BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
STEVEN D. LASH,
Claimant,
vs.
File No. 966575
CITY OF KNOXVILLE,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
March 27, 1992 is affirmed and is adopted as the final agency
action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of October, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Russell J. Hansen
Mr. Daniel L. Manning
Attorneys at Law
820 Liberty Bldg.
Des Moines, Iowa 50309
Mr. David L. Jenkins
Attorney at Law
801 Grand Ave., Ste 3700
Des Moines, Iowa 50309-2727
9998
Filed October 28, 1992
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
STEVEN D. LASH,
Claimant,
vs.
File No. 966575
CITY OF KNOXVILLE,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
____________________________________________________________
9998
Summary affirmance of deputy's decision filed March 27,
1992.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
STEVEN D. LASH, :
:
Claimant, :
:
vs. : File No. 966575
:
CITY OF KNOXVILLE, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
statement of the case
Claimant Steven D. Lash seeks benefits under the Iowa
Workers' Compensation Act upon his petition in arbitration
against defendant employer City of Knoxville and defendant
insurance carrier Employers Mutual Companies. He asserts a
cumulative injury to the cervical spine attributable to that
employment on April 8, 1990.
This cause came on for hearing in Des Moines, Iowa, on
February 3, 1992. The record consists of claimant's
exhibits 1 through 21, defendants' exhibits A and B and the
testimony of claimant and Connie Harson. Official notice of
Iowa Code chapter 411 was taken. The depositions of
claimant, Brian D. Lange, D.C., Douglas R. Koontz, M.D., and
Daniel J. McGuire, M.D., were received as exhibits.
issues
The parties have stipulated to the existence of an
employment relationship between claimant and City of
Knoxville at all times relevant, to the extent of temporary
disability if a compensable injury be found, to the rate of
compensation, and that certain sick pay/disability and
hospitalization expenses were paid under Iowa Code chapter
411 prior to hearing.
Page 2
Issues presented for resolution include:
1. Whether claimant sustained an injury arising out of
and in the course of his employment on April 8, 1990 (or, as
defendants maintain, on February 21, 1986);
2. Whether there exists a causal relationship between
the asserted injury and temporary and/or permanent
disability;
3. The nature and extent of each;
4. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27;
5. Whether defendants are entitled to credit for
benefits paid under Iowa Code chapter 411; and,
6. Whether the claim is barred as untimely under Iowa
Code section 85.26(1).
findings of fact
The undersigned deputy industrial commissioner finds:
Steven D. Lash, 44 years of age at hearing, accepted
work as a patrolman with the City of Knoxville Police
Department in 1978. He remained so employed until 1990, but
is now retired due to disability following cervical fusion
surgery in April of that year. Although Mr. Lash did not
graduate from high school, he earned his GED in
approximately 1972, went on to earn a bachelor's degree in
criminal justice from Simpson College and is currently
taking community college courses to earn a certificate in
mortuary science. Officer Lash is clearly motivated, and,
as shall be seen, stoic in the face of pain.
The story begins on February 21, 1986. Claimant was
working the radio as a dispatcher that night when a
disturbance arose between another officer and an intoxicated
criminal suspect. Claimant immediately went to help subdue
the suspect, but was knocked down and struck his head on the
desk or floor. Afterwards, claimant noticed pain radiating
from the neck across the left shoulder and down the arm. In
his trial testimony, Officer Lash asserts that he noticed
pain in both arms, but referred only to left-sided pain in
deposition testimony on February 29, 1991.
On February 24, claimant sought treatment from his
chiropractor, E. D. Tracy, D.C. Dr. Tracy gave subsequent
treatments on April 23, July 24, October 23 and November 13,
1986, for "primary complaint of brachial neuritis/neuralgia
of left shoulder, arm and hand," as reported in a letter
dated March 27, 1987.
In August, claimant was seen at the Mater Clinic for
further evaluation of left shoulder and arm pain of three
weeks' duration. Extensive cardiac testing was undertaken,
but proved negative.
Page 3
Claimant was next seen by another chiropractor, Brian
D. Lange, D.C., on November 25, 1986. Initial complaints
were of a three-month history of left shoulder/neck and
arm/forearm pain with symptoms in the left thumb and first
two fingers. Dr. Lange's testimony (by deposition on
October 29, 1991) indicates a recollection of generalized
unilateral neck pain radiating to the upper arm. Dr. Lange
testified that claimant was in obvious acute distress, "at
times holding his arm, unable to sit still."
Dr. Lange took x-rays which he interpreted as showing a
reversal of the lordotic curve in the lower cervical spine
and a mild narrowing of the space between the lower two
cervical discs, consistent with a traumatic injury to the
cervical spine. Dr. Lange concluded that the February 21
incident had probably caused a severe strain/sprain with
annular tears in the bottom one or two cervical discs
leading to "leakage" of nuclear material from the disc into
the nerve foramina. A course of treatment was begun
including cervical traction, ultrasound, muscle stimulation
and hot moist packs.
Symptoms rather quickly improved, such that active
treatment ceased following December 12, 1986. On that date,
Dr. Lange advised claimant that the chances were not good
that he could avoid surgery, at best perhaps 50/50.
In 1987, claimant submitted medical bills of Dr. Tracy
and Dr. Lange to Employers Mutual Companies. These were
paid. The carrier refused to cover costs of cardiac testing
at the Mater Clinic. Officer Lash concluded that Employers
Mutual had (mistakenly, in his view) determined the entire
incident of February 21, 1986, was not compensable and
submitted no further medical bills until after April 1990.
There can be little doubt that claimant knew his injury
was work connected and serious in December 1986, since his
symptoms had continued so long and he was medically advised
that eventual surgery was probable. There can also be
little doubt but that he realized the injury was
compensable, since he submitted medical billings to
Employers Mutual in 1987 and was indeed compensated.
Claimant returned to Dr. Lange next on March 22, 1988.
He reported intermittent neck pain since the last visit, but
further complained of having awakened with right-sided neck
pain three days before. Dr. Lange noted that biceps reflex
was diminished on the right side, indicating the possibility
of symptoms stemming from a second level of the cervical
spine. Treatment for several days brought good relief.
Officer Lash returned again on November 7, 1989,
following a flare-up approximately one week before. He was
treated ten days and missed the last appointment, presumably
because he had improved significantly.
Claimant next appeared on April 4, 1990, complaining of
left and right arm pain, aching and throbbing with
headaches, low back pain and soreness in the right side of
the head and neck. Three days of treatment resulted in no
Page 4
improvement, and as claimant was reaching the end of his
ability to endure, Dr. Koontz instructed him to seek
surgical treatment. Dr. Lange did not recall any particular
precipitating incident to bring him into the office, but
believed that symptoms had gradually become more and more
intense, finally forcing claimant to seek additional
treatment. Dr. Lange testified that claimant had, by this
time, finally reached the point he had foreseen three and a
half years before.
Surgery was performed by Douglas R. Koontz, M.D., a
board-certified neurosurgeon. When claimant was seen at
Mercy Hospital in Des Moines on April 8, 1990, the history
taken by Dr. Koontz included the following passage:
HISTORY: Mr. Lash is 42 year old police officer
from Knoxville, Iowa who states that about two
years ago when "wrestling a drunk", he injured his
neck. He states that since that time he has had
intermittent episodes of neck pain problems that
he dealt with via his home town chiropractor and
usually had good results. He states that his
chiropractor felt that more than likely he had a
significant neck problem that would eventually
require some surgery although the patient
continued to get over the intermittent spells and
has put this off. He had a flare up last October
which resolved and was doing quite well until
about two to three weeks ago when he did some type
of yoga maneuver at which point he hyperflexed his
neck most likely, from what he describes, and has
had severe neck pain on the right side with pain
radiating into the right shoulder, arm and into
the thumb and somewhat the index finger since.
This is associated with intermittent numbness and
tingling and he feels that his right arm is
somewhat weak as well.
(Dr. Koontz deposition exhibit 1, page 6)
Claimant did not miss any work between February 21,
1986, and his hospital admission in April 1990. He
testified to pain in both arms, but mostly on the left side
during this lengthy interval. At deposition, the following
exchange occurred:
Q. Now, up until April of 1990, all your pain had
been pretty much left-sided, hadn't it?
A. Pretty much so. I may have had one or two
incidents where I had pain in the other arm, in
the other side; but I would say 99.9 percent of
the time it was this area.
Q. And now, in 1990, had it shifted to where you
were feeling much more pain and numbness and
tingling on your right side?
A. I felt some; but it was nothing compared to my
left, and it wouldn't be there all the time. You
Page 5
know, this here had pain continuously, just some
days it was harder than others.
This year I had, I thin, maybe--once or twice,
maybe, I had problems on this side. But mostly it
was this one.
Q. Okay.
A. Left side.
Q. On the day you went into the hospital, April
8th, still you left side--left neck, shoulder, and
arm--was the predominant problem for you?
A. Yes.
(Steven Lash deposition, page 64, line 4 through page 65,
line 1)
After admission, claimant underwent MRI testing which
showed a massively herniated disc at C5-6 on the right and
bony stenosis at C6-7 on the left, which Dr. Koontz saw as
indicating a second ruptured disc. On April 11, Dr. Koontz
performed a discectomy and fusion at both levels.
Dr. Koontz is of the view that the initial injury in
1986 certainly created the disc rupture at C6-7 to the left
and most likely caused an injury to the C5-6 disc as well,
in that chronic changes were seen on that level
radiographically. Dr. Koontz also believed that the C5-6
disc ultimately ruptured on the right and directly caused
the need for surgery. If the acute pathology at C5-6 had
not developed, it was possible that claimant still could
have avoided surgery with respect to the left-sided C6-7
pathology, even though there was stenosis at that level
which would ultimately have become a problem; the left-sided
pathology was not the acute problem that required surgery in
April 1990.
As to the immediate need for surgery, the acute
rupture, Dr. Koontz testified:
Q. Now, as to the C5-C6, is it your view that the
rupture that you found there, the disk rupture,
did not occur in 1986?
A. I don't feel that the rupture did, no.
Q. It's your belief that that occurred in--at the
point where his pain increased in the two or so
weeks before he saw you in April of 1990?
A. Correct.
(Dr. Koontz deposition, page 61, lines 18 through 25)
Dr. Koontz believed that the 1986 incident caused a
severe injury at C6-7 and a resulting injury at C5-6 based
on x-ray changes seen nine months later consistent with
Page 6
degenerative and advanced change. The doctor was "more
confident" that the acute onset of symptoms coincided with a
right-sided rupture at C5-6 in 1990.
Dr. Koontz testified that it was possible claimant's
work as a police officer could have aggravated his back
condition in the years following February 21, 1986. He was
not familiar with claimant's duties other than generally as
a police officer and was unaware of any specific incidents,
such as wrestling more drunks on the job.
According to Officer Lash, there was no such acute
incident in 1990 as is described in Dr. Koontz' history. To
start with, he does not do yoga exercises. However, he was
doing range of motion neck exercises (unprescribed by any
physician) when he gradually developed pain. At hearing, he
stated that he had not been doing neck exercises and was at
work when acute pain developed that was so significant as to
require medical attention.
Dr. Lange continued treating claimant. In his view,
the "condition" of claimant in 1990 related back to the 1986
injury. He believed claimant's continued work as a police
officer aggravated that condition. Dr. Lange believed the
second disc had herniated through "cumulative trauma and
changes which occurred as a result of the permanent damage
done to the ligaments, annular disk fibers and the kinetics
of the cervical spine." (Dr. Lange deposition, page 49,
line 24 through page 50, line 2).
Claimant was also seen for evaluation by Daniel J.
McGuire, M.D. Dr. McGuire is a board-certified orthopaedic
surgeon. He was deposed on January 28, 1992. Dr. McGuire
believed that degenerative changes shown on films in 1986
and in 1990 were very similar, indicating that the 1986
injury had not been very severe, as degenerative changes
would become much worse in four years if it had been. Dr.
McGuire felt that the 1986 injury had proven nondisabling,
even though claimant had intermittent increase of symptoms.
He further believed that the right-sided symptoms developed
for the first time in 1990 and directly caused the surgery
and all subsequent disability. He did not believe that
employment as a police officer contributed to the 1990
condition, any more than just basic living.
