1805 1402.30 2206 2204
Filed October 13, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
REBECCA FRYE, Surviving
Spouse of ROBERT FRYE,
Deceased,
Claimant,
vs.
File No. 961728
SMITH-DOYLE CONTRACTORS,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
USF & G,
Insurance Carrier,
Defendants.
------------------------------------------------------------
1805 1402.30 2206 2204
Decedent sustained a back injury, developed depression and
committed suicide. It was determined that the lack of
recovery from the back injury aggravated a preexisting
tendency toward developing depression which in turn caused
the decedent to commit suicide. Claimant had been a
physically healthy, robust individual whose functional
capacity evaluation showed him to be at less than a tenth
percentile following the injury. After surgery and more
than two years of therapy and other treatment he had no hope
for recovery. His depression was not diagnosed prior to his
death and was not treated. The death held compensable,
death benefits awarded.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
REBECCA FRYE, Surviving :
Spouse of ROBERT FRYE, :
Deceased, :
:
Claimant, :
:
vs. :
: File No. 961728
SMITH-DOYLE CONTRACTORS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
USF & G, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding wherein Rebecca Frye, surviving
spouse of Robert Frye, seeks payment of permanent partial
disability compensation running from January 22, 1993 to May
3, 1993, the date of Robert's death and also seeks death
benefits pursuant to sections 85.28 and 85.31. The
principle issue in the case is whether Robert Frye's injury
of September 24, 1990 was a proximate cause of his
self-inflicted death that occurred on May 3, 1993.
The case was heard at Des Moines, Iowa on June 20,
1994. The evidence consists of claimant's exhibits 1
through 11 and defendants' exhibits A through L and N
through Z. The record also contains testimony from Rebecca
Frye, Melba Jean Frye and James Gallagher, M.D.
FINDINGS OF FACT
Robert Frye was 31 years of age when he committed
suicide by jumping from a bridge into the flood-swollen Des
Moines River and drowned on May 3, 1993. Robert is survived
by his wife Rebecca and two minor children.
Up to the point of his death Robert Frye had led a
lamentable life. He had a long-standing history of alcohol
and drug abuse. His history of employment is sporadic. In
early 1982, at the age of 19, he was sentenced to 25 years
in prison for first degree robbery. Robert and two
accomplices had robbed and severely beaten two hitchhikers.
Robert had been drinking at the time of the offense.
Personality testing performed at the time of his
incarceration suggested that Robert was depressed, unhappy,
Page 2
worrisome and socially introverted. (Exhibit B) Robert was
granted parole in June 1985. The conditions of his parole
included that he abstain from all use of alcoholic beverages
and illegal drugs. (Ex. F) Approximately three years later
Robert was arrested for operating a motor vehicle while
intoxicated. Because he was employed, he was placed into an
intensive outpatient treatment program rather than having
his parole revoked. A psychological evaluation which was
administered as part of the program suggested that Robert
had serious psychological dysfunction. (Ex. J) Robert
graduated from the program but two days later was again
arrested for operating a motor vehicle while intoxicated.
His parole was then revoked. (Ex. I) Robert was again
released on parole in May 1989. (Ex. L)
After his release in 1989 Robert entered a treatment
program through the Southern Iowa Economic Development
Association. At the time of intake Robert exhibited all but
one of the substance abuse symptoms shown in the report
letter. The only symptom which he did not exhibit at that
time was physical problems. (Ex. N) In July 1989 the
counselor reported that Robert's difficulty in finding work
was causing a lot of problems with depression and that
Robert had a history of allowing his depression to result in
a relapse of his substance abuse problem. (Ex. P) Robert
did experience a relapse. (Ex. R) By March 1990 Robert was
taking Antabuse. His depression symptoms apparently were
continuing. (Ex. T) In June 1990 Robert wrote to his
parole officer expressing concern over the stress which he
felt as a result of being on parole and requested that he be
discharged from parole. (Ex. V) At page 2 of exhibit A
paragraph "T" indicates that Robert was discharged from
parole in April 1991.
The record of this case shows Robert to have injured
his back on three prior occasions. Nothing in the evidence
indicates that any of those injuries were anything other
than minor injuries from which he made a prompt, complete
recovery. (Exs. G, H and Q)
Robert sustained the injury in this case on September
24, 1990, when stepping out of a trailer. He was diagnosed
as having herniated lumbar discs at the L4-5 and L5-S1
levels of his spine. In January 1991 Donald D. Berg, M.D.,
an orthopedic surgeon performed surgery upon Robert's back.
Robert experienced a poor result from the surgery. He had
continuing residual complaints of pain and exhibited back
spasms on a number of occasions. He underwent several
series of treatments consisting of prescription medication
and physical therapy. He appeared to experience some
benefit from treatment but the benefit appeared to be
temporary. By April 1991 Dr. Berg was recommending that
Robert enter vocational rehabilitation. (Ex. 1, p. 7) In
June 1991 Dr. Berg reported that Robert would have a
25-pound lifting restriction and a 5 percent permanent
physical impairment. He again recommended vocational
rehabilitation. (Ex. 1, p. 8)
Page 3
Robert sought a second opinion on his condition from S.
Randy Winston, M.D., a neurosurgeon. Dr. Winston found
claimant to have an essentially normal neurological
examination. He felt that Robert suffered from mechanical
low back pain secondary to the injury, its residuals and the
surgery which had been performed. Dr. Winston recommended
that a functional capacity evaluation be performed. (Ex. 4)
Robert was administered a functional capacity
evaluation on September 11, 1991. The report shows claimant
to have made a bona fide effort throughout the evaluation
and the results of the evaluation were considered to be
valid. The results showed Robert to be functioning below
the tenth percentile in many of the functions evaluated.
One exception was his grip strength performances which were
above average. The evaluation indicated that Robert would
be limited to sedentary work with a lifting limit of 10
pounds. (Ex. 3)
Robert was also evaluated by Marc E. Hines, M.D., in
September and October 1991. Dr. Hines found Robert to have
a 12 percent permanent impairment of the whole person. Dr.
Hines concurred with the functional capacity evaluation
report. He stated that Robert was 100 percent disabled from
his previous employment and that further employability would
be limited to sedentary jobs. (Ex. 7)
In October 1992 Robert was evaluated by L.G. Hikes,
M.D. Dr. Hikes also found Robert to have residual back pain
which was fairly severe and limiting in nature. (Ex. 8)
At the time of hearing exhibit 11 was received into
evidence. The fifth page of that exhibit is a drowning
investigation report from the Iowa Department of Natural
Resources investing officer. In the left column it is noted
that the word "yes" is checked in the blank which carries
the words "alcohol related." The preceding blank contains
the words "BAC test" and the word "yes" is checked. "BAC
test" is an abbreviation commonly used for the term "blood
alcohol test." The undersigned has been unable to find the
results of any blood alcohol test in the record of this
case. There is no indication in any of the records other
than that found at page 5 of exhibit 11 that a blood alcohol
test was requested or conducted. There is no indication in
the record of this case other than at page 5 of exhibit 11
that alcohol was involved in Robert's death. According to
Rebecca's testimony given at hearing Robert had dropped her
off at work in Ablia at approximately 9:00 a.m. on the day
of his death. She reported being told that he had driven
out of Albia going toward Eddyville. Robert was seen
jumping into the river at approximately 9:34 a.m. (Exs. 9
and 11) The inventory of the vehicle which Robert had
driven to the bridge showed no containers for alcoholic
beverages or any indication of illegal drug use. (Ex. 11,
p. 12) When initially notified of Robert's death Rebecca
had reported to the authorities that Robert had been
despondent recently. (Ex. 11, pp. 4 and 6) At page 6 of
exhibit 11 it is noted that he had been despondent over a
Page 4
back problem. At page 2 of exhibit 9 the medical examiner
indicated that Robert had apparently became disabled about
two years earlier when he hurt his back and had been
depressed since then but was not getting any professional
help. (Ex. 9, p. 2) The reports also indicate that Robert
was taking Antabuse and had not used any drugs or alcohol
for approximately a year. It is found that while Robert had
a history of alcohol and drug abuse and that such may have
played a part in his overall psychological condition he was
not under the influence of alcohol or drugs at the time he
committed suicide and probably had not used or abused
alcohol or drugs within the several months preceding his
death. The records show Robert to have received a
prescription for Tylenol #3, a form of Tylenol with codeine,
in 1992. His most recent prescription before his death was
Flexoril. (Ex. X) It is extremity unlikely that Robert was
using Tylenol with codeine at the time of his death.
The most income Robert had ever received in his
lifetime was the workers' compensation benefits which he
received as a result of the injury in this case. It appears
as though he had never earned more than a few hundred
dollars in any year up to that time. Robert had been
incarcerated during nearly half the time since he had
finished high school. Since he was a convicted felon, it is
likely that his employment opportunities were limited. The
record indicates that Robert had always enjoyed good health
and had no physical limitations or restrictions prior to the
injury which is the subject of this case. He was quite
overweight and there is reason to suspect that his
overweight condition may have been detrimental to his
recovery from the injury which is the subject of this case.
