BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
WILLIAM KLINE, SR.,
Claimant,
vs.
File No. 967795
STEEL WAREHOUSING, INC.,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal. The decision of the deputy filed October 20, 1995 is affirmed
and is adopted as the final agency action in this case.
Defendants shall pay the costs of the appeal, including the preparation
of the hearing transcript.
Signed and filed this ____ day of April, 1995.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harry W. Dahl
Attorney at Law
974 73rd St., Suite 16
Des Moines, Iowa 50312
Mr. D. Brian Scieszinski
Attorney at Law
801 Grand Ave., Ste 3700
Des Moines, Iowa 50309-2727
5-1803; 1808
Filed April 28, 1995
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
WILLIAM KLINE, SR.,
Claimant,
vs.
File No. 967795
STEEL WAREHOUSING, INC.,
A P P E A L
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL COMPANIES,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1803; 1808
Non-precedential, extent of disability case. Iowa Code section
85.34(2)(s) used to arrive at an award in a simultaneous carpal tunnel
injury case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
WILLIAM KLINE, SR., :
:
Claimant, :
:
vs. :
: File No. 967795
STEEL WAREHOUSING, INC., :
: 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
This is a proceeding in arbitration brought by William
Kline, Sr., claimant, against Steel Warehousing Inc., employer,
hereinafter referred to as SWI, and Employers Mutual Companies,
insurance carrier, defendants, for workers' compensation benefits
as a result of an alleged injury on June 7, 1990. On October 5,
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 June 7, 1990 claimant received an injury arising out
of and in the course of employment with SWI.
2. Claimant is not seeking additional temporary total or
healing period benefits at this time.
3. If permanent partial disability benefits are awarded,
they shall begin as of April 1, 1991.
4. At the time of injury claimant's gross rate of weekly
compensation was $392.00; he was married; and, he was entitled to
four exemptions. Therefore, claimant's weekly rate of
compensation is $256.98 according to the Industrial
Commissioner's published rate booklet for this injury.
5. Medical benefits are not in dispute.
6. Claimant was paid 25 weeks of permanent partial
Page 2
disability benefits prior to hearing at the stipulated weekly
rate of compensation.
ISSUES
The only issue submitted by the parties for determination in
this proceeding is the extent of claimant's entitlement to
permanent disability benefits. A subissue within this dispute is
the extent of any future credit under Iowa code section 85.34(5)
possessed by defendants due to a claimed overpayment of weekly
benefits for permanent partial disability.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as follows:
Claimant, age 45, has been employed by SWI as a truck driver
hauling steel products for over 16 years and he continues in this
employment today. A part of his responsibilities includes
loading and unloading his truck either by hand or with available
equipment. The job requires extensive use of his hands and arms.
The work injury involves bilateral carpal tunnel syndrome
from a cumulative work activity occurring simultaneously.
Claimant first sought treatment from his family doctor for pain
and numbness in both hands. When conservative care using
medication and wrist braces failed to improve his symptoms,
claimant was referred to Ronald Bergman, D.O., a board certified
orthopedic surgeon. Dr. Bergman performed decompression or
release surgeries on both hands. Claimant was returned to work
following these surgeries in April 1991 with only a temporary
restriction for one month prohibiting heavy lifting and
repetitive use of his hands. Claimant now is on full duty at
work but after work activity involving his hands, he continues
today to have symptoms of numbness and pain in both hands and
arms, although more severe on the right.
It is first found that the work injury herein does not
result in permanent total disability or a total loss of earning
capacity. Claimant is back to work without loss of pay in the
same job he had before the injury. As will be explained in the
Conclusions of Law section, functional loss of use must be
assessed when the loss of earning capacity is less than total.
In measuring the loss of functional use, two physicians have
given impairment ratings in this case. Dr. Bergman opines that
claimant suffers a 2 percent and 3 percent permanent impairment
to the right and left hand respectively. Another evaluating
orthopedic surgeon, Keith Riggins, M.D., also board certified,
gives a rating of 14 percent to the body as a whole for the
bilateral carpal tunnel condition.
It is found that Dr. Riggins' rating to be the most credible
and that the work injury herein is a cause of a loss of use
consisting of a 14 percent body as a whole permanent partial
impairment. Although he was the treating physician and more
clinically involved with claimant, there are a number of problems
with Dr. Bergman's rating. Dr. Bergman fails to identify use of
any rating guide in arriving at this rating. The doctor's
Page 3
ratings are unusually low given claimant's continuing problems.
Finally, Dr. Bergman fails to properly use a proper technique for
rating a bilateral impairment as will be explained in the
Conclusions of Law section of this decision.
On the other hand, Dr. Riggins issued a very complete report
correctly describing claimant's history and current status. He
utilized a guide adopted by the American Medical Association for
rating impairments. His final rating is more accurate in
assessing claimant's current loss of use. Finally, the doctor
coverts both hand impairments to a combined body as a whole
rating which is the correct method for arriving at a rating under
our law.
CONCLUSIONS OF LAW
The claimant has shown that the work injury involved a
permanent impairment to two upper extremities occurring
simultaneously. This is viewed by this agency to be caused from
a single accident. Fichter v. Griffin Pipe Products, File No.
941434 (Appeal Decision April 29, 1993). Therefore, the extent
of disability is measured pursuant to Iowa Code section
85.34(2)(s). Measurement of disability under this subsection is
peculiar.
Normally, if the injury is to only an extremity, the amount
of disability is measured functionally as a percentage of loss of
use which is then multiplied by the maximum allowable weeks of
compensation allowed for that scheduled member set forth in Iowa
Code sections, 85.34(2)(a-r) to arrive at the permanent
disability benefit entitlement. These disabilities are termed a
"scheduled member" disabilities. 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).
For all other injuries, including those to the body as a
whole, the degree of permanent disability is measured pursuant to
Iowa Code section 85.34(2)(u). 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).
Under Iowa Code section 85.34(2)(s), this agency must first
determine the extent of industrial disability or loss of earning
capacity caused by the two simultaneous injuries. If the injury
caused a loss of earning capacity that is less than total or 100
percent, then the extent of the permanent disability is measured
only functionally as a percentage of loss of use for each
extremity which is then translated into a percentage of the body
as a whole and combined together into one body as a whole value.
This can be done as it was in this case by Dr. Riggins using the
AMA guides. If the industrial disability is total or there is a
total loss of earning capacity, then claimant is entitled to
permanent total disability benefits under Iowa Code section
85.34(3). Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983);
Burgett v. Man An So Corp., 3 Ia Ind Comm Rep 38 (Appeal
Page 4
Decision 1982).
In the case sub judice, it was found that claimant had not
suffered a total loss of earning capacity, consequently his
entitlement to permanent disability benefits is measured
functionally. Based upon the findings herein of a combined 14
percent impairment to the body as a whole as a result of the
injury, claimant is entitled as a matter of law to 70 weeks of
permanent partial disability benefits under Iowa Code section
85.34(2)(s) which is 14 percent of the 500 weeks, the maximum
allowable for a simultaneous injury to two extremities in that
subsection.
Given the award herein of 70 weeks, the credit issue for a
claimed overpayment is moot as claimant was paid only 25 weeks of
permanent partial disability benefits prior to hearing according
to the hearing report. Defendants did not overpay claimant's
entitlement but will receive a credit against the award for the
benefits already paid.
ORDER
1. Defendants shall pay to claimant seventy (70) weeks of
permanent partial disability benefits at a rate of two hundred
fifty-six and 98/l00 dollars ($256.98) per week from April 1,
1991.
2. Defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for the
twenty-five (25) weeks of 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 October, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harry W. Dahl, III
Attorney at Law
974 73rd St STE 16
Des Moines IA 50312
Page 5
Mr. D. Brian Scieszinski
Attorney at Law
801 Grand Ave
STE 3700
Des Moines IA 50309-2727
5-1803; 1808
Filed October 20, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
WILLIAM KLINE, SR.,
Claimant,
vs.
File No. 967795
STEEL WAREHOUSING, INC.,
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.