The assumptions specifically relied on by Dr. McGuire
in formulating his opinions are incorrect in one important
respect. He believed that claimant had no right-sided
symptoms whatsoever until immediately before requiring
surgery in 1990. In fact, Dr. Lange and claimant's
testimony confirm earlier complaints of right-sided
symptoms. Nonetheless, it is clear from claimant's
deposition testimony that left-sided symptoms were much more
severe, perhaps 99.9 percent of his problem. Thus, it seems
that the "massive" right-sided herniation occurred with the
onset of severe symptoms shortly before surgery, if, as Dr.
Koontz suggests, against the backdrop of degenerative
changes related to the 1986 injury.
Dr. Koontz' opinions as to causation are the most
Page 7
convincing. Claimant suffered a left-sided herniation at
C6-7 in 1986 with damage to the next higher level, C5-6,
which resulted in degenerative changes seen on x-ray films
in November of that year. This would explain intermittent
symptoms for the next four years, but much greater on the
left. In 1990, for whatever reason, claimant suffered an
acute onset of symptoms which related to a rupture on the
right side at C5-6. The increase in symptoms is most
significantly related to performing neck exercises, if any
specific incident.
Officer Lash filed his petition in arbitration on
January 30, 1991.
conclusions of law
Iowa Code section 85.26(1) provides:
An original proceeding for benefits under this
chapter or chapter 85A, 85B, or 86, shall not be
maintained in any contested case unless the
proceeding is commenced within two years from the
date of the occurrence of the injury for which
benefits are claimed or, if weekly compensation
benefits are paid under section 86.13, within
three years from the date of the last payment of
weekly compensation benefits.
The statute of limitations is an affirmative defense.
Dart v. Sheller-Globe Corp., II Iowa Industrial
Commissioner Report 99 (1982). Defendants paid medical
benefits on this claim, but no weekly benefits. Because no
weekly benefits were paid, the two-year statute of
limitations applies. Thus, claimant's petition is untimely
with respect to the events of February 21, 1986.
However, Iowa has adopted the "discovery rule" in cases
involving the two-year statute of limitations. Orr v. Lewis
Cent. School Dist., 298 N.W.2d 256 (Iowa 1980). That is,
the two-year period in which to file a claim does not start
running until the worker should know his injury is both
serious and work connected. Id. In determining when the
worker "should know," a reasonable person standard is to be
applied, taking into account the intelligence and education
of the worker. Robinson v. Dep't of Transp., 296 N.W.2d 809
(Iowa 1980); Koopmans v. Iowa Electric Light & Power Co.,
File No. 694831 (App. Decn., December 30, 1987).
By November 1986, claimant suffered continuing symptoms
following treatment by two chiropractors and was
specifically advised that he would probably require future
surgery. There is no question but that Officer Lash
attributes those symptoms to the February 1986 injury.
There is also no doubt but that he considered the injury
compensable, since he submitted bills from Drs. Lange and
Tracy in 1987, and the bills were accepted by Employers
Mutual. Thus, the discovery rule avails claimant naught.
But claimant alleges a cumulative injury effective when
he first had to leave work, April 8, 1990. He probably
Page 8
would have missed work at an earlier time, but felt that he
would be "harassed" by the assistant police chief if he did.
In cases of cumulative trauma, the injury date is deemed to
have occurred when, due to pain or physical inability,
claimant is no longer able to work. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Although Dr.
Lange, the chiropractor, believed that claimant's continued
work aggravated his condition and Dr. Koontz believed that
it could, Dr. McGuire believed that it did not. There is no
evidence of continued traumas, fights, drunk wrestling or
the like to indicate what the nature of such cumulative
"traumas" might be; rather, claimant pointed to such mundane
activities as looking both ways at intersections while
driving. The evidence is much more consistent with the
opinions of Dr. Koontz and Dr. McGuire: there was a sudden
herniation shortly before claimant's 1990 surgery. While
this herniation may not have occurred while claimant was
performing neck exercises, the sudden and dramatic increase
of symptoms on the right side charted by Dr. Koontz is more
consistent with a sudden herniation than a "cumulative"
herniation. It should also be noted that Drs. Koontz and
McGuire are board certified as a neurosurgeon and an
orthopaedic surgeon, while Dr. Lange is a chiropractor. The
opinions of board-certified physicians are commonly given
greater weight. Richland v. Palco, Inc., Thirty-second
Biennial Report of the Industrial Commissioner 56 (1975).
Although claimant first left work in April 1990, the
record does not support a conclusion that his right-sided
herniation came on as a "second" injury resulting from
gradual trauma. It is better supported by the evidence to
Claimant shall take nothing further from this action.
The costs of this action are assessed to defendants
pursuant to rule 343 IAC 4.33.
Signed and filed this ______ day of ____________, 1992.
______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Daniel L. Manning
Attorney at Law
820 Liberty Building
Des Moines, Iowa 50309
Mr. David L. Jenkins
Attorney at Law
801 Grand Avenue, Suite 3700
Des Moines, Iowa 50309-2727
2209; 2402
Filed March 27, 1992
DAVID RASEY
before the iowa industrial commissioner
____________________________________________________________
:
STEVEN D. LASH, :
:
Claimant, :
:
vs. : File No. 966575
:
CITY OF KNOXVILLE, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
2209; 2402
Police officer suffered neck injury with mostly left-sided
radiating pain in February 1986. In December, still with
intermittently severe symptoms, he was advised that eventual
surgery would probably be required. In 1987, claimant
submitted some medical bills to defendants; these were
honored.
In 1990, claimant experienced severe onset of right-sided
pain. Up to this point, he had stoically gone to work every
day. Two-level disc herniation was found and treated by
fusion surgery.
The medical evidence showed that claimant suffered a
herniation at one level in 1986, plus resulting damage to
the second level -- which eventually herniated in 1990,
possibly when claimant was doing neck exercises on his own
prescription.
The second herniation was not found to be a subsequent,
cumulative injury, but was causally related to the 1986
traumatic injury. Even though this severe exacerbation was
not foreseen by claimant, the discovery rule did not assist
him. LeBeau v. Dimig, 446 N.W.2d 800 (Iowa 1985).
Considering claimant's intelligence and education, he should
have known by December 1986 that his injury was both serious
and work connected. As no weekly benefits were paid, the
two-year statute of limitations barred the claim.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
LARRY SCHEUERMANN, :
: File No. 966586
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
OSCAR MAYER FOODS CORPORATION, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Larry Scheuermann, against his employer, Oscar Mayer
Foods Corporation, self-insured employer, defendant. The case
was heard on January 13, 1992, in Des Moines, Iowa at the office
of the Industrial Commissioner. The record consists of the
testimony of claimant, as well as the testimony of Ms. Leslie
Whippen, audiologist, and the testimony of Niel Ver Hoef,
audiologist. Additionally, the record consists of claimant's
exhibits 1-18 and defendant's exhibits A-D. Finally,
administrative notice was taken of the official file, as well as
the official file for Scheuermann v. Oscar Mayer Foods Corp.,
File number 928147 (Arbitration Decision filed March 8, 1991).
issues
The issues to be determined are: 1) whether claimant
sustained an occupational hearing loss which arose out of and in
the course of employment with employer; 2) whether there is a
causal relationship between the alleged injury and the
disability; 3) whether claimant is entitled to temporary
disability/healing period benefits or permanent partial
disability benefits; and, 4) whether claimant is entitled to
medical benefits.
findings of fact
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant worked for Oscar Mayer for over 25 years as a meat
cutter. Primarily, claimant worked on the cut floor where he
pulled loins, trimmed picnics and trimmed neck bones.
The last day claimant worked at defendant-employer's plant
was December 30, 1987. In January of 1988 claimant had open
heart surgery for a heart condition which was unrelated to his
work activity. Claimant also had hand surgery. Claimant
intended to return to work, however, the plant closed on February
3, 1989.
Page 2
Claimant testified that over the course of his employment,
he began noticing problems with his hearing. He stated that when
people spoke to him, he had difficulty discriminating words and
certain sounds.
Claimant described his work station. For the last 10 years
of his employment, claimant pulled loins on the cut floor. He
testified he would have to talk very loudly if he wanted to speak
to someone near his work station. He also testified he would
have to stand within three feet of a person if he wanted to speak
to that individual. Claimant also indicated that in his
department there were clanging noises and humming motors.
As far back as 1976, defendant-employer began giving hearing
tests to its employees. Claimant was one of the employees.
Claimant had hearing tests at work in 1976, 1977, 1978,
1981, 1982, 1984 and in July of 1987. Additionally, claimant had
a hearing test by an independent audiologist on March 13, 1989
and on November 26, 1991.
Defendant developed a hearing conservation program after the
Division of Labor Services, consultation bureau, conducted noise
monitoring surveys. The results of the September 2, 1987,
monitoring showed that:
_______________________________________________________
Time Sampled 8-hr. TWA
Location (Minutes) Exposurea
Wanderer 425 90b
Stomach - Vise Line 415 90b
Pull Leaf Lard 420 90b
Shaving 450 98
Dropping Heads 445 91b
Back Saw 440 94
Head Table 190 89c
Kill - Utility 455 98
a8-hour Time Weighted Average (TWA) exposure, assuming
unsampled time to be less than 80 dBA.
bThese exposures are not considered to be in excess of
the PEL due to a plus/minus2 dBA error factor inherent
in the noise monitoring equipment.
cThis exposure is a 4 hour sample and represents what
an 8 hour TWA exposure would be if exposed for eight
hours.
For the last three years of his employment, claimant wore
mandatory hearing protection. Claimant testified he perceived
his work area as noisy, although a noise monitoring survey was
Page 3
not taken of the cut floor. It is clear the work environment was
generally noisy.
Leslie A. Whippen, M.D., a licensed audiologist, testified
on behalf of claimant. She first became acquainted with claimant
in 1989 when he saw her for an audiometric evaluation. Ms.
Whippen performed audiometric tests on claimant. The test
results, in Ms. Whippen's opinion showed that:
Q. Were you able to draw any conclusions as a
consequence of that test as would regard whether this
gentleman has any hearing loss?
A. Yes. At the time he had a mild sloping to
severe hearing loss in the right ear. The left ear is
slightly poorer than that extended through more of the
frequency range in its severity. And it's
sensorineural in nature, which means that it's a
permanent type of hearing loss, in other words, no
medical correction. There's nothing wrong with the
eardrum or the bones. It's in the cochlea, which is
nonoperable generally.
(Transcript page 46, lines 7-18)
Ms. Whippen recommended correction in both ears as claimant
had more than a 25 dBA loss. The audiologist also testified that
while she did not know the decibel levels on any given day at
claimant's work station, she opined claimant's audiogram looked
very similar to an audiogram from someone who was exposed to
noise. Additionally, Ms. Whippen opined that claimant's hearing
loss was obtained through excessive exposure to noise. She
confirmed under cross-examination that she had no information
about decibel levels to which claimant was exposed. Neither did
Ms. Whippen have any information relative to the length of
exposure to noise to which claimant was exposed.
Niel Ver Hoef, an audiologist, testified for defendant.
From 1975 to 1983 he recertified the testing room and he
recalibrated defendant's audiometer on an annual basis. The
witness opined that claimant sustained a hearing loss between
1981 or 1982 and 1984. However, Mr. Ver Hoef was unable to
establish the cause of that hearing loss. Moreover, the
audiologist testified the greatest hearing loss was sustained by
claimant between 1987 and 1989 and not between 1976 and 1987 when
claimant was actually working on the cut floor.
Additionally, Mr. Van Hoef testified that when the Division
of Labor Services conducted its noise survey, the cut floor was
not defined as one of the potentially hazardous areas. Mr. Van
Hoef assumed that area was not above the PEL or the 90 decibel
scale, a time - weighted average (Tr. p. 98, ll. 4-10). However,
the expert noted that employees on the cut floor were targeted
for the hearing conservation program.
conclusions of law
Occupational hearing loss is defined in section 85B.4.
Under the section, an occupational hearing loss is a permanent
sensorineural loss of hearing in one or both ears in excess of 25
Page 4
decibels which arose out of and in the course of the employment
and was caused by prolonged exposure to excessive noise levels.
