BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DARWIN HANSEN,
Claimant,
vs.
File No. 958751
GREG L. SMITH,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
GRINNELL MUTUAL REINSURANCE
COMPANY
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration brought by Darwin
Hansen, claimant, against Greg L. Smith, employer, and
Grinnell Mutual Reinsurance Company, insurance carrier,
defendants, for benefits as the result of an injury which
occurred on August 22, 1990. A hearing was held in Sioux
City, Iowa, on February 15, 1994, and the case was fully
submitted at the close of the hearing. Claimant was
represented by Thomas R. Mohrhauser. Defendants were
represented by Thomas M. Plaza. The record consists of the
testimony of Darwin Hansen, claimant, and defendants'
exhibits 1 through 12. Claimant's counsel stated on the
record that the information that he wished to be on record
was included within the defendants' exhibits 1 through 12
(Transcript page 6). The deputy ordered a transcript of the
hearing.
PRELIMINARY MATTER
The parties stipulated that to the following matters.
That claimant sustained an injury to his right eye on
August 22, 1990, which arose out of and in the course of his
employment with employer (Tran. p. 3).
That the injury was the cause of temporary disability
and that claimant was entitled to and was paid 18.429 weeks
of temporary disability benefits for the period from August
22, 1990 the date of the injury, through December 28, 1990,
when the treating ophthalmologist released claimant to
return to work (Tran. p. 3; Ex. 9, p. 15).
That the injury was the cause of a 100 percent
permanent impairment of the right eye and that claimant was
entitled to and was paid the maximum payment of 140 weeks of
permanent partial disability benefits by defendants prior to
Page 2
hearing pursuant to Iowa Code section 85.34(2)(p) (Tran. p.
3).
That medical benefits are no longer in dispute (Tran.
p. 4).
That the proper rate of compensation in the event of an
award is $222.04 (Tran. p. 4).
ISSUE
The sole issue for determination is whether claimant is
entitled to benefits pursuant to Iowa Code section
85.34(2)(t) for disfigurement (Tran. p. 5, 7 & 8).
FINDINGS OF FACT
CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY
FOR DISFIGUREMENT
It is determined, as a matter of fact, that claimant
has sustained some permanent disfigurement of the face. The
area around claimant's right eye looked different from the
area around his left eye. It looked as if it had been
injured somehow but it was not unsightly or grotesque.
Claimant's positive attitude and optimistic personality were
more noticeable than the area around his right eye.
It is further determined that the permanent
disfigurement has not impaired claimant's future usefulness
as an employee in the occupation that he was performing at
the time of receiving this injury.
It is further determined that the permanent
disfigurement did not impair the earnings of the employee in
the occupation that he was performing at the time of
receiving this injury, based upon the evidence submitted by
claimant and defendants at the time of this hearing.
The standard for the recovery of benefits set forth in
the code section under consideration is in the conjunctive.
The permanent disfigurement of the face or head must impair
both (1) the future usefulness and (2) earnings of the
employee in the occupation that he was performing at the
time of receiving the injury.
Iowa Code section 85.34(2)(t) provides as follows.
For permanent disfigurement of the face or head
which shall impair the future usefulness and
earnings of the employee in the employee's
occupation at the time of receiving the injury,
weekly compensation, for such period as may be
determined by the industrial commissioner
according to the severity of the disfigurement,
but not to exceed on hundred fifty weeks.
A recent case determined that the words "employee's
occupation" refers to the job or industry in which the
claimant was working at the time of the injury rather than
Page 3
the specific employer-employee relationship at that time.
Byrnes v. Donaldson's Inc., 451 N.W.2d 810, 811 (Iowa
1990).
The parties agreed that claimant was a farmer at the
time of the injury. More specifically, he was a
self-employed farmer. At the same time, claimant also
accepted jobs as a farm laborer for other farmers.
Therefore, with respect to other employers he was considered
a farm laborer (Tran. p. 14).
In his deposition claimant related,
Q. So as I understand what you are telling me,
then, your occupation as of the time of the injury
really was dairy farmer.
A. Was just a farm laborer is what it was. I
was a farmer. I farmed all my life, and I was
going to help him [Smith] work on the farm. (Defs'
Ex. 9, p. 11).
...
Q. And how many years had your occupation been
a farm laborer prior to the incident with Mr.
Smith?
A. Since I was born. (Defs' Ex. 9, p. 12).
Claimant described what happened at the time of the
injury as follows, "It was my first day on the job. It was
about 3:30 in the afternoon. We were working on a silage
chopper, trying to remove a bearing, and we couldn't get it
loose, so we got a big hammer and tried to loosen it up; and
a piece of steel flew off and went through my eye." (Ex. 9,
pp. 6 & 7; Tran. pp. 13 & 14).
Claimant was taken to the emergency room where the
physician was able to save his eye (Tran p. 14). But it was
nevertheless severely damaged.
At the emergency room Larry M. Zweben, M.D., described
this injury as follows, "... penetrating injury to right eye
with corneal laceration, laceration of the iris, laceration
of the lens, possible scleral laceration, and retained
metallic intravitreal foreign body." (Ex. 1, p. 1).
Dr. Zweben recorded that he performed a "Microsurgical
repair of full-thickness corneal laceration, sclerotomy with
magnetic extraction of intraocular metallic foreign body,
microsurgical exploration and repair of scleral laceration,
intravitreal antibiotic administration and prophylaxtic
retinal cryopexy." (Ex. 1, p. 1).
The doctor described the retained metallic foreign body
as enormous in size (Ex. 1, p. 2) which was removed only
with great difficulty (Ex. 1, pp. 2 & 3). It was also
necessary to excise a traumatic cataract at this time (Ex.
1, pp. 1-3).
Page 4
A subsequent operation performed by Ira Priluck, M.D.,
in Omaha, was described as a "Trans pars plana vitrectomy
using ocutome instrumentation with extensive membrane
stripping, cryoretinopexy, right eye." (Ex. 2, p. 1).
In a letter Dr. Zweben described the injury in less
medical terminology by stating that claimant received
... a devastating injury to his right eye. The
patient had a large intraocular foreign body which
was retrieved from the vitreous of his right eye.
The metal had perforated the eye, lacerating the
cornea, the sclera, the iris and the lens. There
is a possibility of retinal laceration as well
(Ex. 3).
He described the second operation performed by Dr.
Priluck as involving the removal of blood and
vitreous as well as the lens.
At the hearing claimant contended that he has double
vision all of the time. The contact lenses do not eliminate
it but the prescription prism glasses for the right eye do
reduce it even though it does not totally eliminate it.
Normally he sees two images approximately three feet apart.
The closer the images become the less distance between them
(Tran. pp. 16 & 17).
Claimant testified that before the injury he did not
wear eye glasses or contacts (Tran. p. 17).
Claimant testified that the injury has affected his
appearance and that it is more noticeable without his
glasses on. He is self-conscious and does not want to look
people in the eye anymore. His right eyelid droops (Tran.
p. 20). His right eye looks off in a different direction.
His wife and children have reminded him of this (Tran pp. 17
& 18).
Claimant contended that because of the dirt and dust
caused by grinding feed for milk cows and the dirt and dust
of field work he is foreclosed from performing farm work
(Tran. p. 18). However, this would appear to be due to his
eye injury rather than due to disfigurement.
Claimant testified that he did not feel that it was
safe to do farm work (Tran. pp. 21 & 22). Dust and dirt
makes his right eye red and it wanders more. When he gets
tired his eyelid droops. Because of the absence of a lens
his right eye is light sensitive and closes altogether in
bright light. The contact lenses causes tears, and the
tears cause his eye to dry out and lose lubrication and he
cannot see at all. He considers it dangerous to milk cows,
to get equipment ready, and to clean bays. The cows' tails
are dirty at times. When they swing their tails it could
strike him in his eyes. Claimant stated that one piece of
dirt might cause his eye to be removed. He fears for the
loss of his left eye (Tran. pp. 17-23).
Page 5
Claimant testified that farming involves being a
mechanic, a veterinarian and being able to plow straight
rows. Crooked rows cost money. Without his glasses he
would see double rows and could not keep the rows straight.
These complaints relate to the physical damage to his right
eye rather than to the disfigurement of his face.
At the time of the hearing claimant said he had milked
his brother's cows after this injury with goggles but denied
that he did grinding or performed other tasks such as
artificial insemination.
At the hearing claimant testified that when he sprays
for Orkin, his current employer, he wears a respirator,
goggles, a helmet and coveralls to spray the walls and
ceiling. He sprays a chemical solution on the walls. The
flys die on contact with the chemical. He performs one to
five jobs a day in the summer and in the winter he works as
a salesman (Tran. p. 36).
The question of causal connection is typically within
the domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 383, 101 N.W.2d 167, 171 (1960).
The first problem in this case is that the medical
evidence does not mention the word disfigurement.
