BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARIO H. RODRIGUEZ-CARBALLO, : : Claimant, : : vs. : : File No. 957279 QUALITY WINE COMPANY, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Mario Rodriguez-Carballo, against his former employer, Quality Wine Company, Inc., and its insurance carrier, Wausau Insurance Company, defendants. The case was heard on August 18, 1993 at the office of the industrial commissioner in Des Moines, Iowa. The record consists of the testimony of claimant. The record also consists of exhibits numbered 1 through 61. ISSUES The issues for resolution are whether claimant is entitled to any healing period or permanent partial disability benefits. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 43-years-old. He was born and educated in Cuba. He graduated from high school. Post high school, claimant attended agronomy school for four and one half years. Claimant also attended x-ray technician's school in Cuba for three years. He was a member of the Cuban military until 1970 when he was placed in a criminals' camp by the Castro government. While in prison claimant was forced to work in the sugar cane fields. Claimant remained in prison for eight months. From 1974 through 1980, claimant worked as an x-ray technician in Cuba. Claimant has a daughter by his first wife. The daughter resides in Spain. Claimant had no children with his second wife. In 1980, claimant left Cuba for political reasons. He and his other family members were persecuted by members of Page 2 Castro's government. Claimant traveled to Spain. He remained there for six or seven months. From Spain, claimant journeyed to the United States where he resided in Los Angeles for a period of time. Eventually, in 1984, claimant settled in Des Moines. He married his third wife who is a French and Spanish teacher. They now have two minor children. Claimant was unemployed from 1980 through 1984. Claimant became a United States citizen in September of 1987. After arriving in Des Moines, claimant commenced employment with Acme Printing. His duties varied. He delivered goods, cleaned the facilities, worked in the warehouse, and he lifted boxes of paper which weighed 40 to 50 pounds each. Claimant was compensated at the rate of $4.00 per hour and he held this position for one year. In 1985, claimant left his employ with Acme for a position with Economy Forms. Claimant was hired to operate equipment in the plant. He was responsible for feeding 30 to 50 pounds of steel into a machine which was operated by robotics. He earned $8.00 per hour. Claimant terminated his employment in 1987 in order to open his own retail liquor store. Claimant operated his own liquor business until December 31, 1988. He was forced to close his enterprise for financial reasons. Claimant testified he filed bankruptcy as a result of his inability to compete with larger retail establishments. In July of 1989, claimant began working for Quality Wine Company. Miriam Howuer hired claimant to work as a material handler in a warehouse. His duties included tagging bottles of wine, putting bottles onto a conveyor belt, and lifting cases of liquor which weighed from 30 to 50 pounds. Claimant earned $8.00 to $8.50 per hour. After several months, claimant was laid off from work. He received his unemployment insurance benefits in May of 1990. His employer called claimant back to work in August of 1990. On the day after he returned to work, claimant sustained a work-related injury to his low back. Claimant testified he was lifting a case of wine from a pallet and placing the case onto a conveyor belt. While he was lifting the case, he twisted his body to the left and he felt very sharp pains on both sides of his back. Claimant testified there were two co-employees who were witnesses to the work injury. Claimant continued to work despite the pain he was encountering. After a period of time, claimant reported to the front office where he requested the opinion of a medical doctor. Ms. Sue Laendhr referred claimant to Anthony Sciorrotta, M.D. Dr. Sciorrotta prescribed muscle relaxers, pain pills, physical therapy, hot baths, and ultra-sound. Dr. Sciorrotta opined that: "He, in fact, has a L5 S1 Page 3 disprotrusion [sic] and a mild degree of L5 S1 degeneration for age...." (Exhibit page 7) The conservative treatment did not alleviate claimant's pain and he returned to Dr. Sciorrotta who, in turn, referred claimant to Kirk Green, M.D. Dr. Green also prescribed conservative therapy after he had ordered x-rays and an MRI. Claimant testified that the relief which he had received as a result of Dr. Green's treatment was only temporary in nature and claimant testified he experienced severe pain in his back, down his left leg, and into his left foot and toes. Claimant obtained a second opinion from Santiago Garcia, M.D. Dr. Garcia is claimant's personal physician. The physician diagnosed claimant as having "[l]umbosacral strain." Epidural injections were attempted but they did not result in relieving claimant's pain. In November of 1990, Dr. Green opined the following relative to claimant's course of treatment: IMPRESSION: Low back pain, secondary to degenerative disc disease, unimproved with treatment to date. RECOMMENDATIONS: At this point I have essentially exhausted my treatment options. Discussed the option of bracing as a last resort. Have recommended referral to the physiatrist for ongoing treatment in hopes they can have better success at his treatment than I did. He will follow up prn. (Ex. p. 26) One month later, Dr. Green's notes for December 10, 1990 reflected the subsequent note: "[P]er work comp carrier, [t]hey will not authorize referral to Dr. DeGravelle's at this time. w/c Will contact us if wish to procede [sic] c referral. Several months later, Dr. Green's notes indicated: Mr. Rodriguez apparently was not authorized for our recommend referral to Dr. DeGravelles in November of 1990. We've been contacted requesting an impairment rating. It would be my impression based on the AMA guidelines that Mr. Rodriguez indeed has a permanent impairment and it would be my opinion that rating would be 8% of the whole body. (Ex. p. 27) Claimant was also examined by William F. Boulden, M.D., another orthopedic specialist. In his report of December 5, 1990, Dr. Boulden opined: Page 4 [R]eviewed his MRI and it does not show a herniated disc. There is degenerative bulging disc in the mid-line that is not causing any type of neural impingement. I feel that most of his pain is mechanical in nature with lack of good rehabilitation. The patient has gotten into a situation that he feels there is a lot of problems with his back, and he is going to be a tough patient to crack, in the fact that we have to convince him that he needs to be rehabilitated and we will have to work hard with him. We will start him on the program and I will see him back in two weeks. This will consist of mobilization to regain better spinal mobility, TENS unit to control some of his pain, and then advance him into a stabilization program. (Ex. p. 32) Approximately one month later, Dr. Boulden tracked claimant's progress with respect to his rehabilitation. Dr. Boulden authored a report dated January 9, 1991. He wrote: I have talked to the therapist today, and the patient is getting better movement, but he is still quite fixated on his pain. I am going to have him see the physical therapist today, for an evaluation for work conditioning. Basically, I am concerned if he is still showing significant pain fixation, that we will probably have to do some work on pain management. If that is not taken care of, then trying to get more aggressive in his therapy, will probably not be very effective. I will re-evaluate the patient in about one month. (Ex. p. 34) Dr. Boulden then recommended a pain management program for claimant. He wrote in his report of January 29, 1991: Therefore, there was quite some concern to begin with, about the program, whether the patient could tolerate it or not. It is looking like this patient is going to need some form of pain management to help him tolerate his pain more, before the work hardening program will be beneficial. Therefore, we have little else to offer from a conservative management at this time, other than pain management. (Ex. p. 35) Several weeks later, Dr. Boulden opined that claimant Page 5 had reached maximum medical improvement as of January 29, 1991. The physician related the following: It is our medical opinion that, effective, 1-29-91, there was no further orthopaedic care that could be helpful for this patient. I feel the patient's permanent disability rating is 7 percent of the lumbar spine. (Ex. p. 36) Later Dr. Boulden revised his opinion relative to claimant's condition to reflect the following: I have reviewed the Iowa City evaluation which I think spoke in itself about the fact that the patient should get on with his life. We do feel that his degenerative disc disease is not that significant in keeping him from working. I feel that a lot of his problem is psychological as reported by Iowa City as pain fixation. It is very interesting, after reviewing the tape, that the patient seems to be able to function quite well in his own surroundings. As stated before, I do not feel that his degenerative disc disease is that significant that it would preclude him from returning back to work. Specifically, if there is light duty type of work, then I would have no problem with him returning back to work as long as he does not have to do repetitive bending and twisting with his back. In other words, we want him to use proper biomechanics. (Ex. p. 37) Dr. Boulden ordered a rehabilitation program. Thomas A. Wheatley, L.P.T., directed the treatment. Mr. Wheatley stressed improving claimant's range of motion, pain management and flexibility. Claimant was also examined by Sam L. Graham, Ph.D. He diagnosed claimant's condition as: Diagnosis: Axis I - Psychological/behavioral factors affecting a physical condition. Axis II - Deferred. Axis III - Back pain disorder per the assessment of Dr. Boulden. It is my impression that Mr. Rodrigrez [sic] would benefit from an intensive behavioral/psychological approach to pain management with an emphasis on relaxation training and appropriate biofeedback to assist in enhancing his skills to deal with pain. I will see him on an intensive basis with the intent of having him to the point that he can function more appropriately in work-hardening in one week. Page 6 (Ex. p. 47) Dr. Graham worked with claimant in the art of pain management techniques. His report to the insurance carrier indicated the following: He was referred to me by Tom Bower, licensed physical therapist, and I saw him intensively for one week to work on psychological/behavioral pain management techniques. He was introduced to progressive muscle relaxation, instructed in-home practice, given information on the interaction of physiological and psychological variables in pain, and EMG training to assist him in reducing resting muscle tension identified in the lumbar paraspinal muscles were conducted. Mr. Rodriguez was able to significantly reduce his resting muscle tension in the lumbar paraspinal region while sitting. He could reduce it some standing but only if he supports himself with his hands. The initial plan had been to send him back to work-hardening in one week but he continued to insist that he was incapable of participating in more than one hour on a daily basis. At this point my only recommendation would be to give him instructions to begin a walking program on his own and to gradually increase his tolerance until he can stand enough time up to four hours a day. I did discuss with him this date increasing his walking on his own. It would be beneficial to him to have that supervised in some manner. I would be willing to see him on a weekly basis to work with him to gradually increase his activity if you would like me to do that. I have encouraged him to continue with the relaxation training and stress management techniques I have instructed him in. I have not scheduled him to return to my office and will wait until I have an opportunity to discuss this with you on the telephone before I do such. (Ex. p. 49) Claimant was also evaluated by Thomas Bower, L.P.T., for the purposes of determining whether work hardening was appropriate. Mr. Bower noted the following in his report of January 14, 1991: The findings today, specifically of the West Tool Sort, shows clear-cut evidence of symptom magnification present. This patient is going to be a very difficult patient to manage through the work hardening program without the implementation of outside pain management. We have discussed this with the insurance company today and they have given us the okay to involve our psychologist who is on staff to proceed with this patient as well. We will set that appointment up and we will be beginning the work hardening program on January Page 7 15, 1991. The prognosis of this patient is extremely guarded at this point based on the studies performed today. (Ex. p. 52) Claimant went to the Spine Diagnostic and Treatment Center at the University of Iowa Hospitals and Clinics for an evaluation to determine at what level he could participate in a rehabilitation program. He was seen by a variety of specialists. A report was written by Tom Lanes, M.S., C.R.C., and James Weinstein, M.D. In the report the members of the team determined that: In our medical evaluation we feel that we have very good news for you. Following a thorough evaluation of all information and physical examination, our medical staff is convinced that you are absolutely solid, stable and healed from all previous injuries and surgical procedures. We certainly realize that you have a significant amount of back pain and that this pain is very real. However, we do not feel that the pain is doing any harm or damage whatsoever at this time and that it is very important for you to begin to significantly increase function, trust your back, and begin to recondition yourself. The concept of hurt is not harm is a difficult concept to understand, but in our experience, it is absolutely critical in being able to significantly increase your activities and get back to the goals you have set for yourself. Therefore, based on your input and our evaluation, we have the following recommendations: 1) At the present time, we do not feel the Low Back Pain Rehabilitation Program is appropriate for you. This decision was based on a consensus of the entire spine team that met with you. The spine team all felt that you did not feel the rehabilitation program would benefit you, due to the fact that you had engaged in similar activities or programs in the past which had been unable to assist you in improving your physical functioning. Because of these reasons, you stated that you did not wish to be involved in the rehabilitation program at this time. 2) We do recommend that you begin immediately with a home exercise program which has been discussed with you here. This program is designed specifically to help increase strength, flexion and endurance, and to help you to get back to the goals that you have set for yourself. 