An excessive noise level is sound capable of producing
occupational hearing loss or sound exceeding the time and
intensities listed in the table in section 85B.5 or both. See
Muscatine County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
The table in section 85B.5 then, is not the minimum standard
defining an excessive noise level in section 85B.4(2). The table
in section 85B.5 lists noise level times and intensities which,
if met, will be presumptively excessive noise levels of which the
employer must inform the employee. See Muscatine County, 409
N.W.2d 685 (Iowa 1987).
With any type of workers' compensation claim, including an
occupational hearing loss claim, the claimant has the burden of
proving by a preponderance of the evidence that he has a hearing
loss due to noise exposure in the work environment and it is
causally related to the disability on which he now bases his
claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-614 (Iowa
1945). A possibility is insufficient; a probability is neces
sary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732,
738 (Iowa 1955). The question of causal connection is essen
tially within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960).
The Iowa Supreme Court has indicated that there can be a
hearing loss even if the noise level is below the level indicated
in Iowa Code section 85B.5 (1989). Muscatine County, 409 N.W.2d
685, 688 (Iowa 1987). The Court also indicated that if the
tables set out in Iowa Code section 85B.5 (1989) were not impli
cated in claimant's hearing loss, then the claimant must prove
the loss of hearing was due to exposure to sound at work capable
of producing that loss. Duration and intensity of exposure will
be helpful to prove the necessary link between noise at work and
the hearing loss. Id. at 688.
This deputy refers the parties to the decision of Deputy
Nelson in Scheuermann v. Oscar Mayer Foods Corp., File No.
928147, Filed March 8, 1991. In that case Deputy Nelson wrote in
relevant part:
In this instance there is evidence that claimant worked
in a noisy environment, but that is the only thing the
claimant proved. The evidence is [sic] reveals that
Oscar Mayer thought that the noise on the cut floor was
at or exceeded 85db. However, the evidence is not
clear that this was the noise level all the time and
that this level of noise caused a permanent occupa
tional hearing loss in the claimant. The claimant tes
tified that the noise level on the cut floor was not as
loud as the kill floor. The kill floor noise level was
at 98db. Claimant also testified that he stood about
50 feet from the shaving area which had a noise level
of 98db. From this testimony, the evidence suggests
that the noise level was less than 98db. Since the
differential between the range of noise levels is sig
nificant, it would be speculative to conclude that the
tables in Iowa Code section 85B.5 were implicated in
Page 5
this instance. Such speculation cannot form the basis
for an award for worker's compensation benefits. Burt
v. John Deere Waterloo Tractor Works, 73 N.W.2d 732,
737-738 (Iowa 1956).
However, even assuming that the noise level on the cut
floor was excessively noisy and claimant was exposed to
constant noise level for nearly 25 years, which pro
duced a hearing loss as the court in Muscatine County,
409 N.W.2d at 688 suggests, this conclusion the appli
cation of the duration and intensity test articulated
in Muscatine County, 409 N.W.2d at 688, does not
relieve claimant of his burden to show not only a hear
ing loss but one that is permanent and in excess of
25db. There is no evidence in the record that shows
that claimant has suffered a permanent sensorineural
loss of hearing in one or both ears in excess of
twenty-five decibels. The only evidence of sensorineu
ral hearing loss is a statement by the audiologist on
her report of March 13, 1989 that there has been a
loss. There is no evidence of the amount of the loss.
The follow-up letter dated July 27, 1989 from the audi
ologist reports the result of the March 13, 1989 test.
But, there is no interpretation, or any comparison of
the audiometric tests performed at Oscar Mayer and the
test performed in March of 1989. The Oscar Mayer
audiometric tests submitted by claimant are meaningless
without some accompanying interpretation and comparison
to the last test performed in March of 1989.
Additionally, the audiologist apparently marked the
normal hearing threshold areas on her report, but this
information is not on the exhibit submitted as part of
the record in this case. There is no way to discern
from the report submitted how much of a loss the
claimant has suffered. Consequently, claimant has
failed to sustain his burden of proof and takes nothing
from this proceeding.
In the instant case, claimant has demonstrated that he has a
permanent sensorineural loss of hearing in one or both ears in
excess of 25 decibels. Ms. Whippen's testimony and her test
results establish the requisite permanent sensorineural loss of
hearing. However, the cause of that hearing loss has not been
established. Ms. Whippen testified she had no information rela
tive to the noise level on the cut floor. Likewise, Ms. Whippen
admitted she had no records relative to the length of exposure to
noise to which claimant was exposed. Mr. Van Hoef testified he
could not establish the cause of claimant's condition. The
record indicates cut floor employees, including claimant, were
targeted for a hearing conservation program. However, there was
no evidence that the actual noise level was above the Permissible
Exposure level (PEL), or even what the actual level was.
Claimant has not met his burden of proof.
In light of the foregoing, claimant is unable to establish
the cause of his permanent hearing loss.
order
THEREFORE, IT IS ORDERED:
Page 6
Claimant shall take nothing from these proceedings.
Costs of this action are taxed to claimant.
Signed and filed this ____ day of March, 1992.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Steven C. Jayne
Attorney at Law
5835 Grand Avenue
Suite 201
Des Moines, Iowa 50312
Mr. Harry W. Dahl
Attorney at Law
974 73rd Street
Suite 16
Des Moines, Iowa 50312
1108; 2208
Filed March 6, 1992
MICHELLE A. McGOVERN
before the iowa industrial commissioner
____________________________________________________________
:
LARRY SCHEUERMANN, :
: File No. 966586
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
OSCAR MAYER FOODS CORPORATION, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
1108; 2208
In file number 928147 claimant alleged a hearing loss due to
exposure to noise in the work environment. Deputy Nelson
determined claimant had failed to meet his burden of proof
that claimant had suffered a permanent sensorineural hearing
loss in excess of 25 decibels in one or both ears.
Claimant then filed file number 966586 and alleged a
separate injury date. A hearing was held on January 13,
1992. In the latter case, claimant, along with the
testimony of an audiologist, was able to establish the
requisite permanent sensorineural loss of hearing. However,
claimant was not able to establish the cause of the hearing
loss. Claimant's expert testified that she had no
information relative to the length of exposure to noise, if
any.
Likewise, the audiologist had no information concerning the
level of noise at claimant's work station. Additionally,
defendant's expert audiologist testified he could not
establish the cause of claimant's condition. finally, there
was no evidence that the actual noise level at claimant's
work station above the PEL.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
JUDY LAMBERSON, :
:
Claimant, :
: File No. 966589
vs. : 966590
:
OSCAR MAYER FOODS CORP., :
: A R B I T R A T I O N
Employer, :
Self-Insured, : D E C I S I O N
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a consolidated proceeding in arbitration
brought by Judy Lamberson, claimant, against Oscar Mayer
Foods Corp, employer, and the Second Injury Fund,
defendants, for workers' compensation benefits as a result
of alleged injuries on July 7, 1989, and April 26, 1990.
On September 15, 1992, a hearing was held on claimant's
petitions and the matters were considered fully submitted at
the close of this hearing.
The parties have submitted a prehearing report of
contested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. An employee-employer relationship existed between
claimant and Oscar Mayer Foods Corp. at the time of the
alleged injuries.
2. Claimant is not seeking additional temporary total
or healing period benefits beyond those stipulated as paid
in the prehearing report.
3. If the injury is found to have caused permanent
disability, the type of disability is a scheduled member
disability to the body as a whole with reference to
Page 2
defendant Oscar Mayer Foods Corp.
4. If permanent partial disability benefits are
awarded, they shall begin as of September 18, 1989, for the
first injury and April 14, 1991, for the second injury.
5. At the time of injuries, claimant's gross rate of
weekly compensation was $348; she was married; and, she was
entitled to two exemptions. Therefore, claimant's weekly
rate of compensation is $222.90, according to the industrial
commissioner's published rate booklet for injuries during FY
90. This rate is different than the parties' stipulation
but the parties were advised at hearing that the
commissioner's rate booklets are controlling.
ISSUES
The parties submitted the following issues for
determination in this proceeding:
I. Whether claimant received injuries arising out of
and in the course of employment;
II. The extent of claimant's entitlement to disability
benefits.
III. The extent of claimant's entitlement to medical
benefits under Iowa Code section 85.27.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
Claimant worked for Oscar Mayer Foods Corp. from
December 1970 until August 1990, when she was advised by her
treating physician to leave work entirely following an
attempt to return to work part-time during the spring and
summer of 1990. She has not returned to Oscar Mayer Foods
Corp. since. Claimant began as a cafeteria worker in 1979
but transferred into the plant after ten years. During the
time of the alleged injuries herein, she was a packer which
required extensive repetitive use of her hands and arms in
packing meat products into boxes. According to an Oscar
Mayer Foods Corp. safety committee report, overuse injuries
similar to the ones alleged by claimant occurred in packing
jobs throughout the plant.
On or about July 7, 1989, claimant injured her right
wrist, forearm and elbow in the packing job at Oscar Mayer
Foods Corp. This injury arose out of and in the course of
her employment. The injury involved carpal tunnel syndrome
of the right wrist, pronator syndrome of the right forearm
and ulnar nerve neuropathy of the right elbow. These
Page 3
overuse conditions were caused by claimant's repetitive use
of her right hand and arm at Oscar Mayer Foods Corp. in the
packing job prior to July 7, 1989. Medical opinions
causally connecting these conditions to her packing work at
Oscar Mayer Foods Corp. are uncontroverted.
Pain and aching symptoms from these diagnosed
conditions on the right began in the latter part of 1988.
The injury date of July 7, 1989, was chosen because this was
the first date these symptoms compelled claimant to leave
work for an extended period of time to receive treatment in
the form of decompression surgery to the right wrist, right
forearm and right elbow and recovery therefrom.
On or about April 26, 1990, claimant separately injured
her left wrist and left elbow in her job at Oscar Mayer
Foods Corp. This injury arose out of and in the course of
her employment. The injury involved carpal tunnel syndrome
of the left wrist and ulnar nerve neuropathy of the left
elbow. These overuse conditions were caused by claimant's
repetitive use of her left hand and arm at Oscar Mayer Foods
Corp. in the packing job prior to April 26, 1990. Medical
opinions causally connecting these conditions to her packing
work at Oscar Mayer Foods Corp. are uncontroverted.
Pain and aching symptoms from these diagnosed
conditions on the left began at approximately the same time
as the right arm symptoms in the latter part of 1988. The
injury date of April 26, 1990 was chosen because this was
the first date left wrist and elbow symptoms compelled
claimant to leave work for an extended period of time to
receive treatment in the form of decompression surgery of
the left wrist and a transposition of the ulnar nerve in the
elbow and recovery therefrom.
It is specifically found that the left hand and elbow
injury is a separate and distinct injury from the right
hand, forearm and elbow injury. This is based primarily
upon the views and observations of the treating physician,
William Irey, M.D., an orthopedic surgeon. Two other
opinions in the record were not given much weight as they
were one-time evaluators who are not orthopedic surgeons.
Dr. Irey states that although the symptoms began on the left
and right at approximately the same time, these problems
developed at different times. From a review of the record,
Dr. Irey did not diagnose left carpal tunnel or left ulnar
nerve problems until April 3, 1990, after claimant had
attempted a return-to-work and began to experience symptoms
similar to the right side. This, then, compelled Dr. Irey
to retest claimant with an EMG. This retesting in April
1990 revealed left carpal tunnel syndrome and ulnar nerve
neuropathy. EMG testing before that time on June 22, 1989,
was abnormal on the right but normal on the left, according
to Dr. Irey. Given what she reported as symptoms to Dr.
Page 4
Irey and Dr. Irey's testing, claimant's work activity after
she returned to work in September 1989 from the right hand
surgery was the precipitating cause of claimant's second
work injury of April 26, 1990. This finding is further
supported by Dr. Irey's separate healing periods for each
condition. The doctor felt claimant had reached maximum
healing for the right side injury when he gave his right arm
permanent impairment rating in December 1990. But, the
doctor felt claimant reached maximum healing on the left
side much later when he gave his left arm permanent rating
in May 1991.