___________________________________________________________
5-1803, 1808
Non-precedential, extent of disability case. Iowa Code
section 85.34(2)(s) used to arrive at an award in a
simultaneous carpal tunnel injury case.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT L. FARIS, :
:
Claimant, :
:
vs. :
: File No. 967932
CITY OF COUNCIL BLUFFS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ARGONAUT INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the
claimant, Robert Faris, against the City of Council Bluffs,
and its insurance carrier, Argonaut Insurance, as
defendants. Mr. Faris seeks to recover workers'
compensation benefits as a result of an alleged injury
occurring on August 17, 1990. This matter came on for
hearing before the undersigned deputy industrial
commissioner on February 5, 1993, at Council Bluffs, Iowa.
The record consists of testimony from the claimant,
claimant's wife, Norma Faris, C. Lowell Richey, Mary Ann
Krutzfeldt, Dan Woellhof, and Terry Mauer; and joint
exhibits 1 through 19.
ISSUES
The parties submit the following issues for resolution:
1. Whether claimant sustained an injury on August 15,
1990, which arose out of and in the course of his
employment;
2. Whether claimant is entitled to temporary total or
healing period benefits, or permanent partial or permanent
total disability benefits; and,
3. Whether claimant is entitled to medical benefits
pursuant to Iowa Code section 85.27.
Page 2
FINDINGS OF FACT
The undersigned deputy having reviewed all of the
evidence received, finds the following facts:
Claimant was born on January 27, 1933. At the time of
the hearing he was 60 years of age. He has been married to
Norma Faris for 19 years and considered his marriage a
partnership. Throughout the hearing claimant and his wife
described claimant's life outside of his work as
non-stressful. Claimant stated that he had a very good
relationship with his children and grandchildren. Claimant
is a high school graduate and participated in a four year
apprenticeship in order to become a specialist in electrical
work. He also received training during a five year
engineering course. He is a fire cause investigator and a
licensed electrical engineer in both Nebraska and Iowa.
Claimant began working for the City of Council Bluffs
in July of 1977. His first position was as a rehabilitation
specialist in the department of planning and community
development. His duties included surveying the City of
Council Bluffs to identify substandard housing. He
developed technical specifications for bids for contractors
which were later used in the national HUD program. His job
functions required him to follow federal guidelines to write
the specifications and estimates. He also supervised on a
daily basis other contractors' work and acted as a liaison
between the contractors and the various homeowners.
In 1980, his duties changed and claimant became an
electrical inspector for the City of Council Bluffs.
Claimant's job duties increased as he was required to
perform inspections of electrical wirings, right permits and
issue licenses to various contractors. He also became a
member of the E-board and served as a mediator between
contractors and homeowners. He was required to conduct
field inspections and reviewed rewiring jobs on both
commercial and residential projects. Claimant explained
that his job became particularly hectic during the summer
months (June, July and August) as prime construction
projects became active during this time. He considered
himself to be on call 24 hours a day and regularly received
calls in the evening to set up inspections for different
contractors. He typically performed the inspections prior
to the beginning of his actual work day and stated that it
was not uncommon for him to conduct inspections between 5:00
and 6:30 a.m.
Claimant encountered the most problems when he reviewed
plans for commercial buildings. He would review the
architectural and engineering prints checking for violations
of city code regulations before issuing permits. Claimant
described this particular aspect of his job as stressful in
that the owners of the building would usually want to
construct the building as cheaply as possible and the
architects would necessarily leave out required design plans
for safety assurances. Claimant stated that this caused him
particular concern in hospitals and schools where residents
Page 3
were unable to protect themselves, and he also was concerned
about the city's liability if the city issued permits for
construction projects which did not adhere to city code
regulations.
One particular project caused claimant much concern.
In 1988, Mercy Hospital and Iowa Power entered into an
agreement whereby Iowa Power would furnish electrical power
through a specially built transformer. Of particular note
was concern about various switching gear that needed to be
installed to connect Mercy electrical systems with Iowa
Power. If Iowa Power provided too much or too little power
to the hospital, an eminent potential for a melt down of the
electrical generators was possible. This, of course, would
cut off the supply of electrical power to the hospital.
Claimant stated that from the beginning both Iowa Power
and Mercy Hospital were reluctant to work with the City of
Council Bluffs. Iowa Power denied that the city needed to
be involved with the project. There were continued
arguments over which architect was involved with the project
and who was in charge of the plans and specifications for
the distribution system. Claimant described that some of
these arguments turned into screaming fights and eventually
the plans were submitted to the International Conference of
Building Officials (ICBO) an independent review board to
check the prints. While the parties were gathering a
complete set of prints to be sent to the ICBO, Iowa Power
and Mercy Hospital installed the switch gear equipment
without the permit. All of the equipment was represented to
have as UL approved, but in fact the equipment had not been
tested. Apparently, the equipment had been installed since
1989.
Claimant became aware of the installation on August 15,
1990, while he was on the telephone with one of the
architects involved. After he was told that the switch gear
was installed without the permit and without proper testing,
claimant states he "blew up." He then received a call from
Don Mitchell with Iowa Power and during the telephone
conversation began to experience a cold sweat, was unable to
sit up and had to lie down on the floor. He became
nauseous, and suffered a headache. He lost his balance and
claimant stated that he underwent some type of an
out-of-body experience. One of claimant's coworkers called
Norma Faris, claimant's wife, who went down to the office.
She transported claimant to the Clarkson Hospital emergency
room where he was monitored for a short time and released
with the diagnosis of a migraine headache. His neurologic
examination was unremarkable. Claimant was sent home but
returned to the hospital for a CT scan of the head several
days later. The result of the scan revealed a low density
area in the right cerebellar hemisphere. An MRI scan
performed on August 22, 1990, showed changes consistent with
a subacute right inferior cerebellar infarct in the right
hemisphere, and small vessel disease, possibly related to
hypertension (Joint Exhibit 5A-C).
Page 4
Claimant then took a two week vacation and returned to
work during October of 1990. On October 4, 1990, claimant
sought treatment from Joel Cotton, M.D., for treatment of
intermittent vertigo and numbness of the hands and feet.
Apparently, these symptoms had manifested on four different
occasions since August 15, 1990. Mrs. Faris attended the
appointment with claimant, and offered that claimant was
often sleepy, lacked energy and was irritable. His
neurological examination was unremarkable except for some
slight left facial asymmetry. He was referred to Barry
Munyon, M.D., in Omaha, Nebraska (Jt. Ex. 2(b)).
Upon completion of an examination, Dr. Munyon
restricted claimant from performing normal work activities
and was of the opinion claimant should be on medical
disability (Jt. Ex. 3(f)).
In December of 1990, claimant returned to Dr. Munyon
due to several spells of transient ischemic attacks which
Dr. Munyon believed were related to the lack of blood supply
in the vertebrobasilar system. Claimant continued with
medical therapy. Dr. Munyon was unable to relate the lack
of blood supply in the vertebrobasilar system to claimant's
job activities (Jt. Ex. 3(e)).
Dr. Munyon believed claimant was still unable to return
to work as indicated by a doctor's certificate dated January
23, 1991 (Jt. Ex. 3(d)).
Dr. Munyon's assessment was based partially on the
results of an examination performed by John C. Goldner,
M.D., on January 7, 1991. A neurological examination was
unremarkable other than facial asymmetry which was more
pronounced on the left side. Dr. Goldner was of the opinion
that claimant suffered from vertebrobasilar insufficiency
and had a right cerebellar infarct on August 17, 1990. He
noted that recurring similar symptoms were associated with
stress, and it was his opinion that claimant's stroke was
related to his long-standing hypertensive disease but was
accelerated by the stress at work that was occurring at the
time he developed his symptoms. Dr. Goldner opined that
claimant's long-term history of work stress was
significantly greater than his long-term history of
nonemployment-like stress, and recommended claimant not
return to work in a high stress position. He recommended
relatively low stress and sedentary activities to circumvent
the risk of another brain stem or cerebellar infarct (Jt.