3) For workers' compensation purposes, we feel that you have reached maximum healing as of Page 8 5/29/91. Your impairment rating for worker's compensation purposes is 5% body as a whole, based on the work-related injury sustained 8/14/90. (Ex. pp. 57-58) Debra S. Parrott, L.P.T., made certain recommendations relative to claimant's rehabilitation. She opined: RECOMMENDATIONS: 1. His average energy cost for employment should be less than 2.0 METs for an eight hour day. This range is suitable for sedentary light tasks. This is based on his present endurance level. 2. He was encouraged to begin a walking program. The following program was given: MODE: walk or any other low-impact aerobic activity INTENSITY: as fast a pace as can be tolerated FREQUENCY: daily DURATION: begin with 5 to 6 minutes of continuous walking, resting 1 to 5 minutes and repeating the sequence 2 times. Progress to 20 minutes without stopping. (Ex. p. 60) A clinical psychologist at the Spine Diagnostic and Treatment Center, Eugene F. Gauron, Ph.D., opined the subsequent opinion relative to claimant's physical condition and mental psyche: Mario Rodriguez started our interview with quite a display of pain behavior. He let it be known that he was hurting from the day's activities. Mario evidently is pretty well convinced about several matters. He knows for sure that he has a serious injury (which is permanent). He gave quite a knowledgeable presentation, showing me his injury on the x-rays. He knows for sure that all the standard treatments he has received so far have not helped him. This is leading him to conclude that, like his injury, his pain too may be permanent. A further conviction he has is that nothing, short of possible unusual treatments, can be done to relieve his pain. His tried and true method for relief is a Philipine back massage procedure that was taught to his wife. He does have some hope that Chinese acupuncture might do him some good. One statement he made, which I believe, adds to the pathos of his situation, "I will do everything I can to get better." How can he reconcile this willingness with his pessimism derived from nothing having worked? He cannot even consider Page 9 the Rehabilitation Program because he knows for a fact that he has tried something like it and it doesn't work. That conclusion, as are all others, is unshakable. Meanwhile, he describes his life as a question mark, his future as uncertain. He sees himself as totally unable to work as he is. I'm not sure I like where he appears to be headed. (Ex. p. 68) Claimant's physical condition and his motivation to improve his condition is also addressed by Mr. Lanes in his report of May 29, 1991: VOCATIONAL IMPRESSION: Mr. Rodriguez would not be a good candidate for our 2-week, out-patient Rehabilitation Program at the University of Iowa. He indicates that he feels he was forced to attend today's evaluation inappropriately by his worker's compensation insurance company, as a result of their inability to settle his worker's compensation claim. He states he has absolutely no interest in attending the rehabilitation program for several reasons. He states he is not able to engage in the physical activities involved and that this has been demonstrated by past lack of benefit while in a work-hardening program. He also indicates that he has had past coping skills training in relaxation, concentration, biofeedback, etc., and that these activities did not assist him in managing his pain. Mr. Rodriguez appears to feel that he is managing his pain to the best possible degree on his own, that only he is truly able to understand his pain situation, and that involvement in the rehabilitation program would not be likely to assist him in reaching his goals. Because this gentleman does not appear to believe that any vocational option would be appropriate for him at present, I have no vocational recommendations for this gentleman. (Ex. p. 70) Philip L. Ascheman, Ph.D., performed a psychological evaluation after having met claimant on January 27, 1992 and January 28, 1992. The evaluation was made pursuant to a request from a member of the Disability Determination Services Bureau. In his report, Dr. Ascheman wrote in relevant portion: In my opinion based on the clinical interview and objective testing, particularly the MMPI, it is my opinion that this individual meets the criteria for somatoform pain disorder as described in the DSM-III-R. Specifically, he has shown a preoccupation with pain for at least six months and in the presence of a related organic pathology, the complaint of pain and resulting social and occupational impairment is presumed to Page 10 be in excess of what might be expected from the physical findings. Thus, this individual is likely to hyper-focus on his pain causing him to be further impaired. Focusing on his pain appears to have caused a marked restriction of activities of daily living and in maintaining social functioning in that this individual has reported near isolation from people other than his immediate family as a result of his pain. He has indicated that he has given up a number of social activities because he feels that it would be socially inappropriate to be continually moving around from chair to chair, etc. Although he has not attempted to return to work since the reported accident, given his current presentation of pain, it would appear to be quite unlikely that he would continue to remain in the work place. In addition, it would appear that his hyper-focusing on his pain has a direct effect on his ability to maintain attention and concentration. While his difficulty with attention and concentration does not specifically cause him to commit errors, it clearly affects his mental pace. Thus, he is persistent enough in order to know when he is making an error but he becomes easily distracted and agitated resulting in a slower than average performance. Therefore, it is my opinion that this individual will show considerable difficulty in returning to work as long as he continues to experience his current level of pain. Clearly, his focusing on his pain causes his condition to be exacerbated. This patient is able to handle his own funds as indicated by his WAIS-R scores in Arithmetic, his description of use of financial instruments, and his report of currently managing the family funds. (Ex. pp. 76-77) Dr. Ascheman summarized his conclusions in his report of June 23, 1992. He wrote: In summary, I would conclude the following: 1) This patient meets the DSM-III-R criteria for a diagnosis of somatoform pain disorder. 2) His expression of the disorder appears to be both temporally and psychologically related to his physical injury. 3) There is no evidence from my evaluation of him to suggest malingering. This includes my personal perception of him as being credible, his presentation of pain behavior, his lack of drug seeking behaviors, and the inability of the MMPI to detect malingering on any of its three validity scales. Page 11 4) His personality profile as shown on the MMPI is consistent with the diagnosis of somatoform disorder. 5) His long term prognosis is poor. This prognosis is consistent with suggestions made throughout his medical and psychological evaluations. 6) His apparent lack of motivation is a feature of his somatoform disorder, not a conscious effort to resist an intervention. 7) His ability to return to any type of competitive employment is limited by his perception of pain which affects his ability to maintain attention and concentration. (Ex. p. 81) Claimant was evaluated by Sinesio Misol, M.D. The orthopedic physician opined that: X-rays and MRI performed at Mercy Hospital were reviewed by me. Without any question, this man has narrowing of the L5-S1 disc with posterior protrusion of disc material. Because he has a wide canal, the disc appears to be touching the dural sac without producing any constriction. My impression is a young man with L5-S1 disc protrusion or degeneration with persisting severe low back and left leg pain without neurological deficit. It is my opinion that as proven by available records, all attempts at conservative treatment have pretty much failed. I do not believe that I would recommend surgery either in view of the lack of neurological deficit. It is my opinion that he has reached a plateau at least as of last year. It is also my belief that he has a degree of permanent/partial physical impairment that certainly seems to be in the area of about 7 to 8 percent of the body. The amount of disability, however, may be greater as he will be unable to do work similar to the one that he was doing prior to the injury, that is physical work that involves bending, lifting, etc. He, as above stated, has been given social security disability. He will probably go back to school and try to get a degree as a computer operator, that he will be seeking a more sedentary job in the future as soon as he can. (Ex. pp. 84-85) Defendants referred claimant to Management Consulting & Page 12 Rehabilitation Services, Inc. Patricia McCollom, RN, MS, CRRN, CIRS, interviewed and evaluated claimant. After an initial interview with claimant, Ms. McCollom devised a rehabilitation plan for claimant. She summarized the plan in her report of February 3, 1992. The plan consisted of the following conclusions and recommendations: 1. Refer for current medical evaluation to determine any changes in status. Rationale: An extended period has elapsed since the last evaluation, with a fall in the interim. Note: A psychological evaluation is pending at the request of Social Security. 2. Refer to the State Division of Vocational Rehabilitation for full functional evaluation. Rationale: No evaluation has been completed to determine skills, abilities. Transferable skills are numerous (including bilingual, ability to read, write, see, mobility within the community) to consider appropriate work options, further knowledge regarding his stated educational background is necessary. An alternative for work includes coordination with such programs as PROTEUS and the Commission on Latino affairs, to provide work options for Mr. Rodriguez utilizing his Spanish speaking skills and prior training. (Ex. pp. 95-95) As of April 1, 1992, Ms. McCollom terminated her vocational rehabilitation services per the request of claimant. The evidence indicated: Mr. Rodriguez informed me that Saturday, March 28, he was notified of approval for social security disability; that he has thought about his vocational future, but has not made decisions; that he wishes to take some time to evaluate his situation and proceed then to look at options. This consultant commented on the need for evaluation, to obtain information to base decisions upon such as the need to evaluate English reading levels. Mr. Rodriguez responded listing courses he has completed in English. He indicated he will contact me, for vocational assistance, when/if needed. (Ex. p. 96) Claimant's attorney referred his client to Gaylord Nordine, M.D., a psychiatrist. The physician authored a report dated June 11, 1993. He opined: Based on my review of the records and clinical findings, it is my opinion, to a reasonable degree Page 13 of medical certainty, that this gentleman fully meets criteria for the diagnosis of somatoform disorder. Also, based on my review of the records and my clinical evaluation of Mr. Rodriguez-Carballo, it is my opinion, to a reasonable degree of medical certainty, that the lifting incident that occurred in August of 1990 was a significant causal factor in the development and subsequent manifestation of Mr. Rodriguez-Carballo's somatoform disorder. Historical factors identified by clinical evaluation predisposed Mr. Rodriguez-Carballo to development of somatoform disorder. The primary clinical consideration regarding predisposition is that this individual experienced extreme disruption of family structure, school and peer relationships, and virtually all elements of cultural interaction at age seventeen when he was violently displaced due to political changes in central Cuba where he grew up. Clinical interview reveals that Mr. Rodriguez-Carballo suffers not only from somatoform disorder, but from severe dysthymia due to psychological trauma sustained at age seventeen. Located in an alien culture at this time, his depression is continuing. In my opinion, he needs interactive therapy provided by an expert in the treatment of cross-cultural displaced person problems as soon as possible. (Ex. p. 87) In his deposition, Dr. Nordine testified that individuals with somatoform disorder are individuals who: In this population individuals who are under stress