The work injury of July 7, 1989 is found to be a cause
of a 12 percent permanent impairment to the right arm. The
work injury of April 26, 1990 is found to be a cause of a
15 percent permanent impairment to the left arm. Ratings of
the treating orthopedic surgeon were given greater weight
than the ratings of the two one-time evaluators, J.R. Lee,
M.D., and Barry Lake Fischer, M.D., who were not orthopedic
surgeons. Also, only Dr. Irey specifically mentioned use of
a standardized rating guide, namely the AMA Guides to the
Evaluation of Permanent Impairment.
Claimant asserts that the rating of Dr. Lee was not a
true independent or separate examination from the rating of
Dr. Irey. No evidence was submitted to support such a
contention. The fact that the rating results were identical
by itself is not proof of any collusion between Dr. Lee and
Dr Irey. It is just as likely that the results were the
same because they were the most accurate ratings.
With reference to the loss of earning capacity as a
result of the combined effects of the first and second
injuries, it is found claimant is 44 years of age and a high
school graduate. She held only minimum wage jobs as a
waitress and cashier prior to working at Oscar Mayer Foods
Corp. Dr Irey imposed permanent work restrictions as a
result of the right-sided arm problems in November 1990
consisting of no lifting over 10 pounds, no working in the
cold, no repetitive lifting and no repetitive gripping.
Such permanent restrictions would prevent claimant from
working in her packing job at Oscar Mayer Foods Corp. and
most other jobs at Oscar Mayer Foods Corp. Attempts by
claimant to return to full duty before she left work for the
second injury were clearly unsuccessful due to continued
work aggravation of her right arm problems. However, it is
found that claimant was highly motivated to return to work.
She made several attempts to continue working despite the
pain but the attempts failed.
Furthermore, Dr. Irey gave a separate impairment rating
for the left-sided problems. No permanent work restrictions
were specifically given by Dr. Irey as a result of the left
arm problems probably because Dr. Irey already concluded
Page 5
claimant could not return to work at Oscar Mayer Foods Corp.
due to her right arm problems. Plant nurses at Oscar Mayer
Foods Corp., however, applied Dr. Irey's restrictions to
both hands.
It was not until claimant began to experience
disability left-sided problems in November 1989 from which
she did not recover that Dr. Irey began to discuss with
claimant the need to consider alternate type of work. Also,
claimant was not able to work in limited duty until after
the left arm injury. Although the first injury herein is
the primary cause of claimant's current disability, the
combined effect of the first and second injury has resulted
in a substantial loss of employability.
Claimant is unable to return to work at Oscar Mayer
Foods Corp., the highest paying job she has ever held. She
has applied at over 20 local businesses in the area of her
residence without securing employment. However, no
physician has indicated that she is wholly unable to work.
There is no evidence that she would be unable to return to
the waitress or cashier work she had in the past albeit at
minimum wage.
From examination of all of the factors of industrial
disability, it is found that the combined effect of the
first and second work injuries in this case is a cause of a
50 percent loss of earning capacity.
It is found that a second opinion as to treatment
alternatives by a Dr. Eugene Collins would be beneficial and
reasonable. In his office note of January 17, 1992, Dr.
Irey states that he concurred with claimant's request for a
second opinion as to further care and agreed to arrange for
this. Dr. Irey had no further treatment recommendations to
offer claimant at that time. This request was rejected by
defendant Oscar Mayer Foods Corp. for unspecified reasons.
It is found that this second opinion constitutes reasonable
and necessary treatment.
It cannot be found from the evidence that the
examination of claimant in this matter by Barry Lake
Fischer, M.D., constituted treatment of the work injury. It
is clear from the wording of the report that claimant was
not inquiring as to treatment alternatives but desired only
an impairment rating. Evaluation of disability is not
treatment.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a
preponderance of the evidence that claimant received an
injury arising out of and in the course of employment. The
words "out of" refer to the cause or source of the injury.
Page 6
The words "in the course of" refer to the time and place and
circumstances of the injury. See generally, Cedar Rapids,
Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979);
Crowe V. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d
63 (1955). An employer takes an employee subject to any
active or dormant health impairments. A work-connected
injury which more than slightly aggravates the condition is
considered to be a personal injury. Ziegler v. United
States Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and
cases cited therein.
It is not necessary that claimant prove his disability
results from a sudden unexpected traumatic event. It is
sufficient to show that the disability developed gradually
or progressively from work activity over a period of time.
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985). The McKeever Court also held that the date of injury
in gradual injury cases is the time when pain prevents the
employee from continuing to work. In McKeever the injury
date coincided with the time claimant was finally compelled
to give up his job. This date was then used by the court to
determine rate and the timeliness of claimant's claim under
Iowa Code section 85.26 and notice under Iowa Code section
85.23.
In the case sub judice, claimant demonstrated by the
preponderance of the evidence two separate injury processes
at different times under the McKeever doctrine.
II. LIABILITY OF DEFENDANT OSCAR MAYER. The parties
stipulated that Oscar Mayer Foods Corp.'s liability for
permanent disability benefits is scheduled. When the result
of an injury is loss to a scheduled member, the compensation
payable is limited to that set forth in the appropriate
subdivision of Code section 85.34(2). Barton v. Nevada
Poultry Company, 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss
of use" of a member is equivalent to "loss" of the member.
Moses v. National Union C.M. Co., 184 N.W. 746 (1922).
Pursuant to Code section 85.34(2)(u), the industrial
commissioner may equitably prorate compensation payable in
those cases where the loss is something less than that
provided for in the schedule. Blizek v. Eagle Signal
Company, 164 N.W.2d 84 (Iowa 1969).
In the case sub judice, it was found that claimant
suffered a 12 percent permanent loss of use of his right arm
and a 15 percent permanent loss of use of his left arm.
Based on such a finding, claimant is entitled to 30 weeks
(for the right arm) and 37.5 weeks (for the left) of
permanent partial disability benefits under Iowa Code
section 85.34(2)(m) which is 12 percent and 15 percent
respectively of 250 weeks, the maximum allowable number of
weeks of disability for an injury to the arm in that
subsection.
Page 7
III. SECOND INJURY FUND LIABILITY. Claimant also
seeks additional disability benefits from the Second Injury
Fund under Iowa Code sections 85.63--85.69. This fund was
created to compensate an injured worker for a permanent
industrial disability resulting from the combined effect of
two separate injuries to a scheduled member. The purpose of
such a scheme of compensation was to encourage employers to
hire or retain handicapped workers. See Anderson v Second
Injury Fund, 262 N.W.2d 789 (Iowa 1978). There are three
requirements under the statute to invoke second injury fund
liability. First, there must be a permanent loss or loss of
use of one hand, arm, foot, leg or eye. Secondly, there
must to a permanent loss or loss of use of another such
member or organ through a compensable subsequent injury.
Third, there must be permanent industrial disability to the
body as a whole arising from both the first and second
injuries which is greater in terms of relative weeks of
compensation than the sum of the scheduled allowances for
those injuries. If there is greater industrial disability
due to the combined effects of the prior loss and the
secondary loss than equals the value of the prior and
secondary losses combined, then the fund will be charged
with the difference. Id.
In the case sub judice, it was found that the combined
effect of both injuries resulted in a 50 percent loss of
earning capacity or industrial disability. Based on such a
finding, claimant is entitled to 250 weeks of permanent
partial disability benefits under Iowa Code section
85.34(2)(u) which is 50 percent of 500 weeks, the maximum
allowable number of weeks allowed for an industrial or body
as a whole disability which is less than total. Of this
amount, as set forth above, the employer is liable for a
total of 67.5 weeks caused by the first and second injuries.
The Fund was liable for the remaining 182.5 weeks disability
from the date of the last payment of benefits by Oscar Mayer
Foods Corp.
IV. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. In the case at bar, the
treating physician concurred with claimant's request for a
second treatment alternative opinion from Dr. Collins after
he indicated that he had no other care to offer. Defendant
Oscar Mayer Foods Corp. cannot deny second opinion and
consultations agreed to and recommended by treating
physicians without supportive medical opinion or other
evidence to suggest that the second opinion or consultation
is unnecessary or unreasonable.
Claimant seeks payment for the evaluation by Dr.
Fischer subsequent to the evaluation by Dr. Lee. Dr. Lee's
evaluation was performed pursuant to a request for
Page 8
independent evaluation under Iowa Code section 85.39. Dr.
Fischer made no treatment recommendations. This was
appropriate for the doctor as his involvement was solely to
rate claimant's impairment for purposes of litigation, not
to provide treatment alternatives. Claimant is not entitled
to payment for the evaluation by Dr. Fischer under Iowa Code
section 85.27.
ORDER
1. Defendant Oscar Mayer Foods Corp. shall pay to
claimant thirty (30) weeks of permanent partial disability
benefits at the rate of two hundred twenty-two and 90/100
dollars ($222.90) per week from September 18, 1990.
Defendant Oscar Mayer Foods Corp. shall also pay to claimant
thirty-seven point five (37.5) weeks of permanent partial
disability benefits at the rate of two hundred twenty-two
and 90/100 dollars ($222.90) per week from April 14, 1991.
2. Defendant Second Injury Fund shall pay to claimant
one hundred eighty-two point five (182.5) weeks of permanent
partial disability benefits at the rate of two hundred
twenty-two and 90/100 ($222.90) per week beginning
immediately after completion of payment of benefits by
defendant Oscar Mayer Foods Corp., as ordered in paragraph 1
above.
3. Defendant Oscar Mayer Foods Corp. shall provide a
second opinion from Dr. Eugene Collins as to treatment
options and alternatives, if any, at the expense of Oscar
Mayer Foods Corp. This order does not authorize or order
any treatment recommendations which are made by Dr. Collins.
If any dispute arises as a result of any recommendations of
Dr. Collins, the parties may utilize the summary procedures
for alternate care that are now available in Iowa Code
section 85.27 and rule 343 IAC 4.48.
4. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
5. Defendant Oscar Mayer Foods Corp. shall receive
credit for previous payments of benefits under a
non-occupational group insurance plan, if applicable and
appropriate under Iowa Code section 85.38(2), less any tax
deductions from those payments.
6. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30 but
Fund interest shall not begin until the date of this
decision.
7. Defendants Oscar Mayer Foods Corp. and the Second
Injury Fund shall equally pay the costs of this action
Page 9
pursuant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
8. Defendants shall file activity reports on the
payment of this award as requested by this agency pursuant
to rule 343 IAC 3.1.
Signed and filed this _____ day of October, 1992
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Burton H Fagan
Attorney at Law
2535 Tech Dr Ste 206
Bettendorf IA 52722
Ms Vicki L Seeck
Ms Deborah Dubik
Mr Richard M McMahon
Attorneys at Law
600 Union Arcade Bldg
111 E third St
Davenport IA 52801-1550
Mr James F Christenson
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg
Des Moines IA 50319
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
JUAN CHAVEZ,
Claimant,
vs.
File Nos. 966627/993942
SIPCO, INC. d/b/a MONFORT,
A P P E A L
Employer,
D E C I S I O N
and
HOME INSURANCE,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed May
28, 1993 is affirmed and is adopted as the final agency action in
this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of January, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Max Schott
Attorney at Law
6959 University Ave.
Des Moines, Iowa 50311
Juan Chavez
900 SE 10th St.
Des Moines, Iowa 50309
CERTIFIED & REGULAR MAIL
Mr. W. Timothy Wegman
Attorney at Law
P.O. Box 9130
Des Moines, Iowa 50306-9130
5-1803
Filed January 6, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JUAN CHAVEZ,
Claimant,
vs.
File Nos. 966627/993942
SIPCO, INC. d/b/a MONFORT,
A P P E A L
Employer,
D E C I S I O N
and
HOME INSURANCE,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1803
Nonprecedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JUAN CHAVEZ, :
:
Claimant, :
:
vs. : File Nos. 966627
: 993942
SIPCO, INC. dba MONFORT, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Juan
Chavez, claimant, against SIPCO, Inc. d/b/a Monfort,
employer, hereinafter referred to as Monfort, and Home
Insurance Company, insurance carrier, defendants, for
workers' compensation benefits as a result of alleged
injuries on September 27, 1990 and October 1, 1990. On
April 14, 1993, a hearing was held on claimant's petition
and the matter was considered fully submitted at the close
of this hearing.
