she fully
recovered from the injury sustained at Wady's.
After a period of unemployment lasting two or three
years, Mrs. Steahr's next job was with the defendant in the
case, Pacific Coast Feather Company, a company which
manufactures bedding. Initially, claimant made pillows, as
she filled the cases while they were on the pillow machine,
and then took the stuffed products off of the bats. This
position required standing, stooping, bending and twisting
activities. After three months, claimant was placed on a
job making sheets used for waterbeds.
Page 3
Next, claimant became a quilter for the employer, a job
she began sometime in 1983. As a quilter, her job duties
included operating a scroller machine that made different
sizes and types of comforters and other bedding. The steel
tables and aluminum frames used needed to be taken apart and
adjusted to accommodate the size of bedding being made,
twin, double, queen or king. The tables used were very
heavy, and the frames were quite bulky. Once the tables and
frames were adjusted and set to the proper size, claimant
would stretch the fabric over the frame and prepare it for
the stitching. Some of the work required her to crawl under
the table to obtain the necessary settings. Once the
machines were set properly, the sewing machines would stitch
the patterns on the top portion of the bedding, and
hydraulic arms would move the frames down the table. At the
time of her injury, she was earning $4.75 per hour, with a
$.20 increase for working second shift.
In 1985, claimant underwent a laminectomy at the L4-5
level. She was off of work for approximately three months,
but she returned to her position as a quilter on the
scrolling machine. She indicated that from 1985 until July
20, 1990, she did not encounter any difficulties performing
her job duties, and did not miss any work.
On July 20, 1990, claimant was working on comforters
which were filled with feathers. Her quota was to complete
37 comforters in one hour, but claimant's machine was in
very bad condition and was not working properly.
Apparently, the hydraulic component was ineffective and
claimant was forced to manually turn the frame in order for
the comforters to be sewn correctly. This required her to
push and pull on the frame, and in four hours, claimant had
not yet completed one comforter.
At some point during her evening shift, and while
claimant was "yanking" the frame, she slipped, fell
backwards and hit her lower back and head on a pole which
was located close or within her work station. She told her
supervisor what had happened, but was told to return to her
machine. Claimant continued to push, pull and "yank" on the
machine in order to complete her work, and finished her
Friday night shift.
When she arrived at her home, she continued to feel
pain in her back. Her husband told her to take a bath,
which claimant did, hoping that it would relieve her pain.
She continued to feel pain throughout the weekend, and on
Monday called her supervisor, Robin and told her she was
going to see a physician, Raymond Hamilton, D.O., at Medical
Associates of Maquoketa, P.C. The initial report states
that claimant was complaining of pain in her cervical spine,
shoulder and low back. An examination revealed that the
range of motion in her neck was normal, but noted tenderness
in both the cervical and lumbar areas of the spine.
Straight leg raising tests were negative. She was given
Motrin, and taken off of work. She was to return to Dr.
Hamilton in two days. (Joint Exhibit 3, pp. 1-2; 19).
On July 25, 1990, claimant returned to the clinic and
Page 4
met with John K. Meyer, D.O., who diagnosed an acute dorsal
and cervical myositis. He administered an injection,
prescribed propoxyphene for pain and kept claimant off of
work. (Jt. Ex. 1, pp. 3, 19).
Claimant returned to Dr. Meyers on several occasions
during July of 1990. She continued to complain of pain in
the upper and midback, and limited range of motion in the
neck. He detected muscle spasms in the cervical and dorsal
spine, and continued to prescribe analgesic and
anti-inflammatory medications. He also diagnosed
thrombophlebitis in the right lower leg, and claimant was
eventually referred to Byron Rovine, M.D., for a
neurological evaluation. (Jt. Ex. 3, pp. 4-6; 19-21).
Dr. Rovine's report is dated August 6, 1990. He was
the surgeon who had performed the laminectomy in 1985, and
after a review of her history and examination, Dr. Rovine
believed claimant was suffering from a severe muscle strain
involving the paravertebral muscles in the neck and upper
back. He suspected a substrate of degenerative arthritis of
the cervical and thoracic spine as well. He recommended
continued rest, analgesics and Valium for muscle relaxation.
He also recommended additional x-rays, which were taken at
the Jackson County Public Hospital. The x-ray report
concludes that claimant had a normal cervical spine, and
generalized osteoporosis and spurring in the thoracic spine.
There was no evidence of an acute injury. (Jt. Ex. 4, pp.
1-2; Jt. Ex. 5, p. 1).
Claimant returned to Dr. Hamilton on August 10, 1990.
After an examination, he noted dorsal and cervical syositis,
improvement of the thrombophlebitis of the right leg, and
referred claimant to an orthopedist, John Hoffman, M.D. His
examination revealed a popliteal cyst, with tenderness and
swelling about the knee. He reviewed the x-rays, and sent
claimant for an MRI to better define the pathology of
claimant's problem. The MRI of the right knee showed an
extensive horizontal tear of the lateral meniscus and
probable thrombosis of the popliteal vein. (Jt. Ex. 6, p.
1; Jt. Ex. 5, p. 4; Jt. Ex. 7).
Claimant returned to Dr. Hoffman on September 6, 1990,
and underwent a right knee arthroscopy, meniscectomy and
chondroplasty on September 12, 1990. (Jt. Ex. 9).
Afterwards, she was sent to physical therapy for straight
leg raising and quad sitting exercises. She was to return
for a follow-up examination in two weeks. (Jt. Ex. 6, pp.
2-3; Jt. Ex. 3, p. 12). After several other follow-up
examinations, Dr. Hoffman, in April of 1991, released
claimant from his care, and assigned a 10 percent permanent
partial impairment of the lower extremity due to the
surgery, loss of motion and decrease in "quad bulk." (Jt.
Ex. 6, pp. 4-7).
It should be noted that during August, September and
October of 1990, in addition to receiving treatment from
Dr. Hoffman, claimant was also visiting various physicians
at the Maquoketa clinic for aches and pains in her back,
right shoulder, right knee and other ailments, such as
Page 5
stomach aches and chest pains. (Jt. Ex. 3, pp. 11-15; pp.
22-24). On September 26, 1990, claimant underwent a right
leg venogram, but no thrombi or obstructive diseases were
noted. Several days later, claimant underwent an upper G.I.
examination due to nausea. (Jt. Ex. 5, pp. 6-7).
Dr. Rovine reevaluated claimant on October 26, 1990.
After his examination, which showed no evidence of muscular
weakness of sensory deficit, he believed that claimant was
suffering from musculature pain. He referred her to
Fareedudin Ahmed, M.D., a physiatrist. (Jt. Ex. 3, p. 15,
p. 24, pp. 26a-27; Jt. Ex. 4, pp. 3-3a). His first
consultation with claimant was on October 30, 1990, and
after an examination, he believed claimant sustained a
paraspinal muscle strain in the neck and mid thoracic
region. He recommended physical therapy three times per
week at Mercy Hospital. (Jt. Ex. 10, pp. 1-7).
She was evaluated at the hospital in November of 1990.
Objective findings included some limited range of motion in
her cervical spin, tenderness and trigger points in the left
upper trapezius muscle, as well as muscle spasms throughout
the mid thoracic area. While the undersigned in unable to
locate the discharge notes, it is shown by the evidence that
claimant underwent a three-four month physical therapy
program. Final notes from the hospital indicate that
claimant underwent an EMG of the lower extremities, the
results of which appear to be within normal limits. Final
notations from the therapist show that claimant was able to
tolerate occasional lifting of 40 pounds, and that her
physical condition was improving. Apparently, she was to
return to work at the end of February. (Jt. Ex. 2, pp. 3-9;
Jt. Ex. 10, pp. 10-11).
