BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LEONA AMES, :
:
Claimant, :
:
vs. :
: File No. 963896
LIBBEY-OWENS FORD COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Leona
Ames, claimant, against Libby-Owens Ford Company, employer,
and Kemper Insurance, insurance carrier, both as defendants.
Mrs. Ames bases her claim upon an injury she sustained on
October 2, 1990. The record in this case consists of the
testimony from the claimant; Arlin Pals, a union
representative; Leona Martin, a rehabilitation consultant;
Edwin Meyer, a former production foreman for the defendant
employer; John Babyar, a private investigator; Claimant's
exhibits 1 through 69; and, defendants' exhibits B through
I. This matter came on for hearing before the undersigned
deputy industrial commissioner on October 27, 1992, at Mason
City, Iowa.
ISSUES
The parties submit the following issues for resolution:
1. Whether there is a causal relationship between
claimant's injury and her disability;
2. Whether claimant is entitled to temporary
disability or healing period benefits or permanent partial
or permanent total disability benefits;
3. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27;
4. Whether defendants are entitled to credit for
benefits previously paid under Iowa Code section 85.38(2);
5. Whether claimant is an odd-lot employee; and,
6. Claimant's correct workers' compensation rate.
FINDINGS OF FACT
Page 2
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Leona Ames, was born on November 7, 1935.
She graduated from Sheffield Public High School in 1954 and
described herself as an average student. She has received
no further education.
Claimant worked as a store clerk for a clothing store
in Mason City from October 1954 until January 1955. At that
time, she married Roger Ames. From 1956 until 1965,
claimant was a full-time mother. From 1963 until 1972, she
worked part-time at Mercy Hospital as a nurse's aide. Her
duties included feeding residents, changing beds and helping
patients walk and exercise.
Claimant began working for defendant Libby-Owens Ford
Company in 1972. Her initial job was in the dehydration
department, a department in which she worked for sixteen or
seventeen years. Her primary duties included filing,
grommet, and testing and sealing various sizes of panes of
glass.
In approximately 1989, claimant began duties as an
inspector due to cutbacks and layoffs at the plant. As an
inspector, she would remove glass from the assembly rack and
move it to a conveyor. The conveyor belt had lights
underneath which showed through the glass to reflect flaws.
Claimant was responsible for removing any flaws in the panes
of glass.
On October 2, 1990, claimant was working as an
inspector. On this particular day, she was lifting panes of
glass weighing between 20 to 55 pounds. She stated that she
would lift 800 units per day during an eight hour shift.
Her entire shift was spent standing, although she was
allowed two breaks during the day.
At approximately 3:00 p.m. on October 2, 1990, claimant
noticed that her back hurt. For the next one and one-half
hours, claimant continued to lift "very big" glass and
eventually went to her foreman to complain of back pain.
She was told to see a physician at the North Iowa Medical
Center. Claimant was treated at the emergency room by D.
Studder, who diagnosed muscle spasms in the low back. He
instructed claimant to remain off of work until October 6,
1990 (Claimant's Exhibit 8).
The following day, claimant sought treatment from
Kenneth Washburn, the company physician. She was actually
treated by the physician's assistant, D. Frakes. An
examination revealed that claimant displayed symptoms of a
right sacroiliac strain and low back strain. Claimant was
given Flexeril and was advised to continue off of work. On
October 8, 1990, claimant returned to Mr./Ms. Frakes who
recommended continued physical therapy activities (Cl. Ex.
13, p. 14; Cl. Ex. 9).
Claimant returned to the Washburn/Frakes team on
Page 3
October 16, 1990, and was told to continue with physical
therapy exercises. She reported that she continued to feel
tenderness and aching in the SI joint. Claimant was to
receive a functional capacities evaluation. X-rays of the
lumbar spine showed a narrowing of the L5-S1 disc space and
some degenerative changes (Cl. Exs. 10, 11, 12 and 13).
From October 22 to November 12, 1990, claimant
continued to seek treatment from the team of
Washburn/Frakes. The progress notes indicate that claimant
was placed in a work hardening program with the ultimate
goal of regaining her ability to lift between 30 to 40
pounds. Claimant continued to ask for additional
medications, with Flexeril and Ansaid being prescribed. She
displayed slow progress, and Dr. Washburn eventually
referred her to D. Fisher, M.D. Dr. Fisher had performed
surgery in 1974 on claimant's lower back, specifically the
L5-S1 portion of the lower back. Defendants intercepted
this referral and told claimant to receive additional
treatment from Daniel J. McGuire, M.D. (Cl. Ex. 14, pp. 18-
20).
On November 29, 1990, claimant saw Dr. McGuire. He
reviewed radiographs which showed degenerative changes from
the L4 to the sacrum of the spine. His examination revealed
flexibility of the spine, although claimant exhibited some
tenderness about the midline spine. He recommended physical
therapy and anticipated minimal disability, which the
undersigned believes is meant to evaluate her impairment
(Cl. Ex. 20, pp. 26-27).
Claimant returned to Dr. McGuire in December of 1990.
His examination showed minimal objective findings and
increased flexibility of the lower back. He encouraged her
to undertake a more aggressive rehabilitation program (Cl.
Ex. 20, p. 27).
A review of the physical therapy notes dated December
27, 1990, revealed that claimant had decreased flexibility
of the spine with positive sacroiliac tests on the right
with extreme tenderness. It was recommend that claimant
continue with a reconditioning program with emphasis on
strengthening the abdominal and paraspinal muscles (Cl. Ex.
20, pp. 39-41).
Claimant returned to Dr. McGuire on January 21, 1991.
Results of a CT scan showed "terrible degenerative changes
at the facet joints at L5-S1 and terrible changes at the
disc space of L5-S1." (Cl. Ex. 20, p. 28) An MRI showed a
bulging disc at the L4-L5 level. Dr. McGuire did not
necessarily recommend surgery to remove the L4-L5 disc, but
recommended that all parties contemplate an anterior
discectomy and fusion at the L5-S1 level. He agreed with
claimant that she should seek a second opinion (Cl. Ex. 20,
pp. 28-30).
Claimant sought a second opinion from David Boarini,
M.D., on February 18, 1991. His examination revealed that
claimant had low back pain with no radiation of pain to the
legs and no neurological complaints. Claimant had a normal
Page 4
gait and a normal range of motion of the back. Ankle
reflexes were absent. Dr. Boarini reviewed claimant's
studies and also diagnosed mild degenerative changes with a
very small disc bulge at the L4-5 level. He agreed that
claimant had a nonsurgical problem and recommended
anti-inflammatories, back strengthening exercises and a
gradual increase in work tolerance activities (Cl. Ex. 31).
In March of 1991, Dr. McGuire reviewed additional films
comparing diagnostic studies of the lumbar spine from 1974
to the present. Although he agreed with Dr. Boarini in that
claimant was not a candidate for surgical intervention, he
did feel that if she continued to have persistent back pain
which significantly interfered with her lifestyle and
prevented her from leading a normal life, he would be
willing to do a one level fusion. However, he felt he could
not perform the operation based solely on attempting to
return her to work as a laborer (Cl. Ex. 20, p. 31).
Claimant returned to Dr. McGuire later in March and
again in mid April of 1991. He continued to be of the
opinion that her back pain was a legitimate complaint and
originated from the arthritis resulting from her previous
laminectomy at the L5-S1 level. He estimated a 50 percent
chance of relieving her back pain via surgical intervention
(Cl. Ex. 20, p. 32).
In April of 1991, Dr. McGuire again did not recommend
surgery with the goal of returning claimant to work as a
laborer. He did not think her bulging disc at the L4-5
level was important, but felt that most of her problems
stemmed from the degenerative changes at the L5-S1 level.
Specifically, he stated that:
I believe very strongly that her problems are the
antecedent degenerative changes at L5-S1. She has
had a previous discectomy approximately 15 years
ago. She has had two or three episodes of back
pain in the intervening time that fit with this.
I believe this is the source of her back problems.
I suppose there's some way to think that she
aggravated it very slightly with her recent work
related injury, but I don't think it's really
significant.
(Cl. Ex. 20, p. 32)
Dr. McGuire goes on to opine that claimant displayed a
1 percent permanent partial [impairment] based on subjective
pain and a slight decrease of range of motion of her lumbar
spine. He believed that she had reached maximum medical
improvement on April 15, 1991 (Cl. Ex. 20, p. 33).