The parties have submitted a hearing report of
contested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the hearing report, the parties have stip
ulated to the following matters:
1. On September 27, 1990 and October 1, 1990, claimant
received injuries arising out of and in the course of
employment with Monfort.
2. Claimant is not seeking additional temporary total
or healing period benefits in this proceeding
3. At the time of injury claimant's gross rate of
weekly compensation was $236.00; he was married; and he was
entitled to three exemptions. Therefore, claimant's weekly
rate of compensation is $163.81 according to the Industrial
Commissioner's published rate booklet for this injury.
4. Medical benefits are no longer in dispute.
ISSUE
Page 2
The only issue submitted by the parties for determina
tion in this proceeding is extent of claimant's entitlement
to permanent disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is unnecessary to this decision
as defendants did not appear to place claimant's credibility
at issue during the hearing.
Claimant, a 22-year-old Mexican national, worked for
Monfort from July 24, 1990 until January 1993 when he was
terminated for the stated reason that he failed to have per
mission to work in this country. Claimant moved to this
country to work as a laborer at one of Monfort's meat pack
ing plants. Claimant initially was assigned to cleaning up
fat from the floor but later he was given a job consisting
of cleaning ribs using a knife in his right hand. This job
involved repetitive use of the right hand and arm.
The first injury in September 1990 involved a lacera
tion of the right hand. Claimant was treated and returned
to work. The remaining scar is approximately one and a half
inches above his right wrist. The second injury in October
1990 was a gradual or cumulative trauma to the right wrist
and arm from the repetitive movements of his hand and arm
during his meatpacking work. Claimant suffered both carpal
tunnel and cubital tunnel syndromes in the right wrist and
elbow respectively at this time. These are conditions in
which surrounding tendons and soft tissue swells, placing
pressure on nerves in the hand and arm. This condition
results in chronic pain, swelling and numbness in the
fingers, hands and arms. Claimant received surgeries in the
wrist and arm as a treatment modality in addition to
restricted work activity, medication and physical therapy.
The above findings are based upon the uncontroverted views
of the treating and evaluating physicians in this case.
Claimant also was diagnosed by one physician as suffering
from reflex sympathetic dystrophy. However, the record is
controverted on this diagnosis and no findings could be made
as to this particular condition. There was no dispute in
the medical evidence that claimant's carpal and cubital tun
nel problems were work related.
The work injury of September 27, 1990, the laceration,
is not found to have caused permanent impairment.
Claimant's only complaint from the laceration is the remain
ing scar which is not disabling. No physician has issued an
impairment rating for the laceration. Claimant's continuing
pain complaints have all been related to residual problems
from the overuse syndromes.
The work injury of October 1, 1990 is found to be a
cause of an eight percent permanent impairment to the right
arm. Both of the physicians who have rated claimant's
Page 3
impairment in this case attribute his continued hand, arm,
shoulder and neck pain to residual effects of the carpal and
cubital tunnel syndrome. Their only disagreement has been
the extent of impairment. A. B. Grunberg, M.D., the ortho
pedic surgeon who performed that cubital tunnel release, has
given claimant an eight percent impairment rating to the
arm. A one time evaluator, Sinesio Misol, M.D., rated
claimant as suffering from a 12 percent impairment to the
arm. Neither physician mentioned whether or not they used a
published guide to assist them in their ratings. Both
appear equally qualified orthopedic surgeons. The only dif
ference is that Dr. Grundberg has more clinical involvement
with claimant. Given his greater familiarity with
claimant's condition, Dr. Grunberg's rating was given more
weight in making the above finding.
It could not be found that claimant suffers from an
injury to the body as a whole from either work injury
herein. No physician extends the injury to the body as a
whole. The only evidence of injury beyond the arm is that
claimant still experiences pain in the shoulder and neck.
However, both Dr. Grundberg and Dr. Misol attribute this
pain to residual or referred pain from the wrist and elbow
syndrome problems.
CONCLUSIONS OF LAW
The extent of claimant's entitlement to permanent dis
ability benefits is determined next. A permanent partial
disability is either scheduled or unscheduled. A scheduled
disability is evaluated by the functional method. The
industrial method is used to evaluate an unscheduled dis
ability. Martin v. Skelly Oil Co., 252 Iowa 128, 133 106
N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d
116 (Iowa 1983); Simbro v. Delong's Sportswear 332 N.W.2d
886, 997 (Iowa 1983). When the result of an injury is loss
to a scheduled member, the compensation payable is limited
to that set forth in the appropriate subdivision of Code
section 85.34(2). Barton v. Nevada Poultry Company, 253
Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member
is equivalent to "loss" of the member. Moses v. National
Union C.M. Co., 184 N.W. 746 (1922). Pursuant to Code sec
tion 85.34(2)(u), the industrial commissioner may equitably
prorate compensation payable in those cases where the loss
is something less than that provided for in the schedule.
Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969).
In the case sub judice, it was found that claimant suf
fered an eight percent permanent loss of use of his arm.
Based on such a finding, claimant is entitled to 20 weeks of
permanent partial disability benefits under Iowa Code sec
tion 85.34(2)(m) which is eight percent of 250 weeks, the
maximum allowable number of weeks of disability for an
injury to the arm in that subsection.
According to the hearing report, claimant has already
been paid his entitlement of 20 weeks of permanent weekly
benefits.
ORDER
Page 4
1. Claimant's petition is dismissed with prejudice.
2. Claimant shall pay the costs of this action pur
suant to rule 343 IAC 4.33.
Signed and filed this ____ day of May, 1993.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Max Schott
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311
Mr. Timothy W. Wegman
Attorney at Law
405 6th Avenue STE 700
Des Moines, Iowa 50309
5-1803
Filed May 28, 1993
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JUAN CHAVEZ,
Claimant,
vs. File Nos. 966627
993942
SIPCO, INC. dba MONFORT,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803 - Non-precedential, extent of disability case.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TOM TAYLOR,
Claimant,
vs.
File No. 966646
SIPCO, INC., d/b/a MONFORT
BEEF
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY c/o
GALLAGHER BASSETT SERVICES,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration. The only issue to
be determined is the rate of compensation. The evidence
considered is the stipulations made by counsel at the
commencement of the hearing and joint exhibit 1, and a wage
statement. The issue in the case revolves around whether or
not the week ending October 5, 1990 should be counted in
computing the rate of compensation. The parties stipulated
that the hearing be conducted as an expedited hearing in
accordance with rule 343 IAC 4.44. The stipulation was
approved. A tape recorded record of the hearing was made.
FINDINGS OF FACT
It was stipulated that the claimant sustained injury
which arose out of and in the course of employment. His
entitlement to weekly compensation and medical expenses had
been resolved by the parties. The only issue is the weekly
rate of compensation. If the week in dispute, when the
claimant worked 16 hours, is included in the 13 weeks used
in computing the gross average weekly earnings those gross
average weekly earnings are $434.40. If that week is
excluded the gross average weekly earnings are $470.60. It
was stipulated that at the time of injury the claimant was
single and entitled to two exemptions.
Counsel stipulated that the claimant took a personal
leave of absence during the week in question in order to
obtain medical care for a condition unrelated to employment.
He only worked 16 hours that week. The employer had more
than 40 hours of work available for the claimant during that
week. As shown by joint exhibit 1, the claimant customarily
worked in excess of 40 hours per week when both straight
Page 2
time and overtime hours are considered.
CONCLUSIONS OF LAW
The agency precedent is well settled. Work weeks which
are not representative of the customary work week are to be
excluded. In particular, when an employee takes unpaid time
off work for personal reasons, the week which includes the
unpaid absence is not to be used when computing the rate of
compensation.
Alvin Davis v. Weitz Company, File No. 898933 Appeal
Decn., November 25, 1992, Schotanus v. The Command
Hydraulics Inc., I Iowa Industrial Commissioner Report 94
(1981), Lewis v. Aalf's Manufacturing Co., I Iowa Industrial
Commissioner Report 206 (1980), Lawyer & Higgs, Iowa
Workers' Compensation Law and Practice, 2nd Edition Section
12-4.
It is therefore concluded that the fourth week, the
week during which the claimant worked only 16 hours, should
not be included in the 13 weeks which are used in
determining the rate of compensation in this case pursuant
to section 85.36(6). In view of the stipulations made by
the parties it is therefore determined that the correct
gross weekly earnings in this case are $470.60. With the
claimant being single and entitled to two exemptions his
rate of compensation using the appropriate benefit booklet
is $288.18 per week.
ORDER
IT IS THEREFORE ORDERED:
That the weekly benefits payable to Tom Taylor in this
proceeding be paid at the rate of two hundred eighty-eight
and 18/100 ($288.18) per week.
That costs of this proceeding are assessed against
defendants pursuant to rule 343 IAC 4.33.
That defendants file claim activity reports in
accordance with rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1993.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Page 3
Copies to:
Mr. Channing Dutton
Attorney at Law
West Towers Office Complex
1200 35th Street, Suite 500
West Des Moines, IA 50265
Mr. Stephen W. Spencer
Attorney at Law
P.O. Box 9130
Des Moines, IA 50306-9130
53001, 2909
Filed April 2, 1993
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TOM TAYLOR,
Claimant,
vs.
File No. 966646
SIPCO, INC., d/b/a MONFORT
BEEF
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY c/o
GALLAGHER BASSETT SERVICES,
Insurance Carrier,
Defendants.
___________________________________________________________
53001, 2909
Parties who had only a rate issue stipulated at
commencement of hearing to conduct the hearing as an
expedited proceeding. A tape recorded record was made. The
case was originally one which did not meet the criteria for
an expedited proceeding but the hearing was conducted under
the expedited rule with the consent of counsel. The hearing
consisted of presenting stipulated facts and exhibits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
RALPH NURNBERG,
Claimant,
File Nos. 966671
vs. 1088029
FARMERS COOPERATIVE COMPANY, A R B I T R A T I O N
Employer, D E C I S I O N
and
LEGION INSURANCE COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
STATEMENT OF THE CASE
This is a consolidated proceeding in arbitration brought by
Ralph M. Nurnberg, claimant, against Farmers Cooperative Company,
employer, and Legion Insurance Company, insurance carrier,
defendants, for workers' compensation benefits as a result of
alleged injuries on November 1, 1990 and September 11, 1993. On
April 26, 1995 a hearing was held on claimant's petition and the
matter was considered fully submitted at the close of this
hearing.
The parties have submitted a hearing report of contested
issues and stipulations which was approved and accepted as a part
of the record of this case at the time of hearing. The oral
testimony and written exhibits received during the hearing are
set forth in the hearing transcript.
According to the hearing report, the parties have stipulated
to the following matters:
1. On the dates alleged, claimant received injuries arising
out of and in the course of employment with the Coop.
2. Healing period benefits are not in dispute.
3. The injury is a cause of permanent industrial disability
to the body as a whole.
4. Permanent partial disability benefits shall begin on
January 9, 1991 and September 20, 1994 respectively for each
injury.
5. At the time of the 1990 and 1993 injuries, claimant's
gross rates of weekly compensation were $550.00 and $546.29
respectively; he was married and entitled to four exemptions.
Therefore, claimant's weekly rate of compensation is $346.42 and
$352.64 respectively according to the industrial commissioner's
published rate booklet for this injury.
6. Medical benefits are not in dispute.
ISSUES
The parties submitted the following issues for determination
in this proceeding:
I. The extent of claimant's entitlement to permanent
disability benefits.
II. The extent of defendants' entitlement to credit against
the disability award for payments of salary and non-occupational
disability plan benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during cross-
examination as to the nature and extent of the injury and
disability. From his demeanor while testifying, claimant is
found credible.
Claimant, Ralph Nurnberg, worked for the Coop from 1979
until he quit in January 1995 to accept similar employment
elsewhere. Ralph worked himself up over the years at the Coop
from a general laborer to an operations manager. However, he was
demoted back to general labor work in 1990 shortly before the
first work injury herein. According to his supervisor, claimant
was a good and valued employee. The record is clear that he has
been and continues to be a hard worker. Ralph's demotion in 1990
occurred when upper management became dissatisfied with Ralph's
managerial performance. Ralph's job at the Coop consisted of
various tasks in operating a grain elevator. Generally, such
work involves the operation of equipment and machinery to
receive, store, mix and transfer feed grains such as soy beans
and corn. This work also involved some paper work and repair and
maintenance of the equipment. At times, heavy work is required
to handle grain and equipment. Also, climbing stairs and
ladders, as well as walking on high walkways, is usually
required.