Claimant returned to the clinic to see Dr. Meyer on
April 4, 1991. She was complaining of pain in her back and
down her arms and fingers. Her right hand felt numb.
Claimant was also complaining of pain in her right leg. Dr.
Meyer still believed that claimant had a musculoskeletal
problem and was unable to offer any relief. He suggested
she return to Dr. Rovine or get a second opinion from the
University of Iowa or Mayo Clinic. Dr. Meyer also states
that he was unable to objectively reproduce or define
claimant's complaints of pain, and he wondered whether all
of the complaints were due to the work injury. (Jt. Ex. 3,
p. 25).
According to Dr. Ahmed's records, claimant was finally
released to return to work in March of 1991, but after three
or four hours at work, claimant left because she was in a
great amount of pain. His last appointment with claimant
was on April 12, 1991, and he states in his notes that after
claimant's rigorous and extensive physical therapy program,
she had almost completely, yet after all the work, she
returned to him with all of her original complaints. He
advised an alternate occupation, and referred claimant to a
Gerald Hale, M.D., for an epidural block used for pain
management. Eventually, claimant cancelled this
appointment. (Jt. Ex. 10, p. 12).
Page 6
On April 30, 1991, at the request of Intracorp, J. R..
Lee, M.D., a physician at the Franciscan Medical Center, in
Rock Island, Illinois, evaluated claimant. He reviewed her
history and medical records, and conducted a physical
examination. Dr. Lee noted tenderness in the dorsal and
lumbar area, with restricted range of motion. Additional
x-rays revealed degenerative disc disease at the L5-S1
level, with some traction spur at the L3-4 level. He
diagnosed thoracic arthritis, degenerative disc disease at
the L5-S1 level of the lumbar spine, dorsal and lumbar spine
strain and preexisting arthritis at the dorsal and lumbar
areas of the spine. He believed that the back strain was
most likely a provoking factor, with the arthritis a
preexisting condition. He recommended a work hardening
program to evaluate her residual function. (Jt. Ex. 11, pp.
1-3).
Finally, Dr. Ahmed indicates in a report dated May 24,
1991, that claimant had achieved maximum benefits from the
rehabilitative services, and that physically, there was no
apparent limitation to the performance of her job. His
final diagnosis was degenerative arthritis of the thoraco
lumbar spine with periodic strain of the thoraco lumbar
paraspinals. Based on the AMA Guides, there was no
impairment rating to correlate with this diagnosis. (Jt.
Ex. 10, p. 13).
In January of 1992, Dr. Ahmed was called upon by the
Disability Determination Services Bureau to render an
opinion about claimant's condition. He offered that he had
not seen claimant since April 12, 1991, and that during his
examination, he was unable to detect any clinical findings
that would substantiate her complaints of physical
discomfort. (Jt. Ex. 10, p. 14).
In June of 1992, Dr. Meyer reviewed claimant's medical
records, and recalled his own past treatment rendered to
claimant. He agreed with Dr. Ahmed's opinion that she
suffered from degenerative arthritis of the thoracic and
lumbar spine, and occasionally suffered periodic strains of
the thoracic and lumbar spinal muscles. These conditions
caused great pain, brought on by the type of work she had
been performing. Dr. Meyer limited claimant's activities to
occasional lifting and carrying of no more than 20 pounds,
and occasional stooping, pushing, pulling and reaching
overhead. He believed he was not qualified to assign a
percentage of impairment. (Jt. Ex. 3, p. 26).
In June of 1992, claimant underwent a functional
capacity evaluation at the Spine Diagnostic and Treatment
Center at the University of Iowa Hospitals and Clinics in
Iowa City, Iowa. It is noted that she had undergone testing
in April of 1992 at the University of Iowa as well. She was
evaluated by various members of the spine team, including
Karen Drake and Deb Parrott, physical therapists; Hutha
Sayre, a clinical coordinator; and, Tom Lanes, a vocational
consultant. The overall evaluation indicates that claimant
was self-limiting and showed severe pain behavior. Various
test results showed that claimant's current physical
Page 7
conditioning and endurance levels were weak, and she would
be suitable to perform only sedentary-light work tasks. The
team recommended that claimant perform daily light exercise
program, take personal responsibility for a recovery, and
"grasp the concept of hurt vs. harm, accept that your back
is solid, stable and healed and have faith in your own
ability to manage your situation. Good recovery is
definitely possible with appropriate efforts." (Jt. Ex. 13,
pp. 2-3).
Some individual assessments performed at the University
of Iowa are worth mentioning. Mr. Lanes, the vocational
rehabilitation consultant, was unable to discuss any
vocational options with claimant due to her belief that she
was unemployable. (Jt. Ex. 13, pp. 4-5). Ernest Found, Jr.
M.D., was of the opinion that claimant suffered from chronic
pain syndrome and multiple incongruities. No surgical
treatment or further investigatory studies were warranted,
because claimant's physical examination was basically
normal. (Jt. Ex. 13, pp. 12-13).
Dr. Ahmed was deposed on September 1, 1992. His
deposition testimony is consistent with the opinions he
expressed in his medical records. (Jt. Ex. 12). Dr. Ahmed
confirmed during his deposition, taken September 1, 1992,
that when claimant returned to her job with the defendant,
her physical condition became worse. (Jt. Ex. 12, p. 25).
He again opined that claimant had a preexisting arthritic
condition that was aggravated by the work injury. (Jt. Ex.
12, pp. 30-31).
A job analysis of the scrolling job, the job which
claimant was performing at the time of her injury was
documented by Intracorp. It states that the worker must be
able to lift 40 to 50 pounds, carry 40 pounds three feet,
bend and reach frequently, push, pull and twist from the
waist and rotate the shoulders. (Jt. Ex. 8, p. 5). *
Presently, claimant finds it difficult to perform most
housework duties, getting dressed, carrying things and
sleeping. While her hobbies include knitting, crocheting,
gardening and fishing, whenever she participates in these
activities, she feels pain. Claimant testified that because
she did not feel ready, willing and able to work, she did
not apply for unemployment. Currently, she works at a
thrift store, attaching prices for items and waiting on
customers. She enjoys working at the shop, and apparently
is able to perform the majority of her work sitting down.
The shop is a nonprofit organization, and she does not earn
wages for work performed.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant
sustained an injury on July 20, 1990 which arose out of and
in the course of her employment.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
Page 8
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Defendants argue that claimant has been inconsistent
with her version as to how the injury occurred. They offer
that none of the medical records are consistent with her
testimony, and that due to the time lapse between the injury
and claimant's first recognition of pain.
Claimant testified that she was working on a machine
which was malfunctioning. Apparently, the machine had not
been repaired for some time, and claimant was forced to do
manually work that was normally done by a hydraulics system
on the machine. She indicated that during one hour, more
than 35 comforters were to have been sewn, yet in four
hours, claimant had not completed one comforter. While the
undersigned, who also presided at the hearing, at times
found it difficult to understand the claimant, she was able
to explain how her work was completed, and how the injury
occurred. July 20, 1990, was a Friday, and she visited the
doctor on the following Monday. There is no evidence in the
record that indicated claimant hurt herself at home, and
given the circumstances at work, including the condition of
the machine on which claimant was working, it appears more
likely than not that claimant injured herself while on the
job. While some of the medical records differ in the
written comments about the incident, the undersigned
believes claimant does have difficulty in expressing
herself, and is somewhat unsophisticated in her ability to
describe events. This was certainly evident during the
hearing.