According to Rebecca, Robert had made statements
following the injury which indicated that he felt that he
was a burden on her. She testified that those statements
increased after his workers' compensation benefits were
terminated in early 1993. During the months preceding his
death Robert visited his close family and apologized for the
misconduct in which he had engaged earlier in his life.
There is an indication that he had his father perform some
needed repairs around his home within the weeks prior to his
death. Robert appeared to be in relatively good spirits on
the morning of his death.
Each of the parties in this case employed a
psychiatrist to perform an evaluation for purposes of
expressing an opinion in this litigation. Claimant chose
Paul H. Rose, D.O., of Burlington, Iowa. Defendants chose
James Gallagher, M.D., of Des Moines, Iowa. Both physicians
seem to agree that Robert committed suicide as a result of
depression. Dr. Rose expressed the opinion that Robert's
back injury caused his depression. (Ex. 10) Dr.
Gallagher's opinions were (1) Robert's depression resulted
from a number of causes rather than from any one specific
event; (2) Robert had a tendency toward developing
depression which existed prior to the time of the back
Page 5
injury; (3) the back injury was an aggravating factor but
not necessarily a causal factor; (4) it was possible that a
connection existed between the back injury and the
depression; (5) it cannot be stated with any reasonable
degree of medical certainty that the back injury was a
probable cause of Robert's depression and resultant suicide.
(Ex. A, p. 3; transcript pp. 109-112, 117-122)
It is found that Dr. Gallagher is correct in that
Robert clearly was psychologically dysfunctional with a
tendency toward depression prior to the time this back
injury occurred. The report from Dr. Rose is devoid of any
mention of Robert's psychological problems prior to the time
of the back injury. It is also found that the back injury,
more importantly the lack of recovery from the back injury,
was a substantial factor in bringing about Robert's suicide.
Robert was prone to developing depression. He had always
previously had the physical ability to do whatever he chose.
The lack of recovery from this injury caused him to see
himself as a cripple. He was no longer able to hunt, work
on cars or engage in the other activities which he had
previously enjoyed. He was not able to perform the tasks
required for any type of employment in which he had
previously engaged. Having viewed the record as a whole,
the undersigned does not feel that Robert's main concern was
supporting his family. He had never done so in the past.
His greatest concern was the simple loss of his physical
capacity to do the things that he wanted to do. In his
treatment notes from SEIDA it was noted that he felt
depressed when he had been unable to find work. It would
certainly be reasonable to expect that he would be depressed
if he were unable to perform any type of work which he knew
how to perform. It is likely that Robert's alcohol and drug
abuse problems played a part in shaping his psychological
state. Nevertheless, despite all the preexisting conditions
it was not until after more than two years of unsuccessful
medical care and treatment and the termination of his
workers' compensation income that Robert Frye resorted to
suicide. Robert Frye knew of no suitable options. He was
at a state of despair. He had no hope of regaining anything
resembling his preinjury state of physical good health. He
chose to not live with the pain and disability that the
injury had inflicted upon him.
Dr. Gallagher spoke of having seen a lot of patients
with pain and depression but that none of them had committed
suicide. (tr. p. 121) This is likely true because
depression is often a treatable condition. If successfully
treated, individuals with depression do not go on to commit
suicide. The patients who Dr. Gallagher saw were, in all
likelihood, receiving adequate treatment for their
depression. Robert Frye was not being treated for his
depression. It was allowed to run unchecked.
Most individuals with depression will not resort to
suicide regardless of whether or not it is treated, some
however do. It is also remarkable that the only indications
Page 6
of Robert Frye having problems with depression appear at
times when he would have been in very stressful situations.
One was when he was initially incarcerated for robbery.
Another was when he was facing possible revocation of his
parole at the time of the first drunken driving conviction.
It is certainly possible that there may have been other
times throughout Robert's life when he drifted in and out of
depressions. None of those caused him to consider or
attempt suicide until he was disabled by the back injury
which is the subject of this case. Robert Frye apparently
felt that his life was not worth living if he had to live it
in his disabled state. He felt that he was a burden on his
wife and children and that they would be better off without
him. In view of his well documented abnormal psychological
makeup, it is not surprising that he would see suicide as
his only option.
CONCLUSIONS OF LAW
First and foremost, Rebecca Frye seeks permanent
partial disability compensation from January 22, 1993
through the date of Robert's death, May 3, 1993, a span of
14 4/7 weeks. This requires a determination of the extent
of Robert's permanent disability which resulted from the
injury. The parties stipulated that all benefits payable
prior to January 22, 1993 have been paid and that those
benefits previously paid are equivalent to approximately 15
percent permanent partial disability. The additional amount
requested by Rebecca amounts to a little less than a total
of 19 percent permanent partial disability. In other words,
if Robert's permanent partial disability was greater than 20
percent, Rebecca, as his survivor, is entitled to receive
the benefits payable from January 22 through May 3, 1993.
Tibbs v. Denmark Light and Telehpone Corp., 230 Iowa 1173,
300 N.W. 328 (1941); Dille v. Plainview Coal Co., 217 Iowa
827, 250 N.W.607 (1934)
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.
Since claimant has an impairment to the body as a
Page 7
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.
It is obvious and apparent that Robert Frye's extent of
permanent disability was greater than 20 percent. He was
totally foreclosed from returning to anything other than
sedentary work. Prior to that time he had been capable of
heavy employment. There is nothing in the record to
indicate that Robert was skilled for sedentary work or adept
at academic pursuits. The contrary would be expected.
There is absolutely no doubt whatsoever that his degree of
disability exceeded 20 percent. In fact, there is evidence
in this case which would support a contention that he was
permanently totally disabled.
Rebecca seeks death benefits under section 85.28 and
85.31. In order to receive a recovery, it is necessary that
she prove by a preponderance of the evidence that it is
probable that there is a chain of causation directly linking
the back injury to Robert's suicide. Kostelac v. Feldman's,
Inc., 497 N.W.2d 853 (Iowa 1993) The undersigned, having
heard the Kostelac case is fully familiar with the evidence
that was presented at the hearing. The undersigned was
convinced beyond any shadow of a doubt that the financial
failure of the business which the decedent had managed
brought about his depression and suicide. The decedent in
that case was a victim of a failing local economy and none
of his efforts would save the business. There was no
evidence in the record of that case of the decedent ever
having depressive symptoms other than possibly in the remote
past in connection with the failure of another business
which he had managed. Two psychiatrists expressed opinions
causally connecting the business failure with the depression
and suicide. Only one, Michael Taylor, M.D., declined to
Page 8
join in that opinion. He, like Dr. Gallagher in this case,
was of the opinion that a causal connection was possible.
He simply stated that he did not have enough information to
form an opinion that a causal connection existed. When
appealed to the industrial commissioner, the undersigned's
finding of fact was reversed and the appellate findings were
upheld on judicial review through the operation of the
substantial evidence rule. In the commissioner's appeal
decision note was made of the fact that Dr. Taylor had more
information available to him then had the other
psychiatrists. That fact was used as a reason for accepting
his opinion over that of the other two psychiatrists. Using
such as a distinction is prejudicial to a claimant in a
workers' compensation proceeding. The expert employed by
the defense always has more information available to
consider than does the expert or experts employed by the
claimant. The case preparation and completion deadlines
found in the hearing assignment order used by this agency
requires that the claimant must present all of its evidence
to the defense. The defense experts are then able to
consider the opinions of the claimant's experts and develop
replies to refute the statements and opinions of the
claimant's experts. Claimant's experts are not given any
opportunity to reply. In Kostelac, in this case and nearly
all cases before this agency, the defense expert always has
more information because the defense expert has the
assessment of the case made by the claimant's expert and
gets to speak last. Simply stated, it is not a valid reason
for choosing one expert over the other, even though it has
been used by the industrial commissioner in appeal
decisions, because the hearing assignment order determines
which side will speak last.
Part of the dispute in these cases may arise from the
definition of the word "cause" as it is used by the medical
profession and as it is used in the legal arena. The
medical profession often looks to the underlying cause. In
litigation the triggering or precipitating cause controls
whether or not a recovery will be awarded. That distinction
is perhaps best illustrated by heart attack cases. It is
quite common for physicians to attribute heart attacks to
underlying coronary artery disease and they are correct when
they do so. Individuals without coronary artery disease
seldom have heart attacks. The law allows recovery,
however, when unusual stress or exertion superimposed upon
the underlying coronary artery disease causes the heart
attack to occur at a time when it probably would not have
occurred absent the stress or exertion. Sondag v. Ferris
Hardware, 220 N.W. 2d 903 (Iowa 1974)
A similar situation exists in cases where individuals
develop depression. Most individuals will not develop major
depression regardless what happens to them in the way of
lifetime events or stresses. Those who do develop a major
depressive disorder likely have a predisposing tendency for
developing depression. In many cases those who are
Page 9
diagnosed with depression have had one or more prior
episodes at which they were thought to be depressed or were
even possibly diagnosed as being depressed. The tendency to
develop depression or a low grade, ongoing depression which
exists prior to the time an injury occurs is a preexisting
condition. The law regarding aggravation of a preexisting
condition is well settled.