The chief treating physician, Larry M. Zweben, M.D., a
board certified ophthalmologist, nowhere in his office
notes or medical reports mentions the word disfigurement,
save make a professional medical statement that claimant has
sustained a permanent facial or head disfigurement, or that
any disfigurement is the cause of any of claimant's
permanent disability. Dr. Zweben's treatment and recorded
medical information focus upon the physical aspects and
physical impairment to the eye which he applies to the
Guides to the Evaluation of Permanent Impairment, to
determine "Diminished visual ability".
The term loss also includes loss of use but in the case
of subsection t., which is a scheduled member injury
section, the statute, nevertheless, provides an industrial
disability standard, but compensation is not to exceed 150
weeks of permanent partial disability benefits. Thus,
subsection t. is unique from all of the preceding
subsections in 85.34(2) in that it provides an industrial
disability standard for a scheduled member injury up to the
statutory maximum of 150 weeks. Moses v. National Union
Coal Mining Co., 194 Iowa 819, 184 N.W. 746 (1921); Byrnes
v. Donaldson's Inc., 451 N.W.2d 810, 811 (Iowa 1990).
The second problem in this case with awarding permanent
disability benefits for disfigurement for this tragic injury
is the fact that Dr. Zweben did not restrict claimant from
following the occupation of either a self-employed farmer or
from following the occupation of a farm laborer hired by
other farmers. Claimant's contention that Dr. Zweben told
him not to farm is not supported by the medical evidence.
In fact, Dr. Zweben did not impose any permanent
restrictions on claimant, but on the contrary released
Page 6
claimant to "full duties" on December 25, 1990 (Defendants
Exhibit 4).
It should be noted at this time that after Dr. Zweben
performed surgery on August 22, 1990 that Ira Priluck, M.D.,
performed additional surgery at Creighton University Medical
Center in Omaha on September 6, 1990, but there is no
information from Dr. Priluck regarding disfigurement or
disability. There is nothing other than the operative
report he dictated at the time of the surgery (Defs' Ex. 2).
The third reason that precludes recovery in this case
under subsection t. is the fact that claimant has performed
work as a self-employed farmer for himself for a short
period of time and he has also worked as farm laborer for
his brother, which contradicts claimant's testimony that he
understood that he was medically restricted from farming for
the reason that if he got dust or dirt in either one of his
eyes it could result in additional potential harm to his
vision.
At the time of claimant's deposition on March 2, 1993,
claimant testified that he did work for his brother milking
cows from June of 1991 to November of 1991 (Defs' Ex. 9, p.
17). Claimant admitted to this fact at the time of this
hearing. At the hearing claimant denied that he did
anything other than simply milk cows for his brother, but in
his deposition testimony prior to this hearing he testified
as follows, "I would get up in the morning, I would milk
cows, I would feed the cows, grind corn for the cows,
artificial breed the cows, take them to the pasture, bring
them back in, if any of them were sick, took care of them,
you took care of the calves, the works." (Ex. 9, p. 18).
The deposition contradicts claimant's hearing testimony that
fear of getting dust and dirt in his eyes prevented him from
dairy farming.
Furthermore, at the deposition claimant testified that
the only reason he did not return to work for employer in
this case was because employer had replaced him with another
employee (Ex. 9, p. 10). Claimant indicated that he was
capable of performing farm work for employer after he
recovered from this injury by the following colloquy,
"Okay. There's no question in your mind you
could have done the work at Greg's had he needed
the help?"
A. Right. I was anxious to work for him. I
knew -- he's got a lot of ambition, he's got a lot
of drive. I figured I could learn a lot from him.
Q. But he already hired somebody?
A. Right. (Defs' Ex. 9, pp. 19 & 20)
Claimant's testimony that farmers would not hire him
after the injury was not supported by any nonmedical or
medical testimony (Ex. 9, p. 16). On the contrary, claimant
testified that when he worked for his brother after the
Page 7
injury from June to November of 1991, he earned about $500 a
month. On a yearly basis this would constitute an annual
income of $6,000 (Ex. p. 18). Claimant stated prior to this
injury that he worked for his brother for approximately six
years at $150 a week (Ex. 9, p. 12). This would constitute
earnings of $7,800 per year.
Claimant testified that he obtained new employment with
Orkin Pest Control in November of 1991 (Ex. 9, p. 17 & 20).
He spotted an ad where they were looking for a person with
dairy experience (Ex. 9, p. 20). Claimant testified at the
time of his deposition, on March 2, 1993, that he had earned
just $300 short of making $40,000 working for Orkin in 1992
(Ex. 9, pp. 20 & 21). He stated that he was guaranteed
$1,300 per month and the balance of it was commissions (Ex.
9, p. 21). Claimant testified that his earnings in 1990
were maybe $7,500 per year (Ex. 9, p. 23). And it was
approximately the same in 1989 (Ex. 9, p. 23). Thus,
claimant has no actual loss of earnings but rather an actual
increase in earnings. He earned more than five times what
he earned as a dairy farmer and farm laborer.
Claimant testified that he has a drivers license (Ex.
9, p. 25; Ex. 9, Deposition Ex. 1) which qualifies as a
chauffeur's license (Ex. 9, p. 26). Claimant acknowledged
that his license was not restricted in any way because he
read the vision test with his contact lenses on in August of
1992 (Ex. 9, pp. 26 & 27). Claimant testified that he can
operate a motor vehicle without any problems (Ex. 9, p. 27).
He testified that he drives sometimes 400 miles a day (Ex.
9, p. 29). When he drives two or three hundred miles a day
his good eye gets tired and he develops headaches.
Claimant has been able to perform some recreational
activities such as (1) football and baseball with his
children, (2) bowling, (3) golf on one occasion, (4)
swimming, (5) horseback riding and (6) hunting for pheasants
maybe once or twice in season, firing left-handed with his
good eye (Ex. 9, pp. 35 & 36). Claimant testified that he
functions fairly well with his contact lenses in and his
eyeglasses on with the exception of difficulty with depth
perception.
Thus, it can be seen from claimant's deposition
testimony that most of his problems stem from the physical
loss to his eye and the components of his eye rather from
any disfigurement of his head or face.
Claimant's testimony did not link up the disfigurement
with any of the things he has difficulty doing. Rather, it
appears that his difficulties flow from the physical
impairment to the eye. However, claimant received full
payment of 140 weeks for his loss and loss of use to his
right eye.
Claimant did establish that it is possible that
farmers, who are engaged in high-risk work frequently due to
working with animals and machinery, might be reluctant to
hire him with the debility in his right eye which causes him
to both wear contact lenses and glasses to correct his
Page 8
vision. However, this is due to the eye injury and not
disfigurement, based on the evidence of record in this case.
Furthermore, the supreme court has stated that the
possibility of job losses in the future due to a
disfigurement having an impact on the ability to obtain
another job was not sufficient to compel a finding as a
matter of law that claimant was entitled to permanent
disability benefits under subsection t. Byrnes v.
Donaldson's, Inc., 451 N.W.2d 810 (Iowa 1990).
In the Byrnes case claimant was determined to be able
to continue to perform factory work. In this case, claimant
did not establish, as a matter of fact, that he is unable to
perform farm work, but on the contrary contradicted his own
testimony that he could not or should not perform farm work.
It is noted further that claimant is involved with spraying
barns with a fly killing solution from May to October and
dresses appropriately in order to perform this job. It
could be stated that he could also dress appropriately for
farm work by wearing goggles or other required protective
clothing or devices.
Claimant testified to disfigurement within the right
eye itself. He said that you can see a black hole when he
has his contact lens in that eye (Ex. 9, p. 7). However, it
is the opinion of this deputy that subsection p. is intended
to compensate claimant for eye losses and subsection t. was
intended to compensate injured employees for permanent
disfigurement of the face or head which impairs both the
future usefulness and earnings of the employee in the
employee's occupation at the time of receiving the injury.
At the time of the impairment rating Dr. Zweben did not
impose any permanent restrictions or any restrictions of any
kind on claimant (Ex. 5, pp. 1 & 2). The retinal scar
described by Dr. Zweben, in the opinion of this deputy,
would be compensated under subsection p. since it affected
the eye and loss of vision and would not be compensated
under subsection t. as disfigurement to the face and head
(Exs. 5 & 6).
At claimant's last two office visits on August 13, 1991
and July 30, 1992, Dr. Zweben did not impose any permanent
restrictions or any restrictions of any kind (Exs. 6 & 8).
All of Dr. Zweben's notes and reports deal with
physical impairment to the eye itself. He never once
mentions disfigurement by name.
In conclusion, it is determined that claimant sustained
a facial disfigurement to his head and face; but it has not
permanently impaired his usefulness to himself as a farmer
or his usefulness as a farm laborer to other employers; and
that claimant did not establish, as a matter of fact, that
the disfigurement to his head and face permanently impaired
both his usefulness and earnings in his occupation as a
farmer and a farm laborer in which he was employed when he
received the injury.
Page 9
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant did not sustain burden of proof by a
preponderance of the evidence that he sustained a
disfigurement to his face and head which permanently
impaired both his usefulness and earnings in his occupation
as a farmer or his occupation as farm laborer which was
caused by this injury. Iowa Code section 85.34(2)(t).
Moses v. National Union Coal Mining Co., 194 Iowa 819, 184
N.W. 746 (1921); Byrnes v. Donaldson's Inc., 451 N.W.2d 810,
811 (Iowa 1990).