Ex. 1(b)). On February 1, 1991, Dr. Munyon wrote another
report after reviewing Dr. Goldner's evaluation. He
indicated that claimant had experienced several recurrent
episodes consistent with vertebrobasilar insufficiency and
that all of the symptoms had been correlated with stressful
activities. He, too, stated that claimant's stroke was
related to a history of hypertension, exacerbated by stress.
He recommended a job situation in which environmental stress
could be controlled and a more sedentary occupation due to
claimant's persistent dizziness and recurrent spells of
lightheadedness that claimant experienced as a result of his
Page 5
vertebrobasilar insufficiency (Jt. Ex. 3(c)). Dr. Munyon
certified that claimant could return to work in his regular
capacity on April 1, 1991, although he cautioned that
claimant needed to limit his environmental tension at work
(Jt. Ex. 3(b)).
Next, claimant came under the care of Dean Wampler,
M.D., who was to perform a fitness for duty evaluation at
the direction of the City of Council Bluffs, Dr. Wampler
noted that claimant's current systems included occasional
headaches and minimal facial droop. Dr. Wampler was of the
opinion that claimant was fit for duty without restrictions.
In addressing the issue of stress, he offered that stress
was a personal manipulation and nothing specific could be
accommodated by the work environment (Jt. Ex. 4(c)).
Dr. Wampler's next report is dated April 11, 1991.
Again, he reiterated that claimant had been treated for
hypertension for more than 30 years and that hypertension
was the single most significant risk factor for the
development of vertebrobasilar disease. He did, however,
indicate that emotional stress will complicate hypertension
and may well contribute to the precipitation of a stroke.
He indicated work-related stress was an aggravating factor
but not causative of claimant's current medical problems
(Jt. Ex. 4(b)).
Claimant returned to Dr. Cotton in July of 1991.
Claimant had had a recent episode of visual problems and
lightheadedness while trap shooting. A neurological
examination was normal and Dr. Cotton was uncertain as to
the cause of the recent episode. Dr. Cotton did not believe
claimant had sustained any additional neurological injury
and advised against a repeat CT scan or MRI scan, nor did
Dr. Cotton feel an arteriogram was warranted. Claimant was
to continue to monitor his blood pressure but no further
treatment was recommended (Jt. Ex. 2(a)).
Claimant returned to Dr. Cotton on October 22, 1991.
During the two weeks preceding the examination on this date,
claimant was experiencing numbness in the left side of his
face. He was also experiencing slight slurring of speech as
well as facial weakness in the 24 hours preceding the
examination. His left arm felt numb and claimant complained
he was lightheaded and unsteady. The examination showed
slight dysarthria and slight left facial paresis and
slightly diminished strength in the left hand compared to
the right hand. Dr. Cotton felt claimant had sustained
another infarct and brain stem. He was to undergo another
MRI scan of the brain (Unnumbered Jt. Ex.).
In November of 1991, Dr. Munyon rendered what appears
to be a final diagnosis for claimant. He indicated that
claimant suffered from hypertension and status posterior
cerebral infarction with chronic dizziness and
lightheadedness. He requested that claimant be given a
handicapped parking sticker (Jt. Exs. 3(a) and 6).
In February of 1992, Dr. Goldner issued his final
report. His examination on January 31, 1992 reveals that
Page 6
claimant apparently had another stroke on January 14, 1992.
After this episode, claimant had developed acute onset of
memory loss, confusion and trouble using his left arm. Dr.
Goldner's neurological examination confirmed that claimant
had difficulty using his left leg. Left facial asymmetry
was still present and while performing a finger to nose
test, claimant displayed mild intension tremor. Dr. Goldner
was of the opinion that claimant had sustained a 20 percent
functional impairment due to the persistence of symptoms and
development of another stroke. Claimant's prognosis for
further strokes in the vertebrobasilar system existed.
Earlier, in July of 1991, Dr. Goldner had evaluated
claimant's impairment between 10-15 percent (Jt. Ex. 19; Jt.
Ex. 1(a)).
Next, claimant was sent by the employer to Dr. Wampler
for a re-evaluation for fitness for duty. Dr. Wampler noted
a decrease in claimant's left hand grip strength and
weakness in the left foot and hip. Dr. Wampler noted that
claimant had been released for full duty on April 1, 1992.
After consultation with Dr. Munyon, he ascertained that
claimant had had other episodes of transient ischemic
attacks and probably light strokes from March of 1991 until
his examination with Dr. Wampler. Dr. Wampler's examination
revealed that claimant's left hip tended to invert or turn
inward while walking, producing elements of spasticity and
discoordination. After working a full eight hours per day,
claimant went home and would sleep 12 to 14 hours per night.
Dr. Wampler expressed concerns about claimant's ability to
continue to perform his job duties. He considered it unsafe
for claimant to operate a motor vehicle, walk on uneven
surfaces and to climb in and out of buildings under
construction. He felt claimant should go on an immediate
leave of absence and apply for social security disability
benefits. His opinion was that claimant's vertebrobasilar
disease was related to a combination of genetic
predisposition and a long-standing history of hypertension.
He was unwilling to state that the claimant's job duties
contributed to the onset of his medical illness (Jt. Ex.
4(a)).
Although the city asked claimant whether there were any
accommodations that could be made in his job functions that
would allow him to return to work (Jt. Ex. 8), claimant was
terminated on May 5, 1992 (Jt. Exs. 9-11). Claimant filed a
grievance requesting reinstatement which was eventually
rejected, and he also filed a civil rights charge (Jt. Exs.
12-15).
The parties submitted as joint exhibits depositions of
George Scott, the director of community development for the
City of Council Bluffs; Dr. Goldner; and, claimant. Mr.
Scott supervised the four divisions of the department
including the building inspection and permitting division.
He was familiar with claimant and claimant's job duties.
Mr. Scott indicated that he was aware of the Mercy
Hospital/Iowa Power project and the problems that had been
Page 7
encountered with the placement of the electrical equipment
without the required permit. He was also aware that the
ICBO reviewed the plans and agreed with claimant that the
specifications and equipment did not meet code
requirements.. Likewise, he was aware that the equipment
needed to be tested or removed, and that Mercy was unwilling
to do either one. While claimant was out on medical leave,
Mr. Scott and Mercy came to an agreement which would allow
Mercy to have the equipment tested while it was installed.
The testing laboratory engineer was supplied with sufficient
information to determine whether the equipment could be
tested on site. Although Mr. Scott agreed that claimant was
correct in notifying Mercy Hospital that the equipment was
improperly installed, he felt that claimant should have "red
tagged" the equipment and that the red tag would have
eliminated any further questions in that this is an official
action by the city stating that the piece of electrical work
or equipment was improperly installed. Then, the owners
would either have to reinstall the equipment or civil
penalties would be instituted (Jt. Ex. 18, pp. 10-12).
Dr. Goldner's deposition, taken July 29, 1991, outlines
claimant's course of treatment and contains Dr. Goldner's
opinion that, based on his examination of claimant, his
review of medical records presented to him, the stress of
claimant's employment on August 17, 1990, was a material and
substantial factor in aggravating or accelerating claimant's
hypertension thereby causing his stroke. Dr. Goldner's
opinion is based on claimant's assertion that he worked in a
stressful environment. Likewise, at that time Dr. Goldner
was of the opinion that claimant had sustained a 10 to 15
percent functional impairment rating due to the aftereffects
of the stroke. And, he believed that claimant should avoid
high stress, and highly physical activity (Jt. Ex. 19, pp.
17-19).
Currently, claimant is not working but has used
listings from job service to check for various appropriate
positions. Additionally, he belongs to a union, Local 22,
but has received no "send-outs" for supervisory positions.
Claimant stated that his grandchildren were his life, and
that he does what he wants to do and as a result feels less
stress in his life.
It should also be noted that claimant has been treated
for hypertension for the past 30 years, and as precautionary
measures, checks his blood pressure two times per day for
the past 30 years.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether claimant
sustained an injury on August 15, 1990, which arose out of
and in the course of his employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
The claimant has the burden of proving by a
Page 8
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
On August 15, 1990, claimant suffered what was later
defined as a stroke. There is no evidence to rebut the
finding that claimant was performing his regular job duties
during his normal work hours. His duties were being
performed in a manner consistent with the requirements of
his position. Therefore, claimant did sustain an injury in
the course of his employment on August 15, 1990.
