Page 1
before the iowa industrial commissioner
____________________________________________________________
_____
:
JOHN WAYNE BUTCHER II, :
:
Claimant, :
:
vs. :
: File No. 966329
NINJA, INC. dba ZAZOO THE, :
BEACH CLUB, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
AUTO OWNERS INSURANCE CO., :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
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.
issue
The issue on appeal is: The extent of claimant's healing
period.
findings of fact
The findings of fact contained in the proposed agency
decision filed April 27, 1992 are adopted as set forth
below. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
Claimant is 31 years of age. He is a high school
graduate. He has completed one semester of college at
Waldorf College. Currently, claimant is enrolled at
Kirkwood Community College.
Since his high school graduation, claimant has held a
variety of positions in both Iowa and California. He has
sold insurance, driven a beer truck and worked as a
bartender and lounge manager in several establishments.
While claimant was living in California, he sustained a
work-related injury to his left shoulder. Surgery was
performed for a torn rotator cuff. Subsequent to the
surgery, claimant returned to Iowa. He sought additional
Page 2
treatment at the University of Iowa. The physicians
diagnosed claimant's condition as: "Left shoulder posterior
subluxation, mild impingement, rotator cuff weakness
particularly in the super spinatus tendon."
When claimant was seven years old, he was involved in
an incident where he had a metal piece trapped in his right
eye. Surgery was performed in the form of a cornea
transplant.
Claimant testified he experienced difficulties with his
right eye from the date of that injury. He stated he
experienced blurred vision, problems with depth perception
as well as problems with his peripheral vision.
Claimant also testified that he had no problems with
his left eye prior to the date of this work injury, August
24, 1990.
At the time of this work injury, claimant was working
at defendant-employer's establishment as a "bouncer." His
duties included walking around the premises, socializing
with the patrons, cleaning, picking up glasses, watching for
altercations, and interceding in brawls.
Claimant stated there were times when he was
"physically active." Such a "physically active" period
occurred on the date in question. A patron was pushing and
shoving the bar manager when claimant approached. Claimant
pushed the patron out the door. Two other bystanders joined
the unruly patron and they proceeded to engage claimant in
the stereotypical "barroom brawl." Punches were hurled back
and forth. Ultimately, one of the patrons struck claimant
on the corner of his left eye.
Claimant described the sensation of "having his eye
pushed." He testified his eye was bleeding, there were
stars and he was unable to see. Claimant sought medical
treatment for his left eye on that date from C. A.
Hendricks, M.D. In his report of November 20, 1990, Dr.
Hendricks opined:
As requested I am enclosing a copy of my record on
Wayne Butcher. It maybe somewhat difficult to
read so I will dictate a letter which essentially
translates what is in the chart.
Mr. Butcher was seen by me on 8-24-90. He stated
that he had been hit in the left eye with a fist
the previous night. He stated that he saw a
purple spot in the left eye with a ring around it
and an orange background. He has a history of an
old injury to the right eye. Evidently the right
eye had an intraocular foreign body in the past.
His vision without glasses was 20/400 in either
eye. The left eye had a clear cornea and anterior
chamber and I dilated the eye. I felt the left
eye had a choroidal rupture and while examining
the left eye I also looked at the right eye which
had a partial cataract.
Page 3
Because of the extent and nature of the injury to
the left eye I referred him to Dr. Steve Jacobs
who has his independent practice but we share the
same waiting room. Steve has had considerable
training in retinal work and is one of two
ophthalmologists in town doing retinal surgery at
this time. I would suggest you request
information from him at this same address. I'm
sure he can proceed with the progress of Mr.
Butcher's injury.
(Joint Exhibit 2, page 00014)
Claimant saw Steven J. Jacobs, M.D. Dr. Jacobs
authored a report dated June 13, 1991. In his report he
opined that:
My initial examination showed an uncorrected
visual acuity of 20/300 OD and 20/60- OS. Slit
lamp exam showed an old stellate corneal scar in
the optical axis and an inferior cortical cataract
OD. The slit lamp exam was normal OS. Dilated
fundus exam OS showed a large subretinal
hemorrhage in the macula. On sequential
observation the hemorrhage began to clear in the
macula and revealed a choroidal rupture nasal to
the optic nerve head. He was last seen on January
6, 1991 at which time his visual acuity was 20/100
in the left eye.
My impression is that John Butcher has amblyopia
OD as a result of a childhood injury and severe
loss of vision in the left eye as a result of a
subretinal hemorrhage due to a traumatic choroidal
rupture. I think his overall prognosis of
recovery in the future is poor and that he should
be considered disabled on the basis of his vision.
(Jt. Ex. 2, p. 00025)
[Claimant was seen by Dr. Jacobs for the first time on
August 29, 1990. Dr. Jacobs next saw claimant on September
7, 1990 and noted no change in claimant and indicated that
claimant's visual acuity on that date was 20/200 and 20/70-.
He next saw claimant on October 9, 1990 and noted no change
and visual acuity 20/200. He again saw claimant on November
27, 1990 and noted no improvement and visual acuity as
20/200 and 20/60. He last saw claimant on July 17, 1991 and
appears to have rated the visual acuity as 20/400 and
20/70.]
Claimant also sought treatment at the Illinois Eye
Clinic on August 27, 1990. He was evaluated but claimant
sought additional treatment at the University of Iowa.
At the University of Iowa, claimant was treated by Jay
H. Krachmer, M.D., a board certified ophthalmologist who is
a professor in the Department of Ophthalmology at the
University of Iowa.
Page 4
Dr. Krachmer examined claimant's eyes on several
occasions, including August 1, 1991. On that date, claimant
was complaining of problems with both eyes. (Jt. Ex. 1, p.
5, lines 18-25)
With respect to the left eye, Dr. Krachmer testified he
found:
Q. Doctor, referring to the left eye, what did
your examination reveal?
A. The left eye, his visual acuity was 20/25
minus
1. The cornea on the left was normal. He
did not have a cataract on the left. His
intraocular pressure was normal on the left.
But what he did have was a scar in the back
of the right eye -- of the left eye in the
retina, a chorioretinal scar because the scar
involved the retina and choroid.
Q. Doctor, a couple of questions, definitions.
What do you mean when you say 20/25 minus
1, what's the significance of that?
A. That means that he read all the letters on
the visual acuity chart, the 20/25
line, except for one. I should add
that he also -- we noted that his eyes
were not perfectly aligned. In other
words, he -- there was a small misalignment of
the eyes, which I believe we noted on
follow-up examinations. But that
was the major part of the examination.
Q. Doctor, the condition that you described
concerning the scar on the back of the retina
of the left eye, is that a condition that's a
result of the injury that he described to you
as occurring on August 24, 1990?
A. I don't have the date of the injury, but that
was approximately what the date should be. And
the scar is consistent with that kind of
injury, and so I would have to say from
the history, I would assume that that
was a result of that injury.
(Jt. Ex. 1, p. 6, l. 17 thru p. 7, l. 23)
Dr. Krachmer also examined claimant's right eye.