ORDER
THEREFORE, IT IS ORDERED:
That no further benefits are owed by defendants to
claimant caused by this injury.
That each party is to pay their own respective costs of
this proceeding, except that defendants are ordered to pay
the cost of the attendance of the court reporter at hearing
and the cost of the transcript of hearing. Iowa Code
sections 86.19(1) and 86.40 and rule 343 IAC 4.33.
Signed and filed this ____ day of March, 1994.
Page 10
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Thomas R. Mohrhauser
Attorney at Law
425 Main Street
Mapleton, IA 51034
Mr. Thomas M. Plaza
Attorney at Law
701 Pierce Street, Suite 200
P.O. Box 3086
Sioux City, Iowa 51102
1105.80, 1401, 1402.40, 1803, 2901
Filed March 9, 1994
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DARWIN HANSEN,
Claimant,
vs.
File No. 958751
GREG L. SMITH,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
GRINNELL MUTUAL REINSURANCE
COMPANY
Insurance Carrier,
Defendants.
___________________________________________________________
1105.80, 1401, 1402.40, 1803, 2901
Claimant, who was a self-employed farmer but was
working as a farm laborer for another farmer at the time of
this injury, struck a bearing with a hammer and a large
metal fragment lodged in his right eye. The eye itself was
saved but was severely damaged.
Defendants paid claimant the full amount of 140 weeks
for the loss of the eye pursuant to Iowa Code section
85.34(2) p.
The sole issue in this case was whether claimant
sustained a permanent disfigurement of the face or head
which impaired the future usefulness and earnings of the
employee in the employee's occupation at the time of
receiving the injury pursuant to Iowa Code section 85.34(2)
t.
It was determined that Claimant had sustained some
disfigurement of the face or head. The area around the
right eye looked different from the area around the left
eye. It looked as if it might be injured but it did not
appear grotesque or unsightly. Claimant said his right eye
drooped and looked away from a normal line of vision but
this was determined to be a disfigurement of the eye itself
rather than the head or face.
It was further determined that the facial disfigurement
did not impair either claimant's usefulness or earnings as a
farmer or farm laborer.
An interesting observation in this case is that section
85.34(2) t. appears to this deputy to describe a hybrid type
Page 2
of industrial disability of its own. This may have been the
legislative intent because it is the only scheduled member
injury that provides an industrial standard. However, the
supreme court in the case of Byrnes v. Donaldson simply
called it an industrial disability standard and the deputy
did not attempt to qualify the earlier interpretation of the
supreme court.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
JACQUELINE M OTTO,
Claimant,
vs.
File No. 958767
MT ST CLAIR COLLEGE,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
ROYAL INSURANCE,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
________________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Jacqueline Otto against
her former employer, Mount Saint Clair College, its insurance carrier,
Royal Insurance, and also against the Second Injury Fund of Iowa. The
case was heard at Davenport, Iowa on October 24, 1994. The evidence
consists of testimony from Jacqueline Otto and Rex Kutzli. The record
also contains joint exhibits 1 through 22 and defendants' exhibits B,
C, D, E, and F.
The issues identified by the parties as shown on the hearing report are
that the claimant contends that she is permanently, totally disabled
and relies upon the odd-lot doctrine. Reference to the odd-lot
doctrine is made in claimant's petition originally filed July 1, 1991.
The prehearing conference reports filed February 3, 1993 and June 29,
1993 show that permanent partial or total disability was being claimed
and that the place for indicating that the odd-lot will not be asserted
is unmarked, meaning that the odd-lot doctrine will be relied upon.
There is an issue in the case regarding whether the injury is a
scheduled injury of the right leg or whether it is an unscheduled
injury which is to be compensated industrially. In the event that the
permanent disability is found to be partial, rather than total, there
is an issue with regard to whether claimant should receive healing
period compensation running from December 18, 1990 through April 7,
1992. Claimant also seeks penalty benefits based upon the failure to
pay healing period benefits during that span of time. Claimant also
seeks payment of medical expenses and the cost of an independent
medical examination with Robert Chesser, M.D. It was stipulated that
Robert E. Magnus, M.D., was an authorized treating physician. With
regard to the disputed medical expenses, it is noted that all were
incurred with Dr. Magnus, the authorized treating physician. Claimant
seeks to recover costs. The Second Injury Fund is also a party with
the Fund contending that if it is held liable that the preexisting
disability be measured industrially, rather than according to its
scheduled compensable value. The rate of compensation was stipulated
to be $82.34 per week.
FINDINGS OF FACT
Jacqueline Otto is a 57-year-old woman who was born with a deformed
right forearm and hand. The forearm is approximately three-fourths of
normal length and the hand consists of two fingers which start at the
wrist and are joined throughout their length. Robert J. Chesser, M.D.,
rated her as having a 90 percent impairment of her right upper
extremity as a result of the congenital deformity. (Exhibit 11)
Robert E. Magnus, M.D., the last authorized treating physician,
initially found the impairment to be 80 percent of the right upper
extremity but later changed his opinion to concur with Dr. Chesser.
(Exs. 6c; 6e; 20, page 39) The deformity is medically described in
exhibits 1a, page 2 and 2a, pages 2 and 3.
Jacqueline was also afflicted in childhood with problems affecting both
of her knees. She eventually had surgery on her knees to resolve much
of those problems. She experienced a relatively good result from the
knee surgeries which were performed to stabilize her patellas which had
a problem with dislocation. (Ex. 1a) According to claimant she was
able to function well after the knee surgeries and did not have
problems with pain. She has lived a normal life, raised five children
and been employed since 1984, mostly as a cook. According to claimant,
her knees did not bother her particularly until the fall that is the
subject of this case though she was unable to crawl or perform
activities such as climbing a ladder or bending her knees more than
that involved when seated. In 1990 she earned approximately $6000 from
employment. In 1989 she had earned approximately $6850. (Ex. 16)
Prior to 1984 she had principally functioned as a homemaker.
Claimant did not complete high school. Her formal education is limited
to the tenth grade. As confirmed by Dr. Magnus in his deposition,
claimant is not a sophisticated woman in regards to medical matters or
things of that nature. (Ex. 20, p. 25) From observing her at hearing
it is readily apparent that her level of academic and intellectual
functioning does not exceed her tenth grade education.
Jacqueline Otto is permanently and totally disabled. She is not
gainfully employable in the competitive labor market. She was last
employed on December 19, 1990, when her employment with the defendant
employer was terminated. She received two weeks of severance pay. Rex
Kutzli, a chef with whom she had worked for the defendant employer, was
of the understanding that there had been some ongoing problem with her
job performance. He thought that the problem was associated with
cooking large quantities and that she did not have the endurance to
perform large quantity cooking. He did not recall her last few months
of work very well. He did, however, recall that she had complained of
her knee after she returned to work after her fall, but not about her
back. He did not recall her complaining about the knee prior to the
time that she had fallen. He felt that her job performance was similar
both before and after the fall. Kutzli confirmed that claimant had
regular performance reviews and written reports. None of those reviews
or reports were entered into evidence. Kutzli was not involved in
making the decision to terminate claimant's employment.
Dr. Magnus has completed a report showing what he considers to be
claimant's functional capabilities. (Ex. E) She is permitted to
perform some activities occasionally, meaning one to three hours during
an eight-hour day. The others she is to never perform. She can never
climb, stoop, kneel, or crawl. Her weightlifting is limited to ten
pound. Dr. Magnus has prescribed a wheelchair. (Ex. 20, p. 40; Ex.
6d) The wheelchair was prescribed because of the condition of her left
hip and low back. According to claimant, her right knee functions
almost as well now as it did prior to the time that she fell.
Dr. Magnus considers claimant to be unable to perform gainful
employment. (Ex. 20, pp. 18-21) Dr. Chesser does not comment upon
whether or not claimant is capable of gainful employment but he finds
her to have a 63 percent impairment of the whole person. That amount
is extremely large in comparison to impairments commonly seen by this
agency. Claimant was evaluated by Judy Stengel, a well-qualified
vocational consultant who is certified as both C.R.C. and C.I.R.S.
Stengel felt that claimant was not capable of obtaining employment.
(Ex. 12) The only person in this record of this case who seems to feel
that this claimant is not totally disabled is Maggie Reelfs, a
vocational consultant who is not certified and who has never met or
observed the claimant. (Exs. B, 13) Reelfs recommended sedentary
jobs, none of which appear to be positions that the claimant has ever
held previously. There is nothing in the record to indicate that this
claimant has any skills for performing sales work. Telemarketing jobs
typically involve use of computers and keyboarding. It is difficult to
see how Reelfs determined that claimant was capable of operating a
computer and performing the extensive keyboarding typically associated
with telemarketing in view of the claimant's right hand deformity and
lack of any previous training or experience with computers. (At page 5
of exhibit 13, appears a newspaper ad for the Signature Group seeking
telemarketers. The first paragraph of the text of the ad reads,
"Summer may be over but we're still 'Hot'! Brand new computers coming
in September. Be first in line to learn this state of the art
equipment.") One of the ads for the jobs that Reelfs submitted as
having potential for claimant was for certified aids, personal care
aids, certified live-ins and night help. The ad is found at the left
side of page 5 of exhibit 13. Claimant may very well be in need of
that type of services but certainly is not capable of performing those
types of services for others. According to claimant she needs to have
her son or daughter take her to the places she needs to go. It is
difficult to see how she could obtain a job as a driver. It is
difficult to see how she would even be capable of getting to work if
anyone were inclined to hire her. The report from Maggie Reelfs
appears to be nothing more than evidence purchased for purposes of
litigation. It is totally unrealistic and is entitled to receive no
weight whatsoever.
