BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RAYMOND LANGSTRAAT, Claimant, vs. File No. 957007 CLOW CORPORATION, A P P E A L Employer, D E C I S I O N and GAB, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The Arbitration Decision filed February 26, 1992 and the Remand Decision filed October 27, 1992 are affirmed and are adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market St. Oskaloosa, Iowa 52577 Mr. E. J. Kelly Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 5-1803; 3701; 4000.2 Filed September 24, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RAYMOND LANGSTRAAT, Claimant, vs. File No. 957007 CLOW CORPORATION, A P P E A L Employer, D E C I S I O N and GAB, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803; 4000.2 Claimant awarded 30 percent industrial disability and 15 weeks of penalty benefits. Although extent of permanency could be reasonably disputed, the existence of some loss of earning capacity could not. 3701 Defendants' characterization of surveillance evidence was shown impossible by time-stamping on the photos in evidence. Evidence was criticized in detail. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RAYMOND LANGSTRAAT, : : Claimant, : : vs. : File No. 957007 : CLOW CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : GAB, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Claimant Raymond Langstraat seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against employer Clow Corporation and GAB Business Services, Inc. Mr. Langstraat sustained a back injury arising out of his employment on July 17, 1990, and alleges resultant temporary and permanent disability. This cause came on for hearing in Ottumwa, Iowa, on December 19, 1991. Claimant, Denise Spurgeon, Mary Langstraat and Victor Laughlin testified at hearing. The record also contains joint exhibits 1 through 5. Several pages of electrocardiogram tracings were accidently inverted when they were placed in a ring binder holding exhibits. This did not affect the result here, since any possible relevance of those and many other pages of evidence remains a mystery. issues The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment on July 17, 1990, to the rate of compensation ($284.96 per week), that medical benefits are not in dispute and that certain benefits have been voluntarily paid. Page 2 Issues presented for resolution include: 1. Whether there exists a causal relationship between the injury and temporary and/or permanent disability; 2. The extent of each; and, 3. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13. findings of fact The undersigned deputy industrial commissioner finds: Raymond Langstraat, 47 years of age at hearing, has lived his entire life in the state of Iowa. He is a 1962 high school graduate with no further education. His life has been largely devoted to hard physical labor. Mr. Langstraat has worked as a farmer and farm hand, a livestock hauler, and as a concrete and road worker. Beginning in February 1988, he commenced employment with Clow Corporation, a manufacturer of heavy water valves. Claimant worked as a bench grinder, a job requiring the use of hand tools weighing up to perhaps 15 pounds to grind excess materials and castings from water valves weighing up to 500 pounds. Prior to beginning work with Clow Corporation, claimant had no history of chronic back complaints. However, he testified to having a "vertebra slip" at age 18 for which he saw a doctor in Ottumwa 3-5 times. No surgery was performed, but he wore a corset while working as a farm hand that summer. Later, claimant became a partner in the farm with his father and used his back constantly without problems for many years. Although medical records, especially including Mahaska County Hospital, are to some extent difficult to read, this deputy has not found any record of lumbar complaints. If they exist, they are well camouflaged among many pages of irrelevant evidence. He underwent a preemployment physical at the behest of Clow Corporation on February 12, 1988. This included x-rays of the lumbar spine, read as negative. On July 16, 1990, claimant developed a twinge in his back while manipulating a 275-pound water valve on his workbench. Lumbar pain developed progressively during the rest of his shift to the extent that, after showering at work, he proved unable to bend down to pick up clothes. After claimant returned home, his wife arranged an immediate visit with Terry Wolfswinkel, D.C. Claimant was seen immediately. Chart notes reflect complaints of back pain radiating down the right leg to the ankle and tenderness at L5. According to claimant, Dr. Wolfswinkel refused to employ chiropractic manipulation because "this isn't good." Page 3 Claimant was next seen at the Mahaska County Hospital at 2:14 a.m. on the morning of July 17. Chart notes of difficult legibility reflect a history of developing discomfort while twisting at work increasing in the lower back without relief after use of ice at home. Complaints were of right lower back pain radiating down the right leg with tingling foot. Claimant stated his leg had given out on him that night. On July 23, still with symptoms, claimant was seen by another chiropractor, Thomas H. Stanzel, D.C. Dr. Stanzel was given a similar history as to development of symptoms. Claimant was treated on six occasions from July 23 to July 30, but did not respond, following which he was referred for magnetic resonance imaging, then to an orthopaedic surgeon, William R. Boulden, M.D. Dr. Stanzel examined claimant again on