Surgery was proposed for the right eye only. Dr. Krachmer
performed "a penetrating Keratolplasty and extracapsular
cataract extraction with a posterior chamber intraocular
lens."
As of March 2, 1992, Dr. Krachmer opined that claimant
had sustained the following loss relative to his right eye:
2. Visual acuity 20/160 right eye only 72% loss
Page 5
3. Visual acuity 2/40 right eye only 15% loss
4. Visual acuity 20/l00 right eye only 50% loss.
The surgeon testified in his deposition of February 21,
1992, that claimant's right eye had not stabilized and that
claimant would reach maximum medical improvement in
approximately one to one and one-half years.
At the time of the hearing, claimant was enrolled as a
student at Kirkwood Community College. He testified that he
hopes to achieve a bachelors' degree in business.
conclusions of law
Iowa Code 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 from 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).
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 only issue on appeal is the extent of claimant's healing
period. It is noted that while defendant employer and
insurance company originally offered to stipulate to a date
the healing period ended, a reading of the transcript on
that offer clearly indicates that the issue of healing
period was not stipulated. (See transcript, page 5, lines
9-10.)
Dr. Jacobs' records will be relied upon to determine the
extent of the healing period. He saw claimant most often
and rated claimant's vision at least five times in less than
a year's time beginning five days after the injury.
Beginning on September 7, 1990 Dr. Jacobs generally saw no
improvement in claimant's vision. The test results remained
essentially the same from September 7, 1990 forward.
Therefore, claimant's maximum medical improvement for his
left eye occurred on September 7, 1990. Claimant's healing
period ended on September 7, 1990.
WHEREFORE, the decision of the deputy is affirmed and
modified.
order
THEREFORE, it is ordered:
That defendant-Second Injury Fund is dismissed as a
party.
Page 6
That defendants-employer and insurance carrier, are to
pay claimant healing period benefits at the stipulated rate
of eighty-five and 25/l00 dollars ($85.25) per week for the
period from August 24, 1990 through September 7, 1990.
That defendants-employer and insurance carrier, are to
pay unto claimant twenty (20) weeks of permanent partial
disability benefits at the stipulated rate of eighty-five
and 25/l00 dollars ($85.25) per week commencing on September
8, 1990.
That defendants-employer and insurance carrier, are to
pay medical benefits in the sum of two hundred thirteen and
60/l00 dollars ($213.60) as aforementioned and pursuant to
Iowa Code section 85.27.
That accrued benefits are to be paid in a lump sum
together with statutory interest at the rate of ten percent
(10%) per year pursuant to Iowa Code section 85.30.
That defendants, employer and insurance company, shall
pay the costs of this matter including transcription of the
hearing and shall reimburse claimant for the filing fee if
previously paid by claimant.
That defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of January, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. James E. Shipman
Mr. Matthew J. Petrzelka
Attorneys at Law
1200 MNB Building
Cedar Rapids, Iowa 52401
Mr. E. J. Giovannetti
Attorney at Law
2700 Grand Ave., STE 111
Des Moines, Iowa 50312
Mr. Craig Kelinson
Assistant Attorney General
Tort Claims Division
Hoover State Office Building
Des Moines, Iowa 50319
5-1802
Filed January 26, 1993
Byron K. Orton
MAM
before the iowa industrial commissioner
____________________________________________________________
_____
:
JOHN WAYNE BUTCHER II, :
:
Claimant, :
:
vs. :
: File No. 966329
NINJA, INC. dba ZAZOO THE, :
BEACH CLUB, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
AUTO OWNERS INSURANCE CO., :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
____________________________________________________________
_____
5-1802
Claimant's healing period for an eye injury ended when
doctor who had most contact with claimant indicated that
there was generally no further improvement and the visual
activity remained unchanged. The doctor relied upon first
saw claimant five days after the injury and tested him five
times in less than a year.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JOHN WAYNE BUTCHER II, :
:
Claimant, :
:
vs. :
:
NINJA, INC. dba ZAZOO THE : File No. 966329
BEACH CLUB, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AUTO OWNERS INSURANCE CO., :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant against his former employer, Zazoo Beach Club,
and its insurance carrier, Auto Owners Insurance Company,
defendants. Additionally, claimant filed an action against
the Second Injury Fund of Iowa. The case was heard on March
10, 1992, in Cedar Rapids, Iowa at the Linn County
Courthouse. The record consists of the testimony of
claimant. The record also consists of the following
exhibits: claimant's exhibits 1-3; joint exhibits 1 and 2;
and The Fund's exhibit C.
issues
The issues to be determined are: 1) whether there is a
causal relationship between the injury of August 24, 1990
and the alleged disability; 2) whether claimant is entitled
to temporary disability/healing period benefits or permanent
disability benefits; 3) whether claimant is entitled to
medical benefits pursuant to section 85.27; and 4) whether
claimant is entitled to benefits pursuant to the Second
Injury Fund of Iowa.
findings of fact
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is 31 years of age. He is a high school
Page 2
graduate. He has completed one semester of college at
Waldorf College. Currently, claimant is enrolled at
Kirkwood Community College.
Since his high school graduation, claimant has held a
variety of positions in both Iowa and California. He has
sold insurance, driven a beer truck and worked as a
bartender and lounge manager in several establishments.
While claimant was living in California, he sustained a
work-related injury to his left shoulder. Surgery was
performed for a torn rotator cuff. Subsequent to the
surgery, claimant returned to Iowa. He sought additional
treatment at the University of Iowa. The physicians
diagnosed claimant's condition as: "Left shoulder posterior
subluxation, mild impingement, rotator cuff weakness
particularly in the super spinatus tendon."
When claimant was seven years old, he was involved in
an incident where he had a metal piece trapped in his right
eye. Surgery was performed in the form of a cornea
transplant.
Claimant testified he experienced difficulties with his
right eye from the date of that injury. He stated he
experienced blurred vision, problems with depth perception
as well as problems with his peripheral vision.
Claimant also testified that he had no problems with
his left eye prior to the date of this work injury, August
24, 1990.
At the time of this work injury, claimant was working
at defendant-employer's establishment as a "bouncer." His
duties included walking around the premises, socializing
with the patrons, cleaning, picking up glasses, watching for
altercations, and interceding in brawls.
Claimant stated there were times when he was
"physically active." Such a "physically active" period
occurred on the date in question. A patron was pushing and
shoving the bar manager when claimant approached. Claimant
pushed the patron out the door. Two other bystanders joined
the unruly patron and they proceeded to engage claimant in
the stereotypical "barroom brawl." Punches were hurled back
and forth. Ultimately, one of the patrons struck claimant
on the corner of his left eye.
Claimant described the sensation of "having his eye
pushed." He testified his eye was bleeding, there were
stars and he was unable to see. Claimant sought medical
treatment for his left eye on that date from C. A.
Hendricks, M.D. In his report of November 20, 1990, Dr.
Hendricks opined:
As requested I am enclosing a copy of my record on
Wayne Butcher. It maybe somewhat difficult to
read so I will dictate a letter which essentially
translates what is in the chart.