Likewise, claimant had been working on a very regular
basis for more than five years prior to this incident. It
appears that she was a dependable, conscientious employee
who, despite her attempts at having the machine fixed or
repaired by qualified people at the plant, continued to try
and reach her quota during the evening shift. She displayed
much effort for $4.85 per hour.
This is no serious argument to dispute her story, and
claimant was working during her assigned shift, performing
her duties in a manner consistent with completing her tasks
and necessitated by the work conditions.
As a result, the record supports a finding that
claimant sustained an injury to her back on July 20, 1990
which arose out of and in the course of her employment.
The next issue is whether there is a causal connection
between the injury and claimant's disability.
Page 9
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
While a claimant is not entitled to compensation for
the results of a preexisting injury or disease, its mere
existence at the time of a subsequent injury is not a
defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76
N.W.2d 756 (1956). If the claimant had a preexisting
condition or disability that is materially aggravated,
accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v.
Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962);
Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112
N.W.2d 299 (1961).
While the parties were able to stipulate that claimant
had sustained a 10 percent impairment to the right leg in
the event a work-related injury is found, and the defendants
have paid certain amounts of healing period and permanent
partial disability benefits, there is a dispute as to
whether claimant sustained an injury to the body as a whole
due to the July 20, 1990 incident at work. If she did, of
course, an analysis of her industrial disability would be
warranted.
Once again, the medical records are replete with
notations regarding claimant's complaints of pain and
discomfort in her back. There is no documentation regarding
any intervening incidents to claimant's back. Several
physicians provided the requisite opinions regarding the
causal connection between claimant's work accident and the
flare-up of her arthritic condition. Both Drs. Ahmed and
Meyer, who were claimant's treating physicians, believed
that she had underlying arthritis that was aggravated by the
work injury. She has been assigned permanent work
restrictions and has undergone numerous physical therapy
treatments.
Page 10
Again, claimant has shown by a preponderance of the
evidence that she sustained a work-related injury to her
back on July 20, 1990.
Therefore, an analysis of her industrial disability, or
reduction in earning capacity, is proper.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
Page 11
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.
At the time of the hearing, claimant was 53 years of
age. She has not been gainfully employed for the past three
years.
Her educational level is very limited, although she
appeared to be of average intellect. Retraining, however at
this stage of her life, would probably be very difficult and
would probably yield less than desirable results.
Claimant's transferable skills are negligible. She has
worked in very physical labor positions in the past, and has
for the majority of her life worked for minimum wages. She
has shown herself to be a very dependable, hard-working
employee.
Claimant has had a difficult time accepting that she
must assume responsibility for her own well-being and
recovery. Pills and therapy will not in and of themselves
help her, but merely provide the backdrop in order to make
her recovery plausible. Her motivation to return to any
type of work is questionable, although she does work for the
thrift shop. The record is devoid of any attempts by the
claimant to secure suitable work for which she will be paid.
And, while claimant is not able to return to the type of
work she once did, she should be able to find some type of
job which will accommodate her restrictions and limitations
and still pay minimum wage, which is the same wage category
she was in when she was injured.
She has had a variety of medical treatments and
modalities. Her effort has been questioned several times.
No physician associated with the case has been able to
assign a percentage of permanent impairment, although
functional ratings are merely one component of an industrial
disability. The healing period has been substantial, as she
treated with Dr. Ahmed until May 24, 1991, almost one year
after the incident.
After considering all of the factors, especially
claimant's work restrictions of limited bending, twisting,
stooping and turning; lifting of not more than 40 pounds on
a regular basis; claimant's age; the severity of the injury
to the back; her overall physical condition including the 10
percent impairment to her knee; and, claimant's motivation
to get well and return to a job, the undersigned finds she
has sustained a 25 percent industrial disability.
ORDER
THEREFORE, IT IS ORDERED:
Page 12
That due to the impairment to her right lower
extremity, defendants shall pay claimant permanent partial
disability benefits totaling twenty-two (22) weeks at the
rate of $145.74 per week beginning April 4, 1991.
That defendants shall pay claimant permanent partial
disability benefits totaling one hundred twenty-five (125)
weeks at the rate of one hundred forty-five and 74/100
dollars ($145.74) per week commencing May 24, 1991.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa 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 the agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of July, 1993.
______________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Steven Berger
Attorney at Law
Kahl Bldg, Ste. 900
326 Third St.
Davenport, IA 52801-1280
Ms. Deborah Dubik
Mr. Craig A. Levien
Attorneys at Law
600 Union Arcade Bldg.
111 E. Third St.
Davenport, IA 52801-1596
5-1803
Filed July 23, 1993
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ELKE STEAHR,
Claimant,
vs.
File No. 956526
PACIFIC COAST FEATHER COMPANY,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
INSURANCE COMPANY OF NORTH
AMERICA,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Extent of industrial disability. Claimant awarded 25
percent based on age (53); ability to undergo retraining
(minimal); motivation (very little); and
defendant-employer's efforts to accommodate (minimal). She
had suffered a back strain, but was saddled with permanent
work restrictions of no lifting of more than 40 pounds, and
limited bending, lifting and stooping. All jobs she had
held in the past required these activities.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ELKE STEAHR,
Claimant, File No. 956526
vs.
N U N C
PACIFIC COAST FEATHER COMPANY,
P R O
Employer,
T U N C
and
O R D E R
INSURANCE COMPANY OF NORTH
AMERICA,
Insurance Carrier,
Defendants.
___________________________________________________________
The undersigned filed an arbitration decision for this case
on July 23, 1993.
Due to a scriveners error, the order was incorrect, and is
modified to read as follows:
That defendants shall pay claimant permanent partial
disability benefits totaling one hundred twenty-five (125)
weeks at the rate of one hundred forty-five and 74/100
dollars ($145.74) per week commencing May 24, 1991.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa 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 the agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of August, 1993.
______________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Steven Berger
Page 2
Attorney at Law
Kahl Bldg, Ste. 900
326 Third St.
Davenport, IA 52801-1280
Ms. Deborah Dubik
Mr. Craig A. Levien
Attorneys at Law
600 Union Arcade Bldg.
111 E. Third St.
Davenport, IA 52801-1596
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SCOTT COOPS, :
:
Claimant, :
:
vs. :
: File No. 956627
HY-VEE FOOD STORES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Scott
Coops, claimant, against Hy-Vee, employer, and Employers
Mutual Companies, insurance carrier, defendants, to recover
benefits under the Iowa Workers' Compensation Act as a
result of an injury sustained on August 3, 1990. This
matter came on for hearing before the undersigned deputy
industrial commissioner on November 15, 1993, in Des Moines,
Iowa. The record was considered fully submitted at the
close of the hearing. The claimant was present and
testified. Also present and testifying was Sheila Sadler.
The documentary evidence identified in the record consists
of exhibits 1 through 9 and claimant's exhibits I through V.
ISSUE
The parties have presented the following issue for
resolution:
Whether claimant's injury on August 3, 1990, has caused
permanent disability and, if so, the extent thereof.
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on December 23, 1964, and completed
the twelfth grade of school. He commenced working for
employer on July 16, 1990, and was terminated on October 26,
1990, when he failed to report to work after being released
to do so by David Berg, D.O., his treating physician. Prior
to commencing work for employer, claimant worked as a
bicycle mechanic, bicycle sales person, small cabinet
carpenter and machinist. After his dis-charge in October
Page 2
1990, claimant worked full time as a sales clerk and
part-time as a restaurant order taker and bicycle mechanic.