It should be noted that in September of 1991, claimant
developed symptoms of depression and was treated by her
family physician, J.K. Coddington, M.D. Initially, his
notes indicated that she was "[f]eeling depressed about
losing job with Libby-Owens [sic]. Faces back surgery."
Dr. Coddington prescribed Xanax. (Cl. Exs. 32-33)
Page 5
Claimant continued to see Dr. Coddington from October
1991 through March 1992. His notes reflect claimant's
complaints of back pain and frustration with the workers'
compensation laws (Cl. Exs. 32 and 33).
Claimant returned to Dr. McGuire in May of 1992 with
complaints of continued back pain. She reported to Dr.
McGuire that she was unable to attend church and unable to
perform various duties around the house. At this
appointment, Dr. McGuire was provided with a video tape of
claimant's activities during a two day span. The video
tape, defendants' exhibit D, shows claimant picking up,
playing with and carrying a toddler. The video tape shows
that claimant is able to bend from the waist and is able to
run. After reviewing the tape, Dr. McGuire characterized
claimant's information about her condition as a "blatant
misrepresentation." (Cl. Ex. 20, p. 34). David W. Beck,
M.D., stated that the video tape was an improper tool to
show the amount of pain claimant felt. The undersigned
reviewed the tape of claimant's activities. While she
agrees with Dr. Beck's assertion that a video tape would not
be able to show or measure the amount of pain claimant
endured due to these activities, she is unable to detect any
substantial, or even insubstantial limitation of claimant's
activities while playing with her grandchild.
Dr. McGuire's physical examination showed that claimant
was neurologically intact and was able to perform limited
forward flexion. He was unable to detect any swelling,
warmth or erythema in the spine. No muscle spasms were
present. He did not believe that surgery was necessary,
especially in light of claimant's activities shown on the
video tape. Additionally, he felt that claimant could
perform some job duties, particularly a job as a greeter at
K-Mart. He had nothing further to offer claimant (Cl. Ex.
20, pp. 34-35; Cl. Ex. 22, pp. 37-38).
In June of 1992, claimant without any authorization
from the defendants, sought treatment from Dr. Beck, a
neurological surgeon in Mason City, Iowa. Although
initially seen for an independent medical examination, after
reviewing the CT scan of January 1991, Dr. Beck recommended
a discectomy but later changed his mind and recommended a
lumbar fusion from L5 to S1. Apparently, the surgery was
recommended due to degenerative disc disease at the L5-S1
level (Cl. Exs. 34, 35, 36 and 37).
Claimant underwent surgery on July 31, 1992. She
underwent an L5-S1 fusion using a bone graft from her hip.
Dr. Beck's final diagnosis was that of degenerative disc
disease (Cl. Exs. 38 and 39).
In August of 1992, Dr. Beck formed the following
opinion:
Leona Ames had a degenerative disc at L5-S1.
This is degenerated because she had an L5-S1
discectomy 16 years prior to this. I cannot
relate the surgery that we performed recently,
that being a lumbar fusion, to a work injury of
Page 6
October 20, 1990. It may have exacerbated the
pre-existing degenerative disc, however. As far
as healing, I am unable to determine when Ms. Ames
will be able to return to work or whether she will
be. Recuperation from a lumbar fusion is six
months.
(Cl. Ex. 40)
Later, Dr. Beck restated his opinion: "Again I cannot
state with a degree of medical certainty whether the work
injury two years ago aggravated Leona Ames degenerative disc
to the point that it required surgery two years later." (Cl.
Ex. 42)
The undersigned has also reviewed more than 75 pages of
vocational rehabilitation reports (Cl. Exs. 43-67). The
reports focus on the medical treatment received by claimant
and various job opportunities and employment strategies
provided to claimant by Carol Echtenkamp, R.N., a medical
services consultant and Susan White, M.S., a vocational
consultant, both employed by Crawford & Company Health and
Rehabilitation Services. These reports confirm that the
defendants provided claimant with suitable and appropriate
potential job opportunities in an effort to return her to
work. Although it appears that claimant, for the most part,
cooperated with the efforts of the consultants, she did
display a lack of motivation to seriously pursue any work.
Specifically, she presented herself in a negative way to any
perspective employers by stating that she would be unable to
perform the job duties due to her back condition.
The parties were unable to stipulate to claimant's
rate, and were unable to stipulate to her gross weekly
earnings. Claimant offered exhibit 69 which reveals
claimant's weekly earnings for one year prior to the injury
date. Some of the weeks shown on claimant's exhibit 69
confirm that claimant did not work any hours for some weeks
and fewer than 40 hours per week during other weeks.
Apparently, claimant contends that her gross weekly earnings
for the 13 weeks prior to the injury total $5,381.96. This
figure, divided by 13, equals $414 as an average gross
weekly earning rate for claimant. If this is correct, her
workers' compensation rate based on her marital status and
the number of exemptions (married with two exemptions)
equals $260.55. Defendants argue that claimant failed to
prove that the short weeks included in the 13 consecutive
weeks prior to her injury were based on illness or reasons
personal to the employee, or due to plant layoffs. They
argue that claimant's workers' compensation rate, excluding
the weeks of September 3, 1990; July 4, 1990; and, May 30,
1990, should be based on a gross weekly rate of $349.35, and
argue that claimant's workers' compensation rate is $223.62
per week. To support their argument, defendants rely on Ed
Myer's testimony indicating that a lack of orders at the
company would require work weeks of less than 40 hours per
week.
ANALYSIS AND CONCLUSIONS OF LAW
Page 7
The first issue to be addressed is whether there is a
causal relationship between claimant's injury of October 2,
1990 and her disability.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
The claimant has the burden of proving by a
preponderance of the evidence that the injury of October 2,
1990, is causally related to the disability on which she now
bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d
348, 354 (Iowa 1980).
Dr. McGuire, the authorized treating physician,
indicated that claimant had a 1 percent permanent partial
disability due to her subjective complaints of pain and a
slight decrease in range of motion of her lower back. He
placed no permanent work or activity restrictions on her and
was of the opinion that she has back pain as a result of
degenerative changes at the facet joints due to surgical
intervention 15 years ago. He specifically stated that
although her work activities may have slightly aggravated
her condition, these work activities were not a substantial
factor in bringing about claimant's disability.
Likewise, Dr. Beck was unable to form an opinion that
Page 8
claimant's work activities were the cause of her need for
the fusion he performed in July of 1992.
Claimant has failed to prove by a preponderance of the
evidence that the work-related injury caused her permanent
disability. Claimant was off of work from October 2, 1990
until April 15, 1991, when she reached maximum medical
improvement according to Dr. McGuire. Claimant is entitled
to temporary total disability benefits for this time period.
The next issue to be addressed is whether claimant is
entitled to medical benefits.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27. Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant is entitled to medical benefits she received
from Dr. McGuire. All other medical care is not only
unauthorized, but also not causally related to the temporary
exacerbation of her back due to the work injury.
Based on the evidence received on the state of the
record, it is impossible to award claimant medical benefits
in this case. Dr. Beck was unable to form the requisite
opinion that the injury necessitated surgery. Dr. McGuire
opposed surgery, and was of the opinion that the work
incident slightly aggravated her condition.
Dr. Coddington's treatment is rejected as being related
to claimant's work injury. Stressors other than the work
injury contributed to claimant's depression. Claimant was
off of work from October 2, 1990 until April 15, 1991, when
she reached maximum medical improvement according to Dr.
McGuire. Claimant is entitled to temporary total disability
benefits for this time period.
The final issue to be addressed is claimant's workers'
compensation rate.
Iowa Code section 85.36 provides:
The basis of compensation shall be the weekly earnings of
the injured employee at the time of the injury. Weekly
earnings means gross salary, wages, or earnings of an
employee to which such employee would have been entitled had
the employee worked the customary hours for the full pay
period in which the employee was injured, as regularly
required by the employee's employer for the work or
employment for which the employee was employed, computed or
determined as follows and then rounded to the nearest
dollar:
....
Page 9
6. In the case of an employee who is paid on a daily, or
hourly basis, or by the output of the employee, the weekly
earnings shall be computed by dividing by thirteen the
earnings, not including overtime or premium pay, of said
employee earned in the employ of the employer in the last
completed period of thirteen consecutive calendar weeks
immediately preceding the injury.