Page 3
Mr. Butcher was seen by me on 8-24-90. He stated
that he had been hit in the left eye with a fist
the previous night. He stated that he saw a
purple spot in the left eye with a ring around it
and an orange background. He has a history of an
old injury to the right eye. Evidently the right
eye had an intraocular foreign body in the past.
His vision without glasses was 20/400 in either
eye. The left eye had a clear cornea and anterior
chamber and I dilated the eye. I felt the left
eye had a choroidal rupture and while examining
the left eye I also looked at the right eye which
had a partial cataract.
Because of the extent and nature of the injury to
the left eye I referred him to Dr. Steve Jacobs
who has his independent practice but we share the
same waiting room. Steve has had considerable
training in retinal work and is one of two
ophthalmologists in town doing retinal surgery at
this time. I would suggest you request
information from him at this same address. I'm
sure he can proceed with the progress of Mr.
Butcher's injury.
(Joint Exhibit 2, page 00014)
Claimant saw Steven J. Jacobs, M.D. Dr. Jacobs
authored a report dated June 13, 1991. In his report he
opined that:
My initial examination showed an uncorrected
visual acuity of 20/300 OD and 20/60- OS. Slit
lamp exam showed an old stellate corneal scar in
the optical axis and an inferior cortical cataract
OD. The slit lamp exam was normal OS. Dilated
fundus exam OS showed a large subretinal
hemorrhage in the macula. On sequential
observation the hemorrhage began to clear in the
macula and revealed a choroidal rupture nasal to
the optic nerve head. He was last seen on January
6, 1991 at which time his visual acuity was 20/100
in the left eye.
My impression is that John Butcher has amblyopia
OD as a result of a childhood injury and severe
loss of vision in the left eye as a result of a
subretinal hemorrhage due to a traumatic choroidal
rupture. I think his overall prognosis of
recovery in the future is poor and that he should
be considered disabled on the basis of his vision.
(Jt. Ex. 2, p. 00025)
Claimant also sought treatment at the Illinois Eye
Clinic on August 27, 1990. He was evaluated but claimant
sought additional treatment at the University of Iowa.
At the University of Iowa, claimant was treated by Jay
H. Krachmer, M.D., a board certified ophthalmologist who is
Page 4
a professor in the Department of Ophthalmology at the
University of Iowa.
Dr. Krachmer examined claimant's eyes on several
occasions, including August 1, 1991. On that date, claimant
was complaining of problems with both eyes. (Jt. Ex. 1, p.
5, lines 18-25)
With respect to the left eye, Dr. Krachmer testified he
found:
Q. Doctor, referring to the left eye, what did
your examination reveal?
A. The left eye, his visual acuity was 20/25
minus
1. The cornea on the left was normal. He
did not have a cataract on the left. His
intraocular pressure was normal on the left.
But what he did have was a scar in the back
of the right eye -- of the left eye in the
retina, a chorioretinal scar because the scar
involved the retina and choroid.
Q. Doctor, a couple of questions, definitions.
What do you mean when you say 20/25 minus
1, what's the significance of that?
A. That means that he read all the letters on
the visual acuity chart, the 20/25
line, except for one. I should add
that he also -- we noted that his eyes
were not perfectly aligned. In other
words, he -- there was a small misalignment of
the eyes, which I believe we noted on
follow-up examinations. But that
was the major part of the examination.
Q. Doctor, the condition that you described
concerning the scar on the back of the retina
of the left eye, is that a condition that's a
result of the injury that he described to you
as occurring on August 24, 1990?
A. I don't have the date of the injury, but that
was approximately what the date should be. And
the scar is consistent with that kind of
injury, and so I would have to say from
the history, I would assume that that
was a result of that injury.
(Jt. Ex. 1, p. 6, l. 17 thru p. 7, l. 23)
Dr. Krachmer also examined claimant's right eye.
Surgery was proposed for the right eye only. Dr. Krachmer
performed "a penetrating Keratolplasty and extracapsular
cataract extraction with a posterior chamber intraocular
lens."
As of March 2, 1992, Dr. Krachmer opined that claimant
Page 5
had sustained the following loss relative to his right eye:
2. Visual acuity 20/160 right eye only 72% loss
3. Visual acuity 2/40 right eye only 15% loss
4. Visual acuity 20/l00 right eye only 50% loss.
The surgeon testified in his deposition of February 21,
1992, that claimant's right eye had not stabilized and that
claimant would reach maximum medical improvement in
approximately one to one and one-half years.
At the time of the hearing, claimant was enrolled as a
student at Kirkwood Community College. He testified that he
hopes to achieve a bachelors' degree in business.
conclusions of law
Defendant-employer and its insurance carrier admitted
at the close of the hearing that claimant sustained a
work-related injury to his left eye on August 24, 1990. Dr.
Krachmer testified there was permanent damage done to
claimant's left eye as a result of the work injury. (Jt.
Ex. l, p. 10, ll. 9-17). Claimant has established the
requisite causal connection to a permanent impairment of the
left eye. See Blacksmith v. All-American, Inc., 290 N.W.2d
348 (1980).
Permanent injuries to the eyes are governed by sections
85.34(2)(p)(q).
These sections provide that:
p. For the loss of an eye, weekly compensation
during one hundred forty weeks.
q. For the loss of an eye, the other eye having
been lost prior to the injury, weekly compensation
during two hundred weeks.
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).
In the instant case, claimant sustained a permanent
partial disability to the left eye. Claimant had previously
sustained a loss to the right eye. Since the work injury
was a second eye loss, claimant is entitled to weekly
compensation under 85.34(2)(q). Since claimant has a 10
Page 6
percent loss, he is entitled to 20 weeks of permanent
partial disability benefits at the stipulated rate of $85.25
per week.
The next issue to address is the nature and extent of
any healing period benefits. Healing period benefits are
governed by section 85.34(1).
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
App. 1981). Healing period benefits can be interrupted or
intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
Claimant has done a less than adequate job in proving
that any healing period benefits are due to him. His
testimony indicates he commenced employment at the Tycoon
Lounge approximately one month before his surgery on January
6, 1992. That would place his return at December 6, 1991.
However, in August of 1991, claimant returned to the college
setting. It stands to reason that if claimant could return
to the classroom in August of 1991, he could also return to
the work setting at that time. Therefore, it is the
determination of this deputy that claimant is entitled to
healing period benefits from August 24, 1990 through August
1, 1991, the date Dr. Krachmer first examined claimant for
his left eye and the date on which Dr. Krachmer opined
claimant's left eye was stable. (Jt. Ex. 1, p. 8, ll. 1-7)
The healing period is comprised of 49 weeks at the
stipulated rate of $85.25 per week.
The next issue under discussion is the issue of medical
benefits pursuant to section 85.27.
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 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).
Page 7
Since defendants, employer and insurance carrier,
denied liability until the completion of the hearing, the
defendants cannot argue that claimant lacked authorization
for the care of claimant's left eye. Therefore, defendants,
employer and insurance carrier, are liable for:
Dr. Steven J. Jacobs $ 75.00
Medical mileage for 660 miles x $.21 per mile =
$138.60
Total $213.60
Claimant is making a claim against defendant-Second
Injury Fund of Iowa for benefits pursuant to the Second
Injury Compensation Act.