Since September 1992, claimant has been enrolled full time
at Hawkeye Community College in the photography program. He
receives financial assistance in the form of room, board and
tuition while attending school.
The parties do not dispute that claimant was injured on
August 3, 1990, while performing his job as a part-time
order selector in employer's grocery warehouse.
The pertinent medical evidence of record reveals that
claimant reported to the Chariton Medical Center on August
3, 1990, with complaints of low back pain. He saw Lawrence
Rasmussen, M.D., who referred him for x-rays at Lucas County
Health Center on August 7, 1990. The x-rays revealed a
grade I spondylolisthesis at L-5 upon S-1. Dr. Rasmussen
authorized three days of physical therapy at the hospital.
He diagnosed claimant lumbosacral strain with preexisting
spondylolisthesis. A referral was made to Dr. Berg (ex. A-4
& 6).
Dr. Berg initially saw claimant on August 14, 1990. On
examination he reported some tenderness over the L5-S1 disc
space with very minor soft tissue tenderness surrounding the
area. Passive and active range of motion of the spine, both
sitting and standing, was normal. There was no spasm or
trigger points noted. Straight leg raising was negative.
He was able to easily walk on his heals and toes. There was
no neuromotor or vascular deficits noted. At the time, Dr.
Berg indicated that claimant had a high risk of recurrence
of back injury due to the bony changes noted on x-ray and
advised him to seek a different type of job, specifically
one not requiring heavy lifting (ex. A-5).
After failing to keep an August 28, 1990 appointment
with Dr. Berg, claimant next saw him on September 6, 1990.
This visit was after claimant had started a stabilization
physical therapy program with Thomas Bower and Thomas
Wheatley. Dr. Berg kept claimant off work pending
completion of physical therapy (ex. A-5 & 7).
On October 3, 1990, claimant commenced a work hardening
program with Wheatley and Bower. On October 26, 1990,
claimant reported to Dr. Berg. He stated that he was not
working or taking any medications. He appeared vastly
improved over the past two weeks. He indicated that he was
looking for a different job and had some prospects. On
examination, he had some tenderness in his low back but no
evidence of radiculopathy or neuromotor or vascular
deficits. He had excellent range of motion. Claimant saw
Mr. Bower the same day and he told Dr. Berg that claimant
was capable of lifting and carrying 50 pounds without
difficulty. At this time, Dr. Berg and Bower and Wheatley
discharged claimant from their care (ex. A-5, page 26; and
7, page 37).
Claimant saw Dr. Berg on November 26, 1990. He stated
he has gotten worse since his last visit. However, he
denied any reinjury. On examination of the low back there
Page 3
was no tenderness or deformity present. There was no
tenderness over the disc spaces. He had normal passive and
active range of motion of the lumbar spine. Straight leg
raising was negative. A notation indicates that he was
scheduled for a CT scan of the lumbosacral spine (ex. A-5,
p. 25).
Claimant returned to Dr. Berg on December 6, 1990.
There is no indication that a CT scan was ever performed.
At this time, claimant indicated that he as moving back to
California and was advised to find a job which did not
require significant heavy repetitive lifting (ex. A-5, p.
24).
Claimant testified that he returned to California in
late 1990. He obtained a full-time job as a sales clerk in
early 1991. He worked 40 hours per week and earned $350 per
week. After two months, the store closed and he obtained a
part-time job as a restaurant order taker and in his off
hours worked as a bicycle mechanic. After one year in
California, he returned to the state of Iowa in December
1991. He testified that while in California he received no
medical treatment for his back condition. In January 1992
he again procured employment as a restaurant order taker and
also worked as a telephone salesman. As previously stated
in September 1992 he enrolled at Hawkeye Community College.
While in California, claimant was evaluated by Gerald
P. Keane, M.D. This evaluation was done on July 8, 1991.
Based on this examination, Dr. Keane recommended diagnostic
evaluation specifically a CT scan and lumbar
flexion/extension x-rays (ex. A-8).
Claimant testified that when he returned to Iowa, he
sought, on his own, an evaluation from Arnold E. Delbridge,
M.D. This occurred on November 17, 1992. X-rays of the
lumbosacral spine were taken and revealed grade I
spondylolisthesis of L5 on S1 and spina bifida of L5. Dr.
Delbridge imposed physical limitations and restrictions (ex.
A-2).
Defendants referred claimant to Daniel J. McGuire,
M.D., for evaluation on April 14, 1993. On examination, he
appeared in no acute distress. His shoulders and pelvis
were level while in a standing position. No spasms or
deformities were noted. No scoliosis was noted. In fact,
he had no complaints of pain during the course of
examination. He was able to forward flex 70 degrees, extend
20 degrees and rotate 50 degrees. Neurologically, he was
intact to sensation in the lower extremity and intact to
reflexes and motors also. In a supine position, lifting his
left leg up to 60 degrees caused some lower back pain but no
radicular complaints. X-rays (flexion/extension views)
showed no instability. The pars defect at L5 was evident.
It was Dr. McGuire's assessment that claimant's atypical
radicular complaints were very difficult to relate to the
radiographic findings of spondylolisthesis (ex. A-2).
On August 31, 1993, Dr. Berg responded to a letter from
defendants' attorney. He stated that "I do concur with Dr.
Page 4
McGuire's evaluation and agree that Mr. Coops [sic] back
pain was a temporary aggravation of a preexisting condition,
namely Grade I spondylolisthesis in the lumbar spine." He
also stated that he returned claimant to work on October 26,
1990 (ex. A-5, p. 22).
On September 1, 1993, Dr. McGuire indicated that the
restrictions imposed by Dr. Delbridge were excessive. In
any event, he felt that such restrictions were not a result
of the work incident but a result of his examination and
review of some x-rays. He indicated that the work incident
resulted in no permanent impairment as the findings on the
x-rays predated the incident (ex. A-3, pp. 13-14).
On September 14, 1993, Dr. Berg again wrote to
defendants' attorney and stated "...I agree that I did tell
Mr. Coops that he was to return to work on October 26, 1990.
On that date I did give him a written statement outlining
restrictions of no lifting over 40 pounds, no pushing or
pulling over 50 pounds, and no work requiring repetitive
bending." (ex. A-5, p. 20).
In that same letter dated September 14, 1990, Dr. Berg
indicated that he was enclosing a copy of the restriction
sheet that he gave to Mr. Coops. However, there is a
dispute between the parties as to whether exhibit A-5, page
21 is an exact replica of what Dr. Berg gave claimant.
Claimant contends that page 21 was altered and does not
reflect Dr. Berg's restrictions or return to work date.
Claimant then introduced a pink slip which was given to him
on October 26, 1990. This slip clearly indicates that
claimant was released to return to work on October 26 with
restricted lifting of no more than 40 pounds and restricted
pushing or pulling of no more than 50 pounds, as well as a
prohibition on work requiring repetitive bending (ex. I).
The pink slip appears to correlate exactly with exhibit A-5,
page 21. Claimant's protestation that he was uninformed
regarding a release to return to work by Dr. Berg is not
credible.