The threshold issue is whether claimant's stroke arose
out of his employment. In order to prove this part of the
test, claimant must show that his employment was the cause
or the source of the injury. In other words, if claimant's
employment was a substantial factor in bringing about the
result of claimant's stroke, he has proven that the stroke
arose out of his employment.
The undersigned was able to uncover one agency decision
which addressed this issue. In Smith v. Iowa Farmers Union
and Farmers Elevator Mutual Insurance Company, II Iowa
Indus. Comm'r Rep. 374 (1982), claimant's wife suffered a
cerebral hemorrhage on November 21, 1975 and died on
December 1, 1975 after failing to regain consciousness. The
decedent worked as the office manager for the employer. She
was involved in a variety of activities, some associated
with her work, others not.
The employer participated in a land use seminar
sponsored by Drake University. Decedent undertook the
responsibility of transporting individuals to and from the
airport for the employer. The decedent did not participate
in the seminar on behalf of the employer. During the
seminar, decedent was speaking to a colleague and suffered a
stroke. She died approximately one week later. Smith at
375.
Claimant, the surviving husband, was denied benefits.
The facts of the case were analyzed under the Iowa Supreme
case of Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
1974). The opinion states that in order to prove that
decedent's stroke arose out of her employment, claimant must
show that "some employment incident or activity was the
proximate cause of decedent's stroke." Smith at 377.
However, caution was urged in applying the full standards
set out in Sondag (where claimant suffered a heart attack),
to cases where the worker has suffered a stroke. Strokes
are physiologically different and more complex than heart
attacks.
In conjunction with an analysis of decedent's
activities prior to the stroke, Smith relies on expert
Page 9
testimony to analyze whether decedent's injury arose out of
her employment. In Smith, a failure of expert testimony to
establish the requisite causal connection between the
activities and decedent's stroke, coupled with a
determination that decedent stresses on the day/evening of
the stroke "were not even as great as would be present in
her normal daily activity" resulted in a denial that
decedent's death from a stroke arose out of her employment.
In the case at bar, a review of claimant's activities
the day of the stroke is warranted.
The testimony is uncontroverted with respect to the
Mercy-Iowa Power project. Claimant, Norma Faris, C. Lowell
Richey, and Dan Woellhof all testified that they knew this
particular project was troublesome. Another witness, Mary
Ann Krutzfeldt, was a coworker of claimant's and testified
that although she knew claimant was busy, he wasn't any
busier than other members of the building department. Ms.
Krutzfeldt did not notice whether claimant got upset over
the Mercy-Iowa Power project.
Claimant testified that during June, July and August of
1990, his job was particularly stressful. Several large
projects were being constructed in Council Bluffs, and
claimant was responsible for checking prints and
specifications in order to issue permits. Claimant stated
that during a typical day during this time frame, he would
receive between 25 to 40 phone calls per day. Calls came
from the city attorney regarding lawsuits to which the city
was a party, businesses requesting the status of their
permits, and, calls from and to Iowa Power regarding the
Mercy Hospital project, specifically, whether it was
necessary to conform with the rules and regulations
regarding meters and placement of electrical equipment.
Claimant stated that he was also performing administrative
duties and that he would oftentimes work between 60 and 70
hours per week. He also worked at home and seldom ate
lunch.
In August, claimant stated that he felt tired and
harried. He received a phone call upon arriving at the
office at 8:00 a.m. and received additional information
about the Mercy-Iowa Power project. At this point, he was
told that the equipment had been hooked and was functioning,
and claimant became very angry. Shortly thereafter, he had
the stroke.
Claimant's entire testimony describes his position as
one which is deemed stressed, especially in the summer
months. Many demands were placed upon claimant and the
functions of his position with the city. In other words,
the undersigned finds that the evidence shows claimant was
almost always under a certain amount of stress. In
reference to the Mercy-Iowa Power project, almost from its
initial conception, the project caused much stress in
claimant's life. The project had been ongoing for more than
two years prior to claimant's stroke.
Dr. Goldner is of the opinion that claimant's
Page 10
longstanding hypertension was aggravated by the stress at
work. He also stated that claimant's work environment was
more stressful than claimant's non-employment life.
Dr. Munyon advised that claimant should work in a
situation where stress could be controlled. He was able to
state that claimant's hypertension contributed to his
stroke. He was able to state that claimant's problem was
related to a lack of blood supply in the vertebrobasilar
system. Dr. Munyon could not relate this to claimant's job
activities.
Dr. Wampler associated claimant's cerebral vascular
disease to genetic disposition and hypertension.
The medical evidence, viewed in its entirely, does not
support a finding that claimant's job caused his stroke.
As a result, it is found that claimant has not met his
burden of proof and has not shown that the employment
incident or activity was the proximate cause of his stroke.
Although there is no doubt that his activity on August 15,
1990 was stressful, it does not appear to be more stressful
than his normal daily activities.
The record indicates that claimant suffered two
additional strokes while he was not working. No physician
opined that one stroke predisposes an individual to further
strokes.
Even if claimant had shown that his injury arose out of
and in the course of his employment, claimant subsequently
had a series of strokes after the initial stroke on August
15, 1990. It is noted that the evidence shows that claimant
eventually released to return to full duties in April of
1991. It was only after he had sustained several other
strokes that his physical condition deteriorated to a point
where he was taken off of full duty work. Therefore, even
if claimant had shown that he sustained an injury which
arose out of and in the course of his employment, claimant
was only temporary totally disabled until April of 1991.
ORDER
THEREFORE, it is ordered:
That claimant has failed to establish that he sustained
an injury on August 15, 1990, which arose out of and in the
course of his employment.
That claimant take nothing from these proceedings.
That each party shall pay their respective costs of
pursuing or defending the claim.
Signed and filed this ____ day of March, 1993.
Page 11
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Sheldon Gallner
Attorney at Law
803 Third Ave
Council Bluffs IA 51502
Mr Harry W Dahl
Attorney at Law
974 73rd St Ste 16
Des Moines IA 50312
5-1100
Filed March 30, 1993
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
ROBERT L. FARIS, :
:
Claimant, :
:
vs. :
: File No. 967932
CITY OF COUNCIL BLUFFS, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ARGONAUT INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100
Claimant suffered a stroke at work. He had a 30-year
history of hypertension.
His job was stressful, but no more so than his
non-employment life. Claimant had also suffered strokes
while trapshooting and while relaxing at home.
Claimant denied benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
SUSAN E. McINTOSH,
Claimant,
vs.
File No. 967963
PRIME MOVERS COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
KEMPER INSURANCE COMPANY,
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.
ISSUES
Defendants state the following issues on appeal:
I. Did the deputy err in determining the claimant
sustained an injury arising out of and in the course of
her employment on November 1, 1990.
II. Did the deputy err in determining that claimant's
disability and medical expenses were causally connected
to her work injury.
III. Did the deputy err in awarding healing period
benefits from November 9, 1990 through August 15, 1991.
IV. Did the deputy err in awarding the claimant
medical expenses.
V. Did the deputy err in awarding the claimant
permanent partial disability benefits equal to 20
percent of the body as a whole.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed March 18, 1994 are adopted as final agency action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed March 18, 1994 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
The first issue to address is whether claimant sustained an
injury on November 1, 1990, which arose out of and in the course
of her employment.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
The claimant has the burden of proving by a preponderance of
the evidence that the alleged injury actually occurred and that
it arose out of and in the course of employment. McDowell v.
Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words
"arising out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time, place and
circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d
415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa
1971).
On November 1, 1990, claimant's job duties included painting
steel frames. Some of the frames weighed in excess of 100
pounds. She was required to lift the frames in order to paint
them. The record confirms that she was performing her job duties
in a manner consistent with the requirements of the job, and that
she was working her normal shift.
While ***** claimant has had prior back problems, and has
been less than honest on numerous occasions, the medical records
confirm that she sought treatment around November 1, 1990. There
is nothing in the record to dispute claimant's contention that
she injured her back and told her supervisor of the injury.