November 7, 1991. Claimant reported that two days earlier, "his low back pain became so severe while getting up out of a chair that it made him pass out from 3:30 p.m. until 11:30 p.m." Examination revealed marked nodularity and fibrosis accompanied by pain especially at L5-S1. Range of motion of the lumbar spine was mildly restricted. Findings were similar and consistent to those of July 23, 1990, except slightly less back pain and improved lumbar range of motion were reported. Diagnosis was of chronic lumbo-sacral myofascial pain syndrome complicated by dysfunctional spinal mechanics along with pain and numbness into the legs with mild central disc herniation. Dr. Stanzel assigned a ten percent body as a whole impairment rating. However, no restrictions were suggested. Magnetic resonance imaging studies were done by J. J. Gleich, M.D., on August 1, 1990. Impression was of mild degenerative disc disease not unusual for claimant's age, but a small central herniation at L3-4. Dr. Gleich also found spondylolysis (deterioration) with spondylolisthesis (displacement) at L5-S1. Claimant was first seen by Dr. Boulden on August 15, 1990. Complaints of buttock and leg pain on the right side were worse than lumbar complaints. Dr. Boulden was given a history similar to claimant's testimony. Dr. Boulden reviewed x-rays showing claimant to have three levels of degenerative disc disease and spondylolysis at L5 causing a grade I spondylolisthesis along with significant foraminal stenosis. Impression was of aggravation of underlying spinal stenosis (narrowing) secondary to the spondylolisthesis at L5-S1. Conservative treatment was recommended, including epidural steroid injections, although these were refused. Dr. Boulden did not find claimant suitable to return to work at that time. Chart notes of August 30 were essentially unchanged. On September 13, Dr. Boulden wrote that standing and walking could be expected to be a problem and claimant should stand Page 4 or walk no more than 30-45 minutes before alternating position. On September 18, Dr. Boulden suggested starting restrictions including a 25-pound weight limit, only four hours of work a day with alternating sitting, standing and walking with a maximum of 30 minutes at each activity and made an unclear reference to bending and twisting of the back; whether claimant would progress from that point was unknown. On October 2, claimant was seen again. He had just begun working six hours per day and Dr. Boulden suggested that when he reached eight hours, he should maintain that level for approximately a month before progressing to the ten-hour shift normally worked on light duty. "I think his duty needs to be permanent light duty. I don't see any way he will get back to doing heavy work in the future. This includes if surgery is ever considered." Another incident occurred on or about October 20, 1990. While sitting at home watching TV that night, claimant's back "went out" on him when he tried to get up. He needed assistance to get off the couch and found it hard to walk. The next day, he called Denise Spurgeon, safety coordinator. According to Ms. Spurgeon, claimant made reference to having washed windows and cleaned house that day, although claimant in his testimony minimized the amount of work he had actually been doing. On October 30, he sought treatment at the Family Medical Center where chart notes of that date indicate he had "reinjured" his back. The treating physician recommended he again be off work. Claimant did not return to work this time until February 25, 1991. On October 26, 1990, an unsigned note in the personnel file indicates claimant had called to request a leave of absence, stating that the pain was "different than before." Dr. Boulden was next seen on November 13. His notes appear to show that little had changed. On January 7, 1991, Dr. Boulden wrote that, in his opinion, claimant had "at best" aggravated a preexisting degenerative disc disease at the back. The meaning of "at best" is ambiguous. He also believed that claimant could "more than likely continue light duty within the general restrictions" he had previously outlined. On February 20, 1991, claimant was seen by Dr. Boulden for the last time. He recommended that symptoms could be kept under better control if claimant remained within his restrictions of no bending or twisting with the back and alternating sitting every 30-45 minutes. Since the doctor would "still stand by the restrictions previously sent," it appears that the 25-pound weight restriction was to remain in effect. On November 18, 1991, Dr. Boulden wrote again relative causation. Based on a history of having a vertebra slip in his back years ago, Dr. Boulden suggested this needed to be Page 5 investigated further to see if there were chronic complaints since then. If there was a chronic history of back complaints, Dr. Boulden would feel that claimant had only aggravated his back once again; if, however, there had been a significant period of time since this problem during which he had been able to perform his customary work, the majority of disability would be placed on the work injury at issue. Claimant is currently working again for Clow Corporation, although at a light-duty job as lead locker room attendant. Defendant is to be commended for providing continued employment within medical restrictions. However, he has suffered a reduction in wages from $9.00 per hour with irregular but significant overtime and incentive pay to $6.73 per hour. He currently complains of variable daily