Claimant retains the burden of proving what her workers'
compensation rate is, and argues that any week which does
not reflect 40 hours or more worked should be excluded.
Although in broad theory this may be a valid argument, the
undersigned is unable to ascertain why some of the weeks
reflect a work period of less than 40 hours. Claimant's
testimony provides no guidance to explain the short weeks;
defendants supplied testimony that at various times the
plant ceased operation due to lack of work orders.
As a result, the undersigned finds defendants' calculations
reflect claimant's rate, $223.62.
ORDER
THEREFORE, it is ordered:
That defendants pay claimant temporary total disability
benefits from October 2, 1990 through April 15, 1991, at the
rate of two hundred twenty-three and 62/100 dollars
($223.62).
That defendants shall pay accrued weekly benefits in a lump
sum.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action, pursuant
to rule 343 IAC 4.33.
That defendants shall file an activity report upon payment
of this award as required by this agency, pursuant to rule
343 IAC 3.1.
Signed and filed this ____ day of November, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Max Schott
Mr Robert Pratt
Attorneys at Law
6959 University Ave
Des Moines IA 50311-1540
Ms Judith Ann Higgs
Attorney at Law
701 Pierce St Ste 200
P O Box 3086
Sioux City IA 51102
5-1800
Filed November 13, 1992
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LEONA AMES, :
:
Claimant, :
:
vs. :
: File No. 963896
LIBBEY-OWENS FORD COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1800
Claimant failed to prove by a preponderance of the evidence
that her injury resulted in a permanent disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
WAYNE BOLAND, :
:
Claimant, :
:
vs. :
: File No. 964044
SHIVVERS, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CONTINENTAL WESTERN :
INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Wayne Boland, against his former employer,
Shivvers Enterprises, and its insurance carrier, Continental
Western Insurance Company.
The record in this case consists of testimony from the
claimant, Clark Williams, a rehabilitation consultant, Lori
Boland, claimant's sister, and, Brenda Sergeant, claimant's
significant other; claimant's exhibits A-Q; and, defendants'
exhibits 1-5. The matter came on for hearing before the
undersigned deputy industrial commissioner on August 10,
1993 at Des Moines, Iowa.
ISSUES
The parties have submitted the following issues for
resolution:
1. Whether claimant has sustained a permanent
disability due to an injury on September 24, 1990 which
arose out of and in the course of his employment;
2. Whether claimant is entitled to permanent partial
disability benefits, and further, whether claimant has
sustained an injury to a scheduled member or to the body as
a whole;
3. Whether claimant is entitled to medical benefits
provided by Dr. Friedgood totaling $175.00; and,
4. Whether these medical expenses were causally
connected to the work injury and, whether the expenses were
authorized.
FINDINGS OF FACT
Page 2
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Wayne Boland, was born on October 26, 1955.
At the time of the hearing, he was 37 years old. Currently,
claimant lives in Cincinnati, Iowa.
Claimant dropped out of school in the tenth grade. He
has not obtained his General Equivalency Diploma, nor has he
received any additional education. He is single with an
eight year old son.
Mr. Boland has been a farm laborer and truck driver
most of his adult life (Claimant'S Exhibit N). His truck
driving experience includes both long and short term hauls.
Claimant began working for Shivvers Farms on a
part-time basis. On September 24, 1990, he sustained
serious injuries when a large jack used to lift farm
machinery hit him on the right side of the head. Claimant
sustained a right zygoma fracture and a blow out fracture of
the right orbital floor. Medical treatment consisted of
removing a bone chip from the cheek and placing a steel
plate in the right cheek, along with surgical repair of the
right eye. Mr. Boland required a stronger prescription in
his eyeglasses after the accident, although his physician,
Bradley Hammer, M.D., was not of the same opinion (Cl. Ex.
F). Since the accident, he has noted headaches, sinus
problems, ringing in the right ear, ear aches, and extreme
sensitivity to the right side of his mouth.
Additionally, claimant sustained four "insulted or
dislodged" teeth due to the accident. James Snyder, D.D.S.,
believed that claimant would experience hypersensitivity,
sporadic pain and discomfort in the right side of his face
due to nerve damage caused by the accident (Cl. Ex. I).
Claimant also began to suffer temporal headaches, which
were treated with medications. His physician, Thomas
Paulson, M.D., suggested continued medical therapy, a nerve
block or a pain center. Dr. Paulson was of the opinion that
claimant had sustained a "disability level of approximately
5%." This percentage was estimated based on other
"analogous head and neck symptoms that are subjective and
difficult to accurately measure. This includes symptoms
such as tinnitus." He recommended consultation with David
Friedgood, M.D., a neurologist who "has much more extensive
dealings with Workman's (sic) Comp (sic) cases." (Cl. Ex.
E).
Steven Adelman, M.D., a neurologist examined claimant
in June of 1992. While he diagnosed persistent paresthesias
along the right maxillary division of the trigeminal nerve,
as well as continual right facial and hemicranial pain, he
was not necessarily convinced that this condition explained
the chronic pain reported by claimant. He recommended
additional medications (Cl. Ex. H).
In June of 1993, Dr. Friedgood and J. Dan Smeltzer,
Page 3
M.A., performed a "Pain Disability Screening Evaluation."
The results of the evaluation reveal that claimant "says
there aren't many things he cannot do now that he could do
before the injury. The primary difficulty he describes
relates to endurance." A neurologic evaluation yielded
normal results, although Dr. Friedgood stated that claimant
had post traumatic right facial pain, a condition which was
permanent (Cl. Ex. K).
Also in June of 1993, claimant underwent an evaluation
by Clark Williams, a rehabilitation consultant. Mr.
Williams, who also testified at the hearing, commented on
claimant's high motivation to return to work, questioned
claimant's ability to bend over on a continual basis,
proposed that claimant had increased difficulties in reading
due to the eye injury, and believed claimant was limited in
the types of employment he could obtain and perform on a
consistent level. He noted claimant's transferable skills
in mechanics, retail sales, farming, construction,
management and animal care and management. Mr. Williams
also recommended retraining and completion of courses to
obtain a GED (Cl. Ex. L).
Since the accident, claimant has worked as a truck
driver, pulling anhydrous and fertilizer carts to and from
fields. Claimant was able to take breaks throughout long
working days, but felt the job required too much sitting and
was stressful. He has also performed farm labor jobs, such
as putting up hay, and currently works as an over-the-road
truck driver for Mahaska Farm Service, where he earns $5.50
per hour, and is paid by the mile. Claimant stated he was
unable to drive much because he "cannot stay with it as long
as he used to." The record reflects that during a five
week period, from May 24, 1993 through June 21, 1993,
claimant worked 293.5 hours, or an average of 58.7 hours per
week.
Currently, claimant experiences numbness from his right
eye to the side of his face, upper lip and teeth. He finds
it difficult to eat, and combats drooling which causes him a
certain amount of embarrassment. It is difficult for him to
sleep on his right side and he encounters sleep disturbances
on a regular basis. He feels increased fatigue, which
affects his ability to work.
Claimant also stated that his vision was affected, as
he has blurred vision on the right side. He does not chew
food on the right side of his mouth due to difficulties with
his teeth, and claimant mentioned that he sometimes feels
dizzy and "blacks out," although this particular complaint
is not mentioned in the medical records and reports.
Claimant also stated that he has soreness in his right
ear, and feels as though there is fluid in his ear. He has
also noticed a loss of hearing in the ear, but this has not
been tested.
Lori Boland, claimant's sister also testified at the
hearing. She is certified respiratory therapist and works
at St. Joseph Mercy Hospital in Centerville, Iowa. She
Page 4
stated that she had observed claimant's symptoms, including
headaches, numbness on the right side of his face,
dizziness, problems with his right eye and increased
fatigue. As most of these symptoms are subjective in
nature, it would be difficult for anyone to actually observe
them.
Brenda Sergeant has lived with claimant since before
the injury in September of 1990. She has noticed changes in
claimant's sleeping habits, increased irritability and
claimant's need to lie down with the onset of a headache.
On occasion, Ms. Sergeant has ridden with claimant on long
haul drives. She reported that he needed to take breaks to
rest if he had a headache.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant has
sustained a permanent injury.