The undersigned finds Jacqueline Otto to be a credible witness despite
the inconsistency between her recollection of her post-injury hours of
work and the records showing her hours of work. Throughout her
appearance at the hearing, the claimant appeared frank, open and
nonevasive. It is noted that claimant's work hours seem to have
increased with her return to work. (Ex. 15) It is noted that the
defendant employer is a college and that the fall session typically
begins at about the time when claimant resumed work. It would also be
expected that the employer would be anxious about having sufficient
staff when the fall class session began. The undersigned is in full
agreement with the assessment made by Jay Ginther, M.D., her original
treating surgeon, when he states that she is a rugged and determined
individual who tends to try to bull her way through things and to
ignore any problems that she might have. (Exs. 2b, 2c) This claimant
is a very industrious individual who would be working if her physical
condition would permit. Based on the foregoing it is abundantly clear
that Jacqueline M. Otto is totally disabled and there appears no
reasonable likelihood that her status will change.
Despite all her preexisting problems, and she has many, Jacqueline Otto
was capable of working and being gainfully employed until she fell on a
slick ramp at her place of employment on August 3, 1990. Her
description of her knee being grotesquely twisted is accepted as being
correct. Others were apparently present and no one was called to
dispute the claimant's description. The fact of the injury having
occurred is not being disputed. Deformity with swelling was noted when
she was seen at the emergency room. (Ex. 3a)
Claimant's initial authorized treating physician was Jay Ginther, M.D.,
an orthopedic surgeon. His initial assessment in a note dated August
6, 1990 states, "The knee is arthritic. It clearly is going to need
total knee replacement some day, but for right now it is probably going
to recover, given proper rest." According to claimant she was being
harassed by her employer and pressured into returning to work. At her
request, Dr. Ginther allowed her to return to work on August 20, 1990.
(Ex. 2a) The release shows authorization for regular duty. (Ex. D)
In his report of June 5, 1993, Dr. Ginther explains that he would have
preferred to allow her to return to restricted work but that
restrictions would have made it impossible for her to continue in her
job. He goes on to state that the attempt to do full duty as a cook
contributed to the speed with which her knee degenerated following the
injury. He also states that he agreed that on December 18, 1990, that
she was certainly unfit to perform her full regular duties as a cook.
(Ex. 2c) That same report notes that claimant was given an injection
on September 10, 1990 and that the knee was already decompensating.
The termination of claimant's employment purports to be justified by
vague allegations of substandard work performance. Interestingly,
there is no direct evidence from the individuals who made the decision
to terminate employment. Despite the fact that employee evaluations
were conducted, there is no evidence in the record showing that the
claimant was ever warned, counseled or reprimanded regarding her job
performance. The medical evidence, however, makes it quite easy to
believe that claimant would have experienced considerable difficulty in
performing work which required her to be on her feet for extended
periods of time, particularly if the work required carrying large
quantities of food. With the restrictions which Dr. Ginther indicated
in his June 5, 1993 report would have been appropriate, namely two to
four hours on her feet and no significant lifting or carrying, it is
apparent that she would have been unable to perform the normal duties
of her position with Mount Saint Clair College. There is nothing in
the record which indicates that, subsequent to the termination of
employment, this claimant was ever capable of resuming employment
substantially similar to in which she was engaged at the time of her
injury. To the contrary, she remained quite symptomatic, disabled and
under medical care. She was not in a light work capacity or status at
the time of the injury. Recovery to the point of being capable of
light work would not make her capable of employment substantially
similar to that in which she was engaged at the time of the injury.
When it became apparent to Dr. Ginther that the knee was decompensating
and was not recovering as had initially been expected or hoped, he felt
it was necessary to proceed to perform a total knee replacement. By
January 23, 1991, Dr. Ginther was recommending total knee replacement
arthroplasty. Dr. Ginther attributed the need for the surgery to the
fall at work as an aggravation of the preexisting, arthritic condition.
The progress notes show that the claim manager for Royal Insurance was
notified of his recommendation. (Ex. 2a, p. 1)
The adjuster or claim manager for Royal Insurance apparently was
reluctant to accept the recommendation from Dr. Ginther. Claimant was
sent to Charles T. Cassel, M.D., another orthopedic surgeon, for a
second opinion. Dr. Cassel agreed with Dr. Ginther that total joint
replacement was warranted and that the fall aggravated an underlying
arthritic condition and made a substantial change in the condition.
(Ex. 4) Claimant was seen by Dr. Cassel on or about June 7, 1991. The
claim manager or adjuster for Royal Insurance apparently continued to
refuse to accept the medical expertise of Drs. Cassel and Ginther.
Approximately eight months later claimant was sent for a third opinion
to Michael H. Gerdes, M.D., a third orthopedic surgeon. Dr. Gerdes was
in agreement with Drs. Ginther and Cassel. He felt that total knee
arthroplasty was reasonable. He also states, "It is my impression that
the patient's current situation of ill being [sic] is directly related
to her falls, despite the fact that she had preexistent arthritis."
(Ex. 5)
Eventually, on April 7, 1992, claimant was hospitalized to have the
right, total knee replacement surgery. Dr. Ginther was the surgeon who
performed the procedure. A great deal of arthritic changes were noted
during the procedure. (Ex. 3b)
Following the surgery claimant underwent a relatively unremarkable
course of recovery. Dr. Ginther moved his practice to Waterloo, Iowa
and claimant's care was changed to Robert E. Magnus, M.D., another
orthopedic surgeon.
The delay in getting the knee replacement surgery performed turned out
to be harmful to claimant in its own right. Claimant was walking with
a cane and an altered gait. By October 21, 1991, she had developed
clinically significant trochanteric bursitis in her hip. X-rays showed
the knee to be rapidly degenerating since the time of her injury. He
reports that the problem with the knee has created the trochanteric
bursitis and he also states that the problem is also probably a factor
in her left wrist inflammation. A diagnosis of de Quervain's
tenosynovitis was made and conservative treatment applied. (Ex. 2a, p.
2) The following visit of November 4, 1991, showed some improvement of
the tenosynovitis but in December the notes show that the tenosynovitis
was continuing and sufficiently severe to consider surgery. (Ex. 2a,
p. 2) A note of February 28, 1992, indicates increased varicosities in
her veins on the basis of swelling within the knee joint. (Ex. 2a, p.
3) Finally, after all the other conditions arose, the knee replacement
surgery was authorized and performed.
In a note dated July 8, 1992, claimant was shown to be doing well and
that the normally expected period for recovery from total knee
replacement surgery was six months. In that note Dr. Ginther states
that from a practical standpoint retraining is probably not much of an
option but that in view of the apparent success of the knee replacement
surgery that there was a reasonable chance of getting her back to her
normal occupation. (Ex. 2a, p. 5) On September 8, 1992, when seeing
Dr. Magnus, claimant made complaint of low back and left hip pain. The
doctor's note is obviously in error where he states that she reports
that she did not have problems with either one until after her right
total knee replacement. The record clearly demonstrates that the
problems came on approximately one year after the injury, several
months before the actual knee replacement surgery. Dr. Magnus
attributes the spinal complaints to long-standing arthritis being
aggravated by rehabilitation for the knee. He also relates the greater
trochanteric bursitis to the rehabilitation program. (Ex. 6a, p. 1)
In his report of January 12, 1993, Dr. Magnus explained that protected
weightbearing of the right knee necessitated use of the cane which
initiated claimant's left wrist and left hip symptoms. He noted that
his treatment with steroid injections for the hip and back provided
some improvement but that it was incomplete. At that point in time the
right knee was essentially asymptomatic. (Ex. 6c) Dr. Magnus went on
to report that the delay in obtaining the knee replacement surgery
triggered the left wrist cyst and de Quervain's tenosynovitis. He
indicated that the fall and altered mechanics of walking subsequent to
the fall were responsible for producing the trochanteric bursitis in
the hip, the low back complaints and the left wrist condition. He
acknowledged that the knee and back conditions were aggravations of
preexisting arthritis. Dr. Magnus apportioned claimant's disability
with 60 percent being preexisting and 40 percent due to the injury.
Later, in his deposition, he retreated from that apportionment and
stated that the preexisting percentage should be larger. (Ex. 20, pp.
37, 44)
In the January 12, 1993 report, Dr. Magnus indicated that claimant
could work if there was work that required no prolonged standing,
walking, bending, stooping, or heavy lifting. He also felt that with
her present restrictions she could not perform excessive twisting,
stooping, lifting over 15 pounds or prolonged standing or ambulation.