As a result, it is found that claimant sustained an injury
on November 1, 1990, which arose out of and in the course of her
employment.
The next issue to address is whether claimant is entitled to
temporary total, healing period or permanent partial disability
benefits.
The claimant has the burden of proving by a preponderance of
the evidence that the injury is a proximate cause of the
disability on which the claim is based. A cause is proximate if
it is a substantial factor in bringing about the result; it need
not be the only cause. A preponderance of the evidence exists
when the causal connection is probable rather than merely
possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa
1974).
The question of causal connection is essentially within the
domain of expert testimony. The expert medical evidence must be
considered with all other evidence introduced bearing on the
causal connection between the injury and the disability. The
weight to be given to any expert opinion is determined by the
finder of fact and may be affected by the accuracy of the facts
relied upon by the expert as well as other surrounding
circumstances. The expert opinion may be accepted or rejected,
in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903
(Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965).
Iowa Code section 85.33 provides the following relevant
information:
Except as provided in subsection 2 of this section, the
employer shall pay to an employee for injury producing temporary
total disability weekly compensation benefits, as provided in
section 85.32, until the employee has returned to work or is
medically capable of returning to employment substantially
similar to the employment in which the employee was engaged at
the time of injury, whichever occurs first.
Iowa Code section 85.34(1) provides, in pertinent part:
Healing period. If an employee has suffered a
personal injury causing permanent partial disability
for which compensation is payable as provided in
subsection 2 of this section, the employer shall pay to
the employee compensation for a healing period, as
provided in section 85.37, beginning on the date of
injury, and until the employee has returned to work or
it is medically indicated that significant improvement
from the injury is not anticipated or until the
employee is medically capable of returning to
employment substantially similar to the employment in
which the employee was engaged at the time of the
injury, whichever occurs first.
***** Dr. Miller ***** continued to deny that claimant had
sustained a herniated disc, and was of the opinion that she was
not a candidate for surgery. This is so, even in light of an MRI
scan and a CT scan which confirmed a herniated disc. Even Dr.
Miller was under the impression that claimant had sustained a
permanent impairment, and offered that her impairment was 10
percent of the body as a whole.
Dr. Honda, who eventually performed surgery to claimant's
lumbar spine, also was of the opinion that her work injury had
caused a permanent impairment of 10 percent to the body as a
whole.
Since both primary physicians involved with the case have
rendered opinions that claimant's work injury caused a permanent
impairment, it is found that she did sustain a permanent injury,
and she is entitled to healing period benefits for the time she
was off of work and under medical care for her low back problem.
Unfortunately, the parties were unable to agree upon a time frame
for which claimant would be entitled to these benefits. *****
As claimant has sustained a permanent impairment to the body
as a whole, an analysis of her industrial disability is
warranted.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to the
injured employee's age, education, qualifications, experience
and inability to engage in employment for which he is fitted.
Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251
(1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660
(1961).
A finding of impairment to the body as a whole found by a
medical evaluator does not equate to industrial disability.
This is so as impairment and disability are not synonymous.
Degree of industrial disability can in fact be much different
than the degree of impairment because in the first instance
reference is to loss of earning capacity and in the latter to
anatomical or functional abnormality or loss. Although loss of
function is to be considered and disability can rarely be found
without it, it is not so that a degree of industrial disability
is proportionally related to a degree of impairment of bodily
function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to the
injury, immediately after the injury, and presently; the situs of
the injury, its severity and the length of healing period; the
work experience of the employee prior to the injury, after the
injury and potential for rehabilitation; the employee's
qualifications intellectually, emotionally and physically;
earnings prior and subsequent to the injury; age; education;
motivation; functional impairment as a result of the injury; and
inability because of the injury to engage in employment for which
the employee is fitted. Loss of earnings caused by a job
transfer for reasons related to the injury is also relevant.
These are matters which the finder of fact considers collectively
in arriving at the determination of the degree of industrial
disability.
There are no weighting guidelines that indicate how each of
the factors are to be considered. There are no guidelines which
give, for example, age a weighted value of ten percent of the
total value, education a value of fifteen percent of total,
motivation - five percent; work experience - thirty percent, etc.
Neither does a rating of functional impairment directly correlate
to a degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and then
added up to determine the degree of industrial disability. It
therefore becomes necessary for the deputy or commissioner to
draw upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial disability.
See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision,
February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision,
March 26, l985).
At the time of the injury, claimant was 42 years of age.
Her job with the defendant employer, which she held for
approximately two years, is the best paying job she has ever
held. The majority of her work experience has been as a school
bus driver.
Claimant's back injury caused a somewhat extended healing
period, although her actual recovery from surgery was fairly
quick.
Due to claimant's conviction for fraud, her motivation to
work may be questionable, but she has been able to secure
appropriate employment, although she earns far less than she
earned at the time of the injury.
After considering all of the factors enumerated above, it is
found that claimant has sustained a 20 percent industrial
disability.
The next issue to address is whether claimant is entitled to
medical benefits.
The employer shall furnish reasonable surgical, medical,
dental, osteopathic, chiropractic, podiatric, physical
rehabilitation, nursing, ambulance and hospital services and
supplies for all conditions compensable under the workers'
compensation law. The employer shall also allow reasonable and
necessary transportation expenses incurred for those services.
The employer has the right to choose the provider of care, except
where the employer has denied liability for the injury. Iowa
Code section 85.27. Holbert v. Townsend Engineering Co., Thirty-
second Biennial Report of the Industrial Commissioner 78 (Review-
reopen 1975).
As claimant has sustained an injury which arose out of and
in the course of her employment, and the defendants denied
liability for the injury, she is entitled to medical benefits.
***** Claimant was involved in an automobile accident in November
1991, but claimant's condition from her work injury was never
stabilized prior to the automobile accident. There is no
intervening event which breaks the causal connection between
claimant's work injury and the need for surgical intervention.
The evidence did not provide much guidance as to when
claimant's healing period ended. This is so due to the somewhat
inconsistent treatment provided to or undertaken by claimant.
[Claimant was injured on November 1, 1990. Claimant was not
able to return to her job, due to her injury. However, by
February 14, 1991, claimant was working at a bar as a waitress.
Claimant also worked for Halvorsen Construction from June 10 to
June 11, 1991, and for Johnson Brothers beginning July 29, 1991.
Claimant was released from Dr. Miller's care on August 15,
1991. Claimant did not return to her original job with defendant
employer until November of 1992.]
*****
The parties stipulated that claimant's gross weekly wages at
the time of the injury were $476.36 per week. Based on her
marital status (single) and entitlement to two exemptions, they
agreed $295.09 was the correct workers' compensation rate.
The rate is incorrect. Pursuant to the July 1, 1990 Guide
to Iowa Workers' Compensation Handling book, claimant's rate is
$290.99 per week.
Additionally, no penalty benefits will be awarded.
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant healing period benefits
at the rate of two hundred ninety and 99/100 dollars ($290.99)
per week for the time she was off of work from November 1, 1990
through February 14, 1991.
That defendants shall pay claimant permanent partial
disability benefits at the rate of two hundred ninety and 99/100
dollars ($290.99) per week for one hundred (100) weeks commencing
August 16, 1991.
That defendants shall pay accrued weekly benefits in a lump
sum and shall receive credit against the award for weekly
benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action, pursuant
to rule 343 IAC 4.33.
That defendants shall file an activity report upon payment
of this award as required by this agency, pursuant to rule 343
IAC 3.1.
Signed and filed this ____ day of November, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. James P. Hoffman
Attorney at Law
Middle Road
P.O. Box 1087
Keokuk, Iowa 52632
Mr. Craig Levien
Attorney at Law
600 Union Arcade Building
111 East Third
Davenport, Iowa 52801
5-1803
Filed November 30, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
SUSAN E. McINTOSH,
Claimant,
vs.
File No. 967963
PRIME MOVERS COMPANY,
A P P E A L
Employer,
D E C I S I O N
and
KEMPER INSURANCE COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1803
Claimant awarded 20 percent industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
SUSAN E McINTOSH, :
:
Claimant, :
:
vs. :
: File No. 967963
PRIME MOVERS COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by
claimant, Susan McIntosh, against her former employer, Prime
Mover, and its insurance carrier, Kemper Insurance Company.