distinctly lack the ability to convert that distress into verbal symbolic representations and lacking that ability for whatever reason they do lack that ability they are predisposed to developing somatic derivatives of emotional or affective distress. That is the foundation for our current understanding of somatoform disorder in the United States. Q. Now where does the displacement from one's fatherland or the ex-patriotation process, how does that fit in? Is that one of the groups, then, that has this dysfunction that you've been talking about? A. Well, first of all, in his clinical presentations to the extent we have studied him so far there are other studies we can do that we have not done to differentiate alexithymia or what I call dysalexithymia and the predisposition to somatozation or somatoform disorder, but given what we know of him so far he clearly is an Page 14 individual who converts distress into physical awareness vis-a-vis ideational representations. He is more likely to relate a stress to physical discomfort than to some idea or concept is what I'm saying. That's how he presents clinically. Whenever someone presents that way clinically then we look for predisposing stress, is there something in the experience of this individual which might have disrupted his ability to convert into ideas as opposed to just developing physical discomfort. In my opinion such predisposing factors are powerfully present in the history of Rodriguez Carballo. The significance of such predisposing factors is best discussed in the various papers by Robert Post at the NIMH. Q. Now when a person that is predisposed as you've just described it, Doctor, to emanate, if you will, or when that person's placed under stress to emanate or to channel that in physical ways, what happens in that person's life when he or she might be injured or subjected to pain? A. Such individuals are more likely than average individuals to develop a prolonged pain response, particularly if they continue to be under stress. Rodriguez Carballo is in my opinion chronically under stress because he is living in an alien culture which is extremely difficult for him to comprehend. Q. Now prior to his work-related injury that's really the subject of this particular lawsuit it's your feeling that he was under stress as you've just testified? A. Yes. Q. What was the role, then, of the work injury in your estimation? A. The work injury triggered or precipitated an imbalance in the dynamic relationship between his personality organization and his ability to cope successfully with the experiences of daily living, work, family, family life and so on. In my opinion he was in a marginal balance prior to injury and the injury tipped the balance into the area of dysfunction. Q. And that's why in your report of June 11, 1993, you view that work-related injury that occurred in August of 1990 as a significant causal factor? A. Yes. Page 15 Q. And that would still be your opinion today? A. Yes. (Ex. 61, pp. 32-35) Dr. Nordine testified that with treatment claimant could have a 50 percent chance to improve. The physician opined: Q. But now for prognosis what would your prognosis be of Mr. Carballo's case? A. My prognosis would be that if he can engage in therapy using some interactive therapy format which succeeds in resonating with his abilities to interact that he would have at least a 50 percent chance of making a substantial recovery, substantial marked by his reachieving [sic] the ability to do productive work. (Ex. 61, pp. 51-52) In his deposition, Dr. Nordine further testified under cross-examination: Q. I'm trying to distinguish between what I think I just heard you say which is there is absolutely no medical basis in the records for his pain at Page 16 any level versus is there medical evidence to support a report of pain but not as significant a report as Mr. Rodriguez gives? A. To the best of my recollection it's the latter. I can't tell you from recent review what is in that record. It's a distant review type of thing, but I believe I recall that there was some hard physical evidence at least at one point in this case. So my response would be that this is in the category of disproportionate response. (Ex. 61 page 68) Under cross-examination, Dr. Nordine also testified: Q. Do you view Mr. Rodriguez as having suffered from dysthymia for a period of time prior to his work injury in August of 1990? A. Yes. .... Q. So had he not carried the dysthymia with him percolating below the surface or wherever it was manifesting itself all these years had he not carried that with him are you suggesting that the likelihood of his developing a somatoform disorder subsequent to the work injury would be reduced or set aside altogether? A. What I am saying is that his prior problem increased the likelihood of a somatoform result. Q. And is it related to the injury having created a stress or increased stress-- A. Yes. Q. --precipitated the somatoform? A. It was a stress which demanded an adaptive response and he's not been able to generate the more typical adaptive response to the injury. Q. Which is? A. Recovery. (Ex. 61 pages 84-85) After the opinion of Dr. Nordine was provided to the parties, defendants referred claimant to Michael J. Taylor, M.D. He conducted a psychiatric interview and evaluation of claimant. The results were summarized in his report of July 23, 1993. He wrote: Page 17 During the course of my interview with Mr. Rodriguez, I elicited from him a general past psychiatric history including a discussion of his childhood and the circumstances under which he eventually left Cuba; I discussed with him the current difficulties that he is experiencing with pain and the limitations that the pain causes him in his day-to-day life; I questioned him very specifically about various signs and symptoms which might be indicative of mental disorder; and throughout the course of my interview with Mr. Rodriguez, I assessed his mental status examination. Based upon all the information currently available to me, I can offer the following opinions and recommendations, all within a reasonable degree of medical certainty. I find no evidence that, at the present time, Mr. Rodriguez suffers from an diagnosable psychiatric disorder which would in any way cause any work restrictions. I find no evidence of any type if permanent (or even temporary) psychiatric impairment. The only limitations to Mr. Rodriguez's activities would be those limitations described by the several very competent orthopedists who have evaluated him. (Ex.,page 86.) Dr. Taylor also testified by way of deposition. He testified that: Q. What conclusions did you reach after your review of the records and your interview with Mr. Rodriguez? A. Before viewing the videotape? Q. Right. A. That he suffered from no diagnosis of psychiatric disorder. (Ex.,58 p. 11) In his deposition, Dr. Taylor later modified his diagnosis. He testified that: Q. Are there particular factors among others that stand out from your interview and examination which lead you to form the conclusion? A. No. The whole general picture. Q. As to that conclusion that you just stated, how does that relate to the previous diagnosis perhaps supported, as you just said, by the MMPI scoring that the claimant here had a somatoform Page 18 pain disorder? A. I think it's really a stretch to call somatoform pain disorder a psychiatric illness. Somatoform pain disorder only says that somebody has pain and nobody can find a reason for it. The diagnosis, if you want to give it the credit of the diagnosis as described in the Diagnostic and Statistical Manual, Edition III, Revised, describes somatoform pain disorder as basically what I have said, somebody has pain and nobody can find an explanation for the pain but doesn't apply any psychiatric restrictions. Q. Is the conclusion that Mr. Rodriguez had pain without any real identifying source of the pain consistent with the orthopedic records that you reviewed? A. Yes. Q. Do you hold the opinion that Mr. Rodriguez has no diagnosable psychiatric disorder to a reasonable degree of medical certainty? A. I did on July 23, 1993 when I issued this report and I do today. Q. Do you have any particular points of disagreement with the conclusions of Doctor Nordine or Doctor Ascheman? A. Today or before I viewed the videotape? Q. Well, let's first talk about before you viewed the tape. A. Before I viewed the tape again I don't have any disagreement with the statement that this man has pain that nobody can find a cause for. I disagree with Doctor Nordine's contention that this man was experiencing some psychiatric difficulties related to his situation in Cuba before he came to the United States. I don't recall off the top if my head--yes, I do now. I was starting to say I didn't recall what statements Doctor Ascheman might have made regarding permanency or state of disability, but Doctor Ascheman's report seems to have been pivotal in this man's receiving social security disability benefits. And it's my recollection that Doctor Ascheman estimated that this man was totally and permanently disabled by his current condition, and I strongly disagree with that even as of July 23, 1993. Q. In what respect or what causes the basis of your disagreement with his conclusion in that regard? Page 19 A. I found no evidence of any psychiatric disability. He had no symptoms of psychiatric disorder other than this unexplained alleged pain. Q. Did your opinions or conclusions change in any record after viewing the videotape? A. Yes. Q. In what respect did they change? A. I believe him to be a malingerer. (Ex.,58 pages 11-14) Since the date of the work injury, claimant has not been employed in any meaningful capacity. He has not sought employment. He has not engaged in any type of retraining; he has not pursued any educational courses. Claimant has not engaged in any volunteer work, despite the fact that volunteer work has been recommended to claimant. Claimant testified at the hearing that he could do almost nothing. He testified he could drive a pick up truck with standard transmission to the grocery store or transport his child to school. Claimant testified he could carry Page 20 sacks of garbage from the home to the front curb. He indicated he would not try to engage in lifting. He also testified he could sit for 30 to 60 minutes at a time, but then he needed to stand and move around. Claimant indicated he could walk about four blocks before he tired. Defendants retained the service of a private investigator to conduct surveillance of claimant at his home. Defendants retained the services of Byron F. Robison, d/b/a as American Central Investigation Firm. The videotape was admitted as an exhibit. It depicted claimant performing some household chores such as carrying bags of garbage or bags of groceries. Claimant was also depicted scraping paint from his home, and assisting another male with dragging a live goat from the back of the truck. Mr. Robinson indicated, in his report of June 27, 1991, that the tape depicted claimant and another female walking from across the street and both were carrying a large plastic playhouse. 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. 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). 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). Page 21 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, experience 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 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 Page 22 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. Iowa Code section 85.34. 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). There is no question that claimant has sustained a work related injury to his low back. There is some objective evidence to support claimant's claim of a permanent injury. Numerous functional impairment ratings have been given by recognized experts in the field of orthopedics. The ratings have all been in the area of 5% to 8%. The ratings are consistent with one another. No rating has exceeded the 8% level. No physician has recommended surgery. All orthopedic experts have prescribed conservative therapy and some type of work hardening program. Many experts have noted that claimant has not given maximum effort to recovering. Claimant has consistently maintained he is incapable of even engaging in a rehabilitation program. Claimant has described intense pain in the low back area as well as into the lower extremities. He has not cooperated with many of the recommendations of the rehabilitation specialists. While claimant has indicated to various health care professionals that he is willing, "To do anything to help his condition", claimant has not lived up to his promise to cooperate in a rehabilitation program. Dr. Ascheman is not a medical doctor. He is not licensed to practice medicine. He holds a doctorate degree in psychology. He opines that claimant is incapable of engaging in meaningful employment. His opinion was rendered pursuant to a request from the Social Security Administration. Dr. Aschman conducted testing and held an interview with claimant. The psychologist did not treat claimant in a clinical setting. Dr. Nordine is of the opinion that claimant is incapable of engaging in any type of rehabilitation because claimant suffers from a somataform disorder which is precipitated by his work injury. Dr. Nordine opines that claimant has suffered from dysthemia since he was a 17-year-old student and a political prisoner in Cuba, but that the work injury brought the somatoform disorder to light. According to Dr. Nordine, the somatoform disorder manifested itself only after the work injury took place. It is Dr. Nordine's, opinion that claimant cannot handle a Page 23 recovery from his work injury. In Dr. Nordine's opinion, claimant is incapable of adjusting his life so that he can effectuate change. Dr. Nordine maintains that only with therapy, can