The record indicates that claimant was terminated by
employer due to a failure to return to work after he was
released to do so on October 26, 1990. Claimant testified
that he called employer on Monday, October 29, 1990,
inquiring as to the whereabouts of his workers' compensation
check. He stated that he spoke with Sheila Sadler and was
told that he was fired for abandoning his job. Sheila
Sadler testified that claimant called on Friday, November 2,
1990. She stated that she spoke with him but made no
mention that he was fired. On November 4, 1990, a letter
was sent to claimant regarding his termination. Ms. Sadler
explained that employer has a absentee policy which she
developed stating that after an injured worked is released
to return to work, contact must be made with employer within
three days to discuss job prospects in conformity with
medical restrictions. She stated that since claimant did
not contact employer until November 2 he was terminated for
violating the policy. Since there is no written record of
claimant's communication with employer either on October 29
Page 5
or November 2, 1990, the undersigned must determine who is
telling the truth in this regard. Since the record
indicates that claimant told Dr. Berg on October 26, 1990,
that he was looking for other work, it appears that he had
no intention of ever returning to Hy-Vee. It appears that
claimant's contact with employer concerned the whereabouts
of his check, rather than prospective employment.
Accordingly, it is determined that claimant contacted
employer on October 29 rather than November 2.
Claimant was referred by his attorney to Karen Kienker,
M.D., for evaluation on September 17, 1993. After reviewing
claimant's medical history and noting his complaints, Dr.
Kienker conducted a physical examination. She concluded
that claimant has a grade I spondyloysis at L5-S1, with
chronic back pain and possible left L5 radiculopathy. She
gave him a 15 percent impairment of the whole person and a
40-pound lifting restriction. She stated without
explanation, that his current back pain is the result of his
August 3, 1990 work injury (ex. A-1).
After reviewing Dr. Kienker's report, Dr. McGuire
reported on October 29, 1993, that the decreased range of
motion which claimant exhibited on September 17, 1993,
cannot be related to a work incident of August 1990 in view
of his activities during the intervening three years. He
again reiterated that the changes of spondylolisthesis
predate the work incident and the restrictions imposed by
Dr. Kienker are the result of the spondylolisthesis and not
the result of the work incident. He reaffirmed his prior
assessment that the work incident did not cause the
spondylolisthesis (ex. A-3).
CONCLUSIONS OF LAW
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of August 3, 1990, is causally related to the disability on
which he now bases his claim. Bodish v. Fischer, Inc., 133
N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility is
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, the weight to be given to such an opinion
is for the finder of fact, and that may be affected by the
completeness of the premise given the expert and other
Page 6
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The supreme court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
The issue to be determined by the undersigned is
whether claimant's current symptoms and physical
restrictions are causally related the injury suffered on
August 3, 1990.
After carefully considering the total evidence in this
case, the undersigned concludes that the greater weight of
the evidence supports the finding that claimant's current
low back pain and other symptoms are due to a condition
which preexisted his work injury on August 3, 1990, namely
grade I spondylolisthesis in the lumbar spine. This opinion
was rendered by Dr. Berg, claimant's treating physician and
Dr. McGuire, an orthopedic specialist. Contrary opinion was
rendered by Dr. Kienker, an evaluating physician, on
September 17, 1993, more than three years after the work
injury. Dr. Berg opined on August 31, 1993, that claimant's
back pain was a temporary aggravation of a preexisting
condition. He gave claimant no permanent impairment rating.
The physical restrictions he imposed were due to his grade I
spondylolisthesis. This assessment is consistent with the
opinion rendered by the spine specialist on April 14, 1993,
when he stated that claimant's atypical radicular complaints
are very difficult to relate to the radiographic findings of
spondylolisthesis. The changes of spondylolisthesis predate
claimant's work incident. Dr. McGuire emphatically states
that claimant's physical restrictions are the result of the
spondylolisthesis and not the result of the work incident.
The opinions rendered by Dr. Berg and Dr. McGuire are
entitled to more significant weight and consideration that
the opinion rendered by Dr. Kienker.
Claimant was paid workers' compensation benefits during
the time he was off work from Hy-Vee until the time he was
released to return to work by Dr. Berg. Claimant is not
entitled to any other workers' compensation benefits as a
result of this claim. The determination is dispositive of
the entire case and further analysis is unnecessary.
ORDER
THEREFORE IT IS ORDERED:
Claimant shall take nothing from these proceedings.
The parties shall pay their own costs.
Signed and filed this ____ day of December, 1993.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Page 7
Copies to:
Mr. Philip F. Miller
Attorney at Law
309 Court Ave STE 200
Des Moines, Iowa 50309
Mr. E.J. Kelly
Attorney at Law
2700 Grand Ave, STE 111
Des Moines, Iowa 50312
51803
Filed December 7, 1993
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SCOTT COOPS,
Claimant,
vs.
File No. 956627
HY-VEE FOOD STORES, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
51803
Accordingly to claimant's treating physician, on August 3,
1990, he experienced back pain and temporarily aggravated a
preexisting condition, namely, Grade I spondylolisthesis in
the lumbar spine. Claimant's current symptoms and the
disability on which he now bases his claim are not the
result of his work incident but rather the result of his
preexisting condition which predate the work incident.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JOHN A. PENDER, :
:
Claimant, :
:
vs. : File No. 956773
:
SIVYER STEEL CORP., : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
statement of the case
This is a proceeding in arbitration brought by John A.
Pender against his former employer, Sivyer Steel
Corporation, and its insurance carrier, Employers Mutual
Companies, based upon an injury that occurred on November
20, 1989. Pender seeks compensation for healing period,
permanent partial disability (if the same can presently be
determined), and payment of medical expenses. The issues to
be determined include whether Pender sustained an injury
which arose out of and in the course of his employment with
the employer and causation.
The case was heard at Davenport, Iowa, on October 9,
1991. The evidence consists of testimony from John A.
Pender, Lance Frye and Jack Armstrong. The record also
contains joint exhibits A through I and claimant's exhibits
1 through 3).
findings of fact
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made.
John A. Pender is a 37-year-old man who injured his
back on November 20, 1989, while lifting castings as part of
the duties of his employment at Sivyer Steel Corporation.
He was seen by C. R. Fesenmeyer, M.D., on that date and was
taken off work. He did not return for a follow-up visit
with Dr. Fesenmeyer but resumed working for the employer in
approximately two days.
Pender's employment with Sivyer Steel commenced in the
spring of 1989. During much of 1989, he treated with
Mitchell R. Mally, D.C., for problems involving his hands
(joint exhibit D, pages 3-8). An office note dated November
22, 1989, makes reference to Pender having injured his back
Page 2
at work. No further comment regarding Pender's back appears
until an undeterminable date in 1990. The entries show some
improvement and worsening and then eventual improvement of
his back. At one point, reference is made to questioning
whether his back was sore because of his waterbed. The last
entries from 1990 do not indicate any back complaints (joint
exhibit D, pages 1 and 2). A record which appears to be
dated January 30, 1990, shows a history of low back pain
with the condition having begun approximately one week
before Thanksgiving 1989. It goes on to state "woke up with
pain" and is followed by a statement which indicates that he
saw the company physician on November 20, 1989. These
entries could be interpreted as stating that the back pain
was something which Pender awoke with on either November 20,
1989 or January 28, 1990. At the top of the page, it is
indicated that the symptoms were present on November 20,
1989, left, and then returned on January 28, 1990 (joint
exhibit D, page 10).
The employer's notes show an ongoing course of
treatment for Pender's hands and wrists. He took a
voluntary layoff April 27, 1990, apparently due to his hand
problems (joint exhibit F, page 14). The records show him
to have had back complaints during January and February of
1990 (joint exhibit F, pages 15 and 16). The records
indicate that he was released to perform regular work
starting February 26, 1990. Subsequent to that date, the
employer's notes do not show any back complaints (joint
exhibit F, page 15).
In August 1990, Pender sought treatment from William D.