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 concluded that Robert Frye had a
preexisting tendency for developing depression and may even
have had a low grade, ongoing depression of the type
referred to by Dr. Gallagher as a dysthymic disorder (t.p.
117) prior to the time that the injury in this case
occurred. That condition was a preexisting condition which
was then aggravated by Robert's lack of recovery from the
back injury. That lack of recovery caused Robert's prior or
preexisting condition to mushroom into a full blown,
untreated depressive disorder that was so severe as to cause
him to commit suicide. It is concluded that a direct chain
of causation exits in this case between the back injury, the
lack of recovery from the injury and the aggravation of the
preexisting psychological condition causing it to become a
full blown depression which in turn led Robert Frye to
commit suicide. Rebecca Frye and the children of Robert and
Rebecca Frye are therefore entitled to receive weekly
compensation benefits pursuant to section 85.31 payable
commencing May 3, 1993.
Defendants are also responsible for payment of burial
expenses for Robert Frye pursuant to section 85.28 in an
amount not to exceed $5000.
Defendants are further responsible for payment of $4000
to the Second Injury Fund of Iowa pursuant to section 85.65.
ORDER
IT IS THEREFORE ORDERED that defendants pay Rebecca
Frye weekly compensation at the rate of three hundred two
and 51/100 dollars ($302.51) per week payable commencing
January 22, 1993. The first fourteen and three-sevenths (14
3/7) weeks thereof are to be characterized as permanent
partial disability benefits under section 85.34(2)(u). The
subsequent weekly compensation benefits payable commencing
May 3, 1993, shall be characterized as death benefits in
accordance with section 85.31.
Page 10
It is further ordered that all past due accrued amounts
be paid in a lump sum together with interest pursuant to
section 85.30.
It is further ordered that defendants pay the burial
expenses of Robert Frye in an amount not to exceed five
thousand dollars ($5000).
It is further ordered that defendants pay the sum of
four thousand dollars ($4000) to the Second Injury Fund of
Iowa.
It is further ordered that the costs of this action are
assessed against defendants pursuant to rule 343 IAC 4.33.
It is further ordered that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this __________ day of October, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Harold Heslinga
Mr. Jeffrey Smith
Attorneys at Law
118 N Market St.
Oskaloosa, Iowa 52577
Ms. Iris Post
Mr. Ken Winjum
Attorneys at Law
2222 Grand Ave
PO Box 10434
Des Moines, Iowa 50306
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROGER GOETZINGER,
Claimant,
vs.
File No. 961927
PAISLEY TRUCKING, INC.,
A P P E A L
Employer,
D E C I S I O N
and
CONTINENTAL WESTERN INS. CO.,
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
January 8, 1993 is affirmed and is adopted as the final agency
action in this case.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of July, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harry W. Dahl, III
Attorney at Law
974 73rd Street Suite 16
Des Moines, Iowa 50312
Mr. E. J. Giovannetti
Attorney at Law
Terrace Center STE 111
2700 Grand
Des Moines, Iowa 50312
5-1803; 2907; 3800; 4000.2;
Filed July 29, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROGER GOETZINGER,
Claimant,
vs.
File No. 961927
PAISLEY TRUCKING, INC.,
A P P E A L
Employer,
D E C I S I O N
and
CONTINENTAL WESTERN INS. CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Assessment of treating neurologist accepted and finding a 7
percent permanent partial disability of claimant's right leg.
3800
Defendants asserted that interest was payable only when the delay
resulted from unreasonable conduct. That argument was rejected.
Interest awarded on all healing period and permanent partial
disability in accordance with the statute. In this case, the
healing period was interrupted by an approximate eight-month
return to work. All the permanent partial disability was held
payable commencing at the end of the healing period (ppd was 15.4
wks) and interest accrued accordingly, even though the existence
and extent of permanency was not determined until during
treatment conducted during the second healing period.
4000.2
Defendants assessed with a 20-week penalty pursuant to 86.13
where they failed to pay healing period even though all
physicians agreed the condition was work related and where they
failed to pay permanent partial disability. One physician who
had originally treated the knee injury and performed meniscectomy
surgery had opined that there was no permanency. It was held
unreasonable to rely upon that where a subsequent peroneal nerve
injury was identified and that original surgeons rating of no
impairment was overwhelmed by the AMA Guides and three other
evaluators. Claimant's full weekly benefits entitlement was paid
to him on the date of the hearing. The only real issues in the
case were interest and penalty.
2907
It was held that the offer to confess judgement procedure
provided by Code section 677.7 is an appropriate procedure to be
used by this agency in view of section 86.40. In this case costs
were assessed against defendants who had paid the correct amount
of weekly benefits for healing period and permanent partial
disability and whose offer was consistent with what they paid on
the date of hearing, but the offer did not address interest or
penalty, both of which were recovered by the claimant.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LINDA WALKER, :
:
Claimant, :
:
vs. :
: File No. 962163
OSKALOOSA FOOD PRODUCTS, :
CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE HARTFORD INSURANCE :
GROUP, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Linda Walker, against Oskaloosa Food Products
Corporation, and the Hartford Insurance Company, as
defendants. Claimant sustained an injury which arose out of
and in the course of her employment on September 20, 1990.
The case was heard and fully submitted at Oskaloosa,
Iowa, on May 6, 1993. The record consists of testimony from
the claimant and her husband, David Walker; and, joint
exhibit 1.
ISSUE
The sole issue for consideration is whether claimant is
entitled to permanent partial disability benefits.
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received and having presided at the hearing, finds
the following facts:
At the time of the hearing, claimant was 45 years of
age. She is married and has three children, none of the
children are dependents.
Claimant graduated from the eighth grade and has
received no further education or training.
In 1968, claimant began working for Big Smith, a
clothing manufacturer. She worked on a full-time basis for
three years until the company went out of business in 1971
or 1972. Claimant's job duties while working for Big Smith
included inspecting garments; lifting and carrying bundles
Page 2
of clothing weighing approximately five pounds; and,
pressing and hanging clothes.
After the Big Smith Company closed in 1971 or 1972,
claimant became a full-time mother. She re-entered the
competitive work force in 1976 when she began working as a
cook for Kentucky Fried Chicken.
Seven months later, claimant left Kentucky Fried
Chicken and secured a job with U.S. Fiber. This position
required claimant to fill bags with insulation made of
newspaper. After filling the bags claimant would carry them
to the conveyor belt. Each bag weighed approximately 40
pounds. While working for U.S. Fiber, claimant also watched
the chemical tank mix various ingredients used in processing
the insulation.
Claimant was fired from her position with U.S. Fiber
due to absenteeism problems. Apparently, claimant suffered
from walking pneumonia and was unable to regularly attend to
her job duties.
According to claimant's testimony, she did not work
outside of the home from 1976 or 1977 until 1984, when she
was hired by the defendant employer, Oskaloosa Food Products
Corporation. Claimant held several positions with defendant
during her seven year tenure with the company, including
night shift cleanup; day shift cleanup; inspector; and a
variety of odd jobs.
On September 20, 1990, claimant was placing eggs on the
conveyor belt. This job required her to stand on a platform
placed approximately three to four feet above the ground.
She would turn to lift a filler or tray of eggs, then turn
again to bend over and place them on a conveyor belt. As
claimant reached over to pull the eggs toward her, she fell
from the platform and with her left side struck a pipe.
Apparently, claimant blacked out and when she regained
consciousness, she yelled for help. A coworker helped her
up off of the floor, and claimant was unable to breathe.
She was told to go home and not to report to work the
following day.
Claimant drove home and called Edward Hirl, M.D., at
the Family Medical Center, in Oskaloosa, Iowa. After an
examination, Dr. Hirl ordered x-rays which revealed a
fracture of the eleventh rib (Jt. Ex. 1, pp. 1-3). Claimant
was then taken off of work and over the next seven weeks
received follow-up treatment from Dr. Hirl and David Berg,
M.D., a physician to whom she was referred in October of
1990 (Jt. Ex. 1, pp. 4-7). Dr. Berg's initial evaluation
recommended time off of work, a rib belt which claimant wore
for several weeks, and norgesic forte, a muscle relaxant.
Dr. Berg did not anticipate any permanent impairment (Jt.
Ex. 1, p. 8). Claimant was released to return to work on
November 19, 1990 (Jt. Ex. 1, pp. 9-10).
In December of 1991, claimant presented to Dr. Berg
with continued complaints in her left rib. He noted
inflammation and tenderness and treated claimant with an
Page 3
injection of lidocain and cortisone. She was to report back
on an as-needed basis (Jt. Ex. 1, p. 8). This visit was the
last medical treatment claimant has received.