Both injuries involved a so-called "closed head" trauma.
The 1990 injury occurred when a metal handle on a hand operated
wench struck claimant in the head above the right eyebrow
requiring several stitches to repair the resulting laceration.
The 1993 injury occurred when he fell approximately ten feet onto
a concrete floor severely fracturing the nasal area on his face.
He also fractured his right wrist in this fall. Claimant has
suffered similar organic brain injury syndrome symptoms after
each injury but the evidence is clear that the second injury
worsened his condition.
The brain syndrome symptoms consist of dizziness/vertigo;
loss of concentration/attention; loss of comprehension; noise
sensitivity; reduced sense of smell and taste; some speech
difficulty; chronic headaches; and depression. These symptoms
have been considered by treating physicians to be classic for
persons suffering closed head injuries.
Treatment after the first injury was fairly conservative
utilizing local physicians and psychotherapists. This involved
primarily chemotherapy. Claimant returned to his job two months
after the injury. Ralph stated that his loss of memory and
dizziness improved substantially but failed to return to normal.
He stated that he was able to keep tract of grain in various bins
without resorting to use of written notes.
Treatment after the second injury was similar to the
treatment offered after the first injury except that Ralph was
extensively evaluated and treated at the Kansas City
Rehabilitation Network, a facility specializing in head injuries.
Claimant did not return to work until July 1994 and then only
part-time. By September, claimant was working full time and his
usual weekly hours until he left in January 1995. His usual
weekly hours were in excess of 40 and many times in excess of 70.
Claimant's primary physician for the two injuries has been
Charles Denhart, M.D., a physiatrist, specializing in head
injuries. Upon referral from Dr. Denhart in June 1992, Ralph has
received several evaluations and treatment recommendations from
William McMordie, Ph.D., a clinical neuropsychologist. According
to Dr. McMordie after the 1993 injury, claimant significantly
worsened in attention and concentration abilities thereby
reducing his overall intellectual abilities. Also, his
depression worsened. Although his memory improved during
recovery from the first injury, the second injury left his memory
function variable and Ralph now must use written notes to assist
him in keeping tract of grain storage at work.
Both injuries are found to be a cause of a significant
permanent impairment to the body as a whole. The second injury
also permanently impaired the use of claimant's left wrist due to
on-going symptoms and loss of grip strength. Claimant is
currently restricted from climbing due to his vertigo. It is
also recommended that claimant have employment that will allow
him to take his medications and continue relaxation and pain
management therapy once each day which consists of listening to
tapes. Ralph's physicians rate his impairment from 14 percent to
35 percent of the body as a whole. The majority consider the
second injury to have contributed more towards this impairment.
Claimant's medical condition before the work injury was
excellent and he had no functional impairments or ascertainable
disabilities. Claimant was able to fully perform all physical
and mental tasks assigned to him. However, to date, his
condition has not prevented a return to the work or similar work
he was performing at the time of the first injury. However,
after the second injury, the Coop lowered Ralph's pay by $.25 per
hour on grounds that, due to his restrictions, they expected less
work from him. However, the record was clear that with the
exception of climbing, claimant eventually returned to full duty
with considerable overtime but his pay was not restored.
Ralph quit the Coop in January 1995 to accept similar
employment in the state of Nebraska. Although the Nebraska
facility is smaller, Ralph performs much of the same work and
this work also involves long hours. Ralph is convinced that his
new job is working out for him as he just completed his 90 day
probation. He plans on moving his family to Nebraska very soon.
Although the Coop had been accommodating for his disability,
especially the restriction against climbing, he was convinced
that he had better opportunities for advancement in the Nebraska
job even though it paid $.50 per hour less than his job at the
Coop. This is essentially what was told to him by his supervisor
at the Coop before he left based upon his experience with upper
management as an operations manager. It is found that claimant's
change in jobs is not due to either work injury.
Ralph's continued employment in elevator operations, despite
his disability, is somewhat of a surprise to his primary treating
neuropsychologist, Dr. McMordie. The doctor described Ralph in
his deposition as one "hell of a liability" with reference to his
risk of future injury. He explained that the second head injury
was not unusual for patients like claimant. Persons with
neurological head trauma are four times more likely to suffer
additional neurological trauma as a result of brain symptoms.
Dr. McMordie states that he has his "fingers crossed" and states
that he does not feel claimant's scenario is over.
Claimant is 47 years of age. Claimant has a Bachelor of
Arts Degree in biology and completed 9-12 hours of post graduate
work in neuropsychology. However, despite his excellent
education, claimant's past employment primarily consists of
manual labor. He worked as a farmhand after college. For a
period of time, he was self-employed in agricultural chemical
spraying; livestock truck driving; and in heating and air
conditioning. His reduced intellectual capacity and memory
adversely affects his ability to perform jobs, especially
intellectual duty, according to Dr. McMordie. This is largely
due to the impaired attention/concentration from chronic
headaches and depression. His depression and noise sensitivity
compels him to withdraw socially.
However, his employment to date is only partly due to
accommodations made by the Coop and his current employer. Ralph
is a very well motivated person. He is a hard worker. Largely
on his own initiative, he has adjusted to accommodate for his
current shortcomings. He remains a devoted husband and father
and a valued member of society despite his serious injuries.
However, Ralph has suffered a significant disability from each
injury which should be compensated.
From examination of all of the factors of industrial
disability, it is found that the work injury of November 1, 1990
was a cause of a 10 percent loss of earning capacity. It is
further found that the work injury of September 11, 1993 resulted
in a more serious disability and was a cause of an additional 20
percent loss of earning capacity.
With reference to the credit issue, it is found that during
his absences from work, claimant received either a continuation
of his salary or group disability plan payments in weekly amounts
in excess of the weekly rate of compensation.
CONCLUSIONS OF LAW
I. As the claimant has shown that the work injury was a
cause of permanent physical impairment or limitation upon
activity involving the body as a whole, the degree of permanent
disability must be measured pursuant to Iowa Code section
85.34(2)(u). However, unlike scheduled member disabilities, the
degree of disability under this provision is not measured solely
by the extent of a functional impairment or loss of use of a body
member. A disability to the body as a whole or an "industrial
disability" is a loss of earning capacity resulting from the work
injury. Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258
N.W. 899 (1935). A physical impairment or restriction on work
activity may or may not result in such a loss of earning
capacity. Examination of several factors determines the extent
to which a work injury and a resulting medical condition caused
an industrial disability. These factors 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. See Peterson v. Truck Haven Cafe, Inc.,
Vol. I, No. 3 Iowa Industrial Comm'r Decisions 654, 658 (App.
February 28, 1985).
A showing that claimant had no loss of his job or actual
earnings does not preclude a finding of industrial disability.
See Michael v. Harrison County, Thirty-fourth Biennial Rep., Iowa
Industrial Comm'r 218, 220 (App. 1979); Bearce v. FMC Corp., 465
N.W.2d 531 (Iowa 1991) only held that continued employment with
no loss of earnings is significant evidence that should not be
overlooked in measuring loss of earning capacity. Loss of
potential employment is also a factor to consider in assessing
industrial disability. Collier v. Sioux City Comm. Sch. Dist.,
File No. 953453 (App. February 25, 1994).
In the case sub judice, it was found that claimant suffered
a 10 percent loss of his earning capacity as a result of the
first work injury and an additional 20 percent for the second.
Such a finding entitles claimant to 50 weeks of permanent partial
disability benefits for the first injury under Iowa Code section
85.34(2)(u) which is 10 percent of 500 weeks, the maximum
allowable number of weeks for an injury to the body as a whole in
that subsection. Claimant is also entitled as a matter of law to
an additional 100 weeks of such benefits for the second injury.
II. Defendants seek a credit against the award herein for
salary and group disability payments in excess of the weekly rate
or compensation periods.
The primary purpose of the workers' compensation statute is
to benefit workers and workers' dependents insofar as the statute
permits and is to be interpreted liberally with view toward that
objective. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503
(1981). Workers' compensation statutes are to be liberally
construed in favor of the injured worker. Beier Glass Co. v.
Brundige, 329 N.W.2d 280, 283 (Iowa 1983).
Iowa Code section 85.38(2) states in part as follows:
In the event the disabled employee shall receive any
benefits...under any group plan covering
nonoccupational disabilities contributed to wholly or
partially by the employer...then such amounts so paid
...shall be credited to or against any compensation
payments...made or to be made under this chapter...
Obviously, the language of the statute does not specify
whether or not such a credit can be taken for salary amounts or
benefits paid under group plans before or after a disability
period covered by the workers' compensation laws.
The purpose of the Iowa Code section 85.38(2) credit
provision is to avoid double recovery by disabled employees who
receive both worker's compensation and group benefits. State v.
Erbe, 519 N.W.2d 812 (Iowa 1994). Given the purpose of the
credit, it appears that defendants should take a credit for
amounts paid during any period of disability for which weekly
worker's compensation benefits are payable, whether or not they
are temporary total, healing period or permanent partial
disability benefits.
First, defendants are clearly not entitled to take a credit
against future weekly benefit payments for salary payments in
excess of the workers' compensation rate. Division of Industrial
Services Rule 343 IAC 8.4. Anderson v. Woodward State Hospital -
School, and the State of Iowa, 2-1 Iowa Industrial Comm'r
Decisions 24 (App. December 1985).
In the event weekly short or long-term disability plan
benefits are more than the weekly compensation rate, the
undersigned believes that defendants should not take a credit for
the excess against future liability for weekly compensation
benefits. First, such payments can be construed as excess salary
and the credit prohibited by administrative rule 343 IAC 8.4
cited above. In addition, worker's compensation benefits are
viewed as wage replacement. Allowing such a credit would replace
the current compensation system in Iowa with a system that pays
more per week but for a shorter period of time. This would be
inconsistent with the purpose of protecting the worker and his
family from the devastating effects of a loss of wages during the
entire period of recovery or during the statutory periods of
disability as set forth in Iowa Code section 85.34(2). Baker v.
Humbolt Sausage Co., File No. 980571 (App. May 31, 1995).
Furthermore, in the event weekly short or long-term
disability benefits are less than the weekly worker's
compensation rate, this deputy commissioner believes that
defendants should not take a credit against this deficiency for
any payment of short or long-term benefits made after the
expiration of a period of time for which workers' compensation
weekly benefits are payable. After the expiration of the
worker's compensation disability period, there is no longer a
possibility of double recovery. Long-term benefits paid after
completion of workers' compensation payments are for a different
disability. Claimant would not receive payments from two sources
for the same period of disability. Also, as stated previously,
worker's compensation is viewed as a statutory system of wage
replacement. Allowing a credit against deficiency payments would
replace the current system with a system that pays less per week
but for a longer period of time. This would also be inconsistent
with the purpose of protecting the worker and his family from the
devastating effects of a sudden loss of wages. Id.
The credit, as requested by defendants, for payments of
salary or disability benefit payments beyond the weekly rate of
compensation or worker's compensation benefits period is denied.
ORDER
1. Defendants shall pay to claimant fifty (50) weeks of
permanent partial disability benefits at a rate of three hundred
forty-six and 42/l00 dollars ($346.42) per week from January 9,
1991.
2. Defendants shall pay to claimant one hundred (100) weeks
of permanent partial disability benefits at a rate of three
hundred fifty-two and 64/l00 dollars ($352.64) per week from
September 20, 1994.
3. Defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all benefits
previously paid.
4. Defendants shall receive credit for previous payments of
benefits or salary under a non-occupational group insurance plan,
if applicable and appropriate under Iowa Code section 85.38(2)
only to the extent of the weekly benefit and weekly benefit
period, less any tax deductions from those payments.
5. Defendants shall pay interest on weekly benefits awarded
herein as set forth in Iowa Code section 85.30.
6. Defendants shall pay the costs of this action pursuant
to rule 343 IAC 4.33, including reimbursement to claimant for any
filing fee paid in this matter.