Section 85.64 governs Second Injury Fund liability.
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the difference between
total disability and disability for which the employer at
the time of the second injury is responsible. Section
85.64. Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa
1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300
(Iowa 1970).
Interest accrues on benefits the Fund pays commencing
on the date of the decision. Second Injury Fund of Iowa v.
Braden, 459 N.W.2d 467 (Iowa 1990).
Claimant argues that he has sustained a permanent
injury to his right eye as an initial injury and that the
injury to the left eye is permanent as well. Consequently,
claimant maintains he is entitled to Second Injury Fund
benefits. Claimant is premature in trying this portion of
his claim. The alleged initial right eye injury is not
stabilized. The treating surgeon cannot determine whether
claimant's vision in the right eye on March 2, 1992, is
permanent. Dr. Krachmer expects the right eye vision to
change over the course of the eighteen months following the
surgery. Dr. Krachmer has testified that claimant's vision
can change for the better or for the worse. The right eye
has not reached the stage of maximum medical improvement.
Therefore, this deputy is unable to determine whether
Page 8
claimant is entitled to Second Injury Fund benefits or the
amount of those benefits, if any.
While it is acknowledged that claimant has also
sustained an injury to his left shoulder, this particular
injury does not qualify as an initial injury under the
Second Injury Fund Act. The left shoulder injury qualifies
as a body as a whole injury. When disability is found in
the shoulder, a body as a whole situation may exist. Alm v.
Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161
(1949). In Nazarenus v. Oscar Mayer & Co., II Iowa
Industrial Commissioner Report 281 (App. Decn. 1982), a torn
rotator cuff was found to cause disability to the body as a
whole.
Here, the shoulder injury affects the body as a whole.
Claimant's medical record for March 9, 1990, indicates the
pain is "an area deep within the anteralateral aspect of the
shoulder." (Jt. Ex. 2, p. 00026) He "has no radiation down
the arm." This is different than Shirley v. Shirley Ag
Service, File No. 811696 (Appeal Decision filed March 21,
1990). The shoulder injury does not qualify as an injury
under the Second Injury Fund Act. The defendant-Second
Injury Fund is dismissed as a party from this action.
order
THEREFORE, IT IS ORDERED:
Defendant-Second Injury Fund is dismissed as a party.
Defendants-employer and insurance carrier, are to pay
unto claimant forty-nine (49) weeks of healing period
benefits at the stipulated rate of eighty-five and 25/l00
dollars ($85.25) per week for the period from August 24,
1990 through August 1, 1991.
Defendants-employer and insurance carrier, are to pay
unto claimant twenty (20) weeks of permanent partial
disability benefits at the stipulated rate of eighty-five
and 25/l00 dollars ($85.25) per week commencing on August 2,
1991.
Defendants-employer and insurance carrier, are to pay
medical benefits in the sum of two hundred thirteen and
60/l00 dollars ($213.60) as aforementioned and pursuant to
section 85.27, Iowa Code.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year pursuant to section 85.30, Iowa Code, as amended.
Costs of the action are assessed to defendants pursuant
to rule 343 IAC 4.33.
Defendants shall file a claim activity report as
requested by this division and pursuant to rule 343 IAC 3.1.
Page 9
Signed and filed this ____ day of April, 1992.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. James E. Shipman
Mr. Matthew J. Petrzelka
Attorneys at Law
1200 MNB Building
Cedar Rapids, Iowa 52401
Mr. E. J. Giovannetti
Attorney at Law
Terrace Center, STE 111
2700 Grand
Des Moines, Iowa 50312
Mr. Craig Kelinson
Assistant Attorney General
Tort Claims Division
Hoover State Office Building
Des Moines, Iowa 50319
3200; 3202; 1803.1
Filed April 27, 1992
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
JOHN WAYNE BUTCHER II, :
:
Claimant, :
:
vs. :
:
NINJA, INC. dba ZAZOO THE : File No. 966329
BEACH CLUB, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AUTO OWNERS INSURANCE CO., :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
3200; 3202
The Second Injury Fund was dismissed as a party where the alleged
first injury (eye) had not reached maximum medical improvement
and where the treating ophthalmologist testified that permanent
loss of vision could not be established for 12 to 18 months.
Additionally, the Second Injury Fund was dismissed as a party
because another alleged first injury was an injury to the
shoulder.
1803.1
Defendants employer and insurance carrier were held liable for a
10 percent loss of the left eye because of a work injury
involving a "stereotypical barroom brawl." Section 85.34(q) was
used to calculate benefits since claimant had sustained a prior
injury to his right eye when he was a child.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
BEVERLY L. ATCHISON, :
:
Claimant, : File Nos. 930697
: 966331
vs. :
:
MERCY HOSPITAL, :
: 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 case came on for hearing on October 3, 1991, at
Des Moines, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of injuries occurring on
September 21, 1989 and February 3, 1990. The record in the
proceeding consists of the testimony of claimant, Amy
Desenberg-Wines, and Joe McManus; and joint exhibits 1
through 10.
At the beginning of the hearing, the claimant moved
that file number 920755, representing a petition alleging an
injury on June 14, 1989, be dismissed. The defendant had no
objection. The undersigned finds that there is no prejudice
or undue expenses incurred as a result of this dismissal
and, therefore, this file was dismissed and the parties
proceeded on the two files and two alleged injuries
previously set out herein.
issues
The issues for resolution are:
1. Whether claimant's alleged permanent disability or
the extent thereof is causally connected to his work
injuries of September 21, 1989 and February 3, 1990;
2. The extent of claimant's permanent disability and
entitlement to disability benefits as a result of the
injuries. The parties did agree that any disability would
be an industrial disability and benefits would commence, if
any, on May 8, 1990.
Page 2
findings of fact
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 39-year-old who completed the ninth grade
and then got married. She received her GED in 1984. Her
only other form of education was her attendance at a
clerical program course at DMACC at the end of 1984 and
beginning of 1985, which she did not complete. She
indicated she could not type, which was a requirement. She
received no certificate. Claimant also attended a certified
nursing assistant program in 1986 involving a two weeks
clinic and two weeks of classroom work. This taught a
person how to make beds, give baths and perform other
requirements on the hospital floor. Claimant completed this
course and received a certificate indicating she is a
certified nurse's assistant.
Claimant described her work history prior to working
for defendant beginning in April 1987. Claimant's prior
history from 1968 to 1972 involved labor-type jobs, such as
operating a sewing machine or mail order-envelope inserting
work.
From 1972 to 1987, claimant was a homemaker and was
home caring for her children. Claimant testified she had no
injuries prior to working for defendant, at which job she
started at $4.50 per hour.
Claimant described the nature of the work for
defendant. This work basically involved serving breakfast,
feeding patients, making beds, bathing patients and
servicing the patients' needs.