Initially, claimant was restricted to four hours of
work at the plant per day but after two weeks, she resumed
her full-time schedule. Although claimant was told she was
not performing her work satisfactorily, claimant continued
to work at the egg plant for one year, until her termination
in November of 1991. At the time of her termination, she
was earning $6.25 per hour.
On cross-examination, claimant admitted that she had
not been assigned any permanent work or activity
restrictions. She has not been given a permanent impairment
rating. Once she returned to her job with the defendant,
she performed the same job duties and activities as before
the injury. She had also been told to be more productive
while working even before the fall and injury in September
of 1990.
In October of 1992, claimant began working for Pierson
Seed Corn Company. Her job duties required her to sort corn
which had been unloaded from a wagon and moved onto a
conveyor belt. This was repetitive work, and at times
claimant was called upon to help move the conveyor belt.
Claimant quit this job because she encountered constant pain
in her left side. She also testified that the pain became
worse after working at Pierson Seed Corn Company. At this
job, claimant earned $4.85 per hour.
Currently, claimant is not working. She has applied
for jobs at several factories and fast food establishments.
Although claimant did not receive any interviews, she stated
that the applications did not require her to disclose
information about workers' compensation claims or physical
limitations.
Claimant's husband also testified at the hearing. He
is currently employed as a factory worker and indicated he
is familiar with different types of factory work. Although
he did not specifically state that claimant would be unable
to perform any type of factory job, he believes that
claimant is in constant pain because she talks about it and
she sleeps on the couch. She no longer participates in
hobbies such as fishing and boating and her husband now has
to help her carry groceries.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether claimant is
entitled to permanent partial disability benefits.
The parties stipulated that if the injury is found to
have caused a permanent disability, the disability is to be
evaluated industrially.
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
Page 4
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).
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
Page 5
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the hearing, claimant was 45 years of
age which places her at the mid point of the years she would
likely to have the greatest earning capacity. She sustained
a broken rib while performing her regular job duties. She
received workers' compensation benefits for the time she was
off of work and recuperating from the injury.
There is no medical evidence that suggests claimant has
sustained a permanent disability from the injury.
The record does not indicate the claimant has ever been
assigned a functional impairment rating. Neither does the
record contain any evidence that claimant has any work
activity restrictions. And, although the claimant
repeatedly stated that she was unable to work because of the
constant pain in her left side, the agency has consistently
held that pain which is not substantiated by clinical
findings is not a substitute for impairment. See Waller v.
Chamberlain Mfg., II Iowa Ind. Comm'r Rep. 419 (1981). The
last medical record memorializing claimant's medical
treatment is dated December 1991. Prior to that, she had
not been to a doctor since November of 1990.
There is no objective evidence or even documented
subjected complaints for an entire year after claimant's
injury and her subsequent termination.
Claimant was able to perform her regular job duties for
approximately one year after her return to work following
her recuperation from the work injury. While claimant
indicated that she had been reprimanded for nonproductivity,
she had also been reprimanded for nonproductivity prior to
the injury.
Additionally, claimant indicated that her left side
began to feel worse after she worked for the seed corn
company.
Even though her husband intimated that she would be
unable to perform any factory work, claimant obviously feels
differently because she applied for various positions at
numerous factories in the Oskaloosa area. The undersigned
believes claimant's efforts for finding a job have been
minimal.
Page 6
The undersigned has considered all of the factors that
comprise an industrial disability, including but not limited
to the following evidence in the record: Claimant's return
to her full-time job duties after the injury; lack of a
functional impairment rating; lack of work or activity
restrictions due to her physical condition; lack of any
evidence in the record that indicates objective findings to
substantiate her complaints of pain; and, her lack of
motivation to find similar work. It is found that claimant
has not shown by a preponderance of the evidence that she
sustained a permanent disability and therefore is not
entitled to any award.
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That each party shall bear the costs of pursuing and/or
defending the claim.
Signed and filed this ____ day of May, 1993.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Michael P Brice
Attorney at Law
402 High Ave E
P O Box 1143
Oskaloosa IA 52577
Mr George H Capps
Attorney at Law
P O Box 971
Des Moines IA 50304
5-1800
Filed May 20, 1993
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LINDA WALKER, :
:
Claimant, :
:
vs. :
: File No. 962163
OSKALOOSA FOOD PRODUCTS, :
CORPORATION, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE HARTFORD INSURANCE :
GROUP, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1800
Claimant sustained a fractured rib. She was off of work for
approximately two months.
The sole issue was whether claimant had sustained a
permanent disability.
Claimant had returned to work for one year after the injury;
she had not been assigned a permanent impairment rating; no
physician or health care provider had assigned permanent
work restrictions; and claimant had not been treated for
more than one year prior to her termination for absenteeism.
Claimant took nothing from these proceedings.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BOBBY K. BUTLER, :
:
Claimant, :
: File No. 962252
vs. :
A R B I T R A T I O N
WELLS MANUFACTURING CORP., :
D E C I S I O N
Employer, :
:
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a contested case proceeding upon the petition
in arbitration of claimant Bobby Butler against his former
employer, Wells Manufacturing Corporation, and its insurance
carrier, CNA Insurance Companies. Mr. Butler alleges that
he sustained a work injury on September 17, 1990, and now
seeks benefits under the Iowa Workers' Compensation Act.
A hearing was accordingly held in Des Moines, Iowa on
July 26, 1993. Claimant's exhibits 1-3 and 5-9 were
received into evidence. Defendants' objection to claimant's
exhibit 4 was taken under advisement and is at this time
overruled. Claimant's exhibit 4 is received, except that
the portion of that exhibit relating to settlement
negotiations has not been considered. Defendants' exhibits
A-N were received. The following witnesses gave testimony
at hearing: claimant, Paul Barnes, Anthony Budiselich,
Marcia Driscoll, Samuel Russell, Chris Kanselaar and Kathryn
Crump. Exhibit N is the deposition testimony of Scott Neff,
D.O. Dr. Neff testified on March 15, 1993.
ISSUES
The parties have stipulated to the following:
1. An employment relationship existed at
the time of the alleged injury;
2. The proper rate of compensation is
$127.69 per week;
3. Entitlement to medical benefits is no
longer in dispute; and,
4. Defendants paid a total of $1,855.18 in
voluntary benefits prior to hearing.
Page 2
The following issues were presented for resolution:
1. Whether claimant sustained injury
arising out of and in the course of
employment on September 17 (or 12), 1990;
2. Whether the injury caused either
temporary or permanent disability;
3. The extent of temporary total disability
or healing period; and,
4. The nature and extent of permanent
disability, if any.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Bobby Butler, 23 years of age at hearing, has two
problems with respect to his left shoulder: a "snapping"
scapula and occult (hidden) instability. The diagnosis is
that of Scott Neff, D.O., a board certified orthopedic
surgeon.
However, Mr. Butler has been inconsistent in the course
of this litigation with respect to how these problems are
claimed to have come about. According to his petition,
claimant suffered injury to the left wrist and left shoulder
due to "Overuse -- Repetitive Motion."
By way of contrast, on February 20, 1992, claimant
served an interrogatory answer describing the injury-causing
event as follows:
I was working on the Jones machine moving
heavy cases of starter solenoids to a stool.
I had five cases in a stack on top of the
stool when they started to tip over. I put
my arms around the stack and, holding the
stool, attempted to straighten the stack
with my body. The entive [sic] stack fell
towards me. I felt a burning in my shoulder
area, but continued to work that day.
The next day I was working on the
granulator. I tried to dump the collected
material from the collection bin into a
larger container, but just as I lifted the
bin I suffered intense pain in my shoulder
and dropped the bin to the floor. My
shoulder pain continued to worsen until it
got to the point where I could no longer
continue to work.
On September 12, 1990, claimant signed an accident
investigation report citing chronic pain in the left hand.
The narrative description:
Bobby has been having discomfort in his left
Page 3
hand for a few weeks. He thought it was
related to a cyst he has on his wrist. (The
cyst was there when he began at Wells). His
doctor doesn't think the pain is related to
the cyst.
Wells Manufacturing Corporation manufactures and
distributes electronic auto parts. The parts are packed and
shipped in the Centerville plant where claimant was employed
as a full-time temporary worker from July 1990 through
November 11, 1990.
According to claimant's trial testimony, his injury
occurred on September 11 or September 12, not September 17.
Mr. Butler says he was operating the Jones machine with a
co-worker, Marcia Driscoll. Boxes of starter solenoids were
coming to him too quickly, so he began stacking the boxes,
perhaps five or six high, on a nearby stool. Unfortunately,
the stack was unsteady and began leaning; claimant attempted
to steady the stack with his left arm, but the boxes fell
and pushed his elbow straight down while he was
simultaneously pulling up.
Claimant described an immediate burning in his shoulder
like a dislocation, but slipping back into place. He
described this sharp pain as deep "inside" the shoulder
joint. However, despite continuing pain, claimant worked
through the balance of his shift.
The following day, claimant testified he volunteered to
operate a granulator machine, a relatively easy job.