There is no question that claimant sustained very
serious injuries in the work accident which occurred in
September of 1990. He has had a long recuperation period,
and has had to visit a number of physicians in order to
treat his injuries.
He has a permanent steel plate in his cheek, and the
undersigned certainly agrees that this is a permanent
condition.
As a result, it is found that claimant has sustained a
permanent impairment due to the work-related injuries.
The next issue to address is whether claimant has
sustained a scheduled member injury, in which case he will
be compensated under the schedules designated under Iowa
Code section 85.34, or if he has sustained an injury to the
body as a whole, in which case he is compensated based on
how the injuries has impacted his earning capacity.
If a claimant contends he has industrial disability he
has the burden of proving his injury results in an ailment
extending beyond the scheduled loss. Kellogg v. Shute and
Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
The case presents injuries to the face, including the
cheek, eye, and teeth. None of these body parts are noted
on schedule, so it is determined that claimant has sustained
an injury to the body as a whole; therefore, an analysis of
his industrial disability is warranted.
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).
Page 5
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
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).
While claimant has sustained serious injuries, the
impact his physical condition has had on his ability to earn
a living has been impacted minimally. Migraine headaches
and increased fatigue have been claimant's primary
complaints in the past few months, and he has stated that he
has a decreased ability to work as many hours as he had
prior to the accident. This is not substantiated by the
evidence, which shows that claimant's employment has always
been somewhat erratic.
Claimant's actual earnings for the past three years are
as follows: 1992 - $11,964.00; 1991- $6,823.00; and, 1990 -
$5,470.83.
The defendant employer did not offer claimant any type
Page 6
of a position after claimant was injured. The agency has
held many times that a defendant employer's refusal to
employ a claimant after he or she suffers a work injury may
justify an award of disability. McSpadden v. Big Ben Coal
Co., 288 N.W.2d 181 (Iowa 1980).
After considering all of the factors used in
determining the impact injuries have on a worker's ability,
or inability to obtain and maintain suitable employment, it
is found that claimant has sustained a five percent
industrial disability.
The next issue to be addressed is whether claimant is
entitled to payment of medical treatment rendered by Dr.
Friedgood.
Claimant was referred by Dr. Paulson to Dr. Friedgood
for further evaluation. At some point, Dr. Paulson was an
authorized treating physician. The agency has consistently
held that a referral from an authorized treating physician
will be treated as authorized care.
Additionally, defendants have contested the causal
relationship between the treatment rendered by Dr.
Friedgood. The records from his office indicated that the
only thing he treated claimant for was to evaluate
claimant's physical condition due to the injuries he
sustained in the work incident.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant permanent partial
disability benefits for 25 weeks at the rate of $156.66 per
week commencing October 30, 1990.
That defendants shall pay Dr. Friedgood's bill totaling
$175.00.
That defendants shall pay accrued benefits in a lump
sum, and shall receive credit against the award for benefits
previously paid.
That defendants shall pay interest on the award as set
forth in Iowa Code section 85.30.
That the parties did not submit payment of the costs as
an issue to be determined.
Signed and filed this ____ day of September, 1993.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Page 7
Copies To:
Mr Daniel P Wilson
Attorney at Law
303 W State St
P O Box 367
Centerville IA 52544
Mr Jeffrey M Margolin
Attorney at Law
Terrace Ctr Ste 111
2700 Grand Ave
Des Moines IA 50312
5-1803
Filed September 23, 1993
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
WAYNE BOLAND, :
:
Claimant, :
:
vs. :
: File No. 964044
SHIVVERS, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CONTINENTAL WESTERN :
INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Claimant suffered serious injuries to his jaw and eye when a
tire jack hit him in the head.
Claimant recovered from the injuries, and was able to secure
suitable employment.
The defendant employer did not re-employ claimant, and he
was awarded 5% industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAN J. ROBBENNOLT,
Claimant, File No. 964311
vs. A P P E A L
SNAP-ON TOOLS CORPORATION, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
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.
ISSUES
Defendant states the following issues on appeal:
Did the deputy err by limiting the award of healing period
compensation to full days and by otherwise not ordering
compensation for lost time to be examined by health care
providers?
Did the deputy err by neglecting to determine whether there
was permanent disability to the right arm?
Did the deputy err by limiting the functional disability
award to a converted medical rating based on the loss of a
finger?
Did the deputy err by failing to find that a
mental/emotional condition constituted a whole body
injury/disability?
Did the deputy err by incorrectly determining the due and
credit dates for weekly compensation and by forgiving the
payment of interest?
Did the deputy err by failing to award section 86.13
sanctions?
Did the deputy err in her costs assessment?
Page 2
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed January 18, 1994 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision. Segments designated by
brackets ([ ]) indicate language that is in addition to the
language of the proposed agency decision.
Forty-year-old claimant who graduated from high school
continues to work for defendant-employer albeit now in the
paint department and not as a brake press operator, the job
which he held when injured on August 17, 1990. Claimant
currently earns $12.54 per hour; he earned $11.25 per hour
when injured. Claimant's current wage reflects 15 cents per
hour shift bonus.
On August 17, 1990, claimant sustained a one and
one-half inch deep tendon laceration of his right third
finger on the dorsal aspect and across the proximal
interphalangeal joint. Dilipk Paukh, M.D., sutured the
wound. Claimant was advised to remain off work on April 18,
1990 and April 19, 1990. A 35 degree extensor lag of the
PIP joint remained. M.W. Crane, M.D., prescribed splinting
of the finger in late August 1990. Claimant's problems did
not resolve. On October 3, 1990, Dr. Crane performed an
extensor tendon reefing and pinning. Again, claimant's
problems with the finger did not resolve. On January 11,
1991, Dr. Crane performed open reconstruction of the
boutonniere deformity of the right third finger as well as
curettage of bone lesions within the finger. Dr. Crane
released claimant to return to work as of February 25, 1991.
Claimant was then restricted to 5 pounds lifting with his
right hand taped. Claimant went off work as of March 6,
1991 as a result of continued swelling and loss of extension
in the finger. On March 11, 1991, Dr. Crane performed a
fusion of the PIP joint of the injured finger. On April 25,
1991, claimant was released to return to left-handed work on
Monday of the following week. On June 13, 1991, Dr. Crane
noted that claimant's finger was "going to nonunion", a
finding confirmed on radiographic studies. Dr. Crane then
referred claimant to Douglas S. Reagan, M.D., an orthopedic
surgeon.
On July 3, 1991, Dr. Reagan performed a refusion of PIP
joint with bone graft from the wrist and internal fixation
of the right third finger. The refusion was also
unsuccessful and on August 14, 1991, Dr. Reagan performed
amputation of the right third finger at or just below the
condyle of the proximal phalanx. On September 23, 1991, Dr.
Reagan opined that claimant had a 94 percent permanent
partial impairment of the right third finger.
On January 8, 1992, claimant saw Dr. Crane with
complaints of pain in the finger stump and shooting pain
into the arm from the stump.
On May 13, 1992, claimant saw Thomas DeBartolo, M.D.,
Page 3
apparently an orthopedic surgeon who specializes in
conditions of the hand. Dr. DeBartolo did not believe that
claimant was at maximum medical improvement and prescribed
therapeutic desensitization techniques as regard the right
hand and finger stump. Dr. DeBartolo also advised claimant
that should he have continuing problems with the finger
stump, a ray resection would be an appropriate surgical
procedure.
Dr. Reagan reexamined claimant on October 1, 1992 and
concurred with Dr. DeBartolo that ray resection would be
appropriate. On November 18, 1992, Dr. DeBartolo performed
a ray resection with centralization. The ray resection was
performed in the palmar hand by removing the remaining stump
of the right third finger and bringing together the
intermetacarpal ligament from the ulnar side of the index
finger and the radial side of the ring finger.
On December 10, 1992 office visit, Dr. DeBartolo
characterized claimant as doing extremely well as regards
his ray resection. He reported that claimant's finger
motion was excellent with full flexion and extension and
some active abduction and adduction. Dr. DeBartolo referred
claimant to the Mercy Work and Sports Center for neck and
upper extremity evaluation as of December 16, 1992.