On September 21, 1989, claimant was moving and turning
a patient with the help of another nurse. Claimant suddenly
felt a knot in her neck and pain in her leg. When she moved
the next patient, the knot went up the neck and claimant had
pain in the lower shoulder and neck.
Claimant explained her medical care. Defendant sent
her originally to David T. Berg, D.O. There was an attempt
to put claimant back to work on light duty on the hospital
floor with her restrictions but claimant was unable to do
her job which still involved making beds and giving patients
a bath or walking them.
Claimant indicated that during the early part of 1990,
Dr. Berg allowed claimant to do light duty work restricting
her to office duty only. These duties involved making
copies, mailing, staff scheduling and running errands.
Claimant said she did this until December 1990.
On February 3, 1990, claimant incurred another injury
while on her light duty job. Claimant testified that on
this date another nurse was trying to move a patient from a
bed to a chair and asked for assistance. No one would help
the nurse so claimant, who was in the area, helped her
fellow employee with the patient. Claimant injured her neck
Page 3
and shoulder again. Claimant insisted the nurse needed
assistance. Claimant was reprimanded for violating her work
restrictions.
Claimant was being treated continuously by Dr. Berg up
to the February 3, 1990 incident. Claimant said this event
worsened her problems temporarily but eventually the pain
came down to the same level claimant had prior to her
February 3, 1990 incident.
Claimant related she went to the Block Center to get
Cortisone shots immediately prior to February 3, 1990, and
afterwards, but indicated they only helped her temporarily.
On August 31, 1990, claimant received a certified
letter from Joe McManus, defendant's workers' compensation
coordinator (Joint Exhibit 8, page 1), explaining Mercy's 90
day policy for permanent employees. This policy gave
claimant an option of voluntary terminating or taking a
leave of absence. Claimant doesn't recall defendant telling
her the light duty office job she was then performing was
temporary but she said they told her she was still an
employee of the department in which she worked at the time
of her September 1989 injury.
Claimant tried to find a job and defendant helped place
her in the purchasing department beginning December 17,
1990. This job was classified as general office work and
involved answering the telephone, data entry, greeting sales
people, etc. Claimant said she got along fine in this job
and worked December 17, 1990 to March 15, 1991.
Claimant related she was making $6.25 per hour on
September 21, 1989, and this increased to $6.43 in September
1990, but claimant's pay in December 1990 in the purchasing
department was $6.11 per hour. This lighter duty job paid
less per hour.
Claimant knew this purchasing department job was to be
temporary. She tried to find another job at Mercy Hospital.
Claimant said she checked each week looking at defendant's
bulletin boards for job listings, etc. She did not find any
work and defendant did not help her. She indicated Mercy
Hospital didn't send her a bulletin.
Claimant has not worked since March 15, 1991, and
defendant has offered her no jobs. Claimant related her job
attempts and records and considered her restrictions.
Claimant related Dr. Berg's restrictions given to her on
March 27, 1990, which involved a 5 pound weight limit. On
June 5, 1990, claimant acknowledged James L. Blessman, M.D.,
Dr. Berg's associate, put her on a 20 pound limit with no
above the shoulder level lifting.
Claimant said Mercy Hospital provided a vocational
rehabilitation company, namely, Resources Opportunities,
Inc., hereafter referred to and also known as R.O.I., to
help her find a job. Claimant related her working with them
in her job search but no jobs were found.
Page 4
Claimant said she last saw Dr. Berg two and one-half
months ago (July 1991).
Claimant testified she had no other injuries after
September 21, 1989, or February 3, 1990, except in December
1990, while raising both hands above the head and
stretching, she evidenced pain in the left side which
eventually resolved itself back to her pre-December 1990
condition. Also, in August 1991, claimant ducked to avoid a
bee and again temporarily incurred pain in the same parts of
her previously injured body.
Claimant related the problems she is currently having,
i.e., constant pain; can't sleep; can't mop; can't get items
from the cupboard; problems moving her head, particularly
fast; trouble driving; and doing certain other things around
the house.
Claimant said her husband has a mental disability,
which he had prior to his becoming 18. Claimant also has
back trouble. Claimant said her daughter now lives with
her.
Claimant was referred to Dr. Blessman on July 24, 1990.
Claimant insisted she doesn't have full range of motion in
her left shoulder notwithstanding what the doctor said.
On cross-examination, claimant was asked and discussed
the problems her daughter is having with her husband, the
court appearances, etc. Defendant was trying to show
claimant was babysitting for her grandchildren and therefore
not able to work or seek employment.
Claimant was asked several questions as to her contact
with Lori Hackett, the vocational rehabilitation specialist,
who worked with R.O.I. and which company was hired by
defendant to help claimant find a job.
Claimant acknowledged that her family problems
involving her daughter during March 1991 were overwhelming
and that any job claimant would have, she would have to
avoid working around 4:00 to 12:00 midnight because claimant
was babysitting her grandchildren.
Claimant indicated she has recovered from her February
1990 incident to the point medically that existed prior to
February 3, 1990. Therefore, claimant emphasized she is not
claiming she has any permanency from the February 3, 1990
accident (File No. 966331).
Claimant is not claiming the defendant is preventing
her from getting a job and acknowledged that Mercy Hospital
hired a vocational rehabilitation company to help her from
December 1990 to October 1991. Claimant seems to have put
things on hold due to her family problems, but is excited as
to getting training beginning October 7, 1991, at the state
vocational rehabilitation department and possibly getting a
good job. Claimant emphasized she would still like to work
at Mercy Hospital. Claimant said she could never go back as
a certified nurse assistant. Her restrictions have not been
Page 5
released.
Claimant testified that if she had not been given a
letter as to her leave of absence-option effective March 15,
1991, she believes she would still be working at defendant's
as far as she knows, if it were not for her injuries.
Claimant emphasized Joe McManus, defendant's workers'
compensation coordinator, never came to her and said that
there was a full-time job for her.
Amy Desenberg-Wines, a vocational rehabilitation
specialist with R.O.I. began working for R.O.I. in May 1991.
She knows claimant and testified a file was open for
claimant in December 1990. She took over for Lori Hackett,
who was originally assigned this case. Ms. Wines testified
as to her contact with claimant and what she did. Her
contact with claimant began on August 22, 1991.
Ms. Wines' testimony for the period prior to May 1991,
when she began working for R.O.I., was from the record made
by her predecessor, Lori Hackett. These records reflect
that claimant missed some appointments because of family
problems. Ms. Wines said that the records reflect that Ms.
Hackett recommended claimant should participate in the state
vocational rehabilitation program. Ms. Wines indicated
claimant did not follow some job leads she suggested in
March 1991. She further indicated claimant was affected by
her problems at home and that claimant's daughter's custody
fights affected claimant's job search placement. Ms. Wines
said these problems affected claimant searching for jobs on
her own so she put claimant's R.O.I. file on hold from March
to August 1991. She also said claimant at this time was
getting unemployment benefits and was applying for long-term
disability.
The R.O.I. report is joint exhibit 1A. Ms. Wines
elaborated on claimant's employability and jobs targeted for
her and the hourly range of $5.77 to $7.30 per hour.