A hearing was held before the undersigned on January 6,
1994, at Davenport, Iowa. The record consists of testimony
from the claimant, Randy Hilbrant (claims representative),
and Michael Black (vice president of personnel for Prime
Mover); joint exhibits 1-28; defendants' exhibit 29; and,
claimant's exhibits 31-47.
ISSUES
The parties present the following issues for
resolution:
1. Whether claimant sustained an injury on November 1,
1990, which arose out of and in the course of her
employment;
2. Whether claimant is entitled to temporary total or
healing period, or permanent partial disability benefits;
3. Whether claimant is entitled to medical benefits
pursuant to Iowa Code section 85.27. Although defendants
argue that any treatment rendered was unauthorized, this is
an invalid defense in light of defendants' denial of
liability. The defense of unauthorization will not be
addressed;
4. Whether claimant is entitled to penalty benefits as
governed by Iowa Code section 86.13.
FINDINGS OF FACT
Page 2
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Susan McIntosh, was born on September 6,
1947. At the time of the hearing, she was 46 years of age.
On November 1, 1990, she was single with one dependent
child.
Claimant finished the eleventh grade in high school,
and is currently working to earn her general equivalency
diploma. Her work experience includes driving a school bus
and working as a machinist in a factory, a job which paid
$6.00 per hour.
Claimant began working as a spray painter for the
defendant in February, 1989. To perform her job duties, she
was required to use electrostats and air guns. She spray
painted PMX frames used to build fork trucks. Her top
earnings were either $13.26 per hour, or $13.43 per hour, as
claimant was unable to remember her exact hourly rate.
According to claimant, on November 1, 1990, she was
lifting a 150 pound steel frame. She felt her back snap,
and told her foreman, Marv, that she had been injured. She
was told to go home and rest.
The following day, she was unable to get out of bed,
and called the personnel department, who secured an
appointment with Mark Odell, M.D. She was treated with
Tylenol and physical therapy sessions. Eventually, she was
referred to Dennis Miller, M.D. (Joint Exhibit 6). He
performed an examination which revealed tenderness in the
lower lumbar area. Straight leg raising tests were
negative, with no sensory loss in the thighs or the lower
extremities. Radiographs of the lumbosacral spine were
reviewed and interpreted as normal. Dr. Miller diagnosed an
acute lumbosacral strain. Claimant was to continue physical
therapy and was to take Darvocet for pain. (Joint Exhibit
5, pp. 1-2)
Claimant returned to Dr. Miller on December 13, 1990.
Due mostly to her pain behavior, and not objective findings,
claimant was scheduled for an MRI of the lumbar spine. The
results of the MRI showed a disc herniation at the L1-2
level, mild discogenic disease at L5-S1 and mild
degenerative changes involving the facet joints. A CT scan
was performed two weeks later. The test results state,
"[t]here is apparently herniation of the disc with
osteophyte formation more to the right of midline contiguous
with the vertebral body." (Jt. Ex. 5, pp. 3-5)
During December and January, claimant also saw D.
Palmer, M.D. He believed that the MRI showed a herniation
of the disc at L1-2 with displacement of the spinal cord.
He prescribed Percocet and physical therapy. (Jt. Exs. 1
and 2)
Dr. Miller's January notes indicate he did not
interpret either the MRI or the CT scan as showing a
Page 3
herniated disc. He believed claimant was suffering from a
bony spur, and "suspicion[ed] that it [was] somewhat old."
(Jt. Ex. 5, p. 6) After consultation with Dr. Tullo and Dr.
Harre, Dr. Miller believed claimant's problem stemmed from
an old defect, rather than a recent accident, and expressed
frustration with claimant's noncompliance with his
prescribed course of treatment (epidural injections and
physical therapy). All agreed that claimant should seek a
second opinion, which was secured from Byron Rovine, M.D.
(Jt. Ex. 5, pp. 6-7)
Dr. Rovine examined claimant, and reviewed the CT and
MRI scans. He found an abnormality at the T1-2 level and a
"loss of signal from the L5-S1 disc, without any evidence of
herniation or protrusion." (Jt. Ex. 7, p. 2) He
recommended exercises, but did not recommend surgery. He
found her symptoms and his findings unusual. He believed
there was no objective evidence to suggest any organic
involvement of the spinal cord or nerve roots. He thought
her symptoms suggested musculoskeletal problems. (Jt. Ex.
7, pp. 1-4)
Claimant returned to Dr. Miller, with new complaints of
shoulder pain. He did not note any objective findings on an
examination. He recommended a comprehensive evaluation with
Barbara Klaessy, a rehabilitation specialist at the Work
Fitness Center in Moline, Illinois. (Jt. Ex. 5, pp. 7-8)
Claimant returned to Dr. Miller in March and April
1991. He found her complaints "out of porportion (sic) to
the physical findings." He believed her "hyper response to
palpation" was suggestive of psychophysiological behavior,
and recommended psychiatric evaluation. (Jt. Ex. 5, p. 9)
Claimant returned to work hardening at the Work Fitness
Center in April 1991. These records are found at joint
exhibit 4, and consist of 50 pages. Essentially, it was
recommended that claimant perform job duties in the light
job classification with the following capabilities:
1. Sitting tolerance, 32 minutes
2. Waist height lift, 22 pounds
3. Below waist height lift, 12 pounds
4. Above waist height lift, 12 pounds
5. Waist height carry, 27 pounds
6. Whole body, push/pull, 20 pounds horizontal
force
7. Static stance, 9 minutes 46 seconds
8. Repetitive squat, 12 repetitions in 51
seconds
9. Sustained squat, 1 minute 15 seconds
10. Stair climbing, 4 repetitions in 1 minute 15
Page 4
seconds
11. Kneeling, 5 minutes continuously
(Jt. Ex. 4, p. 49).
After several more visits to Dr. Miller, and his
recommendation that claimant return to a job with limited
lifting requirements, Dr. Miller performed an evaluation for
the purpose of determining claimant's permanent impairment.
He stated that she had sustained an injury to her lower back
while working for the defendant employer, and due to
persistent pain and limited lumbar motion, she had sustained
a 10 percent impairment to the body as a whole. (Jt. Ex. 5,
pp. 15-16)
In December 1991, claimant sought treatment from Harry
Honda, M.D. She was complaining of neck, shoulder, back and
leg pain. He ordered x-rays and an MRI of the cervical
spine. Apparently, he reviewed the CT results of the lumbar
spine, which "shows L1-2." He recommended a hemilaminectomy
and anterior cervical interbody fusion. (Jt. Ex. 11, pp.
1-9) A second opinion from Dr. Sanguino was secured, and he
agreed with surgery because of claimant's lumbar
radiculopathy. (Jt. Ex. 12) She was scheduled for surgery
on June 11, 1992. (Jt. ex. 11, p. 10) Dr. Honda stated
that claimant's neck injury was the result of an automobile
accident which occurred in November 1991. (Jt. ex. 11, pp.
11-12) She also underwent a cervical laminectomy. While
some of Dr. Honda's notations indicate that the back problem
was work-related (Jt. Ex. 11, p. 13), other records from Dr.
Honda expressly state that it is not a workers' compensation
claim (Jt. Ex. 11, pp. 16, 20-21) However, one record of
Dr. Honda's (found within the records from the MRI Center)
provides an opinion regarding her permanent impairment,
which he stated was 10 percent, and that according to her
history, the low back problems stemmed from her accident at
work on November 1, 1990. (Jt. Ex. 10, p. 7)
Next, claimant sought treatment from R.J. Prentice,
whose examination noted no gross neurologic deficits. He
referred her to Iowa City. His notes indicate claimant hurt
her neck and low back at work. (Jt. Ex. 14)
Medical records dated from 1979 to 1986 indicate
claimant has been involved in two prior automobile
accidents. She denies this, and testified that she was
involved in one accident. She denied any prior back
problems, yet the record indicates she has received
treatment for her back in the past. (Jt. Exs. 16, 17, 19 and
28)
In the summer of 1991, claimant worked for several
construction companies while receiving unemployment
benefits. She was convicted of fraud/theft in the second
degree in March 1993 for knowingly executing false
certificates in order to receive unemployment benefits to
which she was not entitled. (Jt. Ex. 29)
Defendants state that claimant was released to return
Page 5
to work in April of 1991, but the plant was implementing
layoffs, and claimant could not return to work. The plant
recalled workers in November of 1992, and claimant returned
to her position with the defendant employer on November 9
1992.