Claimant was evaluated by Robert J. Chesser, M.D., on or about November
18, 1993. Dr. Chesser's report shows his opinion that the fall
precipitated the need for the right knee replacement as an aggravation
of a preexisting arthritic condition. He also felt that the left
wrist, low back and left hip conditions were compensatory changes
related to abnormal mechanics of walking. He reported that the wrist
and hip were not severely disabling but do have some impairment from
chronic tendinitis and bursitis. He found the low back condition to be
somewhat more limiting or disabling. He stated that use of a cane with
abnormal gait would aggravate degenerative disc disease. He felt that
the abnormalities were a consequence of the fall and that the fall
aggravated preexisting degenerative changes. Dr. Chesser found the
right knee to provide a 26 percent permanent impairment of the right
lower extremity, he found the left lower extremity to have a 5 percent
permanent impairment due to bursitis and the left upper extremity to
have a 5 percent permanent impairment. He found claimant's back to
have a 5 percent impairment of the whole person due to degenerative
changes. He found the right upper extremity to be 90 percent impaired
congenitally. He converted all of the impairments into a 63 percent
impairment of the whole person.
Dr. Magnus found the left lower extremity to be impaired to the extent
of 14 percent. In the January 12, 1993 report, Dr. Magnus had assigned
a 20 percent impairment rating to claimant's right lower extremity due
to the knee replacement. He assigned an 80 percent permanent
impairment rating to the right upper extremity due to the congenital
condition. He reported that if those were the only two problems,
claimant could probably return to work. He went on to report that
however, with the low back, left hip and left wrist, she could not work
and had been disabled since August 3, 1990.
Claimant was evaluated by Ellen M. Ballard, M.D., a physiatrist, on or
about April 6, 1993. Dr. Ballard made recommendations for treatment.
Dr. Ballard recommended that claimant not return to work. (Exs. 10a,
10b)
When deposed, Dr. Magnus attributed claimant's knee replacement
primarily to the preexisting changes. (Ex. 20, p. 11) He stated that
the fall didn't cause arthritis in her back but could aggravate it.
(Ex. 20, pp. 14-15) He also stated that the left hip and wrist
complaints were not directly due to the fall but that they were
indirect results. The wrist problem was due to use of a cane while the
hip was due to claimant's altered gait. He stated that the use of the
cane brought on the left wrist, hip and back problems. (Ex. 20, pp.
16-17, 36-37) Dr. Magnus was of the opinion that the overwhelming
majority of claimant's disability was due to her preexisting
degenerative changes. (Ex. 20, pp. 45-46) Dr. Magnus went on to state
that it was inevitable that claimant would eventually need knee
replacement even if she had not fallen. (Ex. 20, pp. 17, 24) Dr.
Magnus stated that a fall, when preexisting osteoarthritis is present,
very commonly produces increased pain and that the pain is probably due
to more inflammation in the joint. He agreed that the fall was an
aggravating factor and that knee replacement is indicated by pain that
doesn't respond to conservative treatment. He was unable to express an
opinion as to when claimant would have needed the right knee
replacement if she had not fallen. He stated that there was no
question but that the fall aggravated and possibly accelerated the knee
for surgery. (Ex. 20, pp. 29-34)
It is found as a matter of fact that claimant had very significant,
preexisting degenerative changes in both of her knees as well as her
back. There is little disagreement among the doctors in this case. It
is quite possible that if asked, any of the orthopedic surgeons would
attribute most of the disability to the preexisting conditions. Were
it not for those preexisting conditions, the injury would have likely
turned out to be quite minor. Such was not, however, the case. The
greater weight of the evidence tends to show that claimant was released
to return to work prematurely and that her employment was terminated
when she was unable to perform suitably.
Further compounding the problem was the delay in obtaining the knee
replacement surgery, despite the uniform opinion from all the
orthopedic surgeons who were consulted that the knee replacement
surgery was warranted and that the need for the surgery resulted from
the fall aggravating the preexisting, degenerative condition. As a
result of the altered gait during the one and one-half years of delay
in obtaining authorization for the surgery, claimant also developed
permanent problems in her low back, left hip and left wrist. The
impairment ratings from Dr. Chesser are corroborated by Dr. Magnus and
are found to be correct. Interestingly, the condition of claimant's
right knee is probably nearly as good as it was prior to the time that
she fell, despite the impairment ratings. It must be noted that a 20
percent impairment rating results from merely having the knee
replacement procedure. When it is considered that the left knee has a
14 percent impairment without the surgery having been performed, the
good result from the surgery becomes apparent. The factors which now
limit the claimant most greatly and prevent her return to work are the
left hip, low back and left wrist problems more so than the right arm
and right knee problems. The right knee is essentially as functional
now as it was prior to the time that she fell and the right arm is no
different. She was able to work and be gainfully employed when those
were her only problems. This case must be determined based upon what
did occur, not what might have occurred if some other course of action
had been chosen by the parties in charge of the medical care.
It is seldom unreasonable to request a second opinion. When the second
opinion completely corroborates the first opinion the reasonableness of
seeking a third opinion becomes questionable. When considering the
reasonableness of second and third opinions, the timing also becomes a
factor. The considerable delay when obtaining the second opinion
borders upon unreasonable conduct. The even greater delay in obtaining
the third opinion from Dr. Gerdes clearly crosses the bounds of
reasonableness. This claimant was in a severely disabled condition
with a severely symptomatic condition yet it took the defendants more
than a year from the time that the original authorized treating surgeon
recommended the knee replacement procedure in order to obtain the
second and third opinions. There is simply no justification for delay
in providing the recommended surgery and in denying weekly compensation
benefits for healing period beyond the time that Dr. Cassel expressed
the second opinion. If the claims manager had acted promptly, all
three opinions could have easily been obtained by June 7, 1991. The
continued denial of weekly healing period benefits subsequent to June
7, 1991 is found to have been totally unreasonable based upon the facts
which were known both then and now.
A very substantial question exists in this case with regard to whether
or not this claimant would be totally disabled if her right arm and
left knee were unimpaired. Nevertheless, the restrictions due to the
right knee, left hip, low back, and left wrist are such that it is
doubtful that the claimant would be capable of gainful employment in
the competitive labor market. Even if the claimant had a normal right
arm and even if her left knee were not impaired, it is still unlikely
that she would be capable of obtaining and performing gainful
employment. Restrictions on standing, twisting, prolonged walking and
so forth, are simply enough to eliminate her from the employment
market. There has been no showing that there is any work available
which she would have a reasonable prospect of obtaining and then
performing even if her right arm and left knee were unimpaired. Her
lack of education and skills when combined with the limitations
attributable to the left wrist, left hip, right knee, and low back are
sufficient to have her be deemed totally disabled.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not established has
the burden of proving that issue by a preponderance of the evidence.
Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a preponderance of the
evidence that the alleged injury actually occurred and that it arose
out of and in the course of employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co.,
261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer
to the cause or source of the injury. The words "in the course of"
refer to the time, place and circumstances of the injury. Sheerin v.
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188
N.W.2d 283 (Iowa 1971).
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).
A personal injury contemplated by the workers' compensation law means
an injury, the impairment of health or a disease resulting from an
injury which comes about, not through the natural building up and
tearing down of the human body, but because of trauma. The injury must
be something which acts extraneously to the natural processes of nature
and thereby impairs the health, interrupts or otherwise destroys or
damages a part or all of the body. Although many injuries have a
traumatic onset, there is no requirement for a special incident or an
unusual occurrence. Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251
(1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v.
Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An
occupational disease covered by chapter 85A is specifically excluded
from the definition of personal injury. Iowa Code section 85.61(5);
Iowa Code section 85A.8.
Aggravation of a preexisting condition is one manner of sustaining a
compensable injury. While a claimant is not entitled to compensation
for the results of a preexisting injury or disease, its mere existence
at the time of a subsequent injury is not a defense. Rose v. John
Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the
claimant had a preexisting condition or disability that is materially
aggravated, accelerated, worsened or lighted up so that it results in
disability, claimant is entitled to recover. Nicks v. Davenport
Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone
Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).
In this case it is abundantly clear that this claimant had preexisting,
degenerative arthritis in her back, right knee and left knee. The
greater weight of the evidence is that the fall directly aggravated the
arthritis in the right knee causing the need for knee replacement
surgery and increased disability of the knee, albeit minimal. The fall
indirectly, however, permanently aggravated the preexisting,
degenerative condition in claimant's spine and also produced
trochanteric bursitis in her left hip and tenosynovitis in her left
wrist. Accordingly, the defendant employer is liable for all of the
disability that resulted, directly or indirectly from the fall,
including that which resulted from the delay in providing the knee
replacement surgery.
Industrial disability or loss of earning capacity is a concept that is
quite similar to impairment of earning capacity, an element of damage
in a tort case. Impairment of physical capacity creates an inference
of lessened earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning capacity of
the person, rather than the loss of wages or earnings in a specific
occupation. Post-injury earnings create a presumption of earning
capacity. The earnings are not synonymous with earning capacity and
the presumption may be rebutted by evidence showing the earnings to be
an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa
1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v.
Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America,
Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison
County, Thirty-fourth Biennial Report of the Industrial Commissioner
218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and
57.31.
Total disability does not mean a state of absolute helplessness.
Permanent total disability occurs where the injury wholly disables the
employee from performing work that the employee's experience, training,
education, intelligence and physical capacities would otherwise permit
the employee to perform. See McSpadden v. Big Ben Coal Co., 288 N.W.2d
181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.
899 (1935).
A finding that claimant could perform some work despite claimant's
physical and educational limitations does not foreclose a finding of
permanent total disability, however. See Chamberlin v. Ralston Purina,
File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading
Corp., II Iowa Industrial Commissioner Report 134 (App. 1982).
In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa
court formally adopted the "odd-lot doctrine." Under that doctrine a
worker becomes an odd-lot employee when an injury makes the worker
incapable of obtaining employment in any well-known branch of the labor
market. An odd-lot worker is thus totally disabled if the only
services the worker can perform are "so limited in quality,
dependability, or quantity that a reasonably stable market for them
does not exist." Guyton, 373 N.W.2d at 105.
The burden of persuasion on the issue of industrial disability always
remains with the worker. When a worker makes a prima facie case of
total disability by producing substantial evidence that the worker is
not employable in the competitive labor market, the burden to produce
evidence of suitable employment shifts to the employer, however. If
the employer fails to produce such evidence and if the trier of fact
finds the worker does fall in the odd-lot category, the worker is
entitled to a finding of total disability. Guyton, 373 N.W.2d at 106.
Even under the odd-lot doctrine, the trier of fact is free to determine
the weight and credibility of evidence in determining whether the
worker's burden of persuasion has been carried, and only in an
exceptional case would evidence be sufficiently strong as to compel a
finding of total disability as a matter of law. Guyton, 373 N.W.2d at
106.
Apportionment of disability between a preexisting condition and an
injury is proper only when some ascertainable portion of the ultimate
industrial disability existed independently before an
employment-related aggravation of disability occurred. Bearce v. FMC
Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner,
353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and
earnings are not reduced on account of a preexisting condition, that
condition may not have produced any apportionable loss of earning
capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable,
the preexisting disability must not be the result of another injury
with the same employer for which compensation was not paid. Tussing v.
George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990).
The burden of showing that disability is attributable to a preexisting
condition is placed upon the defendant. Where evidence to establish a
proper apportionment is absent, the defendant is responsible for the
entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner,
353 N.W.2d at 410-11.
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
335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300
(Iowa 1970).
There is evidence in this case that the primary cause of the claimant's
current state of disability is her preexisting, degenerative condition.
There is some truth to that evidence. Even the claimant herself
admits that she had restricted range of motion and restricted use of
her knees prior to falling on August 3, 1990. The restrictions did not
prevent her from walking or standing but did affect the range of motion
and activities such as climbing, crawling and kneeling. Her knees
certainly would have warranted a rating of permanent impairment if an
evaluation had been conducted. As indicated by Dr. Magnus in his
deposition at page 17, the degeneration was probably similar in both
knees prior to the time of the fall. With regard to the impact of the
fall, however, it must be noted that by the time of hearing more than
three years had elapsed since surgery was first recommended for the
right knee and surgery has not yet been recommended for the left. This
is true despite the fact that the left knee carried much of the burden
during those times when claimant was unable to bear weight on her right
knee. This is a very strong indication that the fall did in fact
significantly aggravate and accelerate the preexisting condition of the
right knee. It is further evidence of the fact that the knee
conditions were not, of themselves, particularly disabling from an
industrial standpoint for claimant's chosen occupation of cooking.
There is simply no basis for apportioning industrial disability in the
record of this case. Claimant is clearly permanently and totally
disabled, regardless of whether or not the odd-lot doctrine is relied
upon. Based upon the findings previously made it is determined that
even when the right hand and left knee preexisting disabilities are
excluded, that the claimant would still be permanently and totally
disabled, although reliance on the odd-lot doctrine is necessary in
order to sustain the finding of permanent, total disability when the
condition of the right arm and left knee are excluded.
It is therefore concluded that the employer and its insurance carrier
are solely responsible for payment for the claimant's state of
permanent, total disability. While a basis for Second Injury Fund
liability certainly exists in view of the preexisting, congenital right
arm disability and the preexisting disability in the left knee, the
gist of the Second Injury Fund Act is to make the employer liable for
only the degree of disability which would be placed upon it if the
preexisting disabilities had not existed. The Second Injury Fund then
is held responsible for payment of whatever additional disability is
attributable to the preexisting disabilities. In a case such as this,
where the employer's liability is for permanent, total disability,
there is nothing for the Second Injury Fund to pay since the workers'
compensation laws do not provide for disability that is greater than
total disability.
In like manner, there is no basis for apportionment in this case
because the injury has caused permanent, total disability. The
humanitarian and beneficent construction which is required to be given
to the statute strongly weighs against denying benefits when a bona
fide need exists. The humanitarian and beneficent purposes of the
workers' compensation acts are thwarted if benefits are not paid at the
time when they are needed. While this claimant certainly had
preexisting physical disabilities, she was still able to work. Her
earning capacity was likely limited by her preexisting conditions.
That fact is well reflected by her rate of compensation, a rate which
is less than half of the average rate commonly seen by this agency. A
person's earnings capacity is normally reflected by their actual
earnings and rate of compensation. A person with relatively high
earning capacity typically has high earnings and a relatively high rate
of compensation. A person with less earning capacity usually has
lesser earnings and a lower rate of compensation. To attempt to
further apportion by imposing either a waiting period or by further
reducing the rate of weekly compensation provides an unjust and
illogical result. Apportionment of disability has already occurred as
evidenced by the relatively low rate of earnings and relatively low
rate of weekly compensation. Any further reduction of weekly benefits
under a theory of apportionment for preexisting disability is
irreconcilable with the beneficent purposes of the workers'
compensation statutes. It must be noted that nothing in the statute
itself speaks of apportionment. Apportionment is an equitable theory.
It is fully applicable when dealing with scheduled injuries. It is
not, however, when dealing with industrial disability since the weekly
rate of compensation in most cases will already reflect any reduction
of earning capacity that has previously occurred. In this case,
Jacqueline Otto had a relatively small earning capacity prior to the
time of this injury. As a result of the injury she has lost all that
she had. It is a loss of 100 percent of the earning capacity that
existed at the time of injury. Accordingly, there is no basis for
further apportionment of her award through a waiting period or
reduction in the weekly benefit amount on account of her preexisting
disability.
Section 86.13 permits an award of up to 50 percent of the amount of
benefits delayed or denied if a delay in commencement or termination of
benefits occurs without reasonable or probable cause or excuse. The
standard for evaluating the reasonableness of defendants' delay in
commencement or termination is whether the claim is fairly debatable.
Where a claim is shown to be fairly debatable, defendants do not act
unreasonably in denying payment. See Stanley v. Wilson Foods Corp.,
File No. 753405 (App. August 23, 1990); Seydel v. Univ. of Iowa
Physical Plant, File No. 818849 (App. November 1, 1989).
Claimant seeks penalty for the failure to pay weekly benefits between
the dates of December 18, 1990 through April 7, 1992. The full penalty
of 50 percent of the amount unreasonably delayed and denied will be
awarded. While it was initially reasonable to seek a second opinion,
it became unreasonable to continue to deny benefits after the time that
the second opinion was obtained. It became further unreasonable to
continue to have denied and failed to have paid those benefits after
the third opinion on causation and the need for the knee replacement
surgery was obtained. If those benefits had been paid in a lump sum
together with interest that had accrued, there would be some defense or
mitigation but such did not occur. Accordingly, a full 50 percent
penalty will be awarded. The timespan from December 19, 1990 through
April 6, 1992 is 67 6/7 weeks. Two weeks of severance pay satisfy two
weeks of benefits. Rule 343 IAC 8.4. The unpaid portion is 65 6/7
weeks. The total is $5,422.67. Accordingly, a penalty under the
fourth paragraph of section 86.13 in the amount of $2,711.33 will be
assessed.
Section 85.39 permits an employee to be reimbursed for subsequent
examination by a physician of the employee's choice where an
employer-retained physician has previously evaluated "permanent
disability" and the employee believes that the initial evaluation is
too low. The section also permits reimbursement for reasonably
necessary transportation expenses incurred and for any wage loss
occasioned by the employee's attending the subsequent examination.
Defendants are responsible only for reasonable fees associated with
claimant's independent medical examination. Claimant has the burden of
proving the reasonableness of the expenses incurred for the
examination. See Schintgen v. Economy Fire & Casualty Co., File No.
855298 (App. April 26, 1991). Defendants' liability for claimant's
injury must be established before defendants are obligated to reimburse
claimant for independent medical examination. McSpadden v. Big Ben
Coal Co., 288 N.W.2d 181 (Iowa 1980)
Since Dr. Magnus was an authorized physician to whom claimant had been
expressly directed by the defendants, the claimant was entitled to a
second opinion from Dr. Chesser. The amount of his charges appear to
be well within the range of that commonly seen for similar
examinations. Accordingly, defendants are liable for payment of Dr.