Findings at time of evaluation were: 1) decreased right
hand grip and pinch strengths; 2) inability to perform 3)
pinch on the right as a result of pain in the extensor of
the index finger; 3) bilateral decreased coordination [of
the hand]; 4) decreased right grip, wrist flexion, pronation
and supination per BTE measurement and as compared to
normative data; and 5) decreased ability to lift as a result
of discomfort of the right arm, right hand, and wrist. Work
conditioning to increase strength of the right upper
extremity and the right hand and to increase claimant's
functional use of the right hand was recommended. Claimant
remained in work hardening through January 27, 1993.
Throughout his time in work hardening claimant's abilities
to lift, push and pull with the right hand increased. Right
grip and pinch strength also steadily improved. Although
these scores still were from 50 to 33 percent less than
claimant's grip and pinch strength scores on the left.
Lifting abilities on the left were not measured.
On February 1, 1993, claimant was returned to work for
four hours a day on three alternate work days. Claimant
apparently received temporary partial disability payments
for that time during which he was partially returned to
work.
On March 17, 1993, Dr. DeBartolo stated that claimant
had symptoms from mild carpal tunnel syndrome including a
positive Tinel's test and a positive median nerve
compression test. He opined that claimant had excellent
flexion and extension in his remaining digits. On June 9,
1993, Dr. DeBartolo placed claimant at maximum medical
improvement. He also noted that claimant had an area in the
midpalm where additional nerve had been amputated in the ray
Page 4
resection and that this area was the significant factor in
lessening claimant's [right hand] grip. On June 30, 1993,
Dr. DeBartolo opined that pursuant to the AMA Guides to
Evaluation of Permanent Impairment, Third Edition, claimant
had 100 percent partial impairment of the right third or
long finger which translates into a 20 percent permanent
partial impairment of the right hand as a result of the loss
of the right third finger. It is expressly found that
claimant has a decreased ability to lift with [her right
hand] ***** as well as decreased grip and pinch strength in
the right hand. These factors are sufficient to demonstrate
that claimant's overall impairment is an impairment to the
hand and not an impairment to the right third finger only.
Claimant testified that claimant has had psychological
difficulties relating to his work injury. Claimant stated
that claimant, a recovering alcoholic, has had lapses of
sobriety since the work injury and has been generally more
"short fused" as a sequela of the on-going problems with his
finger and hand. Claimant saw counselor Dana Quick-Naig on
September 24, 1991; October 1, 1991; February 3, 1992;
February 10, 1992; and March 4, 1992. Ms. Quick-Naig's
impression was that claimant then had unresolved grief as a
result of the loss of his finger. Claimant did not schedule
further appointments with Ms. Quick-Naig. The record does
not reflect that claimant sought other counseling or
treatment on account of any psychological condition. It is
expressly found that claimant's emotional concerns and
reactions as presented in this record were part of the
normal sequela of recovery from the significant injury. It
is further expressly found that these conditions did not
raise to the level of an independent debilitating
psychological condition such that claimant's impairment is
to the body as a whole and not to the hand.
Claimant had a number of days when claimant was
partially off work for medical treatment of his injury.
Claimant also has not been compensated for work missed on
August 18 and August 19, 1990. Under section 85.32,
compensation is due for the days of incapacity prior to the
fourth day when the period of incapacity extends beyond the
fourteenth day following the date of the injury. The
section in no manner indicates that the period of incapacity
must be a consecutive period of incapacity only that
Page 5
the period extend beyond the fourteenth day following the
date of injury. Claimant then is entitled to compensation
for August 18, 1990 and August 19, 1990. Likewise, claimant
is entitled to compensation for each complete day on which
claimant was temporarily totality disabled from work, that
is absent from work on account of the injury. The law makes
no provision for payment of workers' compensation benefits
on a part day basis for days on which claimant is at work
but leaves work for a portion of the day to seek medical
care. Claimant's employer has voluntarily paid such
compensation to claimant for a number of days. Claimant's
employer has no continuing obligation under the workers'
compensation law relative to such payments. Indeed, insofar
as the need to miss work on account of continuing medical
treatment arises subsequent to the date that claimant has
reached maximum medical improvement, that need and reduced
ability to be available for work is arguably compensated
through an award of permanent partial disability payment.
Claimant seeks interest on compensation payments made.
He argues interest due must be calculated under what he
characterizes as the United States Rule. The industrial
commissioner has previously held that the deputy
commissioner is not obligated to figure interest for the
parties in an arbitration proceeding. The parties are to
attempt to determine the interest payable themselves and if
they are not able to do so to file a separate original
notice and petition relative to that dispute. Weishaar v.
Snap-On Tools Corp. 506 N.W.2d 786 (IA Ct. of App. 1993).
Nevertheless, section 85.30 provides that compensation
payments shall be made each week during the period for which
compensation is payable and if not paid when due interest
shall be added. Defendants acknowledge that in the normal
course of business, payments were mailed from their
adjusting company to their office on the first day of the
week after the week of temporary total disability for which
the compensation payment compensated claimant. Claimant
then picked up the checks from the employer's place of
business during the week in which the checks were issued.
Claimant argues that interest is due from the first day of
that week and that already accrued interest should be taken
before principle is considered for each day after the first
day of the week in which the check was issued in which
claimant did not have the check in hand. While medical
projections may be made to the length of such periods,
defendants have no actual knowledge that claimant is
entitled to payments for healing period or temporary total
disability until claimant has actually been off work for
that period of disability. Compensation payments,
therefore, do not represent an accrued or liquidated amount
due claimant until the first day of the week immediately
following the period of temporary total or healing period
disability. The section 85.30
Page 6
interest provision exists to assure that compensation
payments are timely made to injured workers. See Teel v.
McCord, 394 N.W.2d 405 (Iowa 1986). Where defendants
initiate payment on the first business day of the week after
which compensation for temporary total or healing period
benefits have actually accrued and defendants take
reasonable steps to assure that claimant shall actually
receive the compensation payment on a timely basis, the
purposes of section 85.30 are not thwarted and claimant
cannot appropriately request addition of interest to the
timely initiated weekly compensation payment. Shirley
Hoveland, human resources specialist with the employer,
stated that workers' compensation benefits checks for
temporary total or healing period disability are generated
from the employer's claim adjusting agent's place of
business in Michigan. They are then sent to the employer's
plant and distributed to the employee either at the plant or
if the employer prefers by mail. Compensation checks in
this case were either picked up by claimant personally or
mailed to claimant within the week subsequent to the week
for which the check compensated claimant. Defendants are
expressly found to have acted timely in assuring that
payment of any liquidated compensation due claimant was made
to claimant on a timely basis. Defendants' actions in no
way thwarted the purposes of section 85.30. Claimant is not
entitled to interest as to payments received for healing
period benefits.
Under Teel, the supreme court held that disability
payments become due an employee when the employee's healing
period is terminated. Claimant argues that interest is due
claimant from September 23, 1991, when Dr. Reagan opined
that claimant had a 94 percent permanent partial impairment
to the right hand. While there is no question that claimant
suffered some permanency as a result of his August 14, 1991
right hand amputation, it is questionable whether claimant's
healing period had terminated on September 23, 1991.
Indeed, claimant's examining physician, Dr. DeBartolo did
not opine that claimant had reached maximum medical
improvement until June 9, 1993. Claimant's continuing
problems with his right hand and right third finger from
September 23, 1991 through his recovery from his ray section
on June 9, 1993, also warrant a finding that claimant's
healing period terminated on June 9, 1993. Claimant is
entitled to payment of interest on permanent partial
disability benefits due and not appropriately paid from that
date onward.
Claimant seeks penalty benefits for unreasonable delay
or denial of benefits related to his arguments concerning
interest due, and relating to defendants having initially
paid claimant at an inappropriate rate. Claimant's initial
compensation payments were based on a calculation of his
hourly wage times 40 without consideration of overtime
worked. Defendants timely corrected
Page 7
this rate error once claimant's overtime hours and resulting
additional gross weekly wages were communicated to them.