It is of interest that Ms. Hackett or Ms. Wines never
apparently tried to get defendant to take claimant back.
Ms. Wines was emphatic that R.O.I.'s primary charge when
hired by defendant was to place claimant in a job within her
restrictions and qualifications. Ms. Wines agreed that
R.O.I.'s records show all job activity is regarding
employment outside of Mercy Hospital. She would qualify
some of her answers by saying she didn't know if Lori
Hackett checked other jobs with Mercy, itself. In every
case, the written record notes and reports were relied upon.
It is obvious to the undersigned that Lori Hackett didn't
look at Mercy for a job any more than Ms. Wines. It is
apparent that R.O.I. was looking for an outside employer.
Although the vocational rehabilitation experts
expressed the opinion that claimant would be good in the
medical field, there is no evidence whatsoever that R.O.I.
looked to Mercy, their client, for a job for claimant even
though the hospital and most of its jobs are in the medical
field. It appears R.O.I. never talked to Joe McManus at
Mercy concerning this. Ms. Wines indicated that R.O.I. has
Page 6
other cases for Mercy Hospital currently pending.
Ms. Wines indicated it is a priority to get an employee
back to employment if there is a position an employee can do
but that didn't occur in this case.
It appears claimant's employability is in an entry
level job considering that her medical restrictions dictate
a sedentary type work. Ms. Wines indicated claimant is very
employable but obvious when it comes to Mercy Hospital,
R.O.I. doesn't feel claimant is employable or at least their
client does not feel that way.
The undersigned feels there is no necessity to go into
any further detail with the vocational rehabilitation
expert's testimony.
Joe McManus, Mercy Hospital workers' compensation
coordinator, testified he coordinated defendant's effort
with R.O.I., as a self-insured employer and coordinates
light duty work efforts. When asked if R.O.I. is to contact
Mercy for a job for an injured employee, he indicated Mercy
Hospital never drew the line. He said if an employee is
going into the 90 day grace period and doesn't have a
permanent position, he brings in R.O.I. at that time and
asked the employee if she or he desires help with an outside
source as well as inside help. McManus emphasized Mercy
doesn't have its own outside source.
Mr. McManus indicated that defendant tries to retain an
injured worker. He elaborated in more detail the
defendant's procedure. McManus emphasized he can facilitate
an injured employee's application to get a job with the
defendant. He went through the Mercy Hospital bulletins and
highlighted jobs he thought claimant could do within her
restrictions. He believed claimant could get a job with
Mercy at this time.
It appears from Mr. McManus' testimony that Mercy is
doing all it can to get claimant back to work and that there
are jobs available yet he has obviously not conveyed that to
R.O.I. or to the claimant.
There is no disagreement that claimant cannot go back
to work as a certified nurse's assistant.
Joint exhibit 8 is an August 31, 1990 letter from Mr.
McManus to claimant. In this letter, defendant indicates it
will work closely with personnel to assist claimant in
securing any job of interest for which she qualifies. It is
of interest to the undersigned why Mercy Hospital did not
tell claimant there were jobs available or tell R.O.I., for
whom it was paying, that there were jobs available.
McManus acknowledged that if an employee takes a job
outside Mercy Hospital, the paid leave of absence (21
months) or any remainder of time on her leave would
terminate. It is obvious it is to defendant's advantage to
try to get an outside job for claimant.
Page 7
Claimant began working for defendant employer on April
8, 1987, at $4.50 per hour. Claimant has received good to
very good job reviews up to the August 23, 1989 review, the
last one prior to claimant's September 21, 1989 injury. At
this review, claimant's hourly pay went to $6.25 (Jt. Ex.
10). Claimant's next review appears to have been September
6, 1990, at which time she still had a "good, meets
expectation" rating and she went to $6.43 per hour. On
October 21, 1988, claimant had a physical examination which
resulted in claimant being recommended for the job she was
doing with no restrictions (Jt. Ex. 10). The pages to this
lengthy exhibit are not numbered, which would have helped in
more particulars to identify the particular part of the
exhibit.
Joint exhibit 1A is the vocational rehabilitation
report from which Ms. Wines testified in detail. The
written information supports the fact that R.O.I. was
basically looking outside Mercy Hospital for any full-time
job leads for the claimant.
Claimant was released to light duty on January 30,
1990, with "no lifting restriction." (Jt. Ex. 1B, p. 5)
Claimant was released to light duty on March 27, 1990, with
no lifting, pushing or pulling over five pounds (Jt. Ex. 1B,
p. 7).
On September 12, 1991, Dr. Berg opined claimant had a 5
percent impairment to her body as a whole based on
claimant's objective complaint of chronic pain. The
doctor's impairment rating was based on claimant's August
1990 examination (Jt. Ex. 1C, p. 1). The doctor refers to
claimant's injury but his December 12, 1990 report which
gave the same impairment rating, indicated he was giving his
rating on a September 1989 lifting injury (Jt. Ex. 1C, p.
2).
Since there is no dispute that claimant incurred a work
injury on September 21, 1989 and February 3, 1990, there is
no necessity of going into certain aspects of the medical
evidence herein. The extent of claimant's permanent
disability and whether it is causally connected to
claimant's injuries are the issues herein.
Dr. Berg's medical records on claimant show her
complaint and treatment. On January 22, 1990, these records
reflect claimant was having shoulder and cervical pain and
was referred to the Block Center for trigger point
injections on February 6, 1990. Claimant was still on
restrictions (Jt. Ex. 1D, p. 7). On January 30, 1990,
claimant told the doctor defendant was making her lift
patients and she was having difficulty (Jt. Ex. 1D, p. 8).
On February 5, 1990, the doctor's records show claimant
returned following a recurrence of pain on February 3, 1990,
while lifting a patient over the weekend (Jt. Ex. 1D, p. 8).
On March 27, 1990, Dr. Blessman, Dr. Berg's associate, gave
claimant a 5 pound lifting and pulling restriction and
claimant was not to make beds (Jt. Ex. 1D, p. 11).
Page 8
On June 5, 1990, claimant was improving and her lifting
limit was raised to nothing over 20 pound and no lifting
above shoulder level. Claimant reached maximum healing on
December 6, 1990 (Jt. Ex. 1D, pp. 19 and 23).
Mercy Hospital records reflect claimant's trigger point
injections and visits to the Nerve Block Center (Jt. Ex.
1E). Joint exhibit 6 reflects several of claimant's job
requests from January 15, 1990 to July 17, 1991. Claimant
was not successful in obtaining any of these jobs.
There is no dispute that there is a causal connection
to an injury on both September 21, 1989 and February 3,
1990. The dispute is basically as to whether there is any
permanent disability and the extent thereof. Claimant,
herself, indicated that she is no longer suffering from any
problems from her February 3, 1990 injury. The medical
evidence would indicate that any permanency that exists is
the result of the September 21, 1989 injury.