pain, generally less severe than at the time of the work injury. This back pain sometimes radiates down the leg. Defendants have directly attacked claimant's credibility on the basis of surveillance conducted by Victor Laughlin, a private investigator. Laughlin attempted surveillance on eight or nine occasions, sometimes unsuccessfully, between December 28, 1990, and July 31, 1991. Testimony and photographs relative the latter date are particularly significant. Defendants maintain in their brief that claimant was photographed and seen working extensively with a rototilling machine, attempting to vigorously pull-start the machine for at least 15 or 20 minutes before acquiring a second machine and spending approximately the same length of time attempting to start it, following which he was seen rototilling a garden for at least 10-20 minutes. This is generally consistent with this deputy's understanding of Laughlin's testimony, except that he understood Laughlin to testify that claimant rototilled for only approximately five minutes. Defendants strenuously and repeatedly insist that Laughlin's testimony is uncontroverted. On the contrary though, it is directly controverted by the associated time-stamped photographs. To avoid reaching very unpleasant conclusions indeed, it must be assumed that this deputy and defense counsel both misunderstood Laughlin's testimony. At 19:03 (hours), claimant is pictured relaxing and drinking a beverage. At 19:15, he is seen entering a shed. The next photo, at 19:29, shows claimant again at the door to the shed, apparently standing there or leaving. Beginning at 19:30, claimant is seen in a different location attempting to pull-start a Rototiller. This continues until 19:31. At 19:33, he is seen walking to another building and apparently checking a mailbox. The next photograph shows him carrying a pail or fuel container towards the original shed at 19:52. At 19:54, he is walking across a road. At 19:55, he appears at the front or side door of a house. At Page 6 19:56, he is seen pushing a Rototiller away from that house. At 19:57, he is seen fueling the Rototiller. From 19:59 until 20:02, he is seen attempting to pull-start the machine. At 20:05, he is seen pushing the Rototiller up to a road. At 20:08, he is seen descending an incline next to the road, apparently while tilling. At 20:09, he is seen ascending the same incline and then adjusting the machine. At 20:10, he is seen pushing the Rototiller in multiple photographs. It is unclear whether he is actually tilling at that time, although it is noted that the tines are in focus and do not appear to be in motion. Because the surveillance photographs were taken with a telephoto lens, which normally entails a relatively large F-stop (narrower aperture), it is probable that a relatively slow shutter speed was employed; thus, the tines would likely be blurred if in motion. At 20:12, claimant is pictured carrying a beverage can and another item, but is not thereafter seen in association with either Rototiller in photographs of 20:19 and 20:20. Defendants would have us believe that claimant spent 40 minutes attempting to vigorously pull-start two Rototillers and 10-20 minutes rototilling. From the photographic evidence, this is impossible. Claimant is pictured attempting to start Rototillers only from 19:30 to 19:31 and again from 19:59 to 20:02. There is a time gap from 19:15 to 19:29 when claimant was presumably in the shed, although no photographs are offered. In order to avoid the unpleasant conclusions mentioned earlier, it will be assumed that claimant spent some of that time attempting to start the first Rototiller (even though all photos showing attempts to start the machine are in a different location). Thus, this process occupied 16 minutes at maximum. Attempts to start the second Rototiller are shown only from 19:59 to 20:02. Claimant is seen actually rototilling at most from 20:08 to 20:11. Other surveillance photographs show claimant carrying a small child on his hip and carrying pop bottles and sacks of groceries. Nothing pictured appears to exceed the 25-pound weight restriction imposed by Dr. Boulden. This observer emphatically does not find the surveillance evidence to be such a devastating blow to claimant's case as defendants maintain. Nonetheless, it can be fairly inferred that on at least some days claimant is able to engage in limited vigorous activity for a few minutes at a time attempting to pull-start a Rototiller. This is not particularly significant, given his testimony that his pain level varies from day to day. The medical restrictions imposed by Dr. Boulden are significant, but do not suggest that Mr. Langstraat is totally disabled or that he should spend the rest of his life bedridden. Page 7 Denise Spurgeon suggests that claimant's gait and general stiffness were more severe at hearing than is the case on a day-to-day basis at work. This may be so, but it is not inconsistent with claimant simply having a bad day at hearing. Still, it is not unreasonable to suppose that claimant took few steps to minimize his apparent discomfort at trial. conclusions of law The parties stipulate that claimant sustained an injury arising out of and in the course of employment, but dispute causal relationship to either temporary or permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 17, 1990, 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). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). Temporary disability shall be first discussed. Claimant seeks temporary disability benefits only for the time he was off work following the incident at home on October 20, 1990. No medical opinion appears of record Page 8 causally relating this incident to the original work injury. Although claimant had worked a half shift the day before, he also was engaged in activity at home on October 20 and he further reported that the pain was somewhat different in location. It is held that claimant has failed to meet his burden of proof in establishing entitlement to additional healing period or temporary total disability. Medical opinion shows without contradiction that the aggravation of claimant's underlying condition, previously asymptomatic or at least nondisabling, is causally related to the work incident of July 17, 1990. According to Dr. Boulden, resulting disability should be considered causally related if claimant has not shown a history of chronic back complaints. The extensive medical history placed into evidence shows no such chronic complaints. Dr. Stanzel also relates the impairment to the work injury. No contrary medical opinion appears of record. Claimant has clearly met his burden of proof in establishing a causal nexus between the work injury and his current disability. The incidents of October 20, 1990, and November 5, 1991, have not been shown causative of additional permanent impairment. Dr. Boulden's suggested limitations precede both incidents. 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 he is fitted. Olson v. Goodyear Service 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 disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter 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 healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a Page 9 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. 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. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. 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, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Medical restrictions imposed by Dr. Boulden include a 25-pound weight restriction, restrictions against bending and twisting with the back and require alternating sitting and standing every 30-45 minutes. These restrictions in all likelihood foreclose possible employment as a farmer, livestock hauler or concrete and road worker. Thus, employment with Clow Corporation is the only work claimant has ever done which is not now barred by medical restrictions, and even that is light-duty work tailored to accommodate those restrictions. It cannot be assumed that another employer would be so accommodating. The industrial disability awarded in this decision would be very much greater but for defendant's commendable efforts to keep Mr. Langstraat working. Nonetheless, he has suffered both a substantial decrease in actual earnings and an even more substantial diminution of earning capacity. In essence, it is loss of earning capacity that is measured in assessing industrial disability. Second Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990). Claimant is 47 years of age and should be in the prime of his earning years. Although he has a high school education, he has no experience in white collar professions. His actual loss of earnings is in excess of 25 percent, not counting substantial overtime and incentive pay. Considering then these matters in particular and the record otherwise in general, it is held that claimant has Page 10 sustained a permanent industrial disability equivalent to 30 percent of the body as a whole, or 150 weeks. As claimant's recovery was complicated by the home incident on October 20, 1990, the parties' stipulation shall be accepted: the commencement date for permanent partial disability is February 25, 1991. Claimant also seeks penalty benefits under Iowa Code section 86.13, which provides: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Defendants have paid no permanent disability benefits on a voluntary basis. That claimant sustained an injury arising out of and in the course of employment is admitted. The medical evidence establishes without contradiction that the injury caused permanent impairment and resulted in permanent medical restrictions. The suggestion that the restrictions (none) proposed by Denise Spurgeon should be preferred over those imposed by Dr. Boulden is emphatically rejected. Dr. Boulden is a qualified physician; Spurgeon is not. The standard in assessment of penalty benefits is whether the claim and defense are fairly debatable. In this case, the question of whether claimant sustained some permanent industrial disability resulting from the admitted work injury is not fairly debatable, although the extent is. Nonetheless, defendants' failure to pay permanency benefits is not as egregious as in some cases seen by this agency. A full 50 percent penalty shall not be imposed. In the discretion of the agency, a penalty of 15 weeks is assessed. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant one hundred fifty (150) weeks of permanent partial disability benefits at the stipulated rate of two hundred eighty-four and 96/100 dollars ($284.96) per week commencing February 25, 1991. All accrued weekly benefits shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Defendants shall pay unto claimant fifteen (15) weeks of penalty benefits at the stipulated rate of two hundred eighty-four and 96/100 dollars ($284.96) per week effective the filing date of this decision. Costs are assessed to defendants pursuant to rule 343 IAC 4.33. Page 11 Defendants shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. E. J. Kelly Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 5-1803; 3701; 4000.2 Filed February 26, 1992 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : RAYMOND LANGSTRAAT, : : Claimant, : : vs. : File No. 957007 : CLOW CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : GAB, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803; 4000.2 Claimant awarded 30 percent industrial disability and 15 weeks of penalty benefits. Although extent of permanency could be reasonably disputed, the existence of some loss of earning capacity could not. 3701 Defendants' characterization of surveillance evidence was shown impossible by time-stamping on the photos in evidence. Evidence was criticized in detail. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RAYMOND LANGSTRAAT, : : Claimant, : : vs. : : File No. 957007 CLOW CORPORATION, : : R E M A N D Employer, : : D E C I S I O N and : : GAB, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant Raymond Langstraat suffered a work related back injury on July 17, 1990. Following hearing, the undersigned deputy issued an arbitration decision on February 26, 1992, awarding industrial disability equivalent to 30 percent of the body as a whole along with penalty benefits. Defendants appealed. On March 20, 1992, defendants made application for additional evidence based upon the sworn statement of Mary Ellen Langstraat, claimant's estranged wife. At the arbitration hearing, Ms. Langstraat had testified that claimant came home from work on July 17, 1990 complaining of a back injury sustained at work that day. In her sworn statement (dated March 12, 1992), Ms. Langstraat claimed that Mr. Langstraat had confessed to her that he had faked the work injury, having actually hurt himself lifting a lawn mower at home. On April 24, 1992, the industrial commissioner remanded the case to receive additional evidence limited to the matters raised in defendants' application. The cause first came on for remand hearing before the undersigned on September 16, 1992. Remand exhibits 1, 2 and 4-8 were received. Remand exhibit 3, the statement of Mary Langstraat, was offered but objected to by claimant, since Ms. Langstraat failed to appear at hearing. Ruling was reserved. Because other evidence submitted made it appear possible that Mary Langstraat had been subjected to threat or coercion, the case was continued to October 12, 1992. On the morning of October 12, the undersigned entered into a telephone conference hearing with claimant's attorney and Jane Van Werden, appearing for defendants. Counsel advised that Mary Langstraat's deposition had been taken on October 8, that there was no objection to the admissibility Page 2 of the deposition and that neither party desired to submit additional evidence. Later that day, the deposition was filed marked as defendants' exhibit 8. The undersigned has re-marked the exhibit as remand exhibit 9. It is hereby received, along with remand exhibit 3. The case was deemed submitted on October 12, 1992. ISSUE The issue presented is whether the new evidence requires a reconsideration of the original arbitration decision. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: About Mary Langstraat: She lies. She does so when she is under oath and when she is not. She does so when motivated by vindictiveness and vengefulness, even when against her own pecuniary interest. She has no credibility whatsoever. The arbitration hearing was held on December 19, 1991. A decision in claimant's favor was filed on February 26, 1992. On February 24, Mary Langstraat initiated a telephone call to George L. Lind, a licensed attorney who testified by deposition on June 4, 1992. Mr. Lind was then representing Raymond Langstraat in pending divorce proceedings, but had represented the family, including Mary, with respect to a number of legal matters over a period of years. Mr. Lind testified: A. Mary advised me that Ray, her husband, had lied regarding his workman's compensation case and that he was hurt moving a lawn mower in the car and that he had told her this one month ago, which would have been late this January that he would told her. Q. Of '92? A. Of '92. And that she then told me she had found Ray drunk and with a woman the evening before, which would have been February 23 of '92, and that this caused her to feel it necessary to -- I've got here to cleanse her soul, period. (Lind Deposition, Pages 5-6). Mr. Lind also described Mary Langstraat's frame of mind at the time of that conversation: "Very, very mad. Very, very emotionally upset." George Lind also described Mary Langstraat, based upon his personal experience, as vindictive, vicious, even "sick." More significantly, he is familiar with her reputation for veracity in the community: Page 3 A. I don't mean to be harsh on anybody. Suffice it to say, E. J., if you mention the name Mary Langstraat in our courthouse with anybody who is familiar with what goes on, any lawyer, any judge, any prosecutor, it's -- it's -- the name is going to be responded to with a chuckle and laugh and an inquiry of what the heck is she in to now? If you were to say I'm going to use her as a witness in my case, they truly will have a belly laugh over it. She has no credibility whatever in the community with anybody that I deal with, okay? I don't mean to be overly harsh. I'm tying (sic) to paint the picture as it is. (Lind Depo., page 12). In her October 8 deposition, Mary Langstraat recanted her March 12 statement, claiming it had all