However, he says while picking up a collection bin, he
suddenly experienced a terrible pain in the back and left
shoulder, thus causing him to drop the bin. He described
intense pain beneath the shoulder blade radiating both up
and down, followed by a constant throb. Mr. Butler
testified he advised shift supervisor Chris Kanselaar of his
condition and went home early.
One naturally wonders why claimant did not mention
these dramatic incidents in the injury report prepared on
September 12 or later. Claimant saw a chiropractor, Dr.
Lawrence Heffron, on September 12, and complained of pain in
the left side of the neck and shoulder along with a
complaint about a ganglion cyst in the left hand. However,
it is conceded that he saw Dr. Heffron before the shift
began, the second shift.
Some seven weeks earlier, on July 26, claimant had
visited another chiropractor, Dr. Arden Keune, with
complaints of upper thoracic and left shoulder pain. Dr.
Keune recommended light duty work for two days. The history
claimant gave to Dr. Keune included complaints of left
shoulder, left wrist and upper back pain with a duration of
several years. Severity of the "constant ache" became
"worse as day goes on."
In any event, Dr. Heffron referred claimant to David B.
Fraser, M.D., because he does not personally treat soft
tissue injuries. This determination was made prior to
Page 4
claimant's shift on September 12.
Dr. Fraser, incidentally, had treated claimant on a
number of occasions beginning in 1987. His chart note of
July 20, 1988, recorded a two-month history of pain in the
left shoulder after claimant "apparently reached back to get
something out of the back seat of his car and hurt his back
at that time." Dr. Fraser reported crepitation at the
medial aspect of the left scapula with tenderness, but good
range of motion of the shoulder itself.
Curiously, Dr. Fraser's notes of September 17, 1990
reflect complaints of left shoulder pain and the
distribution of the deltoid muscle and recurrence of
ganglion cyst problems which the doctor considered
"[p]robably an overuse syndrome; including some flexor
tendinitis and maybe early carpal tunnel and then a deltoid
tendinitis." No mention whatsoever was noted of the
traumatic incidents with the Jones machine and the
granulator. Similarly, on September 24, Dr. Fraser repeated
his view that claimant suffered an overuse type syndrome and
made no mention of traumatic injury. Follow-up visits on
September 28 and November 9, similarly failed to mention any
traumatic onset of symptoms.
Claimant was seen by Delwin E. Quenzer, M.D.,
commencing October 10, 1990. Claimant reported to Dr.
Quenzer that he had seen a doctor in September after putting
up with symptoms for several weeks. Again, no mention
whatsoever was made of any specific traumatic injury.
In fact, the first indication in this record that
claimant made any complaint to any person of the traumatic
incidents upon which this claim is apparently based, appears
in physical therapy notes dated February 1, 1991, almost
five months later.
This extensive history of non-reporting to the employer
and multiple physicians is, in agency experience, most
unusual in traumatic injury such as here described.
The probable explanation for claimant's failure to
report these traumatic incidents is that they never
occurred. Marcia Driscoll, who was working with claimant at
the time of the claimed Jones machine incident, failed to
recall any such "falling boxes" incident and does not recall
Mr. Butler making any complaint of shoulder injury. Indeed,
she testified that boxes had never been stacked on the stool
as claimant testified: both for safety reasons, and because
it is simply not feasible. Shift supervisor Chris Kanselaar
agreed that it is not feasible to stack boxes as claimant
testified, and specifically denied that he had reported a
work injury to her (as Mr. Butler alleges). On the other
hand, she recalled that when claimant was put on light duty
in July, he told her of an old shoulder injury suffered at a
battery warehouse (a previous employer). Ms. Kanselaar
believes that claimant had specified the left shoulder,
although unable to be totally positive on that point.
Samuel Russell, another co-worker, agreed that it was
Page 5
not feasible to stack boxes on a stool near the Jones
machine, and had never seen boxes stacked as claimant
described. He remembered claimant pointing out a shoulder
that slipped in and out of place, but reported that claimant
did not relate this to any work injury at Wells
Manufacturing. He recalled no work injury or claimant's
report of injury.
Kathryn Crump, a personal clerk, testified that Mr.
Butler made complaint only of his wrist on September 12, and
that she had arranged Dr. Fraser's appointment for September
17th, the earliest date available. Coincidentally, she had
an opportunity to observe claimant in subsequent
self-employment during April 1993. Mr. Butler was seen
standing on a ladder at a funeral home, chipping paint. Ms.
Crump reported that she watched claimant for approximately
ten minutes, during which he used his left hand--but only
until seeing her, after which he switched to the right
(dominant) hand.
After leaving Wells Manufacturing, claimant worked a
medium to heavy job (unloading 50 pound crates) for
approximately eighteen months at another manufacturing
facility. Thereafter, he and another individual formed a
painting and construction company. Claimant conceded that
he failed to file income tax returns for 1991 and 1992.
This failure, very probably criminal, also has adverse
impact on Mr. Butler's credibility. It is noted that
claimant has acted as a police informant, which presumably
requires association with a criminal element.
Dr. Neff, who evaluated claimant on August 3, 1992,
concluded that the cause of claimant's shoulder instability
was probably when claimant reached into the back seat of a
car in 1988, a motion consistent with development of
instability. The "falling boxes," on the other hand, are
not.
Given this large volume of evidence inconsistent with
Mr. Butler's version of events, claimant has failed to
persuade that he sustained injury at Wells Manufacturing,
either of traumatic onset or through overuse syndrome.
ANALYSIS AND CONCLUSIONS OF LAW
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
Page 6
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).
As discussed above, claimant has failed to meet his
burden of proof. Accordingly, defendants prevail.
ORDER
THEREFORE, IT IS ORDERED:
Claimant takes nothing further.
Costs are assessed to claimant.
Signed and filed this ____ day of February, 1994.
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Daniel P Wilson
Attorney at Law
303 W State
Centerville Iowa 52544
Ms Dorothy L Kelley
Attorney at Law
500 Liberty Building
418 6th Avenue
Des Moines Iowa 50309-2421
5-1402.30
Filed Feburary 8, 1994
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BOBBY K. BUTLER, :
:
Claimant, :
: File No. 962252
vs. :
A R B I T R A T I O N
WELLS MANUFACTURING CORP., :
: D E C I S I O N
Employer, :
:
and :
:
CNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1402.30
Claimant's version of events was inconsistent with the bulk
of other evidence. He failed to meet his burden of proof in
establishing an injury arising out of and in the course of
employment.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
VALENCIA ROUSE, :
: File No. 962377
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
IBP, INC., :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Marie Valencia Rouse, against her employer, IBP, Inc.,
self-insured employer, defendant. The case was heard on November
6, 1991, in Burlington, Iowa at the Des Moines County Courthouse.
The record consists of the testimony of claimant. The record
also consists of claimant's exhibits 1-21 and defendant's
exhibits A-I.
Furthermore, for purposes of clarification, it is noted that
Deputy Walleser entered a ruling on motion for sanctions on
November 1, 1991. In her ruling Deputy Walleser ordered that:
[C]laimant is barred from raising any issue or fact
regarding her mental health, industrial disability or
inability to secure employment subsequent to her
alleged injuries.
Subsequent to the hearing, Deputy Walleser also ruled on a
motion for rehearing on November 25, 1991. In that ruling the
prehearing deputy ordered that claimant's Rule 179(b) motion was
deemed a motion to reconsider and Deputy Walleser denied the
motion to reconsider.
Since the aforementioned rulings were made by the prehearing
deputy, the undersigned did not address the issues. However,
claimant was allowed to submit records for the purpose of making
an offer of proof.
issue
The issue to be determined is whether claimant is entitled
to temporary disability/healing period benefits or permanent
disability benefits.
findings of fact
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant is 35 years old. She is a high school graduate.
Page 2
Her highest hourly wage rate attained was $6.00 per hour. She
was employed with defendant from October 16, 1988 through June
13, 1989.
Claimant testified that prior to her employment with
defendant, she had experienced no problems with tendonitis with
her hands, fingers or wrists. After October 16, 1988, claimant
testified she began "piping." Her duties required her to flush
intestines 8 hours per day, 5 days per week. According to
claimant's testimony, she experienced numbness, tingling, and
sharp pains in her hands and fingers. Eventually, claimant was
diagnosed as having bilateral carpal tunnel syndrome.
Rouben Mirbegian, M.D., performed a right carpal tunnel
release on October 2, 1989. On October 16, 1989, he released
claimant to return to work for one handed work only.
On December 8, 1989, Dr. Mirbegian performed a left carpal
tunnel release. In his report of January 3, 1990, Dr. Mirbegian
opined:
[I] believe this patient now has recovered from her
left carpal tunnel so as the right carpal tunnel
release and I believe she will be able to return to
gainful employment maybe at the beginning of February.
On February 14, 1990, Dr. Mirbegian provided claimant with
an impairment rating. He wrote:
Each hand is entitled to 5% permanent impairment rating
according to AMA Guidelines for causing pain or having
surgery. All totaled together she has 10% permanent
impairment of her upper extremities.