The error in the calculation appears to have been
inadvertent. While it may have been a negligent act on the
employer's part, calculation based on the standard hourly
work week and the claimant's hourly wage cannot be
considered to have been so unreasonable as to be considered
denial or delay in compensation without reasonable or
probable cause or excuse. Claimant is not entitled to
penalty benefits relative to the time in which the rate was
improperly paid. Likewise, the interest questions claimant
presented were fairly debatable questions. Defendants did
not act unreasonably in not tendering interest payments as
claimant requested.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed January 18, 1994 are adopted as final agency
action.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendant pay claimant permanent partial
disability benefits for thirty-eight (38) weeks at the rate
of three hundred thirty dollars and 64/100 ($330.64) with
those payments to commence on June 9, 1993.
That defendant pay claimant additional healing period
benefits at the rate of three hundred thirty and 64/100
dollars ($330.64) set forth in the above conclusions of law.
That defendant pay claimant temporary partial
disability benefits for the period of February 22, 1993
through April 7, 1993 as set forth in the above conclusions
of law.
That defendant receive credit for benefits previously
paid.
That defendant pay accrued amounts in a lump sum.
That defendant pay interest pursuant to section 85.30
as amended.
That claimant shall pay the costs of the appeal including
the transcription of the hearing. Defendant shall pay all
other costs.
That defendant file claim activity reports as the
agency orders.
Signed and filed this ____ day of June, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 8
COPIES TO:
Mr. Mark S. Soldat
Attorney at Law
714 E. State St.
Algona, Iowa 50511
Mr. Paul C. Thune
Attorney at Law
P.O. Box 9130
Des Moines, Iowa 50306
1802; 1803; 1803.1; 3800
Filed June 29, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAN J. ROBBENNOLT,
Claimant, File No. 964311
vs. A P P E A L
SNAP-ON TOOLS CORPORATION, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
1803; 1803.1
Claimant's permanent partial disability was permanent
partial impairment of the right hand where subsequent to
amputation of claimant's right third finger claimant
underwent a ray resection with incision into the palmar
aspect of the hand and resulting loss of grip and pinch
strength in the right hand as well as decrease in lifting
ability relative to the right hand as compared to the left.
Claimant testified as to some psychological adjustment
problems subsequent to the loss of his finger and attended
six counseling sessions after which he chose not to
reschedule counseling sessions. Claimant's emotional
response was found to be an expected sequela of adjustment
to the injury and found not to raise to the level of
debilitating psychological condition such that claimant
would be entitled to industrial disability for a body as a
whole injury.
1802
Under section 85.32, it is not necessary that
claimant's period of incapacity consecutively extend to or
beyond the fourteenth day for claimant to be entitled to an
amount equal to three days of compensation. It is only
necessary that claimant have a period or periods of
incapacity beyond the fourteenth day for claimant to be
entitled to an amount equal to the three days of
compensation for which the section provides.
Page 2
3800
Compensation for temporary total disability, healing
period, or temporary partial disability is not liquidated or
accrued and does not become due until the first day
following the week of disability. Where an employer
initiates payment on or about the first business day of the
first week immediately subsequent to the week for which the
benefits have accrued and where the claimant receives or
could receive the payments within that week, the purpose of
section 85.30 to insure prompt payment of benefits when due
is not thwarted. Claimant, therefore, is not entitled to
interest for each day subsequent to the first day of that
week before payment is received provided that payment is
received or available for claimant during that first week.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAN J. ROBBENNOLT,
Claimant,
vs.
File No. 964311
SNAP-ON TOOLS CORPORATION,
A R B I T R A T I O N
Employer,
Self-Insured, D E C I S I O N
Defendant.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the
claimant, Dan J. Robbennolt, against his self-insured
employer, Snap-On Tools Corporation, to recover benefits
under the Iowa Workers' Compensation Act as a result of an
injury sustained on August 17, 1990. This matter came on
for hearing before the undersigned deputy industrial
commissioner at Fort Dodge, Iowa, on December 15, 1993. A
first report of injury has been filed. The record consists
of the testimony of claimant, of Connie Jo Robbennolt, of
James A. Miller, and of Shirley Hoveland, as well as of
claimant's exhibit A in its entirety and claimant's exhibit
B but for pages 4 and 5 and 18 which are specifically
excluded from evidence. Pages 27 through 36 and 52 through
60 of claimant's exhibit B are correspondence between
counsel. This correspondence contains no discussions
relative to settlement and the correspondence has some
relevance to the section 86.16, unnumbered paragraph 4,
penalty issue.
ISSUES
Pursuant to the hearing report and the oral
stipulations of the parties at hearing, the parties agree to
the following:
1. Claimant did receive an injury arising out of and
in the course of claimant's employment on August 17, 1990
[as held in ruling on Motion for Partial Summary Judgment
filed April 1, 1992];
2. Claimant's injury was causally related to periods
of temporary total/healing period and permanent partial
disability; and
3. Claimant was married and entitled to three
exemptions on August 17, 1990; claimant had a gross weekly
wage of $530.39 resulting in a weekly compensation rate of
$330.64.
Issues remaining to be decided are:
1. Whether claimant is entitled to payment of
Page 2
additional healing period benefits and payment of temporary
partial benefits from February 23, 1993 to April 4, 1993;
2. The nature and extent of permanent disability to
which claimant is entitled, specifically whether claimant's
disability is a disability to the right finger or a
disability to the right hand or a body as a whole disability
on account of an alleged mental injury;
3. Whether claimant is entitled to an award of
additional benefits pursuant to section 86.13, unnumbered
paragraph 4; and
4. Whether claimant is entitled to interest relative
to certain compensation payments.
FINDINGS OF FACT
The deputy, having heard the testimony and considered
the evidence, finds:
Forty-year-old claimant who graduated from high school
continues to work for defendant-employer albeit now in the
paint department and not as a brake press operator, the job
which he held when injured on August 17, 1990. Claimant
currently earns $12.54 per hour; he earned $11.25 per hour
when injured. Claimant's current wage reflects 15 cents per
hour shift bonus.
On August 17, 1990, claimant sustained a one and
one-half inch deep tendon laceration of his right third
finger on the dorsal aspect and across the proximal
interphalangeal joint. Dilipk Paukh, M.D., sutured the
wound. Claimant was advised to remain off work on April 18,
1990 and April 19, 1990. A 35 degree extensor lag of the
PIP joint remained. M.W. Crane, M.D., prescribed splinting
of the finger in late August 1990. Claimant's problems did
not resolve. On October 3, 1990, Dr. Crane performed an
extensor tendon reefing and pinning. Again, claimant's
problems with the finger did not resolve. On January 11,
1991, Dr. Crane performed open reconstruction of the
boutonniere deformity of the right third finger as well as
curettage of bone lesions within the finger. Dr. Crane
released claimant to return to work as of February 25, 1991.
Claimant was then restricted to 5 pounds lifting with his
right hand taped. Claimant went off work as of March 6,
1991 as a result of continued swelling and loss of extension
in the finger. On March 11, 1991, Dr. Crane performed a
fusion of the PIP joint of the injured finger. On April 25,
1991, claimant was released to return to left-handed work on
Monday of the following week. On June 13, 1991, Dr. Crane
noted that claimant's finger was "going to nonunion", a
finding confirmed on radiographic studies. Dr. Crane then
referred claimant to Douglas S. Reagan, M.D., an orthopedic
surgeon.
On July 3, 1991, Dr. Reagan performed a refusion of PIP
joint with bone graft from the wrist and internal fixation
of the right third finger. The refusion was also
unsuccessful and on August 14, 1991, Dr. Reagan performed
Page 3
amputation of the right third finger at or just below the
condyle of the proximal phalanx. On September 23, 1991, Dr.
Reagan opined that claimant had a 94 percent permanent
partial impairment of the right third finger.
On January 8, 1992, claimant saw Dr. Crane with
complaints of pain in the finger stump and shooting pain
into the arm from the stump.
On May 13, 1992, claimant saw Thomas DeBartolo, M.D.,
apparently an orthopedic surgeon who specializes in
conditions of the hand. Dr. DeBartolo did not believe that
claimant was at maximum medical improvement and prescribed
therapeutic desensitization techniques as regard the right
hand and finger stump. Dr. DeBartolo also advised claimant
that should he have continuing problems with the finger
stump, a ray resection would be an appropriate surgical
procedure.
Dr. Reagan reexamined claimant on October 1, 1992 and
concurred with Dr. DeBartolo that ray resection would be
appropriate. On November 18, 1992, Dr. DeBartolo performed
a ray resection with centralization. The ray resection was
performed in the palmar hand by removing the remaining stump
of the right third finger and bringing together the
intermetacarpal ligament from the ulnar side of the index
finger and the radial side of the ring finger.