Chesser's fees in the amount of $437.
The employer shall furnish reasonable surgical, medical, dental,
osteopathic, chiropractic, podiatric, physical rehabilitation, nursing,
ambulance and hospital services and supplies for all conditions
compensable under the workers' compensation law. The employer shall
also allow reasonable and necessary transportation expenses incurred
for those services. The employer has the right to choose the provider
of care, except where the employer has denied liability for the injury.
Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second
Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).
Claimant seeks to recover fees totally $173.49 incurred with Dr.
Magnus, the authorized physician. Since the treatment from the records
appears to be for conditions for which the defendants are liable and
that Dr. Magnus was the authorized treating physician, defendants are
liable for payment of his charges. The right to chose care carries
with it the obligation to pay for that which is chosen. Janssen v.
United Parcel Service, file number 1019753 (App. Decn. April 29, 1994)
ORDER
IT IS THEREFORE ORDERED that defendants Mount Saint Clair College and
Royal Insurance pay Jacqueline Otto weekly compensation for permanent,
total disability at the rate of eighty-two and 34/100 dollars ($82.34)
per week payable commencing January 2, 1991. Defendants are entitled
to credit for all weekly compensation benefits previously paid. The
remaining unpaid, accrued amount shall be paid in a lump sum together
with interest pursuant to section 85.30 computed according to the
American Rule from the date each weekly payment came due until the date
of actual payment. The weekly compensation payments for permanent
total disability shall be paid pursuant to section 85.34(3) for so long
as the claimant remains totally disabled.
It is further ordered that defendants Mount Saint Clair College and
Royal insurance pay Jacqueline Otto two thousand seven hundred eleven
and 33/100 dollars ($2,711.33) as a penalty under section 86.13 payable
on the date of this decision.
It is further ordered that the Second Injury Fund of Iowa has no
responsibility for payment to Jacqueline Otto.
It is further ordered that defendants Mount Saint Clair College and
Royal Insurance pay claimant's expenses with Robert Magnus, M.D., in
the amount of one hundred seventy-three and 49/100 dollars ($173.49).
It is further ordered that defendants Mount Saint Clair College and
Royal Insurance reimburse claimant the sum of four hundred thirty-seven
dollars ($437) pursuant to section 85.39 of the Code.
It is further ordered that the costs of this action are assessed
against defendants Mount Saint Clair College and Royal Insurance.
Signed and filed this __________ day of December, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. John Westensee
Attorney at Law
PO Box 4270
Rock Island, IL 61204-4270
Mr. James Huber
Attorney at Law
500 Liberty Bldg
418 6th Ave
Des Moines, IA 50309-2421
Mr. Robert Wilson
Assistant Attorney General
Hoover State Office Bldg
Des Moines, IA 50319
2206 1804 1806 3203
Filed December 21, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
JACQUELINE M OTTO,
Claimant,
vs.
File No. 958767
MT ST CLAIR COLLEGE,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
ROYAL INSURANCE,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
________________________________________________________________
2206 1804 1806 3203
Claimant with a preexisting, congenital deformity severely disabling
her right arm and preexisting, degenerative arthritis injured her right
knee when she fell at work. Medical care was delayed one and one-half
years bringing about additional back, hip and wrist injury from using a
cane.
Claimant found permanently, totally disabled. All the liability was
assessed against the employer. It was found that even if the
preexisting arthritis in the left knee and right arm deformity had not
existed that the claimant would still be permanently and totally
disabled. No award was made against the Second Injury Fund.
The disability was not apportioned because the preexisting disability
was already reflected in the claimant's earnings and rate of
compensation. To further reduce the benefit (the rate was $82 per
week) would be inherently unjust. Apportionment is an equitable theory
that is not provided by the statute. The claimant lost 100 percent of
the earning capacity that she held prior to the time of injury.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
WILLIAM RICHE, :
:
Claimant, : File No. 958873
:
vs. : A R B I T R A T I O N
:
GRIFFIN PIPE PRODUCTS, : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant William Riche seeks benefits under the Iowa
Workers' Compensation Act upon his petition in arbitration
against his self-insured employer, Griffin Pipe Products.
Claimant suffered a work injury to his low back on August
23, 1990.
This cause came on for hearing in Council Bluffs, Iowa
on February 2, 1993. The record consists of joint exhibits
1-10 and the testimony of claimant, Janet Riche, Darwin
Kruse and Tom Leedy.
issue
The parties have stipulated that claimant sustained
injury arising out of and in the course of his employment
with Griffin Pipe Products on August 23, 1990, that the
injury caused both temporary and permanent disability, that
healing period benefits are no longer in dispute, that the
commencement date for permanent partial disability benefits
is January 1, 1991, to the rate of compensation ($346.84 per
week), that medical benefits are not in dispute and that
defendant is entitled to credit for benefits paid
voluntarily prior to hearing.
The sole issue presented for resolution is
determination of the extent of permanent disability.
findings of fact
William Riche, 49 years of age at hearing, left school
to work after completing only the eighth grade. After brief
employment with an electronics company and a limestone
company, claimant worked sixteen years for an upholstery
business and commenced work with Griffin Pipe Products in
April 1977. Griffin Pipe Products manufactures steel water
pipes. Because of the nature of the material, many jobs in
the plant require strenuous physical effort, including heavy
lifting. For example, the "ladle" job held by claimant when
he was injured required lifting 100 pound boxes.
Indeed, claimant was injured while lifting and dumping
Page 2
100 pound bags of refractory (apparently, a heat resistant
nonmetallic ceramic material). Claimant developed sharp
pain in the back and right leg with numbness in the great
toe.
Claimant was first seen by Charles Edwards, M.D., who
referred him to Behrouz Rassekh, M.D., a neurosurgeon.
Magnetic resonance imaging studies of the lumbar spine
performed at Dr. Rassekh's order disclosed a posterior disc
herniation centrally and to the right at L4-5. As a result,
Dr. Rassekh performed a hemilaminectomy and removal of large
extruded disc at that level on August 29, 1990.
Claimant, who has shown himself throughout to be very
well motivated, returned to work in January 1991. He
requested and was given a 100 pound weight restriction so
that he could attempt to keep his old job; unfortunately, he
found himself unable to physically perform the work. Dr.
Rassekh thereupon corrected the lifting restriction to 50
pounds with further restrictions against repeated bending
and stooping. Dr. Rassekh also assigned a ten percent
impairment rating to the body as a whole.
Griffin Pipe Products has successfully accommodated
claimant's restrictions, although he is unable to work his
former job. Claimant is now employed in the labor pool (at
twenty or thirty cents per hour less in wages) where he
enjoys excellent seniority, being the number two worker.
Claimant still has residual pain in varying degree and
finds himself tired at the end of the work day. He has
continued numbness in the right great toe, suffers some
sleep disturbance, and has suffered some falls when his leg
has "gone dead." He finds prolonged sitting and standing
difficult and is unable to perform some of the work he
previously did around the house (e.g., raking or shoveling
snow).
Out of concern that he might be laid off in the future,
claimant has applied for work at other steel fabricating
businesses, but without success. Indeed, personnel manager
Tom Leedy conceded that Griffin would not hire a new
employee with claimant's restrictions, and believed this to
be true throughout the industry. A new worker must not have
a weight restriction of less than 100 pounds to be eligible
for hire.
Although claimant complains that he is able to work
less overtime than was previously the case due to his
restrictions, payroll records fail to bear out this
allegation. In dollar terms, claimant had more overtime in
1992 than in any previous year.
Attesting to claimant's high motivation are these
observations: he works essentially all the overtime he can
get and, despite residual pain, the date of trial was the
first day he has missed work since January 1991.
According to Alfred J. Marchesio, Jr., a certified
professional counselor employed by Midland Rehabilitation
Page 3
Consultants, claimant has lost access to 20-30 percent of
the jobs which existed prior to his injury. Mr. Marchesio
performed a vocational evaluation for claimant according to
his report dated January 12, 1993.
conclusions of law
Since claimant has an impairment to the body as a
whole, an industrial disability has been sustained.
Industrial disability was defined in Diederich v. Tri-City
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
'disability' to mean 'industrial disability' or loss of
earning capacity and not a mere 'functional disability' to
be computed in the terms of percentages of the total
physical and mental ability of a normal man."
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, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
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.
Claimant has had very little actual loss of earnings,
but that is due to the commendable accommodations made by
Griffin Pipe Products. But for those accommodations,
claimant's industrial disability would be very much greater.
Even though there be little loss in actual earnings, it
is unquestionably the case that claimant's earning capacity
has been reduced. For almost all of his adult life he has
been employed in an upholstery business and in a heavy steel
pipe manufacturing business. It is most unlikely that
claimant could take work again as an upholster due to
restrictions against bending and stooping. While Griffin
Pipe Company has kept claimant employed through
accommodations, he would not be able to obtain similar work
with another concern if he were to lose his job with
defendant.