Claimant voluntarily terminated her employment on June 12,
1989. Subsequently, she obtained employment with Piper Excel of
Beardstown, Illinois on July 24, 1990. As of April 9, 1991,
claimant was earning $7.05 per hour.
conclusions of law
Here, claimant sustained a simultaneous injury to scheduled
members as of March 15, 1989.
The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled to
compensation except as the statute provides. Soukup v. Shores
Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2). Permanent
partial disabilities are classified as either scheduled or
unscheduled. A specific scheduled disability is evaluated by the
functional method; the industrial method is used to evaluate an
unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d
886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa
1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95
(1960).
Page 3
The employer shall furnish reasonable surgical, medical,
dental, osteopathic, chiropractic, podiatric, physical rehabili
tation, nursing, ambulance and hospital services and supplies for
all conditions compensable under the workers' compensation law.
The employer shall also allow reasonable and necessary trans
portation 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 decision 1975).
Claimant has the burden of proving that the fees charged for such
services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., file number 850096 (Appeal Decision 1990).
Claimant is not entitled to reimbursement for medical bills
unless claimant shows they were paid from claimant's funds. See
Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa App.
1983).
In the instant case, the treating orthopedic surgeon, Dr.
Mirbegian, provided an impairment rating. He assessed a rating
to each of claimant's hands. It has long been recognized by this
agency that a wrist injury is an injury to the hand, not to the
upper extremity. The hand extends to the distal end of the
radius and ulna, including the carpus or wrist. Elam v. Midland
Mfg., II Iowa Industrial Commissioner Report 141 (App. Decn.
1981).
Dr. Mirbegian opined claimant had a five percent impairment
to each hand or a ten percent impairment to her upper extremi
ties. Dr. Mirbegian used the AMA Guides to Permanent Impairment.
A five percent impairment to the hand translates to a five per
cent impairment to the upper extremity and a five percent impair
ment to the upper extremity translates to a three percent
impairment to the whole person. Using the combined values chart
in the AMA Guides, claimant is entitled to a six percent
functional impairment.
Using section 85.34(a)(s) of the Iowa Code, claimant is
entitled to 30 weeks of permanent partial disability benefits at
the corrected stipulated rate of $178.33 per week for a married
individual with two exemptions. This benefit rate is based upon
gross weekly wages of $273.00 per week. Claimant's permanent
partial disability benefits commenced as of February 1, 1990, the
date Dr. Mirbegian released claimant to return to work.
Claimant is also entitled to healing period benefits.
Section 85.34(1) provides that healing period benefits are
payable to an injured worker who has suffered permanent partial
disability until (1) the worker has returned to work; (2) the
worker is medically capable of returning to substantially similar
employment; or (3) the worker has achieved maximum medical recov
ery. The healing period can be considered the period during
which there is a reasonable expectation of improvement of the
disabling condition. See Armstrong Tire & Rubber Co. v. Kubli,
312 N.W.2d 60 (Iowa App. 1981). Healing period benefits can be
interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405
(Iowa 1986).
Page 4
Claimant was off work during the following periods due to
her bilateral carpal tunnel syndrome:
From 4-09-89
To 4-21-89
From 10-02-89
To 2-01-90
Claimant is entitled to 19.428 weeks of healing period bene
fits at the corrected stipulated rate of $178.33 per week.
It is noted that the parties have waived any interest pay
ments due prior to April 14, 1989.
order
THEREFORE, IT IS ORDERED:
Defendant is to pay unto claimant nineteen point
four-two-eight (19.428) weeks of healing period benefits at the
corrected stipulated rate of one hundred seventy-eight and 33/l00
dollars ($178.33) per week.
Defendant is to also pay unto claimant 30 weeks of permanent
partial disability benefits at the corrected stipulated rate of
one hundred seventy-eight and 33/l00 dollars ($178.33) per week
and commencing on February 1, 1990.
Accrued benefits are to be paid in a lump sum together with
statutory interest at the rate of ten percent (10%) per year pur
suant to section 85.30, Iowa Code, as amended, with the aforemen
tioned stipulation.
Defendant shall receive credit for all benefits paid previ
ously.
Costs are taxed to defendant including:
Filing fee $ 65.00
Report of Dr. Hafrey 8.00
Report of Dr. Mirbegian 10.00
Report of Keokuk Hospital 8.00
Deposition of claimant 58.00
$149.00
Defendant shall file a claim activity report as requested by
this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1992.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Page 5
Copies To:
Mr. Michael J. Schilling
Attorney at Law
205 Washington Street
P O Box 821
Burlington, Iowa 52601
Ms. Marie L. Welsh
Attorney at Law
P O Box 515, Dept. #41
Dakota City, Nebraska 68731
2900; 2901; 5-1800; 5-1803.1
Filed March 13, 1992
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
VALENCIA ROUSE, :
: File No. 962377
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
IBP, INC., :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
2900; 2901
Claimant was allowed to make an offer of proof only. Prior
to the hearing, Deputy Walleser entered a ruling on a motion
for sanctions. In her ruling, Deputy Walleser ordered that:
[C]laimant is barred from raising any issue or
fact regarding her mental health, industrial
disability or inability to secure employment
subsequent to her alleged injuries.
Since the aforementioned ruling was made by a prehearing
deputy, the undersigned did not allow issues or evidence
relating to claimant's mental health, industrial disability,
or inability to secure employment subsequent to claimant's
alleged injuries. However, claimant was allowed to submit
records for the purpose of making an offer of proof only.
5-1800; 5-1803.1
Claimant sustained a bilateral carpal syndrome while
employed in defendant's packing plant. It was determined
that claimant had a permanent partial disability of six
percent.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JUDY A CHRISTENSEN, :
:
Claimant, :
:
vs. :
: File No. 962382
BEEF SPECIALIST OF IOWA, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HARTFORD INSURANCE CO., :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Judy A.
Christensen against her former employer based upon a
stipulated injury of October 26, 1989. The disputed issues
in the case are that claimant claims additional healing
period benefits running from August 12, 1991 through
November 19, 1991 and permanent partial disability
compensation. There is a dispute regarding whether the
injury produced any degree of permanent disability and if
so, whether the disability is scheduled or an unscheduled
disability. It was stipulated at hearing that claimant
terminated her employment on August 12, 1991 and that weekly
compensation benefits had been paid off and on until August
12, 1991. The motion regarding noncompliance is overruled.
The record in this proceeding consists of testimony
from Judy A. Christensen and jointly offered exhibits 1
through 6 and 8 through 10.
It should be noted at this point that at hearing
counsel submitted joint exhibits numbered 1 through 10 and
those exhibits were all received into evidence in their
entirety without objection and without being examined by the
undersigned. Upon proceeding to decide this case, it was
discovered by the undersigned that the joint exhibits
contained numerous duplications, claim forms for medical
expenses which are not disputed and detailed records
concerning the birth of claimant's last child and
surrounding events, all of which have no probative value in
relation to the disputed issues in this case. Counsel
failed to comply with the provision of the hearing
assignment order which requires that pages of exhibits be
Page 2
consecutively numbered. Counsel are to be admonished for
failing to comply with the terms of the hearing assignment
order regarding the relevant, immaterial and unduly
repetitious evidence as well as for the failure to number
the pages. Counsel are also admonished for offering into
evidence records containing intimate details of claimant's
pregnancy and childbirth which have no probative value to
the disputed issues in this case and which, when received
into evidence, become a matter of public record.
As a result of counsels' conduct, it was necessary for
the undersigned to consecutively number the pages of each
exhibit and remove from each exhibit the pages which clearly
were unduly repetitious, irrelevant or immaterial. The
documents removed consist of the following: the last four
pages of exhibit 1; pages 15 and 16 of exhibit 2; pages 2
through 11, 13, 17 through 29 and 32 of exhibit 3; pages 21
through 35 of exhibit 4; pages 5 through 8 and 12 through 16
of exhibit 5; pages 4 and 15 through 39 of exhibit 6; all of
exhibit 7; page 4 of exhibit 8; and pages 7 through 13 of
exhibit 10. Those documents removed consist of more than
one-half of the entire documents originally offered and
received. Those documents removed are withdrawn by the
undersigned from the record of this case and are returned to
claimant's counsel. In the event that either counsel feels
that any of the exhibits have probative value to the
disputed issues in this case, counsel are directed to raise
any objection or argument in a motion for reconsideration.
FINDINGS OF FACT
Judy A. Christensen is a 36-year-old woman who has four
children. Judy commenced employment with Beef Specialists,
Incorporated working on the trim line and as a bagger. The
work required repetitive activity. She eventually developed
a ganglion cyst on her left wrist and carpal tunnel syndrome
in her left hand. She was directed to the care of Ricky D.
Wilkerson, D.O., who performed surgery to remove the cyst
and decompress the median nerve at claimant's left wrist.
(Jt. Ex. 2, pp. 5, 9) Claimant's symptoms improved and she
returned to work.