claimant improve his condition. Dr. Taylor, on the other hand, takes a contrary position. He opines that claimant is not suffering from any psychiatric disorder. It is Dr. Taylor's opinion there is no physical explanation for claimant's pain. Dr. Taylor even goes so far as to amend his opinion to include malingering on the part of claimant. He amended his opinion after he had viewed the surveillance video which was made of claimant in June of 1991. Both psychiatrists are recognized experts in the field of psychiatry. Neither physician has been treating claimant. Claimant has not even requested psychiatric care or therapy from any mental health professional. Both physicians saw claimant for purposes of rendering an evaluation in anticipation of litigation. The amount of contact each physician has had with claimant is only minimal. The greater weight of the evidence does not support a finding of any permanent psychological injury. This deputy has viewed the surveillance video which defendants authorized. The tape covers three separate days in June of 1991. It is nearly three hours in length. In the tape, claimant is seen scraping and painting a portion of his house. The movements he exhibited involved bending, squatting, sitting, reaching overhead, stretching to the side, and some twisting. This deputy witnessed no observable pain in any of claimant's movements. At all times claimant was capable of performing the tasks which he had attempted. Claimant, and another male, are seen unloading and carrying a goat from the back of his truck to the back yard. Claimant is seen carrying various grocery and garbage bags. On one occasion, claimant and another woman are carrying a large plastic playhouse from the neighbor's home, across the street, and to his own yard. Numerous times claimant is captured on the tape as he is getting in and out of his Toyota pick-up truck. It does not appear to this deputy that claimant is having any difficulties entering and exiting his vehicle. Throughout the duration of the tape, claimant walks without any apparent difficulties. It is acknowledged that claimant kicks out his foot when he walks. However, this deputy is unable to determine whether this is claimant's "natural walk", or whether this is the result of claimant's back injury. At any rate, claimant shows no difficulties when he is walking either on pavement or on ground. Claimant is also seen standing for periods of time of at least 15 to 20 minutes. While viewing the videotape, this deputy never witnessed any manifestations of pain or discomfort when claimant was standing. It is the determination of the undersigned that claimant demonstrated no physical manifestations of low back pain during the course of the videotape. The tape has Page 24 satisfactorily demonstrated to this deputy, that claimant is capable of engaging in some employment opportunities. Despite claimant's belief that "he cannot do anything", claimant is quite capable of engaging in physical tasks such as tasks involving some bending, some squatting, some walking, standing, and driving a stand transmission vehicle. It is also the determination of the undersigned that even if claimant had been deemed to suffer some psychological overlay as a portion of his claim, claimant would still be capable of engaging in active employment. Claimant has little motivation to return to active employment of any kind. Despite claimant's declaration, "He would do anything to improve his condition", claimant's behavior has not convinced this deputy that claimant is ready and willing to engage in even the smallest efforts toward rehabilitating himself. Claimant has refused every attempt at rehabilitation, despite defendants' numerous offers of physical therapy, work hardening, pain management techniques, pain clinics, and job placement. Claimant has not requested psychological counseling, despite his psychiatrist's opinion that claimant will not improve unless he is given intense therapy. Dr. Nordine opines claimant is incapable of helping himself because of claimant's long term condition of dysthemia. Dr. Nordine also opines that claimant's somatoform condition is the result of claimant's work injury. However, after reviewing all of the evidence, and after having viewed the three hour video tape, the deputy is overwhelmingly convinced that claimant's pain complaints are grossly exaggerated. This deputy is not persuaded that claimant suffers from a somatoform condition. There were no observations of intense pain during the playing of the tape. This deputy is overwhelmingly convinced that while claimant has sustained a permanent partial impairment to his back, the industrial disability which he has sustained, is much less than the disability which is claimed by claimant. Claimant, it appears, can engage in at least sedentary and medium categories of work. The videotape demonstrates the types of work which claimant can handle. Claimant is of average intelligence. It is acknowledged that claimant's entire education took place in Cuba, under the Castro regime. However, given Cuba's standards, claimant is well educated. He speaks both English and Spanish. He has experience in the hospital setting, given the fact he was an x-ray technician in Cuba. He has managed his own business. After having run his own business, there are transferable skills available to claimant. He is pleasant and personable. He has some sales knowledge. Claimant is employable. Therefore, after having reviewed the evidence, after having observed claimant during the hearing, and given agency expertise, it is this deputy industrial commissioner's determination that claimant is entitled to a twenty-five percent permanent partial disability. He is Page 25 entitled to benefits for 125 weeks at the stipulated benefit rate of $208.37 per week. 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. The next issue to address is the issue dealing with healing period benefits. 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. Kubil, 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). Defendants previously paid benefits from the date of injury on August 21, 1990 through January 29, 1991, the date, Dr. Boulden determined claimant had reached maximum medical improvement. However, after reviewing the evidence, it is this deputy's determination that claimant 's healing period ended as of May 29, 1991. That is the date upon which members of the Spine and Diagnostic Clinic at the University of Iowa determined claimant had reached maximum healing. (Ex., p. 58.). It is the determination of this deputy that while Dr. Boulden held claimant had reached maximum medical improvement in January, Dr. Boulden in the same report also opined that claimant Nd was still in need of some pain management. Therefore, it is the determination of the undersigned that claimant is entitled to healing period benefits from August 21, 1990 through May 29, 1991. This represents a period of 40.286 weeks at the stipulated rate of $208.37 per week. ORDER THEREFORE, it is ordered that: Defendants shall pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the stipulated rate of two hundred eight and 37/l00 dollars ($208.37) per week and commencing on May 30, 1991. Defendants shall pay unto claimant forty point two-eight-six (40.286) weeks of healing period benefits from August 21, 1990 through May 29, 1991 and at the stipulated rate of two hundred eight and 37/l00 dollars ($208.37) per week. Defendants shall take credit for all benefits previously paid. Accrued benefits are to be paid in a lump sum together Page 26 with statutory interest at the rate of ten percent (10%) per year. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of January, 1994. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Max Schott Attorney at Law 6959 University Avenue Des Moines, Iowa 50311 Mr. David L. Jenkins Attorney at Law 801 Grand Avenue Suite 3700 Des Moines, Iowa 50309 5-1800; 2204 Filed January 18, 1994 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARIO H. RODRIGUEZ-CARBALLO, : : Claimant, : : vs. : : File No. 957279 QUALITY WINE COMPANY, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800; 2204 Claimant was awarded a 25 percent permanent partial disability for an injury which he sustained to his low back. Claimant also claimed that he had sustained a psychological injury as a result of his back injury. The evidence presented did not support claimant's alleged psychological injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ MARIO H. RODRIGUEZ-CARBALLO, File No. 957279 Claimant, R U L I N G O N vs. M O T I O N F O R QUALITY WINE COMPANY, INC., O R D E R Employer, N U N C and P R O WAUSAU INSURANCE COMPANY, T U N C Insurance Carrier, Defendants. ------------------------------------------------------------ An arbitration decision was filed in the above captioned matter on January 18, 1994. In the arbitration decision, this deputy industrial commissioner awarded: Defendants shall pay unto claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the stipulated rate of two hundred eight and 37/100 dollars ($208.37) per week and commencing on May 30, 1991. Defendants shall pay unto claimant forty point two-eight-six (40.286) weeks of healing period benefits from August 21, 1990 through May 29, 1991 and at the stipulated rate of two hundred eight and 37/100 dollars ($208.37) per week. Defendants shall take credit for all benefits previously paid. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year. Costs are taxed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. No appeal was taken by any party. On March 14, 1994, a motion for order nunc pro tunc was filed by the defendants. In their motion, defendants objected to various costs which claimant was requesting in exhibit 1. Specifically, defendants were objecting to: 1. Costs for reports or deposition testimony related to a claim involving an alleged psychological injury; Page 2 2. Costs for certain items which defendants claimed did not fall under rule 343 IAC 4.33 such as the cost to duplicate a transcript. On March 21, 1994, claimant filed his response to defendants' motion for order nunc pro tunc. In his response, the claimant stated: 3. Thus Claimant believes he is a "successful" claimant within the general contemplation of Iowa Code section 625.1: "Costs shall be recovered by the successful against the losing party." See, also, rule 343 IAC 4.35. .... 6. Moreover, there is a considerable question as to whether Defendants' present Motion can be held to be timely inasmuch as the period for appealing the Deputy's decision is past. In Wenstrad v. Kiddoo (Wenstrad) -- an analogous case in which an unsuccessful defendant attempted to challenge a court's allowance of excessive attorney fees by filing a motion to retax costs after the time for an appeal had run -- the Supreme Court stated: In this case the motion to retax costs called for a reconsideration by the court of the question on which it had ruled in entering the judgment for the excessive attorney fees. The error of the court inhered in the judgment and the remedy is by appeal, and [Defendant] was not entitled to the relief granted him on his motion to retax costs. See, 222 Iowa at 297, 268 N.W. at 581 (emphasis added). In reaching this conclusion, the Wenstrad Court cited as authority a number of its earlier holdings including Young v. Rutherford: The motion called for a reconsideration by the court of the questions on which it had ruled in entering the judgment, and this is not the function of a motion to retax costs. We think such a remedy was not available to the movant. To correct the allowances made in the judgment entry, the defendant should have appealed. See 222 Iowa at 294, 268 N.W. at 579 (emphasis added) (quoting Young v. Rutherford, 190 Iowa 414, 418, 176 N.W. 241, 242 (Iowa 1920)). .... 8. Further support for Claimant's position is found in the statutory authority for nunc pro tunc orders: "Entries made and signed*** may be altered only to correct an evident mistake." See Iowa Code section 602.6203(4). Of the limitations of such orders, our court has written: The distinction, then as now, is this: The power of the court to cause the record to conform to the judicial pronouncement is inherent, and is not affected by the mere lapse of time; before entry and signing, the power is exercisable as the judge may direct; thereafter, the power is limited to correction of "evident mistakes." See, Headley v. Headley, 172 N.W.2d 104, 108 (Iowa 1969) (emphasis added). Given the foregoing discussion, Claimant does not believe Deputy McGovern's assignement of the costs to Defendants can be said to be an "evident mistake" within Page 3 the contemplation of Iowa Code section 602.6203(4). A reply to claimant's response to motion for order nunc pro tunc was filed by defendants on March 24, 1994. In its reply, defendants requested this deputy to enter an Order Nunc Pro Tunc. Section 602.6204 (3) and (4) of the Iowa Code provides in relevant portion: 3. A record shall not be amended or impaired by the clerk of the district court, or by any other officer of the court, or by any other person, except pursuant to the order of the district court or some other court of competent authority. 