In April of 1993, claimant was terminated from her job
after the employer discovered she had been convicted of
fraud, not due to any physical limitations. Mr. Black
addressed claimant's job performance, which was good, except
for the quality of her work. In the past, she had received
progressive discipline regarding the quality of her work.
Currently, claimant works at General Machine and Grind
and runs a drill press. She began this employment in
September, 1993.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to address is whether claimant
sustained an injury on November 1, 1990, which arose out of
and in the course of her employment.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
On November 1, 1990, claimant's job duties included
painting steel frames. Some of the frames weighed in excess
of 100 pounds. She was required to lift the frames in order
to paint them. The record confirms that she was performing
her job duties in a manner consistent with the requirements
of the job, and that she was working her normal shift.
While the undersigned certainly recognizes that
claimant has had prior back problems, and has been less than
honest on numerous occasions, the medical records confirm
that she sought treatment around November 1, 1990. There is
nothing in the record to dispute claimant's contention that
she injured her back and told her supervisor of the injury.
As a result, it is found that claimant sustained an
injury on November 1, 1990, which arose out of and in the
course of her employment.
The next issue to address is whether claimant is
entitled to temporary total, healing period or permanent
partial disability benefits.
Page 6
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Iowa Code section 85.33 provides the following relevant
information:
Except as provided in subsection 2 of this section, the
employer shall pay to an employee for injury producing
temporary total disability weekly compensation benefits, as
provided in section 85.32, until the employee has returned
to work or is medically capable of returning to employment
substantially similar to the employment in which the
employee was engaged at the time of injury, whichever occurs
first.
Iowa Code section 85.34(1) provides, in pertinent part:
Healing period. If an employee has suffered a
personal injury causing permanent partial
disability for which compensation is payable as
provided in subsection 2 of this section, the
employer shall pay to the employee compensation
for a healing period, as provided in section
85.37, beginning on the date of injury, and until
the employee has returned to work or it is
medically indicated that significant improvement
from the injury is not anticipated or until the
employee is medically capable of returning to
employment substantially similar to the employment
in which the employee was engaged at the time of
the injury, whichever occurs first.
While claimant's initial treating physician was Dr.
Miller, the undersigned finds his course of treatment
somewhat puzzling. He continued to deny that claimant had
sustained a herniated disc, and was of the opinion that she
was not a candidate for surgery. This is so, even in light
of an MRI scan and a CT scan which confirmed a herniated
disc. Even Dr. Miller was under the impression that
Page 7
claimant had sustained a permanent impairment, and offered
that her impairment was 10 percent of the body as a whole.
Dr. Honda, who eventually performed surgery to
claimant's lumbar spine, also was of the opinion that her
work injury had caused a permanent impairment of 10 percent
to the body as a whole.
Since both primary physicians involved with the case
have rendered opinions that claimant's work injury caused a
permanent impairment, it is found that she did sustain a
permanent injury, and she is entitled to healing period
benefits for the time she was off of work and under medical
care for her low back problem. Unfortunately, the parties
were unable to agree upon a time frame for which claimant
would be entitled to these benefits. The record is unclear,
and the undersigned is unable to establish the time frame
for these benefits.
As claimant has sustained a permanent impairment to the
body as a whole, an analysis of her industrial disability is
warranted.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
Page 8
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the injury, claimant was 42 years of
age. Her job with the defendant employer, which she held
for approximately two years, is the best paying job she has
ever held. The majority of her work experience has been as
a school bus driver.
Claimant's back injury caused a somewhat extended
healing period, although her actual recovery from surgery
was fairly quick.
Due to claimant's conviction for fraud, her motivation
to work may be questionable, but she has been able to secure
appropriate employment, although she earns far less than she
earned at the time of the injury.
After considering all of the factors enumerated above,
it is found that claimant has sustained a 20 percent
industrial disability.
The final issue to address is whether claimant is
entitled to medical benefits.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Iowa Code section 85.27.
Holbert v. Townsend Engineering Co., Thirty-second Biennial
Report of the Industrial Commissioner 78 (Review-reopen
1975).
As claimant has sustained an injury which arose out of
and in the course of her employment, and the defendants
denied liability for the injury, she is entitled to medical
benefits. The undersigned is aware that claimant was
involved in an automobile accident in November 1991, but
claimant's condition from her work injury was never
stabilized prior to the automobile accident. There is no
intervening event which breaks the causal connection between
Page 9
claimant's work injury and the need for surgical
intervention.
The evidence did not provide much guidance as to when
claimant's healing period ended. This is so due to the
somewhat inconsistent treatment provided to or undertaken by
claimant.
The undersigned believes claimant was initially
released to return to work, with restrictions, on August 15,
1991. As a result, she is awarded healing period benefits
for the time she was off of work from November 1, 1990
through August 15, 1991, and the permanent partial
disability benefits shall commence August 16, 1991.
(While the undersigned acknowledges that claimant
returned to work at a bar, she does not believe that this is
work substantially similar to her prior employment.)
The parties stipulated that claimant's gross weekly
wages at the time of the injury were $476.36 per week.
Based on her marital status (single) and entitlement to two
exemptions, they agreed $295.09 was the correct workers'
compensation rate.
The rate is incorrect. Pursuant to the July 1, 1990
Page 10
Guide to Iowa Workers' Compensation Handling book,
claimant's rate is $290.99 per week.
Additionally, no penalty benefits will be awarded.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant healing period
benefits at the rate of two hundred ninety and 99/100
dollars ($290.99) per week for the time she was off of work
from November 9, 1991 through August 15, 1991.
That defendants shall pay claimant permanent partial
disability benefits at the rate of two hundred ninety and
99/100 dollars ($290.99) per week for one hundred (100)
weeks commencing August 16, 1991.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of March, 1994.
---------------------------
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr James P Hoffman
Attorney at Law
P O Box 1087
Keokuk IA 52632
Mr Craig A Levien
Attorney at Law
111 E Third St
Davenport IA 52801
5-1803
Filed March 18, 1994
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
SUSAN E McINTOSH, :
:
Claimant, :
:
vs. :
: File No. 967963
PRIME MOVERS COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
KEMPER INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
5-1803
Claimant awarded 20% industrial disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
SUSAN E. McINTOSH,
Claimant, File No. 967963
vs. O R D E R
PRIME MOVERS COMPANY, N U N C
Employer, P R O
and T U N C
KEMPER INSURANCE COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
The conclusions of law contained in the appeal decision
filed November 30, 1994 are hereby amended with the following
additional analysis:
Iowa Code section 85.34(1) states that a return to work
terminates healing period. The section does not limit a
"return to work" to a return to the same job that claimant was
performing at the time of the injury. Such language is used in a
later alternative under section 85.34(1), in that healing period
ends when a claimant is "medically capable of returning to
employment substantially similar to the employment in which the
employee was engaged at the time of injury." However, the
"substantially similar" language, which refers to a claimant's
capability to return to the same or similar work, whether or not
the claimant actually does, is not applicable to the first prong
of 85.34(1), a "return to work." Thus, any return to work ends
the claimant's healing period. To hold otherwise would result in
a double recovery by claimants who would collect healing period
benefits for the same week he or she was also earning wages.
Thus, claimant's healing period ended when she returned to
work. Claimant acknowledges that she was working as a waitress
by February 14, 1991. Claimant's healing period ended on
February 14, 1991. It is possible that claimant was not working
for periods subsequent to February 14, 1991, due to her injury,
but the record is insufficient to determine this. Claimant has
failed to carry her burden to show entitlement to additional,
intermittent healing period benefits.