7. Defendants shall file activity reports on the payment of
this award as requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of June, 1995.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Terry L. Monson
Attorney at Law
100 Court Ave STE 600
Des Moines IA 50309
Mr. William D. Scherle
Attorney at Law
8th Flr Fleming Bldg
218 Sixth Ave
Des Moines IA 50309
1700
Filed June 29, 1995
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RALPH NURNBERG,
Claimant,
File Nos. 966671
vs. 1088029
FARMERS COOPERATIVE COMPANY, A R B I T R A T I O N
Employer, D E C I S I O N
and
LEGION INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
1700
Credit against weekly benefits awarded was denied for salary
and group disability plan payments in excess of the weekly
rate or weekly benefit period.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
KEVIN J. DONAHUE, :
:
Claimant, :
:
vs. : File Nos. 966727
: 1000700
TRAFFIX DEVICES INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE ST. PAUL PROPERTY & :
LIABILITY INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a consolidated proceeding in arbitration brought by
Kevin J. Donahue, claimant, against Traffix Devices, Inc.,
employer, hereinafter referred to as Traffix, and St. Paul
Companies, insurance carrier, defendants, for workers'
compensation benefits as a result of alleged injuries on July 26,
1990 and October 14, 1991. On August 9, 1994, a hearing was held
on claimant's petition and the matter was considered fully
submitted at the close of this hearing.
The parties have submitted a hearing report of contested
issues and stipulations which was approved and accepted as a part
of the record of this case at the time of hearing. The oral
testimony and written exhibits received during the hearing are
set forth in the hearing transcript.
According to the hearing report, the parties have stipulated
to the following matters:
1. On both July 26, 1990 and October 14, 1991 claimant
received injuries arising out of and in the course of employment
with Traffix.
2. Claimant is not seeking additional temporary total or
healing period benefits in this proceeding.
3. If the injury is found to have caused permanent
disability, the type of disability is a scheduled member
disability to the left foot or leg.
4. Claimant has been paid permanent partial disability
benefits subsequent to the second injury herein in the amount of
Page 2
15.4 weeks based upon an impairment rating of seven percent of
the leg.
5. At the time of the July 26, 1990 injury claimant's gross
rate of weekly compensation was $317; he was single; and he was
entitled to one exemption. Therefore, claimant's weekly rate of
compensation is $194.02 according to the Industrial
Commissioner's published rate booklet for this injury.
At the time of the October 14, 1991 injury claimant's gross
rate of weekly compensation was $280; he was single; and, he was
entitled to one exemption. Therefore, claimant's weekly rate of
compensation is $173.28 according to the Industrial
Commissioner's published rate booklet for this injury.
6. Medical benefits were not at issue.
ISSUE
The only issue submitted by the parties for determination in
this proceeding is the extent of claimant's entitlement to
permanent disability benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during cross-
examination as to the nature and extent of the disability. From
his demeanor while testifying claimant is found credible.
The injury in July 1990 was to claimant's left ankle caused
by a fall from a ladder. Claimant underwent treatment for a soft
tissue injury to the ankle and torn ligaments. After recovery,
claimant returned to his job without restrictions and his
treating orthopedic physician, Donald Berg, M.D., opined that
claimant suffered no permanent impairment from the injury. Based
upon the uncontroverted views of Dr. Berg, the work injury of
July 1990 is not found to have caused any permanent impairment.
The injury of October 1991 occurred after claimant jammed
his left foot between "bases" that he was loading onto a truck.
Witnesses stated that claimant had been kicking at the bases and
was advised at the time to stop this or he would injury his
ankle. Claimant has again treated by Dr. Berg but when
conservative care failed to alleviate chronic instability of the
ankle, Dr. Berg performed a "Watson-Jones Procedure" surgical
procedure on the ankle. After recovery from the surgery claimant
returned to work and was subsequently laid off in a general plant
wide economic layoff. Claimant now works for a parts dealer
selling and delivering auto parts.
Claimant testified that he continues to have significant
problems with use of his leg despite the absence of any formal
physician imposed restrictions on claimant's physical activity.
Page 3
He walks with a slight limp. The ankle hurts after prolonged
walking and standing. He cannot run without extensive pain and
must sleep with the foot off the end of the bed. Claimant stated
that his relatively light duty job at the parts store is
necessary due to his disability.
Three physicians have rated claimant's impairment. Dr. Berg
opined that claimant's loss of range of motion equates to a seven
percent permanent partial impairment to the leg. Another
orthopedic surgeon and one-time evaluator opines that claimant
suffers from a 13 percent permanent partial impairment to the
leg. A chiropractor, Raymond Hanks, Jr., D.C., opines that the
impairment is 16 percent of the ankle. Official notice of the
AMA guides was taken upon request of both parties and such a
rating is equivalent to an 11 percent permanent partial
impairment to the leg.
All of these various ratings have their good and bad
aspects. Dr. Berg certainly, as the treating physician for both
injuries over a span of three years, is more clinically familiar
with claimant's leg problems. However, Dr. Berg does not
delineate the numerical findings used to arrive at the rating and
does not state whether or not he used any rating guide to arrive
at his opinion. Keith W. Riggins, M.D., on the other hand, does
specify the numerical findings but again fails to specify use of
any rating guide. Dr. Hanks, although not a medical doctor, does
specify how he arrived at the rating and that he used the most
recent edition of the AMA rating guides. Additionally, it is
clear that the impairment extends beyond the foot due to the
surgical involvement of the tissues extending well above the
common foot structures.
As all of the ratings have their advantages and
disadvantages, the only logical approach is to give weight to
all. Therefore, it is found that the work injury of October 1991
is a cause of a 10.3 percent permanent partial impairment to the
leg. This figure was arrived at by averaging all of the
impairment ratings.
CONCLUSIONS OF LAW
A permanent partial disability is either scheduled or
unscheduled. A scheduled disability is evaluated by the
functional method. The industrial method is used to evaluate an
unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128,
133 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331
N.W.2d 116 (Iowa 1983); Simbro v Delong's Sportswear 332 N.W.2d
886, 997 (Iowa 1983). When the result of an injury is loss to a
scheduled member, the compensation payable is limited to that set
forth in the appropriate subdivision of Code section 85.34(2).
Barton v. Nevada Poultry Company, 253 Iowa 285, 110 N.W.2d 660
(1961). "Loss of use" of a member is equivalent to "loss" of the
member. Moses v. National Union C.M. Co., 184 N.W. 746 (1922).
Pursuant to Code section 85.34(2)(u), the industrial commissioner
may equitably prorate compensation payable in those cases where
the loss is something less than that provided for in the
schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa
Page 4
1969).
In the case sub judice, it was found that claimant suffered
a 10.3 percent permanent loss of use of his leg. Based on such a
finding, claimant is entitled to 22.7 weeks of permanent partial
disability benefits under Iowa Code section 85.34(2)(0) which is
10.3 percent of 220 weeks, the maximum allowable number of weeks
of disability for an injury to the leg in that subsection.
Claimant is entitled to an additional 7.3 weeks of weekly
disability benefits.
Averaging of impairment ratings to arrive at an award is
utilized by this agency when the available ratings appear to have
relatively equal weight. Lawyer & Higgs, Iowa Worker's
Compensation Law and Practice (2nd Ed.), Section 13-4, p. 125.
ORDER
1. Defendants shall pay to claimant an additional 7.3 weeks
of permanent partial disability benefits at a rate of $173.28 per
week from August 10, 1992.
2. Defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all benefits
previously paid.
3. Defendants shall pay interest on weekly benefits awarded
herein as set forth in Iowa Code section 85.30.
4. Defendants shall pay the costs of this action pursuant
to rule 343 IAC 4.33, including reimbursement to claimant for any
filing fee paid in this matter.
5. Defendants shall file activity reports on the payment of
this award as requested by this agency pursuant to rule 343 IAC
3.1.
Signed and filed this ____ day of August, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Steven S. Hoth
Attorney at Law
PO Box 982
Burlington IA 52601
Mr. Greg A. Egbers
Page 5
Attorney at Law
600 Union Arcade Bldg
111 E 3rd St
Davenport IA 52801
5-1803
Filed August 30, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
KEVIN J. DONAHUE,
Claimant,
vs. File Nos. 966727
1000700
TRAFFIX DEVICES INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
THE ST. PAUL PROPERTY &
LIABILITY INSURANCE,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARY K. NELSON,
Claimant,
vs.
File Nos. 966893 & 1037224
MAURICES, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
LIBERTY MUTUAL INSURANCE CO.
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a consolidated proceeding in arbitration brought by Mary K.
Nelson, claimant, against Maurices, Inc., employer, hereinafter
referred to as Maurices, and Liberty Mutual Insurance Co., insurance
carrier, defendants, for workers' compensation benefits as a result of
two alleged injuries on October 22, 1990 and February 25, 1992. On
March 1, 1995, a hearing was held on claimant's petitions and the
matter was considered fully submitted at the close of this hearing.
The parties have submitted a hearing report of contested issues and
stipulations which was approved and accepted as a part of the record of
this case at the time of hearing. The oral testimony and written
exhibits received during the hearing are set forth in the hearing
transcript.
According to the hearing report, the parties have stipulated to the
following matters:
1. On October 22, 1990, claimant received an injury arising out of
and in the course of employment with Maurices;
2. Claimant is seeking additional temporary total or healing period
benefits from February 25, 1992 through May 30, 1992 and defendants
agree that she was not working at this time;
3. If any of the injuries are found to have caused permanent
disability, the type of disability is an industrial disability to the
body as a whole;
4. At the time of both injuries, claimant was married and, entitled
to five exemptions; and
5. It was stipulated that the providers of the requested medical
expenses would testify as to their reasonableness and defendants are
not offering contrary evidence.
ISSUES
The parties submitted the following issues for determination in this
proceeding:
I. Whether claimant received an injury on February 25, 1992, arising
out of and in the course of employment;
II. The extent of claimant's entitlement to disability benefits; and
III. The extent of claimant's entitlement to medical benefits and
alternate care.
FINDINGS OF FACT
Having heard the testimony and considered all of the evidence, the
deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as defendants
placed Mary's credibility at issue during cross-examination as to the
nature and extent of the injury and disability. From her demeanor
while testifying, Mary is found credible.
Mary worked for Maurices from October 1989 until February 1991 at which
time she resigned. Maurices is a retail clothing store chain.
Initially Mary was hired as a part-time sales associate but after a
year moved to full-time as a floor supervisor at the store in Ft.
Dodge, Iowa. In July 1992, Mary transferred to the store in Mason
City, Iowa and continued as a floor supervisor. Although her primary
duty was to supervise subordinates, Mary's position required heavy
lifting up to 50 pounds to help when needed in stocking, moving store
items, erecting displays and assisting customers. Claimant's testimony
with reference to her duties was not challenged by defendants'
witnesses at hearing. In her resignation Mary listed two motivating
factors compelling her to leave, (1) her medical problems stemming from
a prior work injury; and, (2) dissatisfaction with upper management in
failing to advance her and disagreement with her last performance
appraisal.
The stipulated work injury of October 22, 1990, consisted of a neck
strain when a 60-pound box fell on Mary's head while attempting to
remove it from an overhead shelf in a storeroom. Upon an initial
diagnosis of a pinched nerve, Mary was treated by a local physician
with heat and medication for a very sore neck. After a week or so, she
began treating with a chiropractor and chiropractic manipulations
occurred regularly for almost two years. Mary was off work for a
brief time after this injury and gradually returned to work, first
part-time and then full-time in December 1990.
After transferring to Mason City in the summer of 1991, Mary began to
have more problems with her neck from increased physical activity while
moving into a new store. These recurrent symptoms were reported to
upper management in September 1991. Mary continued with chiropractic
care to obtain relief but also continued to perform her job at
Maurices.
Mary claims to have injured herself a second time on February 25, 1991.
She states that the pain grew worse and she was compelled to leave
work on a medical leave. Interestingly, this occurred at the same time
as a performance evaluation which in Mary's opinion was adverse to her.