In May 1990 Dr. Wilkerson found claimant to have
continuing pain and weakness but he assigned her a permanent
partial impairment of 0 percent of the left hand stating
that the AMA Guides give nothing for pain or weakness. (Jt.
Ex. 2, pp. 4, 13)
Claimant developed lateral epicondylitis of her left
elbow which was treated with phonophoresis and electrical
stimulation. (Jt. Ex. 6, pp. 3-14)
In view of her continuing complaints claimant was
placed under the care of J. Michael Donohue, M.D. Claimant
was diagnosed as having reflex sympathetic dystrophy of the
left hand, forearm and arm. She was placed into an
aggressive therapy program. (Jt. Ex. 4, pp. 16-19; Ex. 10,
pp. 3-6) While under Dr. Donohue's care claimant resumed
work, working on a part-time basis or in a modified duty
position much of the time. Claimant developed complaints in
Page 3
her left shoulder and neck which were also treated. Dr.
Donohue considered those complaints to constitute chronic
cervical and left shoulder strain. (Jt. Ex. 4, p. 2)
The general pattern which developed was that claimant
would improve when she was treated with appropriate therapy
and restriction of activities. When she attempted to resume
regular duty her symptoms recurred. Dr. Donohue and Dr.
Wilkerson both recommended that she find work outside this
employer's packing plant. Finally, in August 1991 claimant
accepted that advice and resigned on August 12, 1991.
Following her resignation, claimant was again seen by
Dr. Donohue on September 10, 1991. (Jt. Ex. 4, p. 3) The
report indicates that he had a long discussion with her
concerning overuse syndrome and residual symptoms. His
report indicates that she has not sustained any permanent
impairment based on objective findings but that she would
require permanent restrictions on her activities. The
report indicates that he considered her to be close to
reaching maximum medical improvement. She had been off work
for three weeks at the time.
Dr. Donohue next saw claimant on November 19, 1991.
His records note significant improvement of her symptoms.
The report indicates that he feels that she has achieved
maximum medical improvement from her injury and again states
that she has not sustained any permanent impairment but may
need to continue activity restriction indefinitely. (Jt.
Ex. 4, p. 2)
At hearing claimant described that she has continual
complaints regarding her left hand, arm, shoulder and neck.
She developed a sebaceous cyst which was surgically removed.
The treating physician felt it did not have any relation to
her left upper extremity problems. (Jt. Ex. 8) No
physician has given any indication to the contrary.
It is found that Judy Christensen had an injury in the
nature of carpal tunnel syndrome. She also developed
lateral epicondylitis and a chronic strain of her left
shoulder and neck. There is nothing in the record to
indicate that the chronic strain of her shoulder and neck or
the lateral epicondylitis are permanent conditions. The
existence of continuing symptoms does not necessarily
establish the existence of permanent disability where no
objective physiological abnormality has been identified.
Claimant's carpal tunnel syndrome is a different
condition. It is a condition which was objectively
identified and treated surgically. Claimant has the typical
residual complaints which are not uncommon following
treatment of the condition. The reports from Dr. Wilkerson
show a demonstrated loss of strength. Claimant appears to
have been an industrious worker and well motivated. The
fact that she chose to resign from her position is a strong
indication that the pain which she was experiencing was of
sufficient degree to limit her activities. It was not
merely a distraction. Table 16 found at page 57 of the
fourth edition of the AMA Guides to the Evaluation of
Page 4
Permanent Impairment shows that for mild upper extremity
impairment resulting from entrapment of the median nerve at
the wrist a 10 percent permanent impairment rating of the
upper extremity is appropriate. That rating is found to be
appropriate in this case. The fact that claimant has
activity restrictions assigned by both physicians is
overwhelming evidence that she has some disability. Since
the repeat EMG testing was normal and when considering the
nature of the activity restrictions, it is found that her
impairment and disability are mild, rather than moderate or
severe. Referring to table 2 at page 19 of the Guides shows
that 10 percent impairment of the upper extremity is
equivalent to 11 percent of the hand.
CONCLUSIONS OF LAW
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 right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
Permanent partial disabilities are classified as either
scheduled or unscheduled. Compensation for scheduled
permanent partial disability is determined under Iowa Code
section 85.34(2)(a) - (t) according to the functional loss
of use of the member without considering the impact of the
injury upon the individual's earnings or earning capacity.
Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983);
Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983);
Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95
(1960); Moses v. Nat'l Union Coal Mining Co., 194 Iowa 819,
184 N.W. 746 (1921).
An injury to a scheduled member may, because of after
effects or compensatory change, result in permanent
impairment of the body as a whole. Such impairment may in
turn be the basis for a rating of industrial disability. It
is the anatomical situs of the permanent injury or
impairment which determines whether the schedules in section
85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh,
395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American,
Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber
Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores
Co., 222 Iowa 272, 268 N.W. 598 (1936).
The evidence in the record of this case clearly shows
that claimant developed carpal tunnel syndrome and has
Page 5
residual disability effecting her left hand as a result of
the carpal tunnel syndrome. The record does not contain
sufficient evidence to show that the injury and resulting
disability is anything other than a disability of the left
hand. It is therefore determined that claimant's disability
is a scheduled disability which is to be compensated under
section 85.34(2)(l).
Section 85.34(2)(l) speaks of loss and disability. The
Iowa Supreme Court has stated that the term "loss" means
loss of use. Moses v. National Union Coal Mining Co., 194
Iowa 819, 194 N.W. 746 (1921). Nothing in the workers'
compensation statute makes reference to the AMA Guides. The
Guides is made authoritative only by agency rule 343 IAC
2.4. The effect of the rule is that for scheduled injuries,
payment made in accordance with the Guides is considered to
be a prima facie showing of compliance with those sections.
The rule does not state that the Guides is preferred or
prevent the presentation of other medical opinion or guides
for establishing the degree of permanent impairment.
Interestingly, the rule does not speak of "loss" or
"disability," the terms used in the workers' compensation
statute. The Iowa Supreme Court has recognized that the
Guides is not necessarily applicable in all instances and
that in view of the differences of terminology between that
used by the medical profession as found in the Guides and
the terminology used in the workers' compensation statues,
that the Guides is sometimes a doubtful authority. Lauhoff
Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986) The Iowa
Supreme Court has rejected the argument that any particular
set of guides or method of rating scheduled disabilities is
to be applied. Soukup v. Shores Co., 222 Iowa 272, 268 N.W.
598 (1936) A number of recent agency decisions have pointed
out that the Guides is not controlling. Moss v. United
Parcel Service, file number 881576 (App. Decn. September 26,
1994); Reiland v. Rose's Wood Products, file number 937842
(Arb. Decn. January 13, 1994); Westcott-Riepma v.
K-Products, file number 1011173 (Arb. Decn. July 19,
1994); Gomez v. Armstrong Tire and Rubber Co., file numbers
1043115 and 921073 (Arb. Decn. September 14, 1994); Greenlee
v. Cedar Falls Comm. Schools, file number 934910 (Arb. Decn.
June 18, 1993).
The loss that is to be compensated is the individual's
loss of use of the affected member based upon a reasonable
assessment of the loss of use for the types of activities
for which people customarily use the affected members. It
is the loss of use in the relation to the activities of
daily life, including employment activity which controls,
not an arbitrary rating which is produced by measuring only
certain factors considered in certain portions of the
Guides. The impact on a person's earning capacity is
not a factor to be measured. Graves v. Eagle Iron Works,
331 N.W.2d 116 (Iowa 1983) The impact, however, that the
injury has upon a person's ability to perform activities
commonly performed in employment settings is, however, a
Page 6
factor to be considered.
While the Guides strive to achieve uniformity, it does
so by being arbitrary. In a case such as this the Guides
contain at least three different methods of measuring the
degree of residual impairment. One method is the range of
motion and sensation tests which have long been a part of
the Guides. A second method is the grip strength method
which appears at pages 64 and 65 of the fourth edition. The
third method appears at table 16 found at page 57 of the
fourth edition. Table 16 is specifically addressed to
entrapment neuropathy conditions, such as carpal tunnel
syndrome. The example found at page 56 shows that with
normal range of motion, normal sensory testing, reduced
strength and symptoms consisting of infrequent transient
episodes of numbness in the thumb and index finger that a 10
percent impairment rating of the upper extremity was
appropriate. A similar rating and measurement of disability
is appropriate in this case. In a case such as this, namely
one dealing with entrapment neuropathy, table 16 found at
page 57 of the fourth edition of the Guides is the preferred
method of evaluating permanent impairment and disability.
It is a relatively new addition to the Guides having first
appeared in the third revised edition. It is apparently an
attempt by the medical community to make the impairment
rating more representative of the actual loss of use of the
effected member than the rating which commonly occurs based
upon sensory loss and range of motion. (That method often
produces a rating of zero or negligible impairment even
though significant loss of use is demonstrated.)
The rating scheme provided by table 16 at page 57
appears in this case to provide a reasonably accurate
assessment of the loss of use of this claimant's left hand.