Although claimant is highly motivated, he has a limited
education and limited work experience. The 50 pound lifting
restriction will limit him to sedentary, light and medium
work. Restrictions against bending and stooping further
reduce access to the labor market.
Considering then these factors in specific and the
record otherwise in general, it is held that claimant has
Page 4
sustained an industrial disability equivalent to 20 percent
of the body as a whole, or 100 weeks.
order
THEREFORE, IT IS ORDERED:
Defendant shall pay unto claimant one hundred (100)
weeks of permanent partial disability at the stipulated rate
of three hundred forty-six and 84/100 dollars ($346.84)
commencing January 1, 1991.
Defendant shall have credit for all benefits
voluntarily paid prior to hearing (fifty (50) weeks of
permanent partial disability).
As all benefits have accrued, they shall be paid in a
lump sum together with statutory interest.
Costs of this action are assessed to defendant.
Signed and filed this ____ day of February, 1993.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Sheldon M Gallner
Attorney at Law
803 Third Avenue
PO Box 1588
Council Bluffs Iowa 51502
Mr W Curtis Hewett
Attorney at Law
35 Main Place
PO Box 249
Council Bluffs Iowa 51502
5-1803
Filed February 9, 1993
DAVID R. RASEY
before the iowa industrial commissioner
____________________________________________________________
:
WILLIAM RICHE, :
:
Claimant, : File No. 958873
:
vs. : A R B I T R A T I O N
:
GRIFFIN PIPE PRODUCTS, : D E C I S I O N
:
Employer, :
Insurance Carrier, :
Defendant. :
___________________________________________________________
5-1803
Permanent partial disability awarded.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
SANDRA McSORLEY,
Claimant,
vs.
File No. 958889
HY VEE FOOD STORES, INC.,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
April 5, 1993 is affirmed and is adopted as the final agency
action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of August, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Jacob J. Peters
Attorney at Law
P.O. Box 1078
Council Bluffs, Iowa 51502
Mr. Frank T. Harrison
Mr. Matthew Grotnes
Attorneys at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
5-1402.30
Filed August 31, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SANDRA McSORLEY,
Claimant,
vs.
File No. 958889
HY VEE FOOD STORES, INC.,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1402.30
When claimant's testimony was controverted by the medical
records and another witness, it is was determined that she
failed to prove that she sustained an injury which arose out
of and in the course of employment.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
LUANNE RAE BERGEN,
Claimant,
vs. File No. 958906
IOWA VETERANS HOME, A R B I T R A T I O N
Employer, D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
--------------------------------------------------------------------
STATEMENT OF THE CASE
This case came on for hearing on April 17, 1995 at Des
Moines, Iowa. This is a proceeding in arbitration wherein
claimant seeks compensation for permanent partial disability
benefits as a result of an alleged injury occurring on
August 8, 1990. The record in the proceeding consists of
the testimony of the claimant, Sheila Lepley, Dianna Tub,
Margaret Button, claimant's exhibit 1 through 12 and
defendants' exhibits A through I.
ISSUES
The issues for resolution are:
1. The extent of claimant's permanent disability and
entitlement to disability benefits, if any;
2. Whether claimant's claim was filed timely within
the provisions of 85.26 of the Iowa
Administrative Code - statute of limitations.
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence finds that:
Claimant is a 39 year old high school graduate.
Claimant began working for the defendant, Iowa Veterans
Home, in Marshalltown, Iowa, in July 1984. She related her
work duties.
The undersigned believes that before the undersigned
gets into any detail facts there should be discussion
limited to addressing the issue of whether this claim was
timely filed in accordance with 85.26 of the Iowa
Administrative Code. It is undisputed that the petition was
filed February 14, 1994. Although the injury date alleged
on the petition was August 29, 1990, the hearing report
states August 8, 1990, which is the date agreed to by the
parties.
It is undisputed that the last payment of any benefits
was December 10, 1990, therefore, in a normal situation,
claimant would have to have filed her action within three
years of said date, thereby by December 10, 1993.
Claimant is relying on the application of the discovery
rule. Claimant cited Kritchard v. Pella Plastics, file
number 1018288, filed April 6, 1994 in which the deputy
industrial commissioner applied the discovery rule.
Claimant believes this case supports his position. The
defendants cited the same case and contended the result was
the opposite. The defendants are correct in that there was
an appeal decision filed August 31, 1994 which reversed the
deputy's ruling and barred claimant's action due to the
running of the statute of limitations.
The appeal decision did not necessarily put to rest the
action herein as such. It obviously caused a high hurdle
for claimant to jump.
Neither party cited the supreme court case of Whitmer
v. International Paper Co., Etc., 314 N.W.2d 411 (Iowa
1982), in which the supreme court held that the discovery
rule, under which accrual of a cause of action would be
delayed until a person discovered his or her injury or by
exercise a reasonable diligence should have discovered it,
did not apply to the three-year limitation period for a
review reopening in a workers' compensation case. The
undersigned believes that this Whitmer case bars claimant
from proceeding regardless of whether the undersigned would
find that claimant did not discover the nature of the
seriousness of her alleged injury until around December
1993, when she contends is the first time she knew the
seriousness of her injury, after she had an MRI. An EMG she
had in 1990 did not show anything. She felt she only had a
back strain and not what she later found out to have been a
serious back injury.
The undersigned therefore, finds it unnecessary to go
through any more of the facts in this case or set out any
further evidence in light of the clear ruling of the supreme
court in the Whitmer case. Claimant should have brought
her action within three years of December 10, 1990.
In light of the above ruling the undersigned finds all
the other issues moot. The undersigned finds that claimant
takes nothing in these proceedings, as she did not timely
file her action.
CONCLUSIONS OF LAW
"Discovery rule," under which accrual of a
cause of action would be delayed until a person
discovered his or her injury or by exercise a
reasonable diligence should have discovered it,
did not apply to the three-year limitation period
for a review reopening in a workers' compensation
case.
An original proceeding for benefits must be commenced
within two years from the date of the occurrence of the
injury for which benefits are
claimed or within three years from the date of the last
payment of weekly compensation benefits if weekly
compensation benefits have been paid under section 86.13.
Section 85.26(1). A proceeding in review-reopening must be
commenced within three years from the date of the last
payment of weekly benefits under either an award for
payments or an agreement for settlement. Section 85.26(2).
The "discovery rule" may extend the time for filing a claim
where weekly benefits have not yet been paid. The rule does
not extend the time for filing a claim where benefits have
been paid. Orr v. Lewis Cent. School Dist., 298 N.W.2d
256 (Iowa 1980). Under the rule, the time during which a
proceeding may be commenced does not begin to run until the
claimant, as a reasonable person, should recognize the
nature, seriousness and probable compensable character of
the condition. The reasonableness of claimant's conduct is
to be judged in light of the claimant's education and
intelligence. Claimant must know enough about the condition
to realize that it is both serious and work connected.
Orr, 298 N.W.2d at 261; Robinson v. Dep't of Transp., 296
N.W.2d 809 (Iowa 1980). Whitmer v. International Paper
Co., Etc., 314 N.W.2d 411 (Iowa 1982)
Failure to timely commence an action under the
limitations statute is an affirmative defense which
defendants must prove by a preponderance of the evidence.
DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91
(1940).
It is further concluded that claimant did not file her
action timely in violation of 85.26. It is further
concluded that claimant's last payment of any benefits was
December 10, 1990, and her action had to be filed within
three years thereafter, regardless of the application of the
discovery rule.
ORDER
THEREFORE IT IS ORDERED:
That claimant takes nothing from these proceedings.
That shall pay the costs of this action.
Signed and filed this _____ day of May, 1995.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Gail E. Boliver
Attorney at Law
8 East Southridge Road
Marshalltown, Iowa 50158
Ms. Joanne Moeller
Assistant Attorney General
Department of Justice--Tort Claims
Hoover State Office Building
Des Moines, Iowa 50319
2402
Filed May 16, 1995
BERNARD J. O'MALLEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
LUANNE RAE BERGEN,
Claimant,
vs. File No. 958906
IOWA VETERANS HOME, A R B I T R A T I O N
Employer, D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
-----------------------------------------------------------------
2402
Found claimant did not timely file her action.
Claimant raised the discovery rule. Claimant did not file
her action until three and one-half years after her injury
and three years and two months after the last payment of
benefits. Claimant contends she did not know the
seriousness of her injury until December 1993 after she had
an MRI. The deputy found the discovery rule does not apply
and cited Whitmer v. International Paper Co., Etc., 314
N.W.2d 411 (Iowa 1982).
5-1803
Filed May 10, 1995
Larry P. Walshire
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
ééééééééééééééééééééééééééééééééééééééééééééééééééééééééééé-
ROBERT J. HOLBROOK,
Claimant,
vs.
File No. 959148
ALLSTATE INDUSTRIAL
CONTRACTORS, A R B I T R A T I O N
Employer, D E C I S I O N
and
CIGNA PROPERTY AND CASUALTY CO.,
Insurance Carrier,
Defendants.
ééééééééééééééééééééééééééééééééééééééééééééééééééééééééééé-
5-1803
Nonprecedential - extent of disability case.