On December 10, 1992 office visit, Dr. DeBartolo
characterized claimant as doing extremely well as regards
his ray resection. He reported that claimant's finger
motion was excellent with full flexion and extension and
some active abduction and adduction. Dr. DeBartolo referred
claimant to the Mercy Work and Sports Center for neck and
upper extremity evaluation as of December 16, 1992.
Findings at time of evaluation were: 1) decreased right
hand grip and pinch strengths; 2) inability to perform 3)
pinch on the right as a result of pain in the extensor of
the index finger; 3) bilateral decreased coordination [of
the hand]; 4) decreased right grip, wrist flexion, pronation
and supination per BTE measurement and as compared to
normative data; and 5) decreased ability to lift as a result
of discomfort of the right arm, right hand, and wrist. Work
conditioning to increase strength of the right upper
extremity and the right hand and to increase claimant's
functional use of the right hand was recommended. Claimant
remained in work hardening through January 27, 1993.
Throughout his time in work hardening claimant's abilities
to lift, push and pull with the right hand increased. Right
grip and pinch strength also steadily improved. Although
these scores still were from 50 to 33 percent less than
claimant's grip and pinch strength scores on the left.
Lifting abilities on the left were not measured.
On February 1, 1993, claimant was returned to work for
four hours a day on three alternate work days. Claimant
apparently received temporary partial disability payments
for that time during which he was partially returned to
work.
Page 4
On March 17, 1993, Dr. DeBartolo stated that claimant
had symptoms from mild carpal tunnel syndrome including a
positive Tinel's test and a positive median nerve
compression test. He opined that claimant had excellent
flexion and extension in his remaining digits. On June 9,
1993, Dr. DeBartolo placed claimant at maximum medical
improvement. He also noted that claimant had an area in the
midpalm where additional nerve had been amputated in the ray
resection and that this area was the significant factor in
lessening claimant's [right hand] grip. On June 30, 1993,
Dr. DeBartolo opined that pursuant to the AMA Guides to
Evaluation of Permanent Impairment, Third Edition, claimant
had 100 percent partial impairment of the right third or
long finger which translates into a 20 percent permanent
partial impairment of the right hand as a result of the loss
of the right third finger. It is expressly found that
claimant has a decreased ability to lift with the right
upper extremity as well as decreased grip and pinch strength
in the right hand. These factors are sufficient to
demonstrate that claimant's overall impairment is an
impairment to the hand and not an impairment to the right
third finger only.
Claimant testified that claimant has had psychological
difficulties relating to his work injury. Claimant stated
that claimant, a recovering alcoholic, has had lapses of
sobriety since the work injury and has been generally more
"short fused" as a sequela of the on-going problems with his
finger and hand. Claimant saw counselor Dana Quick-Naig on
September 24, 1991; October 1, 1991; February 3, 1992;
February 10, 1992; and March 4, 1992. Ms. Quick-Naig's
impression was that claimant then had unresolved grief as a
result of the loss of his finger. Claimant did not schedule
further appointments with Ms. Quick-Naig. The record does
not reflect that claimant sought other counseling or
treatment on account of any psychological condition. It is
expressly found that claimant's emotional concerns and
reactions as presented in this record were part of the
normal sequela of recovery from the significant injury. It
is further expressly found that these conditions did not
raise to the level of an independent debilitating
psychological condition such that claimant's impairment is
to the body as a whole and not to the hand.
Claimant had a number of days when claimant was
partially off work for medical treatment of his injury.
Claimant also has not been compensated for work missed on
August 18 and August 19, 1990. Under section 85.32,
compensation is due for the days of incapacity prior to the
fourth day when the period of incapacity extends beyond the
fourteenth day following the date of the injury. The
section in no manner indicates that the period of incapacity
must be a consecutive period of incapacity only that the
period extend beyond the fourteenth day following the date
of injury. Claimant then is entitled to compensation for
August 18, 1990 and August 19, 1990. Likewise, claimant is
entitled to compensation for each complete day on which
claimant was temporarily totality disabled from work, that
Page 5
is absent from work on account of the injury. The law makes
no provision for payment of workers' compensation benefits
on a part day basis for days on which claimant is at work
but leaves work for a portion of the day to seek medical
care. Claimant's employer has voluntarily paid such
compensation to claimant for a number of days. Claimant's
employer has no continuing obligation under the workers'
compensation law relative to such payments. Indeed, insofar
as the need to miss work on account of continuing medical
treatment arises subsequent to the date that claimant has
reached maximum medical improvement, that need and reduced
ability to be available for work is arguably compensated
through an award of permanent partial disability payment.
Claimant seeks interest on compensation payments made.
He argues interest due must be calculated under what he
characterizes as the United States Rule. The industrial
commissioner has previously held that the deputy
commissioner is not obligated to figure interest for the
parties in an arbitration proceeding. The parties are to
attempt to determine the interest payable themselves and if
they are not able to do so to file a separate original
notice and petition relative to that dispute. Weishaar v.
Snap-On Tools Corp. 506 N.W.2d 786 (IA Ct. of App. 1993).
Nevertheless, section 85.30 provides that compensation
payments shall be made each week during the period for which
compensation is payable and if not paid when due interest
shall be added. Defendants acknowledge that in the normal
course of business, payments were mailed from their
adjusting company to their office on the first day of the
week after the week of temporary total disability for which
the compensation payment compensated claimant. Claimant
then picked up the checks from the employer's place of
business during the week in which the checks were issued.
Claimant argues that interest is due from the first day of
that week and that already accrued interest should be taken
before principle is considered for each day after the first
day of the week in which the check was issued in which
claimant did not have the check in hand. While medical
projections may be made to the length of such periods,
defendants have no actual knowledge that claimant is
entitled to payments for healing period or temporary total
disability until claimant has actually been off work for
that period of disability. Compensation payments,
therefore, do not represent an accrued or liquidated amount
due claimant until the first day of the week immediately
following the period of temporary total or healing period
disability. The section 85.30 interest provision exists to
assure that compensation payments are timely made to injured
workers. See Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
Where defendants initiate payment on the first business day
of the week after which compensation for temporary total or
healing period benefits have actually accrued and defendants
take reasonable steps to assure that claimant shall actually
receive the compensation payment on a timely basis, the
Page 6
purposes of section 85.30 are not thwarted and claimant
cannot appropriately request addition of interest to the
timely initiated weekly compensation payment. Shirley
Hoveland, human resources specialist with the employer,
stated that workers' compensation benefits checks for
temporary total or healing period disability are generated
from the employer's claim adjusting agent's place of
business in Michigan. They are then sent to the employer's
plant and distributed to the employee either at the plant or
if the employer prefers by mail. Compensation checks in
this case were either picked up by claimant personally or
mailed to claimant within the week subsequent to the week
for which the check compensated claimant. Defendants are
expressly found to have acted timely in assuring that
payment of any liquidated compensation due claimant was made
to claimant on a timely basis. Defendants' actions in no
way thwarted the purposes of section 85.30. Claimant is not
entitled to interest as to payments received for healing
period benefits.
Under Teel, the supreme court held that disability
payments become due an employee when the employee's healing
period is terminated. Claimant argues that interest is due
claimant from September 23, 1991, when Dr. Reagan opined
that claimant had a 94 percent permanent partial impairment
to the right hand. While there is no question that claimant
suffered some permanency as a result of his August 14, 1991
right hand amputation, it is questionable whether claimant's
healing period had terminated on September 23, 1991.
Indeed, claimant's examining physician, Dr. DeBartolo did
not opine that claimant had reached maximum medical
improvement until June 9, 1993. Claimant's continuing
problems with his right hand and right third finger from
September 23, 1991 through his recovery from his ray section
on June 9, 1993, also warrant a finding that claimant's
healing period terminated on June 9, 1993. Claimant is
entitled to payment of interest on permanent partial
disability benefits due and not appropriately paid from that
date onward.