The greater weight of medical evidence shows that
claimant incurred an injury on September 21, 1989 and that
this injury and healing of the same continued and that the
events on February 3, 1990 aggravated an already existing
injury situation. The undersigned finds that this February
3, 1990 incident aggravated temporarily the medical problems
claimant had incurred from the September 21, 1989 injury and
that the reason the incident on February 3, 1990 aggravated
the injury was because claimant was still healing and
suffering from the September 21, 1989 injury. It would
appear that claimant healed and has no permanency from the
February 3, 1990 injury and the undersigned so finds.
It is undisputed that claimant is not able to return to
her certified nurse's assistant's job for which she was
trained and at which job she was doing good work as shown by
her reviews. It would appear that her skills are in the
medical area. Claimant basically has few transferable
skills and her work as a certified medical assistant seems
to have been a suitable field for her with her limited
education and specific training for approximately four weeks
in that field plus her job experience while working for
defendant. It is obvious Mercy Hospital is an institution
in which a majority of their employees would be working in
the medical field. They hired R.O.I. to help find claimant
a job. To date, they have been unsuccessful. It is obvious
to the undersigned that their intentions were placed on
obtaining a job for claimant with an outside source and not
Mercy Hospital. Mr. McManus emphasized in his testimony
that there are jobs at Mercy Hospital claimant could do and
yet he has made no real effort to convey this to either the
claimant or to R.O.I. It is to Mercy Hospital's advantage
that claimant obtain an outside job at the earliest possible
date, particularly while claimant was on the 21 month leave
of absence as this would terminate all benefits claimant
would otherwise be receiving.
Claimant obviously had, for a few months, family
problems involving her daughter and that her time was taken
up with her daughter's problems and her babysitting for her
Page 9
grandchildren. It is obvious from the record that had not
claimant been injured, she would have still been working at
Mercy Hospital as a certified nurse's assistant and that any
family problems that might have occurred could have been
resolved or handled without claimant quitting her job. The
fact that she wasn't able to get work and the nature of her
injury enabled her to at least do some other things she may
have not been able to do if she had a full-time job. It
would appear that claimant could have made a better effort
and a more complete effort when she was searching for a job
to take all approaches to find a job, particularly at Mercy
Hospital. It appears to the undersigned that we have two
people and one institution, namely, defendant and Mr.
McManus and claimant waiting for each other to take a step
in certain instances and neither Mercy or McManus going to
the extent that they should to help claimant find a job at
Mercy Hospital. Mercy, in good faith, hired an outside
source, R.O.I., but it seems like they then washed their
hands of claimant's problems. There obviously is not the
necessary communication between the vocational
rehabilitation specialist and defendant even though they
were in a contractual relationship to attempt to help
claimant find a job. It appears to the undersigned that
defendant may have thought it was to their advantage,
particularly with their leave of absence policy, etc., that
once they hired R.O.I., they could eventually and hopefully
get out of the picture and this would be to their advantage.
Apparently, they did not realize the provisions of the law
in which refusal to hire or rehire can affect the extent of
any industrial disability that may be awarded. The
undersigned finds defendant has not made the effort it
should have made in attempting to find claimant a job with
its own institution. This is further brought out by the
many jobs Mr. McManus now claims that claimant can do and
feels would be within her restrictions. Claimant may not
know whether a particular job could be within her
restrictions and it would seem the greater burden would be
on the employer to notify the claimant who they knew was
looking for a job to notify her that there are jobs they
feel are within her restrictions and invite her back to at
least attempt to do that work.
Considering claimant's age; pre- and post-medical
history and work history; her present condition; her
education; her physical qualifications; her impairment;
current lifting restrictions and the fact she is unable to
return to the work for which she was trained and working at
the time of her injury; the location and severity of her
injury and the extent of the healing period; the extent of
her motivation; the extent or lack of the extent of the
employee leaving work after her injury; and claimant's
inability to find suitable work after making bona fide
efforts, including efforts by R.O.I.; and the fact that
claimant has a loss of income, the undersigned finds that
claimant has a loss of earning capacity and has incurred an
industrial disability of 35 percent. The undersigned finds
that this industrial disability was caused by claimant's
September 21, 1989 injury.
conclusions of law
Page 10
The claimant has the burden of proving by a
preponderance of the evidence that the injury of September
21, 1989 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).
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
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
Page 11
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).
It is further concluded that:
Claimant incurred an injury that arose out of and in
the course of her employment on September 21, 1989, and that
this injury caused claimant to incur an impairment, lifting
restrictions and a 35 percent industrial disability.
Claimant's September 21, 1989 caused claimant to not be
able to return to her occupation as a certified nurse's
assistant.
Defendant did not make sufficient efforts to rehire
claimant or to enable her to return to a job within her
restrictions, which actions had the effect of defendant
having refused to rehire claimant. That refusal affected
the extent of claimant's industrial disability.
Claimant incurred an aggravation of her September 21,
1989 injury due to another injury which occurred on February
3, 1990. this latter injury aggravated temporarily the
condition claimant was already suffering from her September
21, 1989 injury.
Claimant did not incur any permanent disability as a
result of her February 3, 1990 injury.
Claimant's disability benefits as a result of her
September 21, 1989 injury should commence on May 8, 1990, at
the weekly rate of $171.49 per week, as stipulated by the
parties.
order
THEREFORE, it is ordered:
That defendant shall pay unto claimant one hundred
seventy-five (175) weeks of permanent partial disability
benefits at the rate of one hundred seventy-one and 49/100
dollars ($171.49) per weeks beginning May 8, 1990.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
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.
Page 12
Signed and filed this ____ day of November, 1991.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Robert E McKinney
Attorney at Law
480 6th Ave
P O Box 209
Waukee IA 50263-0209
Mr Stephen W Spencer
Mr Lee P Hook
Attorneys at Law
218 6th Ave Ste 300
Box 9130
Des Moines IA 50306
5-1803; 1807
Filed November 8, 1991
Bernard J. O'Malley
before the iowa industrial commissioner
____________________________________________________________
:
BEVERLY L. ATCHISON, :
:
Claimant, : File Nos. 930697
: 966331
vs. :
:
MERCY HOSPITAL, :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
Defendant. :
:
___________________________________________________________
5-1803
Found claimant incurred a 35% industrial disability as a
result of her September 21, 1989 work injury.
1807
Found defendant's action paramount to refusing to rehire
claimant. Defendant hired a vocational rehabilitation
company to find claimant a job but it was obvious the
rehabilitation consultant looked only outside of defendant
company for jobs for claimant and found none. Defendant
company contended at hearing there were jobs for claimant at
the hospital but didn't tell anyone. Claimant was unable to
perform the former job, but it appears defendant had jobs
within claimant's restrictions.
Claimant did not incur any permanent disability from her
February 3, 1990 work injury.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
WANDA J. WILKEN, :
:
Claimant, :
:
vs. :
: File No. 966343
ARMOUR DIAL CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
SELF-INSURED, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration upon the petition
of claimant, Wanda J. Wilken, against her employer, Armour-
Dial, defendant. The case was heard on April 28, 1992, at
the Des Moines County Courthouse, in Burlington, Iowa. The
record consists of the testimony of claimant. The record
also consists of the testimony of Bill Davis, packaging and
hydro-stat supervisor. Additionally, the record consists of
joint exhibits 1-21.