4. Entries made and signed, unless amended or expunged as provided in subsection 3, may be altered only to correct an evident mistake. Defendants have requested an Order for Nunc Pro Tunc. Black's Law Dictionary, Fourth Edition, (revised) defines nunc pro tunc at page 1218. The entry reads: Lat. Now for then. A phrase applied to acts allowed to be done after the time when they should have been done with a retroactive effect, i.e., with the same effect as if regularly done. Nunc Pro Tunc" entry is an entry made now of something previously done to have the effect of former date; office being not to supply omitted action, but to supply omission in record of action really had but omitted through inadvertence or mistake. (Citations omitted). In the present case, this deputy industrial commissioner is asked to to issue an order of nunc pro tunc for the arbitration decision in this matter. Under section 602.6203(4) the decision may only be changed to correct an evident mistake. There is no evident mistake in the taxation of costs in the present case. The costs are taxed pursuant to section 86.40 and to Rule 343 IAC 4.33. Costs may be taxed in the discretion of the deputy commissioner or by the industrial commissioner. It is clear that section 86.40 governs the assessment of costs. The section provides: All costs incurred in the hearing before the commissioner shall be taxed in the discretion of the commissioner. It is also clear that costs are governed by the administrative rules of the Division of Industrial Services. Rule 343 IAC 4.33 governs costs which may be taxed by the industrial commissioner or a deputy commissioner. The rule expressly provides: Costs taxed by the industrial commissioner or a deputy commissioner shall be (1) attendance of a certified shorthand reporter or presence of mechanical means at hearings and evidential depositions, (2) transcription costs when appropriate, (3) costs of service of the original notice and subpoenas, (4) witness fees and expenses as provided by Iowa Code sections 622.69 and 622.72, (5) the costs of doctors' and practitioners'' deposition testimony provided that said costs do not exceed the amounts provided Page 4 by Iowa Code sections 6.22.69 and 622.72, (6) the reasonable costs of obtaining no more than two doctors' or practitioners' reports, (7) filing fees when appropriate, (8) costs of persons reviewing health service disputes. Costs of service of notice and subpoenas shall be paid initially to the witnesses, doctors or practitioners by the party on whose behalf the witness is called or by whom the report is requested. Witness fees shall be paid in accordance with Iowa Code section 622.74. Proof of payment of any cost shall be filed with the industrial commissioner before it is taxed. The party initially paying the expense shall be reimbursed by the party taxed with the cost. If the expense is unpaid, it shall be paid by the party taxed with the cost. Costs are to be assessed at the discretion of the deputy industrial commissioner or industrial commissioner hearing the case unless otherwise required by the rules of civil procedure governing discovery. In the present case, no evident mistake has been made by this deputy industrial commissioner in assessing costs to defendants. The determination to assess costs is discretionary. Since there is no evident mistake, the motion for an order of nunc pro tunc is inappropriate. Defendants' motion for an order of nunc pro tunc is denied. The parties are reminded that costs are often assessed to the defendants. That determination is customary in cases where claimant is able to recover an award. See, Iowa Workers' Compensation Law and Practice, Second Edition, Lawyer and Higgs at section 22-8, p. 244-245. The authors elaborate the following relative to costs: In the majority of cases, costs will be taxed to the defendant under a theory that defense of workers' compensation cases is a part of doing business. However, costs may be charged to the claimant, particularly in an arbitration case where the suit is spurious or obviously frivolous.... The order of the deputy industrial commissioner in all probability will be a general one directing, for example, that defendants pay costs. In most instances, the parties work out the costs between or among themselves. A party, however, can make specific requests for items which the deputy usually will order with specificity. For instances, the claimant might submit the costs of two doctors' or practitioners' reports or request mileage or witness fees for those persons appearing. (Footnotes omitted). The parties are also advised that even though the assessment of costs is discretionary, the costs must be allowable under the Iowa Code or under the Iowa Administrative Code. In the instant case, claimant's costs which are assessed to defendants include: Shorthand reporter at deposition of Dr. Nordine $291.00 Cost of service 4.58 Dr. Nordine's deposition 150.00 Page 5 Two doctors' reports 200.00 100.00 Filing fees 65.00 Testimony Total $810.58 THEREFORE, in light of all of the above, defendants' motion for an order nunc pro tunc is denied. ORDER THEREFORE, it is ordered: Defendants' motion for a nunc pro tunc is denied. Costs of the filing of this motion is assessed to defendants, Signed and filed this ____ day of August, 1994. ________________________________ MICHELLE A McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Max Schott Attorney at Law 6959 University Ave Des Moines IA 50311-1540 Mr Dvid L Jenkins Attorney at Law 801 Grand Ave Ste 3700 Des Moines IA 50309-2727 Page 1 before the iowa industrial commissioner ____________________________________________________________ : SANDRA VIERS, : : File No. 957476 Claimant, : : vs. : MEMORANDOM OF : HY-VEE FOOD STORES, : DECISION ON : Employer, : ALTERNATE : and : MEDICAL CARE : EMPLOYERS MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ An original notice and petition was filed on December 23, 1992 under rule 343 IAC 4.48. January 6, 1993 was the date set for a telephonic hearing. All parties were given proper notice. This alternate medical care petition was filed because of the claimant's dispute with medical care she was being given which arose out of a work injury on May 13, 1990. The entire hearing was recorded via an audio tape. The detailed decision was dictated into the record on the day of the hearing and will not be reproduced in typewritten form unless there is an appeal by the parties at which time the procedures under the administrative code are to be followed. Any rights of appeal will run from the date of the decision dictated into the record, namely, January 6, 1993, and this memorandum is solely for the purpose of the agency file The deputy ordered that claimant's petition for alternate medical care is denied. The decision was rendered on January 6, 1993. This memo signed this ______ day of January, 1993. _____________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 2 Copies to: Mr. David P. Kozlowski Attorney at Law 1025 Ashworth Rd. #329 West Des Moines, Iowa 50265 Hy-Vee Food Stores 1111 Army Post Road Des Moines, Iowa 50315 Ms. Trish McElderry Employers Mutual Companies P O Box 884 Des Moines, Iowa 50304-0884 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAVID J. BENDICKSON, Claimant, vs. File No. 957612 DOUBLE F. FRAMING, A R B I T R A T I O N Employer, D E C I S I O N and GENERAL CASUALTY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, David Bendickson, against his employer, Double F. Framing, and its insurance carrier, General Casualty Insurance Company, defendants. Claimant is also alleging that he is entitled to benefits from the Second Injury Fund of Iowa. The Fund has also been named as a defendant. The case was heard on February 9, 1994 in Des Moines. The record consists of the testimony of claimant. The record also consists of exhibits 1-5 and exhibit A. STATEMENT OF THE ISSUES The issues to be determined are: 1) whether claimant is entitled to permanent partial disability benefits; and 2) whether claimant is entitled to benefits pursuant to the Second Injury Fund of Iowa. STATEMENT OF THE FACTS The deputy, having heard the testimony and considered all of the evidence, finds: Claimant is 50 years old. He is single with no minor children. Claimant has obtained his GED. On May 11, 1987 claimant was involved in a motor vehicle accident. The accident was unrelated to any employment. As a result of that accident, claimant sustained a comminuted fracture of the midshaft of the femur (Exhibit A). His injury necessitated a two month stay in Broadlawns Hospital. Claimant progressed very slowly. A referral was made to the University of Iowa Hospitals and Clinics for an evaluation in the orthopedics department. Initially, Dr. Neopala (first name unknown) examined and evaluated claimant on March 9, 1988. The orthopedic surgeon wrote the following in his clinical notes: Assessment: Healing femur fracture with exuberant bone formation and possibly not requiring any surgical intervention at this time. Plan: We have instructed the patient to continue with his current regimen of light weight-bearing as pain will tolerate. Should he have any further problems, he should come back to us as soon as possible, otherwise we will simply see him in six weeks for REPEAT AP AND LATERAL OF HIS ENTIRE FEMUR WHILE STANDING. (Ex. 4c-1) Claimant was off work for approximately three years. On February 20, 1990, claimant was released to return to construction work. On August 1, 1990, claimant commenced his employment with the present defendant. Foster Felton hired claimant to perform certain laboring and carpentry tasks on residential building sites. For his services claimant was paid $12.00 per hour. On day two of his employment with the present defendant- employer, claimant fell eight feet from a basement wall. He landed on his feet with most of his weight placed on his right lower extremity. A co-worker called for emergency assistance. Claimant was transported by ambulance to Broadlawns Hospital. Claimant underwent a limited internal fixation/external fixation (Ex. 4c-10). Again, he progressed in a very slow fashion. Claimant was referred to the University of Iowa Hospitals and Clinics. J. L. Marsh, M.D., Associate Professor of the Department of Orthopedics, treated claimant. Dr. Marsh assessed claimant's condition as "[h]ealing tibial plateau and proximal metaphyseal tibia fx. (comminuted), progressing well" (Ex. 4c_7). Claimant continued with follow-up treatment through the University of Iowa Hospitals and Clinics. Dr. Marsh prescribed a custom brace. Physical therapy and work hardening were prescribed for claimant. In August of 1992, Dr. Marsh indicated the following relative to claimant's condition: X-rays: No evidence of atrophy or fusion of the joint. Impression: The knee looks great with no evidence of arthritis. There is good motion. Instability is small. Muscle strength and control of the joint has improved since the last clinic visit. The patient may still continue to improve, but it is hard to predict the likelihood of improvement. Plan: Mr. Bendickson is advised to continue activities as tolerated. He should continue strength exercises. If possible, he was advised to pursue less strenuous work. RTC in one year, AT WHICH TIME REPEAT AP AND LATERAL VIEWS SHOULD BE DONE. (Ex. 4c-10) A work hardening program was offered to claimant in October of 1991. Thomas W. Bower, L.P.T., managed a 14 day program for claimant. At the conclusion of the program, Mr. Bower issued his report of November 20, 1991. He determined the following: Mr. Bendickson continues to demonstrate some mild flexion loss of his right knee with measurements taken from 0 to 130o. He is wearing an Omni brace throughout the majority of the time that he is up for stability purposes. I continue to demonstrate a mild to moderate anterior instability noted on exam, but I can find nothing in the record that would indicate the anterior cruciate was disrupted nor have I received any further information to confirm that from Iowa City. There does not appear to be a great deal of medial lateral instability. Based on our assessment today, we feel the patient has sustained an overall 7% impairment to the right lower extremity, in accordance with the range of motion loss. The instability that I'm noting I feel accounts for an additional 15%. We cannot account for any further impairment based on the orthosis that he is required to wear, since the guides specifically state that it must be a groin to ankle orthosis and no other bracing is considered. Therefore, on the basis of our exam today, we feel the patient has sustained an overall 21% impairment, using the combined values charts of the 3rd Edition Revised AMA [G]uides. (Ex. 4b-5 - 4b-6) The treating physician at the University of Iowa, Dr. Marsh, issued a report detailing claimant's condition as of June 25, 1993. Dr. Marsh opined in the same report: With respect to the right knee injury for David Bendickson, it is my determination that he functions approximately at the level of a patient with a knee fusion. However, since he does have some of the function of his knee, I have chosen to rate his impairment of the right lower extremity at 40%, which is 10% lower than the optimal knee fusion. With respect to his opposite leg, he has an impairment of 5% for loss of full knee flexion. With respect to restrictions, I put no definite restrictions on David. He is free to function at the level that he is able to achieve. However, I think it is reasonable to expect that he would not be able to do the heaviest type of work because of his knee. Therefore, we would not expect that he could do heavy lifting greater than 20 lbs., climbing, running, or jumping. He would also have difficulty with activities requiring vigorous use of the knee, such as driving a heavy clutch, etc. With respect to recreational activities, I think it is unlikely that he could run, jump, or play sports that required this. (Ex. 4d-1) Claimant desired an independent medical examination from a physician of his own selection. Claimant was then examined and evaluated by Keith W. Riggins, M.D., on October 6, 1993. Dr. Riggins issued his report which is exhibit 4a-1. In the report, Dr. Riggins opined: Examination of the left knee demonstrates moderate crepitance throughout range of motion. There is a well-healed anteromedial incision at the knee. Range of motion is zero to one-hundred five degrees. Circumference is measured at sixteen and one-half inches five inches above the inferior pole of the patella. Strength is Grade 5 in