Reinwein, M.D. At that time, Pender gave a history of
having back pain which started November 20, 1989, and had
been ongoing since that date. The history indicates that he
left work in April due to back symptoms (joint exhibit C,
page 1). At hearing, Pender related that, when he returned
to work following Thanksgiving of 1989, he resumed regular
duty and worked all through December 1989 and most of
January 1990 but awoke on or about January 30, 1990, with
the exact same symptoms as he had experienced on November
20, 1989. He related that, following Thanksgiving of 1989,
his back always bothered him on most days and that he had a
sharp pain shoot down his right leg. He stated that, on
almost every day, he went to the company nurse and asked for
pain medications.
After drawing unemployment for six months, Pender
obtained a job with IBP. Prior to being hired, he was
administered a physical examination which he passed (joint
exhibit G, page 7). When applying, he denied having any
prior problems with his back or carpal tunnel syndrome
(joint exhibit G, page 4). He was terminated from that
employment due to his failing to call in or show up for work
(joint exhibit G, pages 14-16 and 19-21). Pender stated at
hearing that his reason for leaving IBP was that he was
required to pick up slabs of beef and was unable to perform
that job due to his back condition.
Page 3
Pender obtained employment with Seven Cities Sod
Corporation and began work shortly after being hired on
April 1, 1991. He remained so employed until August 12,
1991, a span of more than four months. During some of those
weeks, he worked in excess of 50 hours per week (joint
exhibit H, pages 3 and 4). Pender worked as a laborer and
handled rolls of sod which weighed in the range of 25
pounds. During breaks he sometimes engaged in basketball
games with his coemployees. His supervisors at Seven Cities
Sod, Lance Frye and Jack Armstrong, did not notice any
indication of Pender having back problems during the time he
was in their employ.
Pender is a three-time convicted felon (joint exhibit
E, interrogatory number 6). Pender's credibility in this
case is impaired by the conflicts between his testimony and
the physicians' records, the testimony from Lance Frye and
Jack Armstrong, and his three felony convictions.
Dr. Fesenmeyer, who originally treated Pender, stated
in a report dated August 27, 1990, that he was unable to
connect Pender's back complaints which were made in August
of 1990 with the November 20, 1989 injury (joint exhibit B,
pages 1 and 2). Dr. Reinwein, who also saw claimant in
August of 1990, felt that the back complaints voiced at that
time were causally connected to the November 20, 1989 injury
(joint exhibit C, pages 1 and 2). The difference in the
opinions expressed by the two physicians appears to hinge
upon the medical history which they were provided. Dr.
Fesenmeyer had a medical history which showed a recovery
from the November 20, 1989 incident, while Dr. Reinwein
expressed his opinion based upon a history which included
continuing complaints commencing November 20, 1989. The
history given to Dr. Reinwein showed pain that continued and
became radiating to the right lower extremity despite
treatment by the company physician. That same history
indicates that Pender received chiropractic treatments which
failed to improve his symptoms and that he had not worked
since April due to those symptoms.
The result of this case hinges upon which medical
history is to be found to be correct. The history relied
upon by Dr. Reinwein is not corroborated by the treatment
notes from Dr. Mally or notes from Dr. Fesenmeyer. To the
contrary, the records from Dr. Fesenmeyer and Dr. Mally show
claimant to have improved with treatment and resumed
working. When he left Sivyer Steel on April 27, 1990, it
appeared to be over a dispute concerning use of his hands.
The work which Pender subsequently performed at Seven Cities
Sod is totally inconsistent with him having a serious back
problem during the time he performed that work. In this
case, the claimant's testimony is not sufficiently strong to
establish by a preponderance of the evidence that it is
probable that his symptoms had their onset and continued as
shown in the history relied upon by Dr. Reinwein. The
claimant's testimony is contradicted by the records from Dr.
Fesenmeyer and Dr. Mally. It is therefore found that the
Page 4
medical history relied upon by Dr. Fesenmeyer when
expressing his opinion in the August 27, 1990 report is
probably correct. It is therefore found that the evidence
in this case fails to show, by a preponderance of the
evidence, that it is probable that whatever back condition
or complaint John A. Pender might currently have resulted in
any manner from the November 20, 1989 injury he sustained at
Sivyer Steel Corporation.
conclusions of law
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on November 20,
1989, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154
N.W.2d 128 (1967).
The claimant has the burden of proving by a
preponderance of the evidence that the injury of November
20, 1989, is causally related to the disability on which he
now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516,
133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa
296, 18 N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
John A. Pender has proven, by a preponderance of the
evidence, that he injured his back on November 20, 1989, and
that the injury arose out of and in the course of his
employment. The evidence shows he was disabled for a period
of two days and then resumed his employment with the
employer. Thereafter, he worked and was essentially
asymptomatic during the month of December 1989 and most of
January 1990 until waking up with back problems on or about
January 30, 1990. He then obtained treatment and his back
problems resolved. He resumed working on February 26, 1990,
and continued working without any record of back complaint
until leaving his employment due to a dispute over being
assigned to perform grinding.
In this case, the medical history relied upon by Dr.
Reinwein is not shown to be correct. It must be remembered
Page 5
that the claimant has the burden of proving probability, not
mere possibility. The employer does not have a burden of
disproving the claimant's allegations. It is therefore
concluded that John A. Pender has failed to prove, by a
preponderance of the evidence, that any permanent disability
or the current condition of his back, whatever that may be,
was proximately caused by the November 20, 1989 injury that
he sustained while employed at Sivyer Steel Corporation.
Two days is an insufficient amount of time to warrant
any award of temporary total disability compensation under
section 85.33. Since the injury has not been shown to have
produced any permanent disability, Pender is not entitled to
recover any compensation for permanent disability.
Pender has likewise failed to demonstrate that his
expenses incurred with Dr. Mally or Dr. Reinwein were
proximately caused by the November 20, 1989 injury. It is
therefore concluded that he is not entitled to recover those
expenses from his employer.
order
IT IS THEREFORE ORDERED that claimant take nothing from
this proceeding.
IT IS FURTHER ORDERED that the costs of this action are
assessed against the claimant pursuant to rule 343 IAC 4.33.
Signed and filed this ______ day of ____________, 1991.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Allan Hartsock
Attorney at Law
4th Floor, Rock Island Bank Bldg.
P.O. Box 4298
Rock Island, Illinois 61204-4298
Mr. Jeffrey M. Margolin
Attorney at Law
Suite 111, Terrace Center
2700 Grand Avenue
Des Moines, Iowa 50312
5-1402.30
Filed November 12, 1991
MICHAEL G. TRIER
before the iowa industrial commissioner
____________________________________________________________
:
JOHN A. PENDER, :
:
Claimant, :
:
vs. : File No. 956773
:
SIVYER STEEL CORP., : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
5-1402.30
Claimant was a three-time convicted felon. His testimony of
continuing symptoms following an apparently minor injury was
contradicted by the physicians' records and testimony
regarding strenuous exertion performed subsequent to that
injury. It was held that he failed to prove that any
present back problem was proximately caused by that initial
injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
VERNETTA LUTHI, :
:
Claimant, :
:
vs. :
: File No. 956963
LAKESHORE COUNTRY CLUB, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
USF & G, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Vernetta
Luthi against Lakeshore Country Club on account of an
alleged injury of October 26, 1989. Vernetta seeks
compensation for healing period and permanent partial
disability. Defendants deny liability and in the event that
they are held liable they seek to apportion the disability
between the alleged injury in this case and an injury that
occurred on June 15, 1988, while in the employ of this same
employer. It is noted that defendants have voluntarily paid
37.5 weeks of compensation at the rate of $373.63
representing a 7.5 percent permanent partial disability on
account of that 1988 injury. (exhibits 7 and 8).