been a lie. She was a hostile and evasive witness and admitted to destroying evidence prior to the deposition. After refusing several times to disclose details of what had motivated her to lie, she eventually testified as follows: Q. Did you tell Mr. Heslinga that you were mad at Ray because you had gone to Ray's house and found him with another woman? A. It wasn't because of the other woman. Q. What was it because of then? Will you please repeat the question? (Thereupon, the prior answer and question on Page 18, Lines 4-6, were read back by the Court Reporter.) Q. Was it because a woman named Dixie told you that Ray was not going to set up a $3,000 trust fund for your son? A. Yeah. Q. Tell me about this? Are you refusing to answer? A. Yes, I am. I'm starting to get my point out. Q. So if Ray recovers in the Worker's Compensation hearing, then your son stands to gain; correct? A. I don't know --- Q. I have no further---- A. --'til I talk to a lawyer. (Mary Langstraat Depo., page 18). Page 4 Earlier, she had testified that Ray "had gotten a girlfriend and was drinking around the baby and everything so I -- out of revenge, I lied on him." (Id. p. 5). We know from Mr. Lind's testimony that some extraneous force moved Mary Langstraat to accuse her husband of workers' compensation fraud. She told Lind that having "found Ray drunk and with a woman the evening before," was her motivation for coming forward to "cleanse her soul." Obviously, there can be no claim that she had been motivated by a sense of justice or good citizenship, since she also told Lind that Raymond Langstraat had supposedly "confessed" the month before. In her first sworn statement, Mary Langstraat testified that Raymond Langstraat admitted this fraud on February 11. Even this is thirteen days before she called Lind. She also testified that she could be specific as to the date, as she had written it down. The significance of this point will be considered again. Mary Langstraat's grudging admission that her actions were inspired by "Dixie" telling her that claimant was not going to set up a $3,000.00 trust fund for their son rings true: perhaps the sole particle of her testimony about which this might be said. In context, that question with those very specific facts came out of the blue. The immediate answer constitutes an admission, one that she could not help but realize reflected adversely on her character. Therefore, the most likely explanation of Mary Langstraat's accusations is that they were motivated by disappointed greed. However, this fact alone is dispositive of nothing. Given Mary Langstraat's character as disclosed by the evidence, it is equally consistent that she (1) knowingly participated in her husband's fraud right from the very beginning, or (2) that the claim is legitimate and she acted wholly out of spite. Now it will be recalled that Mary Langstraat was very, very emotionally upset when she called Mr. Lind. There is no question but that she was bent on doing harm (not "cleansing her soul"). If she had in fact recorded her husband's supposed confession on a calendar on February 11, it is inconceivable that she would not have shared this information with Lind. Instead, she told him that the conversation had occurred one month before. Obviously, she later manufactured evidence in the form of a calendar notation, evidence which she has now destroyed: Q. Where are those notes today? A. They're burned. Q. You burned those notes? A. I had a right to, they were mine. Q. Tell me what the notes said? Page 5 A. I don't remember anymore. Q. You have absolutely no recollection of what your notes said on March 12, 1992, that you had taken from your calendar? A. No. That's the reason why I make notes so I don't have to try and remember. Q. Why did you burn your notes? A. Because I wanted to. I was cleaning house and moving. Q. That's the only reason you burned your notes? A. Yeah. I burn a lot of garbage. (Mary Langstraat Deposition, Page 10). It is concluded that Ray Langstraat did not confess fraud as his wife originally claimed. The testimony of Mary Langstraat is entitled to no weight whatsoever. Defendants also challenged Raymond Langstraat's credibility on the basis of his criminal Page 6 record. Claimant has been convicted of drunken driving, driving under suspension and assault, but these crimes do not indicate dishonesty or untruthfulness. Defendants' brief invites this deputy to conclude that claimant is a thief and liar as "substantiated" by evidence that he currently has charges pending against him for theft in the fifth degree. Ignoring the presumption of innocence that attaches in criminal cases, they assert that these charges directly relate to claimant's character for truthfulness and honesty. This invitation is emphatically rejected. A conviction of theft is proper impeachment evidence; an unproven charge is not. CONCLUSIONS OF LAW This case is before this deputy to consider additional evidence. It is not really defendants' burden to prove anything, but the evidence presented should be considered together with the evidence at the arbitration hearing. It is now clear that the evidence given by Mary Langstraat at that hearing is totally unreliable. But, the decision does not rest on that part of the evidence. After all, she makes no claim to have actually seen the injury, whether it was at home or at work. Her testimony that her husband came home complaining of a work injury supports claimant's version of events but was not critical to the result, only corroborative. Yet-unproven criminal charges do not reflect adversely on claimant's credibility. In particular, the evidence does not show that claimant made any confession of workers' compensation fraud to his wife, whether in late January or early February 1992. No reason to further re-examine the arbitration decision of February 26 appears of record. ORDER THEREFORE, IT IS ORDERED: The result of the arbitration decision filed February 26, 1992 shall not be modified. This remand decision and the arbitration decision filed February 26, 1992, shall constitute final agency action on all issues in this case unless further appeal is taken pursuant to rule 343 IAC 4.27 and 4.28. Costs are assessed to the defendants. Signed and filed this ____ day of October, 1992. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 7 Mr Harold B Heslinga Attorney at Law 118 North Market Street Oskaloosa Iowa 52577 Mr E J Kelly Ms Jane Van Werden Attorneys at Law Terrace Center Ste 111 2700 Grand Avenue Des Moines Iowa 50312 3700; 2904; 2901 Filed October 27, 1992 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RAYMOND LANGSTRAAT, Claimant, vs. File No. 957007 CLOW CORPORATION, R E M A N D Employer, D E C I S I O N and GAB, Insurance Carrier, Defendants. ___________________________________________________________ 3700; 2906; 2901 Industrial Commissioner remanded for additional evidence after defendants filed the sworn statement of claimant's estranged wife to the effect that claimant had admitted that his claim was fraudulent. Wife failed to appear at remand hearing, but some evidence offered showed a possibility of threat or other coercion. Hearing was continued. The case was then submitted upon the wife's deposition without other testimony. In the deposition, wife recanted her earlier sworn statement. Other evidence showed she is a notorious liar. None of wife's testimony was given weight, except her concession that her accusations were motivated by revenge. This did not change the result of the arbitration award, since wife's testimony then was only corroborative. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES CLARK, : : File Nos. 957200 & 1013327 Claimant, : : A L T E R N A T E vs. : : M E D I C A L BRIGGS CORPORATION, : : C A R E Employer, : : D E C I S I O N and : : KEMPER INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Claimant, James Clark, filed a petition for alternate medical care under Iowa Code section 85.27 (rule 343 IAC 4.48) on January 28, 1993. On February 2, 1993, defendants filed a motion to dismiss claimant's petition. Defendants' motion to dismiss claimant's petition for alternate care was denied by another deputy industrial commissioner and claimant's request for an in-person hearing was granted. This matter came on for hearing before the undersigned deputy industrial commissioner on February 11, 1993, in Des Moines, Iowa. Claimant appeared in person and was represented by his attorney, Mr. Philip F. Miller. Ms. Deborah Dubik appeared on behalf of employer and insurance carrier. The documentary evidence identified in the record consists of claimant's exhibits 1 through 7 and defendants' exhibit pages 1 through 10. stipulation and issue The parties agree that claimant sustained a back injury arising out of and in the course of employment with employer on March 7, 1990. However, defendants deny a causal connection between claimant's neck problems and his work injury. The issue to be determined is whether defendants have reasonably refused to authorize neck surgery and aftercare with Alexander Lifson, M.D. Page 2 findings of fact The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits, and makes the following findings: Before any benefits can be ordered, including medical benefits, compensability of the claim must be established, either by admission of liability or by adjudication. The summary provisions of Iowa Code section 85.27, as more particularly described in rule 343 IAC 4.48, are not designed to adjudicate disputed compensability of a claim. Therefore, because defendants have disputed compensability of claimant's neck claim, the undersigned cannot order defendants to provide surgical intervention. However, defendants are barred from asserting a "lack of authorization" defense to any medical expenses incurred by claimant, if they are otherwise compensable. Defendants cannot deny liability and simultaneously direct the course of treatment. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). The parties stipulate that claimant sustained a back injury arising out of and in the course of employment with employer on March 7, 1990. Initially, claimant was treated conservatively. Subsequently, he was diagnosed by Alexander Lifson, M.D., with internal disc disruption of L4-5, L5-S1 and instability of L4-5, L5-S1. He was admitted to Abbott Northwestern Hospital in Minnesota on May 29, 1991, where he underwent anterior/posterior lumbar fusion at L4-5, L5-S1. An internal fixation devise was implanted. He was discharged on June 6, 1991, and advised to have x-rays taken locally post-operatively and mailed to Dr. Lifson for evaluation (defendants' exhibit pages 3 & 4). Defendants referred claimant to Daniel J. McGuire, M.D., a Des Moines, Iowa, orthopedic surgeon, for aftercare. Office notes dated August 23, 1991, state: ...James is doing well from his back standpoint. He is glad he had the operation and he is making progress. He is active, he is exercising. His radiographs look excellent. Really no motion on the flexion/extension views. His posterior spinal fusion looks