both flexion and extension. Examination of the right knee demonstrates no effusion. There is no inappropriate angulation through the knee joint. Range of motion is from full extension to one-hundred ten degrees of flexion. Marked crepitance is present throughout range of motion of the knee including a very prominent snap as Mr. Bendickson attains ten degrees of flexion proceeding from full flexion. There are well-healed punctate incisions on the anterior aspect of the tibia and a well-healed longitudinal incision approximately three inches in length at the mid-portion of the thigh on the right from external fixators. There are three well-healed one-inch incisions on the medial aspect of the knee and one well-healed one-inch incision on the anterolateral aspect from placement of interosseous screws. There is a well-healed five inch posteromedial incision at the knee. The right thigh measures sixteen inches at five inches above the inferior pole of the patella. There is noted to be Grade l posteromedial laxity of the joint. X-ray examination of the right tibia and standing AP x_ray examination of the right knee are obtained on October 6, 1993. These studies demonstrate considerable disruption of articular surface of the tibia with good maintenance of the joint space. Four metallic fixation screws are in place and there is no inappropriate angulation through the knee joint. Records consisting of a statement of David Bendickson; University of Iowa Hospital and Clinics (J.L. Marsh, M.D.); Broadlawns Medical Center; General Rehabilitation Services, Inc.; and Mr. Tom Bower, LPT are reviewed in the course of preparation of this report. DIAGNOSIS: Severely comminuted plateau fracture right knee, healed. IMPAIRMENT is rated utilizing the Fourth Edition of the AMA Guides to Evaluation of Permanent Impairment. The condition of restriction of range of motion of the knee to one-hundred ten degrees yields a ten percent (10%) impairment. The condition of mild collateral laxity yields a seven percent (7%) impairment. Impairment due to crepitance is rated utilizing Table 19 at thirty percent (30%) of the knee joint value. Knee joint value is sixty-seven (67%) impairment of the lower extremity; therefore, the number sixty-seven percent (67%) is multiplied by thirty percent (30%) yielding an impairment of twenty percent (20%) of the lower extremity due to crepitance. Strength is rated at Grade 4, both in flexion and in extension, and utilizing Table 39 yields impairment of twelve percent (12%) of lower extremity due to weakness of flexion and twelve percent (12%) of lower extremity due to weakness of extension. Final Impairment is calculated in the following manner: The value twenty percent is combined with ten percent yielding twenty-eight percent (28%). The value twenty-eight percent is combined with twelve percent yielding thirty-seven percent (37%). The value thirty-seven percent is combined with twelve percent yielding the value forty-five percent (45%). The value forty-five percent is combined with the value seven percent yielding forty-nine percent (49%). The final impairment rating is therefore, considered to be forty-nine percent (49%) of the lower extremity. DISCUSSION: Mr. Bendickson's injury of severely comminuted fracture of the proximal tibia is felt to be causely [sic] related to his episode of fall occurring on August 2, 1990 while in the employ of Double F Framing Company. (Ex. 4a-2 - 4a-4) Dr. Riggins later modified his opinion. His original evaluation was based upon the Fourth Edition of the AMA Guides, but the Third Edition of the AMA Guides was in existence at the time of claimant's injury. Furthermore, the Third Edition of the AMA Guides was the volume used by Mr. Bower in the rendering of his evaluation. Therefore, in Dr. Riggins' modified evaluation, he opined: The difference between the impairment rating provided by Dr. Marsh and the impairment which I provided is felt to be primarily secondary to the differences of technique of rating impairment of the knee between the Third Edition, Revised and the Fourth Editions of the AMA Guides to Evaluation of Permanent Impairment. The primary differences are: l. Range of motion of the knee joint is valued at fifty percent of the lower extremity in the Third Edition of the Guides whereas it is valued at sixty-seven percent impairment of the lower extremity in the Fourth Edition. The impairments due to crepitation and strength loss are dependent upon multiplication of the value for range of motion of the knee by a converting factor. The increase in impairment due to crepitation and impairment due to loss of strength is therefore increased when rated in the Fourth as compared to the Third Editions. 2. The Third Edition provides no mechanism for rating impairment due to mild medial collateral ligament laxity whereas the Fourth Edition does provide such a mechanism. The following impairment rating utilizing the Third Edition is provided in order to allow comparison of my rating to that of Dr. Marsh. Instructions regarding impairment regarding crepitation are on Page 44 of the Third Edition and indicate a converting factor of .30. The value from Table 35 for range of motion of the knee is fifty percent impairment. Fifty percent is therefore multiplied by .30 yielding an impairment of the lower extremity of fifteen percent (15%). Range of motion is rated utilizing my obtained measurement of one-hundred ten degrees in accordance with Table 35 of the Third Edition yielding an impairment of fourteen percent (14%) of the lower extremity. Strength deficit in flexion and extension is rated utilizing Table 47 and Table 11 with deficit being placed at ten percent. The hamstring impairment is produced by multiplying seventy percent maximum impairment due to loss of strength of hamstring by the converting factor of ten percent yielding an impairment due to hamstring weakness of seven point five percent (7.5%). The weakness of extension is calculated by utilizing the figure thirty-five percent of the lower extremity secondary to loss of power of femoral nerve innervative musculature by a converting factor of ten percent yielding an impairment due to loss of strength in extension of eleven percent (11%). The values fifteen percent and fourteen percent are combined yielding an impairment of twenty-seven percent which is then combined with eleven percent yielding an impairment of thirty-five percent. The lower extremity is therefore considered thirty-five percent impaired when rated in accordance with the AMA Guides to Evaluation of Permanent Impairment, Third Edition. It is noted that the Fourth Edition Guides to Evaluation of Permanent Impairment did not become available until August of 1993. Copies of the appropriate sections of the Fourth Edition Guides to Evaluation of Permanent Impairment are included for your information. (Ex. 4a-5 - 4a-6) Various medical providers suggested claimant find another line of work which would not be as strenuous as the construction industry had been. As a result, claimant, on his own initiative, presented himself for testing, evaluation, and rehabilitation at the Iowa Department of Vocational Rehabilitation. Barb Smalley, counselor at The Polk County Area Office for the Iowa Department of Vocational Rehabilitation, issued a report on January 27, 1994. In the report Ms. Smalley addressed issues surrounding claimant's employability. In her report she wrote: Finally, in December of 1993 David determined that the physical requirements of carpentry work were just too strenuous with his limitations. He again started exploring what type of work he could do. We have started to review his limited options. In 1992 he went through the Iowa State Vocational Rehabilitation facility's evaluation program with following conclusions:Updating academic skills for college work was not recommended. Math score at the 10th grade level, able to complete whole numbers, but lacked skills in fractions and decimals. Reading level is at grade 8.7. He has good skills in mechanical reasoning and very good basic shop skills which are supportive of work in maintenance, wood or mechanical tasks. David has excellent mechanical skills, an established profession in carpentry and potential for other positions using these basic shop skills. However, his extensive limitations and the requirement to sit and stand in various positions would require onsite modifications and extensive work in uncovering a position in such a limited job market. David has proven that he is able to find a job and that he is highly motivated and very sincere in wanting employment to support himself. His overall demeanor is that he is a person that likes to work with his hands preferably in an outdoor environment. His strongest skills seem to be in the industrial skill area, not general business or office. For David the type of work environment is equally important to match since he has already had the experience of working indoors in a sedentary, routine assembly line type position prior to the disability and it just did not match his work aptitude. Conclusion: David has a barrier to the labor market and it is very difficult to match his current transferable skills to the job market at an income level anywhere near his previous level. He has experienced a very limited job market even when he has been willing to take a lower salary because he could only bid on the portions of the job that he physically could perform. David and I are continuing to work on his rehabilitation plan, however what he would like to do the most is carpentry and he physically is not able to perform the climbing, carrying, stooping, bending, kneeling tasks that are required in this profession. This causes him to be severely disabled and seeking services from our agency. (Ex. 3-1 - 3-2) Claimant testified that he attempted a return to work with defendant-employer. However, he was only able to complete three or four months of employment with him, as claimant sustained a right sprained ankle while he was climbing on a ladder at work. Claimant testified that his employer believed claimant was "clumsy." Ultimately, claimant was laid off from his position with the present defendant-employer. Claimant also performed some contract work for Steven Grubb. The contract called for "punch list work." After a period of time, the business slowed and claimant's services were no longer requested. Additionally, claimant testified he performed other contract work in the area of remodeling and performing odd jobs. Claimant's earnings were sporadic. CONCLUSIONS OF LAW The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). Three eminently qualified medical witnesses have provided four impairment ratings for claimant's right lower extremity. Dr. Marsh, the treating orthopedic surgeon, has determined there is a 40 percent impairment to the right lower extremity. Mr. Bower, an attending physical therapist and not a physician, has evaluated claimant as having a 21 percent impairment to the right lower extremity based upon his interpretation of the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised. Finally, there are two ratings from the evaluating physician, Dr. Riggins. He has used the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition. Then upon a request from claimant's attorney, he has evaluated claimant using the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Revised. Defendants argue that the Fourth Edition of the AMA Guides cannot be used to evaluate claimant because the Fourth Edition was not in existence at the time of claimant's injury. Defendants' argument is without merit. Rule 343-2.4 of the Iowa Administrative Code discusses the use of the Guides in workers' compensation proceedings. The rule provides in relevant portion: The Guides to the Evaluation of Permanent Impairment published by the American Medical Association are adopted as a guide for determining permanent partial disabilities under Iowa Code section 85.34(2) "a"-"r."