Claimant seeks penalty benefits for unreasonable delay
or denial of benefits related to his arguments concerning
interest due, and relating to defendants having initially
paid claimant at an inappropriate rate. Claimant's initial
compensation payments were based on a calculation of his
hourly wage times 40 without consideration of overtime
worked. Defendants timely corrected this rate error once
claimant's overtime hours and resulting additional gross
weekly wages were communicated to them. The error in the
calculation appears to have been inadvertent. While it may
have been a negligent act on the employer's part,
calculation based on the standard hourly work week and the
claimant's hourly wage cannot be considered to have been so
unreasonable as to be considered denial or delay in
compensation without reasonable or probable cause or excuse.
Claimant is not entitled to penalty benefits relative to the
Page 7
time in which the rate was improperly paid. Likewise, the
interest questions claimant presented were fairly debatable
questions. Defendants did not act unreasonably in not
tendering interest payments as claimant requested.
CONCLUSIONS OF LAW
As to the question of claimant's extent of permanent
partial disability:
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).
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).
Where psychological condition is caused or aggravated
by a scheduled injury the injury is compensable as a
nonscheduled injury. Moritmor v. Purhoff Corp., N.W.2d
(Iowa 1993).
Claimant has established a scheduled member permanent
partial impairment of 20 percent of claimant's right hand.
Claimant has not established a psychological condition
caused or aggravated by claimant's scheduled injury such
that claimant's injury extends into the body as a whole.
We consider whether claimant is entitled to additional
healing period and temporary partial disability benefits.
Section 85.32 provides:
Except as to injuries resulting in permanent
partial disability, compensation shall begin on
the fourth day of disability after the injury.
Page 8
If the period of incapacity extends beyond the
fourteenth day following the date of injury, then
the compensation due during the third week shall
be increased by adding thereto an amount equal to
three days of compensation.
Section 85.33(1) provides:
Except as provided in subsection 2 to this
section, the employer shall pay to an employee for
injury producing temporary total disability weekly
compensation benefits, as provided in section
85.32, until the employee has tenured to work or
is medically capable of returning to employment
substantially similar to the employment in which
the employee was engaged at the time of injury,
whichever occurs first.
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).
Section 85.33(2) provides:
"Temporary partial disability" or temporarily,
partially disabled" means the condition of an
employee for whom it is medically indicated that
the employee is not capable of returning to
employment substantially similar to the employment
in which the employee was engaged at the time of
injury, but is able to perform other work
consistent with the employee's disability.
"Temporary partial benefits" means benefits
payable, in lieu of temporary total disability and
healing period benefits, to an employee because of
the employee's temporary partial reduction in
earning ability as a result of the employee's
temporary partial disability. Temporary partial
benefits shall not be considered benefits payable
to an employee, upon termination of temporary
partial or temporary total disability, the healing
period, or permanent partial disability, because
the employee is not able to secure work paying
weekly earnings equal to the employee's weekly
earnings at the time of injury.
Claimant has established that claimant is entitled to
payment of additional healing periods for August 18, 1990
and August 19, 1990 as well as for each full day subsequent
thereto and before June 9, 1993, where claimant was actually
off work on account of for injury or on account of treatment
Page 9
for injury.
Claimant has established entitlement to temporary
partial disability from February 22, 1994 through April 7,
1993 for those days when claimant was released for partial
work only.
We consider the legal issue of interest. The
applicable law relative to interest has been cited in the
above findings of fact. Claimant is not entitled to
interest relative to healing period, temporary total or
temporary partial disability compensation payments where
defendants made payments and claimant received payment in
the week immediately subsequent to the week to which the
compensation payment related.
Claimant is entitled to interest on permanent partial
disability payments due and not timely made on and after
June 9, 1993.
We consider claimant's claim for penalty. The
applicable law as regards the penalty question is as
follows:
Section 86.13 permits an award of up to 50 percent of
the amount of benefits delayed or denied if a delay in
commencement or termination of benefits occurs without
reasonable or probable cause or excuse. The standard for
evaluating the reasonableness of defendants' delay in
commencement or termination is whether the claim is fairly
debatable. Where a claim is shown to be fairly debatable,
defendants do not act unreasonably in denying payment. See
Stanley v. Wilson Foods Corp., File No. 753405 (App. August
23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No.
818849 (App. November 1, 1989).
Additionally, penalty cannot be based upon interest due
on late compensation payments. Weishaar v. Snap On Tools
Corp., 506 N.W.2d 786 (IA Ct. of App. 1993).
Claimant has not established entitlement to payment of
additional benefits pursuant to section 86.13, unnumbered
paragraph 4.
ORDER
THEREFORE, IT IS ORDERED:
Defendants pay claimant permanent partial disability
benefits for thirty-eight (38) weeks at the rate of three
hundred thirty dollars and 64/100 ($330.64) with those
payments to commence on June 9, 1993.
Defendants pay claimant additional healing period
benefits at the rate of three hundred thirty and 64/100
dollars ($330.64) set forth in the above conclusions of law.
Defendants pay claimant temporary partial disability
benefits for the period of February 22, 1993 through April
7, 1993 as set forth in the above conclusions of law.
Page 10
Defendants receive credit for benefits previously paid.
Defendants pay accrued amounts in a lump sum.
Defendants pay interest pursuant to section 85.30 as
amended.
Claimant and Defendants pay costs equally pursuant to
rule 343 IAC 4.33.
Defendants file claim activity reports as the agency
orders.
Signed and filed this ____ day of January, 1994.
______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Mark S. Soldat
Attorney at Law
714 E. State Street
Algona, IA 50511
Mr. Paul C. Thune
Attorney at Law
P.O. Box 9130
Des Moines, IA 50306
1802; 1803; 1803.1; 1838
Filed January 18, 1994
Helenjean M. Walleser
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAN J. ROBBENNOLT,
Claimant,
vs.
File No. 964311
SNAP-ON TOOLS CORPORATION,
A R B I T R A T I O N
Employer,
Self-Insured, D E C I S I O N
Defendant.
___________________________________________________________
1803; 1803.1
Claimant's permanent partial disability was permanent
partial impairment of the right hand where subsequent to
amputation of claimant's right third finger claimant
underwent a ray resection with incision into the palmar
aspect of the hand and resulting loss of grip and pinch
strength in the right hand as well as decrease in lifting
ability relative to the right hand as compared to the left.
Claimant testified as to some psychological adjustment
problems subsequent to the loss of his finger and attended
six counseling sessions after which he chose not to
reschedule counseling sessions. Claimant's emotional
response was found to be an expected sequela of adjustment
to the injury and found not to raise to the level of
debilitating psychological condition such that claimant
would be entitled to industrial disability for a body as a
whole injury.
1802
Under section 85.32, it is not necessary that
claimant's period of incapacity consecutively extend to or
beyond the fourteenth day for claimant to be entitled to an
amount equal to three days of compensation. It is only
necessary that claimant have a period or periods of
incapacity beyond the fourteenth day for claimant to be
entitled to an amount equal to the three days of
compensation for which the section provides.
1838
Compensation for temporary total disability, healing
period, or temporary partial disability is not liquidated or
accrued and does not become due until the first day
following the week of disability. Where an employer
Page 2
initiates payment on or about the first business day of the
first week immediately subsequent to the week for which the
benefits have accrued and where the claimant receives or
could receive the payments within that week, the purpose of
section 85.30 to insure prompt payment of benefits when due
is not thwarted. Claimant, therefore, is not entitled to
interest for each day subsequent to the first day of that
week before payment is received provided that payment is
received or available for claimant during that first week.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
DAN J. ROBBENNOLT, : File No. 964311
:
Claimant, : O R D E R
:
vs. : N U N C
:
SNAP-ON TOOLS CORPORATION, : P R O
:
Employer, : T U N C
Self-Insured, :
Defendant. :
_________________________________________________________________
The appeal decision filed June 29, 1994 is hereby amended as
follows:
In that claimant has suffered a permanent partial
disability, claimant is entitled to healing period benefits for
August 18 and August 19, 1990, pursuant to Iowa Code sections
85.30 and 85.34(1). Iowa Code section 85.32 is inapplicable to
cases in which the injury results in permanent partial
disability. That portion of the analysis on pages four and five
of the appeal decision filed June 29, 1994 remains applicable to
cases under Iowa Code section 85.32.
Signed and filed this ____ day of July, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Mark S. Soldat
Attorney at Law
714 E. State St.
Algona, Iowa 50511
Mr. Paul C. Thune
Attorney at Law
P.O. Box 9130
Des Moines, Iowa 50306