The case was heard at Council Bluffs, Iowa, on January
5, 1994. The evidence consists of testimony from Vernetta
Luthi, Hans Luthi and Paulette Freeman.
FINDINGS OF FACT
The appearance and demeanor of the witnesses was
observed as they testified and those observations have been
considered in determining their credibility.
Vernetta Luthi is a 49-year-old woman who graduated
from high school in 1962. She has been employed in the food
service industry since 1967. She began as a waitress and
over the years received a series of promotions taking her
through positions such as hostess and dining room manager
for a large Holiday Inn motel in Omaha, Nebraska. She then
became employed by the Omaha Press Club as a dining room
hostess. She was promoted to dining room manager, then to
office manager and finally was promoted to become assistant
manager of the Omaha Press Club.
Page 2
On March 1, 1988, Vernetta became manager of the
Lakeshore Country Club in Council Bluffs, Iowa. The work of
a club manager commonly involves many hours of work and
considerable responsibility. Vernetta was responsible for
the entire operation of the country club, other than the
golf course and pro shop. Her duties included the kitchen,
dining room, pool, tennis court and the grounds surrounding
the clubhouse building.
On June 15, 1988, Vernetta fell on a wet concrete floor
in the kitchen. She entered into a course of medical care.
Her predominate treating physician was Michael J. Morrison,
M.D. Diagnostic testing conducted on August 18, 1988,
showed no evidence of disc herniation although disc
degeneration at the L4-5 level was noted. (ex. 3).
Approximately two months later an MRI scan again showed
degeneration at the L4-5 level with mild bulging of the disc
to the left and right. Bulging at the L3-4 level was also
identified. (ex. 5). Claimant's active treatment with Dr.
Morrison ended on April 18, 1989. In his report Dr.
Morrison states that she still had periodic pain in her
lower back with radiation into her right leg. He assigned a
permanent impairment of 5 to 10 percent of the whole person.
(ex. 6). In September 1989 claimant saw David W. Minard,
M.D., for her back complaints. He treated her with
injections. (ex. 1-3). It is recognized that claimant and
her husband denied seeing Dr. Minard and having injections
at that time. Their testimony in that regard is found to be
incorrect. Particular significance is given to the fact
that the note dated November 3, 1989, indicates that she had
fallen at work and was again treated with injections at the
facet joint area. (ex. 1-4).
It is found that Vernetta did fall and injure herself
at work on October 26, 1989, as she described at hearing.
The record shows that ever since that incident she has been
under a continuing course of medical care for her back.
(exs. 1-4 through 1-9). An MRI scan was conducted on August
27, 1990. It showed disc degeneration at the L3-4 and L4-5
levels of claimant's spine with a small focal protrusion on
the left at the L3 level. When compared to the previous MRI
scan of October 1988 there was little change, with perhaps
some slight improvement. (ex. 17). The records show that
on September 7, 1990, Douglas J. Long, M.D., claimant's
principle treating neurosurgeon, suggested that she take a
leave of absence from work. At that point in time Dr.
Minard had recommended surgery for Vernetta but Dr. Long
recommended additional conservative care. As a result of
being off work, claimant's employment with Lakeshore Country
Club ended.
Claimant continued to treat conservatively until
January 1991. On January 15, 1991, she underwent
microlumbar diskectomy at the L3-4 level of her spine. A
bulging disc was found. Dr. Long's notes of March 18, 1991,
stated that an obvious subannular disc fragment was found
during the surgery. (exs. 29-33). The notes go on to
Page 3
indicate that claimant experienced a resolution of her low
back and left leg pain following the surgery but that her
right hip pain had returned.
At the time of hearing, claimant testified that her
right hip pain was pretty well resolved. It is found that
the right hip pain was not a permanent part of her injury
that resulted from the fall on October 26, 1989. It is
debatable with regard to whether or not the right hip pain
was a part of that injury though it appears that it likely
was in some manner effected. The serious portion of the
October 26, 1989 injury was the herniated disc on the left
which was eventually treated surgically. In making this
determination it is recognized that the 1988 MRI scan showed
essentially the same anatomical defect as was found in 1990.
It is recognized that this finding is totally
inconsistent with the opinions of John C. Goldner, M.D.
This finding is somewhat consistent with the opinions from
Dr. Morrison found in exhibit 24 even though it also appears
as though his interpretation or understanding of the disc
abnormalities shown by the series of MRI scans is not
necessarily accurate. This finding is consistent with the
opinions of Lonnie Mercier, M.D. While Dr. Mercier might
not have had each and every page of records which relate to
Vernetta Luthi, there is nothing in the record of this case
which indicates that the contents of any records which were
not provided to him would have altered his opinions or
assessment of the case. (exs. 38 and 42). In fact, Dr.
Mercier's finding that claimant had reached maximum medical
recuperation at the time of his May 2, 1991 report is
adopted and found to be correct. When considering the
testimony from John C. Goldner, M.D., a very significant
question arises with regard to the level or degree of
certainty that Dr. Goldner feels is necessary in order to
fall within a reasonable degree of medical certainty. Of
particular import is the statement found at page 37 of
exhibit 61 when he states, "...there is no way that one can
be certain that absent that fall of 1989, she wouldn't have
had the same problem." Dr. Goldner at pages 16 through 18
of his deposition appears to indicate that chronic
degenerative disc disease is the cause for the disc surgery
and that therefore the surgery was not causally related to
the fall of October 26, 1989. Dr. Goldner's deposition does
not show that either of the attorneys ever provided him with
the legal definition regarding aggravation of a preexisting
condition.
Dr. Long did not state that the injury caused the need
for the surgery which he performed but he was likewise
unwilling to say that it did not. (ex. 23-25). It must be
noted that claimant was taken off work at the recommendation
of Dr. Long, the authorized treating physician. Dr. Long
was the physician to whom defendants directed claimant. He
was not the physician of her choice. It was not
unreasonable for her to follow his recommendations.
It is therefore found that the injury of October 26,
Page 4
1989, clearly was an aggravation of a preexisting condition.
It was a substantial factor in producing the medical care
which Vernetta has received, including the surgery performed
on January 15, 1991.
Defendants have previously paid Vernetta weekly
compensation for the June 15, 1988 injury. The amount paid
voluntarily, as shown in exhibits 7 and 8, does not appear
to be unreasonable in view of the fact that she was able to
resume her employment and continue to be employed following
that earlier injury. It does not appear as though that
injury had any substantial impact on Vernetta's earning
capacity. It likely had a small amount commensurate with
the benefits which were voluntarily paid.
Since the recuperation from the surgery in this case
has been completed, Vernetta's efforts to obtain employment
in her customary field of work appear to have been somewhat
lackluster. She is clearly under employed in her current
position. It is also recognized, however, that the
opportunities for employment in her customary field are
somewhat limited. In the area of western Iowa and eastern
Nebraska, where claimant has resided throughout her lifetime
and customarily been employed throughout her lifetime, the
number of clubs available to be managed is relatively few.
There is likely a country club of some sort in each county
seat, though many might not have a full-time club manager.
The major hotels would be concentrated in the Omaha and
Council Bluffs area. The business clubs with a full-time
manager would likely also be limited to only a handful in
the Omaha and Council Bluffs area. Summarily stated, the
number of job openings for which she could apply is quite
limited. When she applies there is likely considerable
competition from individuals who are currently employed in
such positions as well as individuals who are seeking a
higher level of responsibility. A number of applicants are
likely from geographical areas other than the Omaha-Council
Bluffs region. It is not unreasonable for Vernetta to
restrict her job search to the Omaha-Council Bluffs region
since, prior to this injury, she was consistently able to be
gainfully employed in that region in her chosen field of
work.