...Nothing in this rule shall be construed to prevent the presentations of other medical opinion or guides for the purpose of establishing that the degree of permanent impairment to which the claimant would be entitled would be more or less than the entitlement indicated in the AMA guide. In this case there is a medical opinion which is based on the Fourth Edition of the Guides. The undersigned is able to consider and weigh the medical opinion. Both employer and insurance carrier argue that Dr. Riggins' evaluation using the Fourth Edition is inappropriate because the Fourth Edition was not in existence on the date of the work injury. Defendants maintain Dr. Riggins is bound to use the Third Edition. Such an argument is without merit. The AMA Guides are just guides. They are not absolute determinates of a claimant's impairment. It is perfectly permissible to use the Fourth Edition to assess the degree of impairment, so long as the medical witness bases the medical opinion on the AMA Guides. Moreover, in the present instance, there is good reason to consider using the AMA Guides, Fourth Edition. In the foreword to the Fourth Edition, the editors explain: The Fourth Edition of the Guides to the Evaluation of Permanent Impairment (Guides) continues an activity begun by the American Medical Association (AMA) almost four decades ago, the purpose of which was to bring greater objectivity to estimating the degree of long-standing or "permanent" impairments. The rationale for this new edition is that the pace of progress and advance in medicine continues to be rapid, and that a new look at the impairment criteria for all organ systems is advisable. This edition has been prepared under the auspices of the AMA's Council on Scientific Affairs. ... The Fourth Edition continues to convey several basic principles. A key tenet is that the book applies only to permanent impairments, which are defined as adverse conditions that are stable and unlikely to change. Evaluating the magnitude of these impairments is in the purview of the physician, while determining disability is usually not the physician's responsibility. This edition emphasizes that impairment percentages derived by using Guides criteria represent estimates rather than precise determinations. Permanent impairments are evaluated in terms of how they affect the patient's daily activities, and this edition recognizes that one's occupation constitutes part of his or her daily activities. (AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, pages v-vi) A deputy industrial commissioner is free to consult the Guides and to treat them as part of the record in the case, whenever a medical witness relies on the Guides in expressing a conclusion or an opinion. Shank v. Mercy Hospital Medical Center and the Second Injury Fund of Iowa, File No. 719627 (Appeal Decision September 27, 1991). The opinion of Dr. Riggins, which is based on the Fourth Edition, is appropriate to consider in the present case. Dr. Riggins has expressed, to the satisfaction of this deputy, how he arrived at his impairment rating. His opinion is detailed. It is valid and it is entitled to consideration. This deputy relies on the opinion of Dr. Riggins. Dr. Riggins' opinion is consistent with the opinion of Dr. Marsh. Both opinions were rendered by medical doctors. Mr. Bowers' opinion is inconsistent with the opinions of the other two medical providers. However, Mr. Bowers is not a medical doctor. He is a physical therapist. It is the determination of the undersigned that more weight is accorded to the opinions of the two physicians. In light of their opinions, it is the decision of the undersigned that claimant has sustained a 45 percent permanent partial disability to the loss of a leg. Under section 85.34(2)(o), claimant is entitled to weekly benefits for 99 weeks at the stipulated weekly benefit rate of $263.46 per week. (220 weeks x 45% = 99 weeks) The next issue to address is the issue dealing with claimant's entitlement to benefits from the Second Injury Fund of Iowa. Claimant's arguments are duly considered. Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation - Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. (Section 85.64) Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989); Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300 (Iowa 1979). Interest accrues on benefits the Fund pays commencing on the date of the decision. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990). A deputy is entitled to determine the nature of claimant's injury and entitlement to compensation from the evidence presented, regardless of particular theories pled. Shank v. Mercy Hospital Medical Center, File No. 719627 (Appeal Decision Filed August 28, 1989). Claimant has met the statutory requirements for triggering the Second Injury Fund benefits. He has sustained two permanent losses of the use of a hand, an arm, a foot, a leg or an eye. The losses are permanent in nature. The Second Injury Fund maintains it is not liable for benefits owed due to public policy reasons. The Fund argues that: I. CLAIMANT HAS FAILED TO PROVE ENTITLEMENT TO SECOND INJURY FUND BENEFITS. A. Public Policy Dictates Claimant's Alleged First Loss Cannot Be A Qualifying Loss for Purposes of 85.64. Claimant relies on an injury producing event on May 11, 1987, as an event which caused a loss to his left lower extremity. On that date, claimant was involved in a motorcycle accident. According to claimant he was hospitalized for two months, wore a hip spica cast for eight months and convalesced at home about three years. According to documentary evidence claimant had been drinking and drinking enough to record an alcohol level of 185 at a time near or after his admission to the hospital. Second Injury Fund Exhibit A. Alcohol related accidents, injuries and deaths are serious and present to society innumerable problems and financial strains on services such as private and public health services. To allow anyone to seek benefits under _85.64 based upon an accident where alcohol was clearly involved is clearly contrary to public policy. To allow anyone to seek benefits under 85.64 based upon an accident where alcohol was clearly involved is tantamount to placing a stamp of approval on drinking alcohol and driving. To allow anyone to seek benefits under 85.64 based upon an accident where alcohol was clearly involved is tantamount to rewarding such conduct. Such a position cannot be tolerated. And, such a position is contrary to 85.16(2). It is the determination of the undersigned deputy industrial commissioner that claimant has a 60 percent industrial disability. He is unable to return to work in the construction industry. He is precluded from walking on uneven ground. Physical restrictions have been imposed on claimant. Claimant has worked in the construction industry for most of his work life. He has some transferable skills. He has a superior knowledge of tools. He is mechanically inclined. However, his math and reading skills are substandard. Academic retraining is improbable, given the test scores he had obtained through the Iowa Department of Vocational Rehabilitation. His age is working against him. Claimant is motivated to find meaningful work. He has sought vocational counseling upon his own initiative. Defendants have provided a rehabilitation specialist, but the specialist had not been allowed to engage in job seeking tasks. Rather, she was retained merely for medical management. This is an unfortunate situation as it is highly likely claimant would have benefited from vocational counseling. In order to determine the amount due from the Second Injury Fund, the following formula is applicable: 300 weeks - disability from all impairments - 10 weeks - 200 weeks x .06 weeks preexisting disabilities - 99 weeks - amount of disability for which defendant employer is responsible (200 weeks x .45) ________ 191 weeks - amount of weeks for which the fund is liable ORDER THEREFORE, IT IS ORDERED: Defendants, employer and insurance carrier, are liable for ninety-nine (99) weeks of permanent partial disability benefits at the stipulated rate of two hundred sixty-three and 46/l00 dollars ($263.46) per week and commencing on November 20, 1991. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code, as amended. Defendant, Second Injury Fund of Iowa, is liable for one hundred ninety-one (191) weeks of Fund benefits commencing ninety-nine (99) weeks after the above has been paid, and it is payable at the stipulated rate of two hundred sixty-three and 46/l00 dollars ($263.46). Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Iowa Code, as amended and commencing on the date of the filing of the decision. Costs are taxed to the defendants with the Second Injury Fund only responsible for its own costs. Defendants shall file a claim activity report as requested by this decision and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1994. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Stephen D. Lombardi Attorney at Law 10101 University STE 202 Des Moines IA 50325 Mr. Robert C. Landess Attorney at Law Terrace Center STE 111 2700 Grand Ave Des Moines IA 50312 Ms. Shirley A. Steffe Assistant Attorney General Tort Claims Division Hoover State Office Bldg Des Moines IA 50319 5-1803; 3200 Filed December 7, 1994 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAVID J. BENDICKSON, Claimant, vs. File No. 957612 DOUBLE F. FRAMING, A R B I T R A T I O N Employer, D E C I S I O N and GENERAL CASUALTY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. ___________________________________________________________ 5-1803; 3200 Claimant is entitled to both permanent partial disability benefits and also benefits from the Second Injury Fund of Iowa. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ JUNE KEPLEY, : : Claimant, : File No. 957705 : vs. : A R B I T R A T I O N : SECOND INJURY FUND OF IOWA, : D E C I S I O N : Self-Insured, : Employer, : Defendant. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by June Kepley against Second Injury Fund of Iowa based upon an injury of July 24, 1990 to her left hand. She alleges a right hand injury of November 7, 1989 as the first loss. Claimant seeks compensation in accordance with the Second Injury Fund of Iowa. The Fund contends that this is one bilateral injury, rather than a series of two injuries. The case heard at Des Moines, Iowa on February 24, 1994. The record consists of testimony from June Kepley, Sherri Barnhart and Carma Mitchell. The record also contains claimant's exhibits 1 through 6 and defendant's exhibits A through E. 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: June Kepley is a 48-year-old woman who developed ganglion cysts on both wrists as a result of repetitive work she performed for Nestaway Division at Chariton, Iowa. (exhibit 2, page 6). On January 29 she underwent surgical excision of the ganglion on her right wrist. (ex. 2, p. 8). On February 27, 1990, she was released to resume restricted work. On May 29, 1990, she was released for full duty. (ex. 2, p. 9). The record in this case does not contain any evidence that claimant has any permanent restrictions or permanent impairment of any type as a result of the right wrist ganglion. When claimant was seen by Arnis B. Grundberg, M.D., for her ganglion, he also diagnosed mild right carpal tunnel syndrome. (ex. 2, p. 8). He found no evidence of left carpal tunnel syndrome at that time. (ex. 6, p. 9). After resuming work, claimant again sought care from the plant physician on July 30, 1990. The plant physician Page 2 noted that claimant appeared to have a problem with right carpal tunnel syndrome which was aggravated by her work. It was recommended that claimant return to Dr. Grundberg. On August 2, 1990, the plant physician released claimant from work until she was to be seen by Dr. Grundberg. (ex. 2, p. 7). It appears as though August 2, 1990 was the first day that claimant was actually taken off work or prevented from working on account of her carpal tunnel syndrome. Claimant was seen by Dr. Grundberg on August 14, 1990, at which time he diagnosed right carpal tunnel syndrome and arranged an EMG evaluation. That EMG evaluation revealed bilateral carpal tunnel syndrome with the right hand being worse than the left. (exs. 2, p. 10; 6, p. 8). On September 10, 1990, surgery decompressing the right carpal tunnel syndrome was performed by Dr. Grundberg. On October 1, 1990, decompression of the left carpal tunnel was performed by Dr. Grundberg. (exs. 2, p. 11; 6, pp. 8 & 9). Claimant did not return to work between the two surgeries. Following initial healing from the surgery claimant continued to have problems. She experienced a return of numbness in her right ring and long fingers. (ex. 2, p. 12). Claimant was released to return to light duty work effective October 12, 1990 and again December 10, 1990. The employer made no conforming work available. Dr. Grundberg advised that if she worked in violation the restrictions she would have an increased risk of developing a recurrence of the carpal tunnel syndrome. He gave her the option of resuming full work or quitting and finding other employment. (exs. 2, p. 12; 6, p. 15). Claimant chose to resume full duty work. (ex. 2, p. 13). Dr. Grundberg has evaluated claimant and determined that she has a 5 percent permanent impairment of each hand as a result of residuals of carpal tunnel syndrome. (exs. 2, p. 14; 6, p. 16). Dr. Grundberg explained that the problems with ganglions are separate injuries which are distinct from the carpal tunnel syndrome. (ex. 6, p. 19). There is nothing in the record of this case to indicate that claimant has any permanent disability as a result of the ganglions. All the disability appears to be the result of her carpal tunnel syndrome. Though the record is far from overwhelming, the greater weight of the evidence seems to indicate that claimant's carpal tunnel complaints had an earlier onset in her right hand than they did in her left. Nevertheless, the record shows August 2, 1990 to be the first day claimant was actually prevented from working as a result of carpal tunnel syndrome complaints effecting either hand. Once she was taken off work, she remained off work until recuperation from both carpal tunnel surgeries (except for a brief return from August 14, 1990 until approximately the date of her right hand carpal tunnel surgery on September 10, 1990). There was no return to work between the two carpal tunnel surgeries. Page 3 CONCLUSIONS OF LAW When the disability develops gradually over a period of time, the "cumulative injury rule" applies. For time limitation purposes, the compensable injury is held to occur when because of pain or physical disability, the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The date of injury is not the date that an ailment is diagnosed. The date of injury is the last date of work before the disability has its onset. Oscar Mayer Foods Corp. v Tasler, 483 N.W.2d 824 (Iowa 1992). In this case, June Kepley's right carpal tunnel syndrome was diagnosed and present long before she began missing work in accordance with the plant physician's recommendation on or about August 2, 1990. The parties seem to have settled upon a date of injury of July 24, 1990 for the left carpal tunnel syndrome. Interestingly, the left carpal tunnel syndrome was not diagnosed until the EMG tests were conducted in mid or late August 1990. Perhaps claimant was off work as a result of disability commencing on July 24, 1990, but the plant physician did not actually take her off work until August 2, 1990. Despite this discrepancy in dates, the undersigned takes no issue with the date of July 24, 1990, as being the date of injury since it is supported by the filing of a first report of injury and it is the date alleged by the claimant in her petition. Changing the date to August 2, 1990 does not alter the outcome of this case. Carpal tunnel syndrome in this case resulted from cumulative trauma as indicated by Dr. Grundberg and the plant physician. It is well established by the record that claimant's condition is work related. The principal point of dispute in this case is determining whether there are two injuries or only one. From the record made it is determined that this case involves one bilateral carpal tunnel syndrome injury. That injury produced a 5 percent permanent impairment of each of claimant's hands. The earlier right ganglion injury is not shown to have produced any permanent disability of any degree. The benefit for permanent partial disability of two members caused by a single accident is a scheduled benefit under section 85.34(2)(s); the degree of disability must be computed on a functional basis with a maximum benefit entitlement of 500 weeks. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983). Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. Page 4 The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). It is determined that the Second Injury Fund of Iowa has no liability in this case since the disability results from the bilateral carpal tunnel syndrome injury of on or about July 24, 1990. The employer did not participate in this hearing and no determination is made with regard to the scheduled injury benefit to be paid to the claimant in accordance with section 85.34(2)(s). ORDER IT IS THEREFORE ORDERED that claimant take nothing from the Second Injury Fund of Iowa in this proceeding. It is further ordered that the costs of this action against the Second Injury Fund of Iowa are assessed against the claimant pursuant to rule 343 IAC 4.33. Signed and filed this __________ day of May, 1994. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Christopher Spaulding Attorney at Law 840 5th Ave Des Moines, Iowa 50309 Mr. Stephen Moline Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 1808 2209 3202 Filed May 31, 1994 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ JUNE KEPLEY, Claimant, File No. 957705 vs. A R B I T R A T I O N SECOND INJURY FUND OF IOWA, D E C I S I O N Self-Insured, Employer, Defendant. ------------------------------------------------------------ 1808 2209 3202 A ganglion cyst and carpal tunnel syndrome were held to be separate, distinct injuries though they both resulted from repetitive employment with the same employer over much of the same period of time. The carpal tunnel syndrome left a 5 percent permanent impairment of each hand but the record failed to show any permanent impairment from the ganglions. Claimant was diagnosed with right carpal tunnel syndrome in late 1989, had surgery for a right ganglion in January 1990, returned to work and then developed right carpal tunnel complaints. EMG tests showed carpal tunnel syndrome bilaterally. The date of injury was held to be the first day disability from working on account of the carpal tunnel syndrome. There was a brief return to work while diagnostic testing was underway. When testing was completed, surgery on the right was performed followed a few weeks later by surgery on the left. It was held that the carpal tunnel syndrome was but one injury to be compensated under section 85.34(2)(s). The claim against the Second Injury Fund of Iowa was denied. The date of injury was held to be determined under the cumulative trauma rule. The fact of an earlier diagnosis did not change the date of injury from the date of disability to the date of diagnosis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT ACHENBACH, : : Claimant, : : vs. : : File No. 958083 CITY OF COUNCIL BLUFFS, : : A P P E A L Employer, : : D E C I S I O N and : : ARGONAUT INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ The record has been reviewed de novo on appeal. ISSUE The issue on appeal is: Whether the defendants' motion for summary judgment was properly granted. This issue involves the issue of whether claimant's claim is barred by the statute of limitations. In resolving this matter the issue of whether payments made under Iowa Code chapters 410 and 411 would extend the statute of limitations to three years pursuant to Iowa Code section 85.26(2) must also be decided. FINDINGS OF FACT Claimant filed an original notice and petition seeking weekly and medical benefits on April 8, 1993. The alleged injury date as amended July 16, 1993 was November 19, 1989. Defendants' filed a motion for summary judgment. Defendants state and claimant does not dispute that the claimant was paid full pay from the city's general fund during the time off work pursuant to Iowa Code section 411.6(5). Claimant was not paid weekly benefits under Iowa Code Chapter 85. CONCLUSIONS OF LAW Rule 343 IAC 4.35 makes Iowa Rules of Civil Procedure 237 through 240 applicable to motions of summary judgment before this agency. The standards applicable to a motion for summary judgment are well settled in Iowa. Summary judgement should be rendered when the record before the court shows that no genuine issue exists as to any material fact and that the Page 2 moving party is entitled to judgment as a matter of law. Iowa R.Civ.P. 237(c); Suss v. Schammel, 375 N.W.2d 252, 254 (Iowa 1985); Brown v. Monticello State Bank, 360 N.W.2d 81, 83-84 (Iowa 1984). The burden of showing that there is no genuine issue of material fact is upon the party moving for summary judgment. Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 350 (Iowa 1987); Northrup v. Farmland Industries, Inc., 372 N.W.2d 193, 195 (Iowa 1985); Matherly v. Hanson, 359 N.W.2d 450, 453 (Iowa 1984). The resisting party, however, must set forth specific facts showing there is a genuine issue for trial. Iowa R.Civ.P. 237(e); Iowa Civil Rights Commissioner v. Massey-Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973); McCollough v. Campbell Mill & Lumber Co., 406 N.W.2d 812, 813 (Iowa app. 1987), Pappas v. Hughes, 406 N.W.2d 459, 460 (Iowa app. 1987). The resisting party may not rely solely on legal conclusions to show there is a genuine issue of material fact justifying denial of summary judgment. Id. at 460; Byker v. Rice, 360 N.W.2d 572, 575 (Iowa App. 1984). When confronted with a motion for summary judgment, the undersigned or agency is required to examine; in light most favorable to the party opposing the motion, the entire record before it, including the pleadings, admissions; depositions; answers to interrogatories; and affidavits, if any; to determine whether any genuine issue of material fact is generated thereby. Sparks, 408 N.W.2d 347, 350; Drainage District No. 119, Clay County v. Incorporated City of Spencer, 268 N.W.2d 493, 499-500 (Iowa 1978). A fact question is generated if reasonable minds can differ on how the issue should be resolved. Northrup, 372 N.W.2d 193, 195; Henkel v. R. & S. Bottling Co., 323 N.W.2d 185, 197-88 (Iowa 1982). If upon examination of the entire record the undersigned determines no such issue is present, and the movant is entitled to judgment as a matter of law, entry of summary judgment is proper. Sparks, 408 N.W.2d 347, 350. Summary judgment is a proper remedy in cases where its application advances its salutary objective of avoiding useless, expensive and time-consuming trials where there exists no genuine, factual issue to be tried. Diamond Products v. Skipton Painting and Insulation, Inc., 392 N.W.2d 137, 138 (Iowa 1986); Neoco, Inc. v. Christenson, 312 N.W.2d 559, 560 (Iowa 1981). Pursuant to rule 237(e), "When a motion for summary judgment is made and supported..., an adverse party may not rest upon the mere allegations...of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." [Iowa Code sections 85.26(l) and (2) provide: 1. An original proceeding for benefits under this chapter or chapter 85A, 85B, or 86, shall not be maintained in any contested case unless the proceeding is commenced within two years from the Page 3 date of the occurrence of the injury for which benefits are claimed or, if weekly compensation benefits are paid under section 86.13, within three years from the date of the last payment of weekly compensation benefits. 2. An award for payments or an agreement for settlement provided by section 86.13 for benefits under this chapter or chapter 85A or 85B, where the amount has not been commuted, may be reviewed upon commencement of reopening proceedings by the employer or the employee within three years from the date of the last payment of weekly benefits made under the award or agreement. If an award for payments or agreement for settlement as provided by section 86.13 for benefits under this chapter or chapter 85A or 85B has been made and the amount has not been commuted, or if a denial of liability is not filed with the industrial commissioner and notice of the denial is not mailed to the employee, on forms prescribed by the commissioner, within six months of the commencement of weekly compensation benefits, the commissioner may at any time upon proper application make a determination and appropriate order concerning the entitlement of an employee to benefits provided for in section 85.27. The failure to file a denial of liability does not constitute an admission of liability under this chapter or chapter 85A, 85B, or 86. Weekly benefits paid to a claimant in lieu of workers' compensation benefits are considered workers' compensation benefits for purposes of determining the appropriate statute of limitations. The nature of the payments determines whether the payments are workers' compensation benefits or benefits in lieu thereof. See e.g. McDaniel v. Chemplex Company, File No. 698042 (Appeal Decision December 22, 1987). In the instant case claimant was paid benefits pursuant to Iowa Code section 411.6(5). Iowa Code section 85.1 provides in relevant part: Except as provided in subsection 6 of this section, this chapter does not apply to: .... 4. Persons entitled to benefits pursuant to chapter 410 and 411. .... 6. Employers may with respect to an employee or a classification of employees exempt from coverage provided by this chapter pursuant to subsection 1, 2, 3, 4, or 5, other than the employee or classification of employees with respect to whom a rule of liability or a method of compensation is Page 4 established by the Congress of the United States, assume a liability for compensation imposed upon employers by this chapter, for the benefit of employees within the coverage of this chapter, by the purchase of valid workers' compensation insurance specifically including the employee or classification of employees. The purchase of and acceptance by an employer of valid workers' compensation insurance applicable to the employee or classification of employees constitutes an assumption by the employer of liability without any further act on the part of the employer, but only with respect to the employee or classification of employees as are within the coverage of the workers' compensation insurance contract and only for the time period in which the insurance contract is in force. Upon an election of such coverage, the employee or classification of employees shall accept compensation in the manner provided by this chapter and the employer shall be relieved from any other liability for recovery of damage, or other compensation for injury. The Iowa Supreme Court has recognized that these sections prohibit claimants who are entitled to benefits under chapter 411 from receiving additional benefits under chapter 85. Johnson v. City of Red Oak, 197 N.W.2d 548, 549 (Iowa 1972). In Goebel v. City of Cedar Rapids, 267 N.W.2d 388, 390 (Iowa 1978) the court stated: "We think it is fair to conclude from this history that workers' compensation and chapter 411 benefits serve equivalent purposes and are mutually exclusive." Claimant received benefits under Iowa Code section 411.6(5). The nature of the payments claimant received was not workers' compensation benefits nor benefits in lieu of workers' compensation benefits. Claimant has not been paid benefits under Iowa Code Chapter 85. The three year statute of limitations found in Iowa Code section 85.26(2) is not applicable. Sawyer v. National Transp. Co., 448 N.W.2d 306 (Iowa 1989). The alleged injury date is November 19, 1989. Claimant's original proceeding was commenced on April 8, 1993. Claimant's petition was filed more than two years after the alleged injury. Claimant's action is barred by Iowa Code section 85.26(1). There is no issue of material fact in this case. As a matter of law, the employer and insurance carrier are entitled to have summary judgment in their favor against the claimant.] The supreme court has long recognized that the summary judgment procedure is properly invoked to avoid trial where no factual issues exist. See e.g. Neoco, Inc. v. Christenson, 312 N.W.2d 559 (Iowa 1981). WHEREFORE, the decision of the deputy is affirmed. Page 5 ORDER THEREFORE, it is ordered: That defendants' motion for summary judgment is granted. Signed and filed this ____ day of January, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon Gallner Attorney at Law 803 3rd Avenue P O Box 1588 Council Bluffs, Iowa 51502 Mr. Gregory G. Barntsen Attorney at Law 35 Main Place P O Box 249 Council Bluffs, Iowa 51502 2402; 2901; 2906 Filed January 18, 1994 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ROBERT ACHENBACH, : : Claimant, : : vs. : : File No. 958083 CITY OF COUNCIL BLUFFS, : : A P P E A L Employer, : : D E C I S I O N and : : ARGONAUT INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 2402; 2901; 2906 Claimant, police officer, received benefits pursuant to Iowa Code Chapter 411. These benefits were found not to be workers' compensation benefits nor benefits in lieu of workers' compensation benefits. Three year statute of limitations was not applicable. Claimant's action was barred by two year statute of limitations in Iowa Code section 85.26(1).