good, his hardware looks good. The allograft bone anteriorly is in good position although I don't see much evidence of union. (defendants' exhibit page 1) For some reason the relationship between claimant and Dr. McGuire deteriorated. Claimant claims that Dr. McGuire told him there was nothing more he could do for him. Insurance carrier has not authorized follow-up care with Dr. Lifson. On June 24, 1991, Dr. Lifson reported to Mr. Randy G. Hilbrant from Kemper Insurance company as follows, "Since we used an internal fixation devise, I would like Mr. Clark Page 3 to see me every six months for two years following the procedure. In between these visits, he may see a physician in his local area." (claimant's ex. p. 5). The record contains a letter dated June 15, 1992, from Kate Nordquist, Clinical Studies Monitor, at Advanced Spine Fixation Systems Incorporated. She reported that, "Prior to your surgery -- at the time you signed the patient consent form -- you were notified that the device to be implanted on your spine was an investigative device and that you would be required to have a follow-up examination at six month intervals for two years." (def. ex. p. 5). Ms. Nordquist further states that "If you are being followed by another physician, please show him or her this letter and request that information regarding your status as a post spine surgery patient be sent to this office as soon as possible." (def. ex. p. 5). At the hearing, claimant testified that he gave Ms. Nordquist's letter to his attorney who then wrote to Dr. Lifson. On October 22, 1992, Dr. Lifson corresponded with claimant's attorney and stated: As you probably know, we went through enormous hurdles before we received authorization to proceed with surgery. It was mutually understood when we asked Mr. Clark and his insurance carrier that he would have to be followed in our clinic for two years at six-month intervals, as is indicated in the letter from Advance Spinal Fixation, Inc. These evaluations are extremely important not only for completion of the study but also for evaluation of Mr. Clark's condition. (claimant's exhibit page 6). conclusions of Law The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Construction Specialists, Inc., file number 850096 (Appeal Decision July 31, 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's funds. See Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983). Page 4 When a designated physician refers a patient to another physician, that physician acts as the defendant employer's agent. Permission for referral from defendant is not necessary. Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (Arb. Decn. 1979) (aff'd by indus. comm'r). An employer's right to select the provider of medical treatment to an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgement. Assman v. Blue Star Foods, Inc., file no. 866389 (declaratory Ruling, May 18, 1988). Claimant's treating surgeon, Dr. Alexander Lifson, has recommended that he be evaluated at the Institute for Low Back Care in Minneapolis, Minnesota, for two years at six-month intervals. The recommendation is a matter of professional medical judgment in which defendants cannot appropriately interfere. Although defendants provided claimant with aftercare by Dr. McGuire, such care, for whatever reason, has proved ineffective. The tone of Dr. McGuire's office note dated July 16, 1991, appears to reflect an underlying reluctance to assume the follow-up care of another physician's surgical patient. He states, "He has had his surgery somewhere else, I am nice enough to assume his care here in town so he doesn't have to commute back and forth to Minneapolis." (def. ex. p. 1). It appears that claimant's aftercare is better served with Dr. Lifson and his medical judgment followed in this instance. Therefore, it is concluded that claimant has established the right to care under section 85.27 with Dr. Lifson at the low back institute in Minneapolis, Minnesota, and defendants shall provide such care, including x-rays and in-person evaluation, if determined to be necessary by Dr. Lifson. order THEREFORE, IT IS ORDERED: That defendants provide claimant with x-rays and any post-surgical care deemed necessary by Dr. Lifson. Defendants shall also provide claimant with payment for any transportation costs associated with attendance at the low back institute. Defendants shall pay costs of this proceeding. The undersigned has been delegated the authority to issue final agency action in this matter. Appeal of this decision, if any, would be by judicial review pursuant to Iowa Code section 17A.19. Signed and filed this ____ day of February, 1993. ______________________________ Page 5 JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Philip F. Miller Attorney at Law 309 Court Ave, STE 200 Des Moines, Iowa 50309 Ms. Deborah Dubik Attorney at Law 600 Union Arcade Bldg 111 E 3rd St. Davenport, Iowa 52801 Page 1 2701 Filed February 16, 1993 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : JAMES CLARK, : : File Nos. 957200 1013327 Claimant, : : A L T E R N A T E vs. : : M E D I C A L BRIGGS CORPORATION, : : C A R E Employer, : : D E C I S I O N and : : KEMPER INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2701 Found that medical provider's recommendation that claimant receive follow-up care with treating surgeon was a matter of professional medical judgment with which employer could not appropriately interfere. Defendants ordered to provide recommended x-rays and follow-up evaluation by treating surgeon if necessary.