Ten percent of the upper extremity is equivalent to 11
percent of the hand. According, claimant is entitled to
receive 20.9 weeks of compensation for permanent partial
disability representing an 11 percent permanent partial
disability of her left hand under the provisions of section
85.34(2)(l).
Claimant also seeks to recovery healing period
compensation.
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
It is important in this case that claimant never
appears to have made a sustained return to full-time regular
Page 7
employment. She appears to have been in a temporary partial
disability situation much of the time prior to her
resignation. When she chose to resign from her employment
she did so in accordance with the advice of her authorized
treating physician. Accordingly, her refusal to continue to
perform the work which had been offered by the employer was
not unreasonable. Though claimant was performing the work,
it was not truly suitable since performing the work brought
about a recurrence of her symptoms. Claimant is therefore
not disqualified from receiving further healing period
benefits commencing with the date of her resignation. Dr.
Donohue, the authorized physician, set November 19, 1991 as
the date of maximum medical improvement. Accordingly,
claimant is entitled to recover additional healing period
running from August 12, 1991 through November 19, 1991, a
span of 14 2/7 weeks. Her entitlement to permanent partial
disability compensation is payable commencing November 20,
1991.
ORDER
IT IS THEREFORE ORDERED that defendants pay Judy A.
Christensen fourteen and two-sevenths (14 2/7) weeks of
compensation for healing period at the stipulated rate of
two hundred one and 05/100 dollars ($201.05) per week
payable commencing August 12, 1991.
It is further ordered that defendants pay Judy A.
Christensen twenty point nine (20.9) weeks of compensation
for permanent partial disability payable commencing November
20, 1991.
All the foregoing weekly compensation benefits are past
due and owing and shall be paid to claimant in a lump sum
together with interest pursuant to section 85.30.
It is further ordered that the costs of this action are
assessed against defendants pursuant to rule 343 IAC 4.33.
It is further ordered that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Page 8
Signed and filed this __________ day of October, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. George W. Wittgraff
Attorney at Law
223 Pine St
PO Box 535
Cherokee, Iowa 51012
Mr. David Scott
Attorney at Law
407 Grand Ave
PO Box 3046
Spencer, Iowa 51301
1801.1 1802 1803 1803.1 3700
Filed October 31, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JUDY A CHRISTENSEN,
Claimant,
vs.
File No. 962382
BEEF SPECIALIST OF IOWA,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HARTFORD INSURANCE CO.,
Insurance Carrier,
Defendants.
------------------------------------------------------------
1801.1 1802
Where claimant resigned from her position in accordance with
the recommendations of the authorized physician during a
time when she was receiving temporary partial benefits, the
resignation was held to not disqualify her from further
healing period benefits.
1803 1803.1
Claimant with residual symptoms following carpal tunnel
surgery awarded 11 percent permanent partial disability of
the left hand in accordance with table 16 of fourth edition
of the AMA Guides. Both treating physicians have rated 0
impairment. One expressly stated that the Guides made no
provision for pain of loss of strength, which statement is
of course incorrect.
3700
Counsel admonished for placing irrelevant, immaterial and
repetitious documents into evidence. The offending
documents were removed from the record and returned to
claimant's counsel.
52500; 52700; 52909
Filed August 5, 1994
Marlon D. Mormann
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MELISSA REED,
Claimant,
vs.
File No. 962488
FURNAS ELECTRIC COMPANY,
Employer, E X P E D I T E D
and D E C I S I O N
LIBERTY MUTUAL INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
------------------------------------------------------------
52500; 52700; 52909
Claimant sought treatment from Michael Taylor, M.D., a Des
Moines psychiatrist, without authorization from the
employer. It was held that all expenses incurred with Dr.
Taylor prior to the date that the petition was filed were
not compensable under section 85.27. Dr. Taylor was
authorized to provide care as his treatment was more
reasonably suited to cure claimant's emotional problems
caused by the work injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
MELISSA REED,
Claimant,
vs.
File No. 962488
FURNAS ELECTRIC COMPANY,
Employer, E X P E D I T E D
and D E C I S I O N
LIBERTY MUTUAL INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in expedited arbitration brought
by Melissa Reed as a result of injuries received on June 5,
1990, while employed by Furnas Electric Company. Claimant
has requested alternate medical care for psychiatric
problems resulting from the June 5, 1990 injury. The
employer has refused and the issue has been brought forth
for consideration under section 85.27.
This case was heard and fully submitted at Des Moines,
Iowa, on August 2, 1994. The record in the proceeding
consists of claimant's exhibits 1 through 5, and employer's
exhibits A through F; and, testimony from claimant and Beth
Hamel Kennedy. Claimant was represented by Robert Pratt,
Attorney at Law. The defendants were represented by Joseph
Cortese II, Attorney at Law.
ISSUE
The sole issue presented for determination is
claimant's entitlement to alternate medical care under
section 85.27 and reimbursement for services received from
Michael J. Taylor, M.D.
FINDINGS OF FACT
Having heard the testimony of the witnesses and having
considered all the evidence in the record, the deputy
industrial commissioner finds:
Claimant, Melissa Reed, received an injury to her upper
extremities on June 5, 1990. The employer accepted the
claim as compensable and provided medical and surgical
treatment for the upper extremity injuries. Claimant
developed a major depressive disorder as a result of the
Page 2
surgery and injuries to the upper extremities. Claimant had
some preexisting emotional susceptibility to a major
depressive disorder and had experienced such symptoms in the
past. It is found that the injury of June 5, 1990
aggravated the preexisting emotional problems thereby
resulting in a compensable illness.
On April 7, 1992, claimant sought treatment from
Michael J. Taylor, M.D., a well-known Des Moines
psychiatrist. Claimant did not consult the employer prior
to engaging in a course of treatment with Dr. Taylor.
Claimant had no authorization to begin treatment on April 7,
1992 with Dr. Taylor.
Claimant has experienced major depressive symptoms and
suicidal thoughts as a result of the June 5, 1990 injury.
Claimant has great confidence in the treatment offered by
Dr. Taylor and believes that she will improve faster under
his care.
The employer has offered care from James L. Gallagher,
M.D., a qualified Des Moines psychiatrist. Claimant first
saw Dr. Gallagher in December of 1993.
It is found that the treatment with Dr. Taylor will
more reasonably accommodate claimant's problems than
treatment from Dr. Gallagher. Claimant has been seeing Dr.
Taylor for about a year and a half longer than her visits
with Dr. Gallagher. Dr. Taylor's treatment seems to be more
appropriate under the circumstances. In an emotional
illness it is of paramount importance that the patient have
confidence in the treating physician. In this situation,
when considering all of the circumstances and the prior
treatment, it must be found that Dr. Taylor's treatment is
more suited to treatment of claimant's psychological
work-related condition.
Claimant filed a petition requesting section 85.27
benefits for the psychological condition along with other
requests on January 14, 1994. This appears to be the first
request made by claimant for reimbursement and a change in
authorized treating physician for the psychological
problems.
REAONSING AND CONCLUSIONS OF LAW
The issues presented for determination are under
section 85.27.
The first issue is whether claimant should be allowed
to treat with Dr. Taylor for her psychological problems.
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
Page 3
denied liability for the injury. Iowa Code section 85.27.
Holbert v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-reopen
1975).
It is held that claimant should be allowed to see Dr.
Taylor for treatment of her psychological illness caused by
the June 5, 1990 work injury. Considering claimant's
confidence in Dr. Taylor and the length of time that she has
been treating with him at her own expense, it is the most
reasonable and appropriate course of treatment under the
circumstances. Therefore, the request for alternate medical
care is granted and future treatment shall be with Dr.
Taylor.
The second issue is whether past medical bills incurred
with Dr. Taylor should be compensable under section 85.27.
It is held that medical bills incurred prior to the filing
of the petition on January 14, 1994 are not compensable.
Claimant had made no request from the employer for
authorization. Furthermore, claimant undertook a course of
treatment with Dr. Taylor with full knowledge that she would
be responsible for those bills unless an order was entered
by the industrial commissioner or authorization given by the
employer. Since the employer failed to give authorization
and the first formal request for such care came with a
petition filed January 14, 1994, all bills prior to the
filing of the petition are claimant's responsibility.
ORDER
IT IS, THEREFORE, ORDERED that defendants Furnas
Electric Company and Liberty Mutual Insurance Company shall
pay for claimant's reasonable and necessary medical and
transportation expenses under section 85.27 incurred with
Michael J. Taylor, M.D., on and after January 14, 1994.
IT IS FURTHER ORDERED that Dr. Taylor is the authorized
treating physician for claimant's psychological illness
caused by the June 5, 1990 work injury.
IT IS FURTHER ORDERED that costs of this action, if
any, are assessed against the defendants pursuant to rule
343 IAC 4.33.
Signed and filed this ____ day of August, 1994.
______________________________
MARLON D. MORMANN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Robert W Pratt
Attorney at Law
6959 University Ave
Des Moines IA 50311
Page 4
Mr Joseph S Cortese II
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309