The evidence from Dave Weakland wherein he states the
general manager of a club can pretty much do as they want
regarding physical exertion of the job is found to be
correct. (ex. 55, page 15). While it is likely true that
Vernetta engaged in some fairly strenuous physical activity
at the Lakeshore Country Club it is also found to be true
that there is nothing which would prohibit her from limiting
her physical activities if she held such a position. Her
physical activity restrictions should not constitute a large
impediment to obtaining employment or performing in her
customary field of work. A major portion for her loss of
earnings appears to be the limited number of job openings in
that field. The fact that this injury caused her to lose
the job at Lakeshore Country Club is an important factor.
Page 5
The fact that she is not currently employed detracts from
her employability when seeking other jobs. It is noted that
as far as Vernetta's previous jobs of relatively high
responsibility she was always employed at the time she was
hired into another position. It is found that she has
experienced a 25 percent reduction in earning capacity as a
result of the injury sustained in this case. This is in
addition to the extent of permanent disability caused by the
June 15, 1988 injury.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Aggravation of a preexisting condition is one manner of
sustaining a compensable injury. While a claimant is not
entitled to compensation for the results of a preexisting
injury or disease, its mere existence at the time of a
subsequent injury is not a defense. Rose v. John Deere
Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is
materially aggravated, accelerated, worsened or lighted up
so that it results in disability, claimant is entitled to
recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115
N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co.,
253 Iowa 369, 112 N.W.2d 299 (1961).
Though the allegation of injury arising out of and in
the course of employment was denied by defendants, there is
no contrary evidence in the record. The claimant appears
credible. Her testimony regarding falling at work is well
corroborated by the medical records. Accordingly, it is
determined that Vernetta Luthi has carried the burden of
proving by a preponderance of the evidence that she
sustained an injury which arose out of and in the course of
her employment on October 26, 1989, as she alleges. That
injury was an aggravation of a preexisting condition.
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
Page 6
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
This is a case in which the expert testimony clearly
indicates a possibility that the surgery was related to the
fall, particularly if it is considered in light of the fact
that physicians often express opinions of causation in
medical terminology, rather than in legal terminology. The
principle difference is that in medical terminology the
concept of aggravation of a preexisting condition as being
the cause is not uniformly held. The fact that claimant may
have eventually needed this surgery absent the fall is not
material to the issue of whether defendants are liable. An
aggravation is compensable if it accelerates the underlying
condition. In this case it is clear that the disc problem
has its underlying basis in the degenerative disc disease
condition which afflicts claimant. The greater likelihood
or probability is that the fall of October 26, 1989, was a
substantial factor in producing a need for the surgery which
was performed by Dr. Long. When the actual facts of what
occurred in this case are considered in light of the expert
testimony the overall picture is one that shows it is
probable that the fall was a substantial factor in producing
the need for the surgery. Claimant has therefore carried
her burden of proof of showing that the fall was a proximate
cause of the surgery and its results. Giere v. Aase Haugen
Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
In accordance with the assessment from Dr. Mercier it
is determined that Vernetta's healing period ended May 2,
1991. This entitles her to 30 4/7 weeks of healing period
compensation.
Industrial disability or loss of earning capacity is a
Page 7
concept that is quite similar to impairment of earning
capacity, an element of damage in a tort case. Impairment
of physical capacity creates an inference of lessened
earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning
capacity of the person, rather than the loss of wages or
earnings in a specific occupation. Post-injury earnings
create a presumption of earning capacity. The earnings are
not synonymous with earning capacity and the presumption may
be rebutted by evidence showing the earnings to be an
unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531
(Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa
1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973);
Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516
(Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County,
Thirty-fourth Biennial Report of the Industrial Commissioner
218 (1979); 2 Larson Workmen's Compensation Law, sections
57.21 and 57.31.
Likewise, an employer's refusal to give any sort of
work may justify an award. McSpadden v. Big Ben Coal Co.,
288 N.W.2d 181 (Iowa 1980).
When all the material factors of industrial disability
are considered, it is determined that Vernetta Luthi has
experienced a 25 percent permanent partial disability as a
result of the injury sustained in this case. This entitles
her to receive 125 weeks of permanent partial disability
compensation payable commencing May 3, 1991.
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 Corp.,
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 how much of the 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.
Apportionment is not appropriate in this case for at
least two reasons. First, there is no evidence in the
record of this case to support a finding that claimant had
any preexisting loss of earning capacity prior to the time
she commenced employment at Lakeshore Country Club. There
is some indication that a small amount of loss resulted from
Page 8
the June 15, 1988 injury, but any such amount was indeed
small since claimant continued in the same job and appears
to have experienced an increase in her actual earnings as
evidenced by the difference in the rate of compensation for
the 1988 injury and the rate of compensation for this
injury. Second, the preexisting disability must not have
been caused by the same employer. Clearly, any preexisting
disability from the June 15, 1988 injury, which was not
adequately compensated, cannot be the basis for
apportionment since it resulted from an injury with this
same employer. Finally, the finding of the extent of
industrial disability in this case is based solely upon the
disability caused by the October 26, 1989 injury. The
baseline from which that disability was evaluated is the
claimant's condition, as it existed, immediately before the
October 26, 1989 injury. Using that date as a baseline
takes into account whatever preexisting losses or
preexisting disabilities may have existed. Accordingly,
defendants' request for further apportionment beyond that
which is inherent in the award is denied.
ORDER
IT IS THEREFORE ORDERED that defendants pay Vernetta
Luthi thirty and four-sevenths (30 4/7) weeks of
compensation for healing period at the stipulated rate of
four hundred fifty-one and 41/100 dollars ($451.41) per week
payable commencing October 1, 1990.
It is further ordered that defendants pay Vernetta
Luthi one hundred twenty-five (125) weeks of compensation
for permanent partial disability at the stipulated rate of
four hundred fifty-one and 41/100 dollars ($451.41) per week
payable commencing May 3, 1991. Defendants are entitled to
credit for the one hundred thirty point five (130.5) weeks
of benefits paid. Any past due accrued amounts shall be
paid to claimant in a lump sum together with interest
pursuant to section 85.30.
It is further ordered that defendants pay the costs of
this proceeding pursuant to rule 343 IAC 4.33.
Page 9
Signed and filed this __________ day of March, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Richard Crotty
Attorney at Law
311 Metropolitan Federal Bank Bldg
Council Bluffs, Iowa 51503
Mr. Lyle W. Ditmars
Attorney at Law
233 Pearl St
PO Box 1078
Council Bluffs, Iowa 51502-1078
1402.30 1402.40 1802 1803
1806 2206
Filed March 9, 1994
Micheal G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
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VERNETTA LUTHI,
Claimant,
vs.
File No. 956963
LAKESHORE COUNTRY CLUB,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
USF & G,
Insurance Carrier,
Defendants.
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1402.30 1402.40 1802 1803 1806 2206
Claimant fell at work. Her injury was found to be an
aggravation of a preexisting degenerative condition. The
course of medical care led her to surgery. The medical
evidence was somewhat equivocal although it appeared that at
least one of the physicians implied an improper standard
when considering the issue of causation.
Claimant, a club manager was awarded 25 percent permanent
partial disability based primarily upon her difficulty in
obtaining re-employment.