She received her next three chiropractic manipulations on March 11,
1992, March 19, 1992 and April 6, 1992. Upon referral by defendants,
Mary was evaluated by a neurosurgeon, David Beck, M.D., the day before
her resignation. Dr. Beck views her condition as a soft tissue neck
injury. In April 1992, Dr. Beck submitted a report to Job Service
indicating that Mary was not released to return to work when he first
saw her but does not state anything with reference to her ability to
work prior to March 25, 1992. No opinion was obtained from the
chiropractor at the time as to claimant's ability to work when she
first left on February 25, 1992. It appears to the undersigned that
the primary event causing her absence on February 25, 1992 was the
upsetting performance evaluation. All physicians relate her symptoms
and treatment after March 25, 1992 to her first injury October 22,
1990. Therefore, it could not be found that claimant suffered a second
injury. Mary, however, has shown an absence from work beginning on
March 25, 1992, attributable to the work injury of October 22, 1990.
Following the examination of Dr. Beck, Mary began physical therapy
other than chiropractic care under the direction of Enrique Cohen,
M.D., during the balance of 1992. After that date, defendants refused
to pay for further therapy. In late May, 1992, Mary began a new job
as swimming pool manager at her new residence in Dunlap, Iowa during
the summers of 1992 and 1993. Since May 1994 she has been working as a
convenience store clerk working part-time while attending a local
community college.
Mary today complains of chronic neck pain which adversely affects her
ability to stand, carry, reach or lift. She has been evaluated by
several medical doctors and chiropractors who most often describe
Mary's condition as a chronic neck strain. All opine that Mary has
suffered to some degree a significant permanent partial impairment to
the body as a whole as a result of the original injury of October 22,
1990, due to limited range of motion and probable future flare-ups from
activity. The percentages of impairment range from 4-15 percent. Mary
today has no physician imposed formal work activity restrictions but in
his deposition testimony, Raymond Koski, D.C., recommends that Mary not
perform repetitious activities involving her neck, shoulder or arms
outstretched. He does not recommend lifting more than 10 pounds with
arms extended and no more than occasional lifting up to 40 pounds.
Dr. Koski's views are not controverted in the record.
Therefore, it is found that Mary has suffered permanent partial
impairment to the body as a whole from the October 22, 1990 injury
which restricts her ability to perform certain physical tasks in
employment.
Claimant's medical condition before the work injury was excellent and
she had no functional impairments or ascertainable disabilities.
Claimant was able to fully perform physical tasks involving heavy or
repetitive lifting bending, twisting and prolonged standing.
Claimant's only significant work before Maurices was in hair styling
which Dr. Koski does not feel claimant should perform due to the work
with extending arms. Clearly, given her physical limitations, she is
precluded in the future from a very large number of manual labor jobs
which on whole pay far more than non-skilled light duty or sedentary
jobs which do not pay much more than her current minimum wage job.
Mary is 39 years of age. She obtained a GED in 1975. She attended
Manikato State for one semester before completing a vocational training
course in cosmetology. Mary attended one semester at DMACC in Boone,
Iowa. Mary currently is about to complete a liberal arts course of
study at DMACC in Carroll, Iowa and most likely will receive her
Associate of Arts degree this year. Mary is intending to complete her
education and obtain a Bachelor of Arts in social work. She appears to
be physically and financial able to complete these plans but it would
be speculation at this time to find that she will obtain a four-year
degree or that she would actually obtain a job in the field of social
work at some point in time in the future. However, obtaining the
Associate degree alone will greatly improve her chances to find
suitable employment.
From examination of all of the factors of industrial disability, it is
found that the work injury of October 22, 1990 was a cause of a 25
percent loss of earning capacity.
Given Mary's uncontroverted testimony at hearing, the medical expenses
listed as unpaid in the hearing report, including the medical mileage
expenses, are found causally related to the injury and necessary for
treatment of the work injury. One exhibit refers to prescription
expenses which is disputed by defendants as many are for antibiotics.
However, these expenses were not listed as unpaid requested expenses in
the hearing report and that issue was not properly submitted to the
undersigned.
Mary seeks alternate care with Dr. Koski. She states that she has
continuing problems with her stomach with medication and that his care
would be helpful to her. Defendants are concerned about costs of such
care which is estimated by Dr. Koski to last indefinitely. It is clear
that claimant has had several years of chiropractic care with little
improvement. However, other forms of physical therapy were
discontinued by defendants. Therefore, alternate care with Dr. Koski
is found to be currently necessary and reasonable until such time as
defendants provide an alternate physical therapy recommended by a
medical doctor.
Also, Mary asserts that her vertigo and tinnitus in her ears are
related to the work injury. Dr. Koski's deposition testimony causally
relating this condition to the injury is unrebutted. The causation
views of an evaluating otolaryngologist are not clear in the record.
It is therefore found that the work injury of October 22, 1990 is a
cause of Mary's current vertigo and tinnitus condition and defendants
are directed to designate a suitable physician to deal with these
complaints.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a preponderance of the
evidence that claimant received an injury arising out of and in the
course of employment. The words "out of" refer to the cause or source
of the injury. The words "in the course of" refer to the time and
place and circumstances of the injury. see generally, Cedar Rapids,
Comm. Sch. Dist. v. Cady, 278 N.W. 2d 298 (Iowa 1979); Crowe V.
DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W. 2d 63 (1955). An
employer takes an employee subject to any active or dormant health
impairments. A work connected injury which more than slightly
aggravates the condition is considered to be a personal injury.
Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W. 2d 591 (1961), and
cases cited therein.
In the case sub judice, claimant failed to show a second work injury.
However, much of the time off work following the claimed injury was
found causally connected to the stipulated work injury.
II. The question of causal connection is essentially within the domain
of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251
Iowa 375, 101 N.W. 2d 167 (1960). The opinion of experts need not be
couched in definite, positive or unequivocal language and the expert
opinion may be accepted or rejected, in whole or in part, by the trier
of fact. Sondag v. Ferris Hardware, 220 N.W. 2d 903 (Iowa 1974). The
weight to be given to such an opinion is for the finder of fact to
determine from the completeness of the premise given the expert or
other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa
516, 133 N.W. 2d 867 (1965).
Furthermore, if the available expert testimony is insufficient alone to
support a finding of causal connection, such testimony may be coupled
with non-expert 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 (1974) To establish compensability, the injury need only be a
significant factor, not be the only factor causing the claimed
disability. Blacksmith at 354. In the case of a preexisting
condition, an employee is not entitled to recover for the results of a
preexisting injury or disease but can recover for an aggravation
thereof which resulted in the disability found to exist. Olson v.
Goodyear Service Stores, 255 Iowa 1112, 125 N.W. 2d 251 (1963).
As the claimant has shown that the work injury was a cause of permanent
physical impairment or limitation upon activity involving the body as a
whole, the degree of permanent disability must be measured pursuant
to Iowa Code section 85.34(2)(u). However, unlike scheduled member
disabilities, the degree of disability under this provision is not
measured solely by the extent of a functional impairment or loss of use
of a body member. A disability to the body as a whole or an
"industrial disability" is a loss of earning capacity resulting from
the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593,
258 N.W. 899 (1935). A physical impairment or restriction on work
activity may or may not result in such a loss of earning capacity.
Examination of several factors determines the extent to which a work
injury and a resulting medical condition caused an industrial
disability. These factors 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. See Peterson v. Truck Haven Cafe, Inc. Vol. 1, No. 3
Iowa Industrial Commissioner Decisions 654, 658 (App. Feb. 28, 1985).
In the case sub judice, it was found that claimant suffered a 20
percent loss of her earning capacity as a result of the work injury.
Such a finding entitles claimant to 100 weeks of permanent partial
disability benefits as a matter of law under Iowa Code section
85.34(2)(u) which is 20 percent of 500 weeks, the maximum allowable
number of weeks for an injury to the body as a whole in that
subsection.
Claimant's entitlement to permanent partial disability also entitles
her to weekly benefits for healing period under Iowa Code section 85.34
from the date of injury until claimant returns to work; until claimant
is medically capable of returning to substantially similar work to the
work she was performing at the time of injury; or, until it is
indicated that significant improvement from the injury is not
anticipated, whichever occurs first.
After her first return to work, claimant was found to have a second
period of healing period attributable to the original injury beginning
on March 25, 1992 and lasting until her re-employment on May 30, 1992.
Additional healing period benefits will be awarded. Healing period
may terminate and then begin again. Willis v. Lehigh Portland Cement
Co., I-2 Iowa Industrial Comm'r Dec. 485 (1984); Clemens v. Iowa
Veterans Home, I-1 Iowa Industrial Comm'r Dec 35 (1984); See
generally, Lawyer & Higgs, Iowa Workers Compensation--Law and Practice,
Section 13-3.
III. Pursuant to Iowa Code section 85.27, claimant is entitled to
payment of reasonable medical expenses incurred for treatment of a
work injury. Claimant is entitled to an order of reimbursement if she
has paid those expenses. Otherwise, claimant is entitled only to an
order directing the responsible defendants to make such payments
directly to the provider. See Krohn v. State, 420 N.W. 2d 463 (Iowa
1988)
In the case at bar, claimant carried her burden to show the
compensability of the requested expenses and the need for alternate
care.
The dispute as to rate of compensation involves the gross weekly rate.
This deputy was given two choices in the hearing report. The higher
figure is based upon the number of hours that should have been worked
under the contract of employment. The lower figure was the amount
actually worked. Rate is to be based upon the number of hours actually
worked. Iowa Code section 85.36. Utilizing the lower figure in the
hearing report for the October 1990 injury and stipulations on marital
status and exemptions, Mary's weekly rate of compensation for the
award herein is $115.36 according to the Industrial Commissioner's
published rate booklet for this date of injury.
ORDER
1. Defendants shall pay to claimant one hundred (100) weeks of
permanent partial disability benefits at a rate of one hundred fifteen
and 36/100 dollars ($115.36) per week from May 31, 1992.
2. Defendants shall pay to claimant additional healing period benefits
from March 25, 1992 through May 30, 1992 at the rate of one hundred
fifteen and 36/100 dollars ($115.36) per week.
3. Defendants shall pay the medical expenses listed in the prehearing
report. In addition, defendants are ordered to provide the alternate
care by Dr. Koski until such time as other physical therapy is provided
upon the recommendation of a medical doctor. Also, defendants shall
designate a care physician for Mary's vertigo and tinnitus problems.
4. Defendants shall pay accrued weekly benefits in a lump sum and
shall receive credit against this award for all benefits previously
paid.
5. Defendants shall pay interest on weekly benefits awarded herein as
set forth in Iowa Code section 85.30.
6. Defendants shall pay the costs of this action pursuant to D.I.S.
Rule 343 IAC 4.33, including reimbursement to claimant for any filing
fee paid in this matter.
7. Defendants shall file activity reports on the payment of this award
as requested by this agency pursuant to D.I.S. Rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1995.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Jerry L. Schnurr, III
Attorney at Law
409 Snell Bldg.
P.O. Box 952
Fort Dodge, IA 50501
Ms. Janece M. Valentine
Attorney at Law
801 Carver Bldg.
P.O. Box 1680
Fort Dodge, IA 50501
5-1803
Filed March 17, 1995
Larry P. Walshire
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARY K. NELSON,
Claimant,
vs.
File Nos. 966893 & 1037224
MAURICES, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
LIBERTY MUTUAL INSURANCE CO.
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
MARY K. NELSON,
Claimant,
vs.
File Nos. 966893 & 1037224
MAURICES, INC.,
O R D E R
Employer,
N U N C P R O T U N C
and
LIBERTY MUTUAL INSURANCE CO.,
Insurance Carrier,
Defendants.
_________________________________________________________________
Due to typographical error, the unnumbered fourth paragraph on page 4
of the Arbitration Decision dated March 17, 1995 is amended to read as
follows.
from examination of all of the factors of industrial disability, it
is found that the work injury of October 22, 1990 is a cause of a 20
percent loss of earning capacity.
The balance of the decision is unchanged.
Signed and filed this ____ day of March, 1995.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Jerry L. Schnurr, III
Attorney at Law
409 Snell Bldg.
P.O. Box 952
Fort Dodge, IA 50501
Ms. Janece M. Valentine
Attorney at Law
801 Carver Bldg.
P.O. Box 1680
Fort Dodge, IA 50501