ISSUES
The issues to be determined are:
1. Whether claimant sustained an injury which arose
out of and in the course of her employment;
2. Whether there is a causal relationship between the
alleged injury and any temporary or permanent disability;
3. Whether claimant is entitled to any healing period
or permanent partial disability benefits;
4. Whether claimant is entitled to any medical
benefits pursuant to section 85.27; and,
5. Whether claimant has notified defendant pursuant to
section 85.23.
Page 2
FINDINGS OF FACT
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is 50 years old and married. She has a high
school diploma, but no education beyond the twelfth grade.
Claimant is a very petite woman.
For nearly 20 years, claimant has worked for defendant.
Currently, claimant is a can and product inspector which is
a non-skilled position.
Prior to October 1, 1990, the date of the alleged
injury, claimant had been working as a can inspector. She
sat parallel to the "can line." She sat with her left hand
raised above her breast, while the cans moved down the
production line and underneath her left hand. Claimant
testified that she felt for labels and defective cans and
that she would segregate the defective cans from the good
ones. Then, according to her testimony, she would request
her supervisor to shut down the line. Claimant also
testified she had to twist her body in order to perform her
tasks.
There is no question that claimant performed repetitive
tasks. The rate set for the production line was at 400 cans
per minute. On a given day, claimant could have inspected
between 120,000 and 400,000 cans. Claimant worked five days
a week, and 50 weeks out of a year.
Claimant testified she began experiencing difficulties
in her right wrist, elbow and arm in April of 1990. The
difficulties increased over time. Claimant modified her
work station. However, as of October 1, 1990, she
experienced excruciating pain. She was off work due to neck
pain, stiffness and right upper extremity difficulties
(Exhibit 11, page 68).
On October 8, 1990, claimant sought treatment from
Keith W. Riggins, M.D., for neck and right arm pain. Dr.
Riggins diagnosed claimant as:
X-ray examination of the cervical spine
demonstrates the presence of intervertebral disc
disease with spurs extending into the neural
foramina.
DX: Herniated nucleus pulposus, cervical with
radiculopathy, code 722.71.
(Ex. 12, p. 70)
Later that month claimant sought treatment at the Mayo
Clinic from Cameron G. Strong, M.D., and D.G. Piepgras,
M.D., a neurological surgeon. Dr. Piepgras performed a
right partial hemilaminectomy at C6-7, on October 26, 1990.
Subsequent to the surgery, claimant engaged in physical
therapy and strengthening. She remained off work on the
Page 3
following dates:
10-1-90 and 10-2-90
10-15-90 - 2-4-91
8-22-92 - 10-7-91
Eventually, claimant returned to her same position with
defendant. Her work station was modified for comfort. At
the hearing, Mr. Davis testified that he had a conversation
with claimant in late September of 1990 or early October of
that year, and that she related she had experienced a
problem with her shoulder over the prior weekend. She
informed him that she was uncertain where or how the injury
had occurred. Mr. Davis testified he informed claimant she
should fill out an incident report, but that claimant
replied she would rather see her own physician. Mr. Davis
completed a supervisor's incident investigation on October
3, 1990.
The evidence offered established that on December 17,
1990, Bill Davis and claimant met to discuss claimant's
alleged work injury. In a memo dated December 17, 1990, Mr.
Davis wrote:
Wanda Wilken was asked by Richard Leverington
to explain, in as much detail as possible, her
injury and in particular any dates that would help
us achieve a clear understanding of when she
started having trouble up until her surgery.
She could not recall specific dates, but gave
us general time frames. She said she would have
to ask her doctor for specifics. Most of her
discussion outlined her seeking medical help
through her own doctor. Mr. Leverington took
notes during this meeting and read back to Wanda
Wilken what he had written down and she agreed
with the information.
(Ex. 21, p. 1)
conclusions of law
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Page 4
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets v. Smith, 379
N.W.2d 368 (Iowa 1985).
In the case at hand, there is insufficient evidence to
establish a causal connection between claimant's condition
and her work activities.
Firstly, as early as September 28, 1990, claimant
reported to her supervisor that "she had a [sic] inflamed
ligament in rt. shoulder over the weekend. Does not know
how or when it happened and does n't [sic] want to blame the
company." (Jt. Ex. 20)
Claimant gave no history of any alleged work injury to
her medical practitioners upon her initial consultation with
them. With Dr. Riggins she spoke of a prior motor vehicle
accident.
Thirdly, the treating neurosurgeon, Dr. Piepgras,
opined there was no causal relationship between claimant's
work activities and the condition of her cervical spine. In
exhibit 16, he wrote that:
In response to your inquiry regarding the
possible causative factors relative to the
extruded cervical disk for which Ms. Wanda J.
Wilken underwent surgery here on October 26, 1990,
I have reviewed our records of that time, and it
appears that the symptoms developed spontaneously
on October 1, 1990. Specifically, there was no
mention made of a specific work-related incident
which triggered these symptoms, and based on this
information I could not establish a true
Page 5
relationship between Ms. Wilken's work and the
extruded disk.
This deputy has given great weight to the treating
surgeon. He had numerous occasions to observe and treat
claimant.
Finally, there is the opinion of John E. Sinning, Jr.,
M.D. He too concurred with the opinion of Dr. Piepgras,
that there was no causal relationship between claimant's job
and her cervical spine condition. According to Dr. Sinning,
he opined: "It is my opinion that Mrs. Wilken's cervical
disc herniation came about as a spontaneous occurence [sic],
unrelated to her work. I agree with Dr. Peipgras' [sic]
statement in this regard." (Ex. 18, p. 210)
In light of the foregoing, it is the determination of
the undersigned deputy that claimant has failed to prove a
necessary element of her case. Claimant has not established
the requisite causation element. Claimant take nothing from
these proceedings.
Other issues need not be addressed.
order
THEREFORE, it is ordered:
Claimant takes nothing from these proceedings
Each party shall pay her/its own costs pursuant to 343
IAC 4.33.
Signed and filed this ____ day of May, 1992.
________________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr James P Hoffman
Attorney at Law
Middle Rd Box 1087
Keokuk IA 52632
Mr E J Giovannetti
Attorney at Law
Terrace Ctr Ste 111
2700 Grand Ave
Des Moines IA 50312
1108
Filed May 18, 1992
Michelle A. McGovern
before the iowa industrial commissioner
____________________________________________________________
:
WANDA J. WILKEN, :
:
Claimant, :
:
vs. :
: File No. 966343
ARMOUR DIAL CO., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
SELF-INSURED, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
1108
Claimant has failed to establish the requisite causal
connection between her cervical spine condition and her work
activities. Claimant informed her supervisor that over a
weekend her neck started hurting, but she did not want to
blame the company. Claimant gave no history of a work
injury to her treating medical practitioners. Both the
treating surgeon and the evaluating physician denied there
was a causal relationship between claimant's work activities
and her cervical spine condition.