Signed and filed this ____ day of December, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. James P. Hoffman
Attorney at Law
Middle Road
P.O. Box 1087
Keokuk, Iowa 52632
Mr. Craig Levien
Attorney at Law
600 Union Arcade Building
111 East Third
Davenport, Iowa 52801
Page 1
1401, 1402.60, 1403.10, 2501, 2601,
2701, 2902
Filed April 23, 1993
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JOHN SANTUCCI,
Claimant,
vs. File No. 967995
AIR & WATER TECHNOLOGIES M E M O R A N D U M
CORP.,
O F D E C I S I O N
Employer,
O N A L T E R N A T E
and
M E D I C A L C A R E
CIGNA PROPERTY & CASUALTY
COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
1401, 1402.60, 1403.10, 2501, 2601, 2701, 2902
Claimant was injured. Defendants failed to actively monitor
claimant's medical care by authorizing a physician of their
own choice. Claimant sought care from his family physician.
Defendants expressed no objection to this physician for one
year and nine months. Defendants paid his bills for one
year and nine months.
Defendants then purported to terminate the care of
claimant's choice of physician and authorized a physician of
their own choice. This forced claimant to bring an action
for alternate medical care in order to continue his care
with the same physician that had been treating him from the
date of injury until the date of the hearing. Defendants
introduced no evidence that the care of the family physician
was unreasonable, inappropriate, excessive or ineffective.
It was held that claimant's choice of his family physician
under these circumstances constituted the family physician
as an authorized medical care provider. (Several cites)
It was further held that defendants acquiesced in the care
selected by claimant. (Several cites)
It was further held that under these circumstances
defendants waived the right to choose the care, but the
waiver was not irreversible. Defendants would be entitled
to choose the care by introducing evidence that the care
provided by claimant's choice of physician was unreasonable,
inappropriate, excessive or ineffective, but defendants
Page 2
introduced no such evidence. (Several cites)
It was held that the burden of proof was upon defendants to
prove that the care being given was unreasonable. (Several
cites)
Defendants were ordered to continue to provide and pay for
the care of claimant's choice of physician from the date of
the injury until such time that defendants can prove this
care is unreasonable.
Page 1
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JOHN SANTUCCI,
Claimant,
vs. File No. 967995
AIR & WATER TECHNOLOGIES M E M O R A N D U M
CORP.,
O F D E C I S I O N
Employer,
O N A L T E R N A T E
and
M E D I C A L C A R E
CIGNA PROPERTY & CASUALTY
COMPANIES,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a memorandum of decision to put in writing the
determination of the deputy industrial commissioner which
was given to the attorneys for the parties verbally at the
time of the telephone hearing.
The determination in this case is a result of an
alternate care proceeding filed by John Santucci, claimant,
against Air and Water Technologies, employer, and CIGNA
Property & Casualty Companies, insurance carrier, for
alternate medical care pursuant to rule 343 IAC 4.48.
A telephone hearing was held on April 20, 1993 at 1:45
p.m.. Claimant was represented by J. Drew Chambers.
Defendants were represented by Craig A. Levien. Claimant
was not personally present at the time of the telephone
hearing but submitted an affidavit with his original notice
and petition. Also attached to claimant's petition is the
report of defendant's evaluator Dr. Sandra
Scheler-Mangiapia. Terence Milford, insurance company
representative, was present at the time of the telephone
hearing and testified at the time of the hearing.
Defendants also submitted the affidavit of Terence Milford
as an unmarked exhibit as well as defendants' exhibits A, B
and C. An audio tape recording was made of the hearing and
is on file in the office of industrial commissioner.
Page 2
PRELIMINARY MATTERS
Defendants acknowledge (1) that an employer-employee
relationship existed between claimant and employer at the
time of the injury, and (2) that claimant did in fact
sustain an injury on October 25, 1990, which arose out of
and in the course of employment with employer.
It was announced before the hearing began that the
deputy had been delegated the authority to issue the final
agency action in this matter. Therefore, appeal of this
decision, if any, would be judicial review pursuant to Iowa
Code section 17A.19.
ISSUE
The sole issue for determination is whether claimant is
entitled to continue with the physician that has treated him
since the date of the injury until the time of the hearing
or whether he must terminate treatment with this physician
and begin seeking care from a new physician based on a
purported change of authorized care expressed in letters
from defendants' attorney to claimant's attorney dated
August 19, 1992, November 10, 1992 and December 31, 1992
(Defendants' Exhibits A, B & C).
At the hearing the deputy stated that the affidavit of
claimant attached to the petition would be accepted as
evidence. Defendants' attorney objected to the use of the
affidavit as evidence because he did not have the
opportunity to cross-examine claimant. Even though the
objection to the affidavit is not meritorious, nevertheless,
in deference to defendant and defendants' counsel the
affidavit will not be considered as evidence and will not be
used in determination of the issue in this case.
The reason that the objection is not meritorious is
because defendant was put on notice that claimant would not
be present and testify at the hearing because of the fact
that his affidavit was attached to the petition. As a
general rule, affidavits are never attached to petitions.
When an affidavit is attached to a petition it should prompt
an inquiry as to why. Defendants made no inquiry prior to
hearing as to whether claimant would be present and testify.
Defendants submitted no interrogatories to claimant, did not
depose claimant or request admissions of claimant.
Defendants did not subpoena claimant to appear at the
hearing. Nor is there any evidence or any indication that
defendants attempted to do any of the foregoing or make any
attempt to find out whether claimant would be present at
hearing even though attachment of his affidavit to the
petition was a signal that he would not be present to
testify in person. There is no obligation for a claimant to
be present or to testify at a hearing. Strict rules of
evidence are not to be applied in proceedings before the
industrial commissioner. Morrison v. Century Eng'g, 434
N.W.2d 874 (Iowa 1989)
Nevertheless, in deference to defense counsel's
objection to the affidavit of claimant to the effect that he
Page 3
did not have the opportunity to cross-examine claimant, then
it is subsequently and now determined that the affidavit of
claimant will not be considered evidence in this case and
will not be used in the determination of the facts or legal
issues in this case. Iowa Administrative Procedure Act
17A.14(3). Furthermore, the affidavit of claimant is not
essential to the determination of the facts and legal issues
in this case. This decision is based on the other evidence
presented in this case.
FINDINGS OF FACT
Claimant's attorney contended on behalf of claimant
that Dr. Jeffery S. Smith, claimant's family physician, has
been the treating physician from the date of the injury
until the date of the hearing. Defendants' attorney did not
dispute this proposition. Milford did not dispute this
proposition. On the contrary, Milford indicated that the
only treating physician was Dr. Jeffery S. Smith and Milford
testified that the insurance carrier did pay claimant's
medical bills from Dr. Smith up until July 13, 1992, when a
dispute arose as to whether his continued back treatment was
due to this injury or a fishing accident not related to this
an employer-retained physician. Munden v. Iowa Steel &
Wire, Thirty-third Biennial Report of the Industrial
Commissioner 99 (1977).
Wherefore, it is determined that Dr. Jeffery S. Smith
is an authorized physician within the purview of Iowa Code
section 85.27 in this case. Defendants acquiesced in his
care for one year and nine months. They paid his bills for
approximately this same period of time. Therefore, Dr.
Jeffrey S. Smith was an authorized physician. Conte v.
Heartland Lysine, Inc., File No. 900546 (Filed June 13,
1991).
Defendants, by not objecting to Dr. Jeffery S. Smith's
care and by not offering alternative services, in effect,
waived the right to choose the care. Worrell v. Griffin
Wheel Co., File No. 702268 (App. Decn., Feb. 26, 1988).
This waiver is not irreversible, but in order to change the
care defendants must show that it is somehow unreasonable,
inappropriate, excessive or ineffective.
Once an employee has justifiably engaged a physician, a
belated attempt by the employer or insurance carrier to
control the care will not cut off the right of the employee
to continue with the employee's chosen physician in the
absence of a change of condition or evidence that the
treatment is in some manner ineffective or inappropriate.
Kelley v. Firestone Tire and Rubber Co., File No. 990797
(Filed March 23, 1992). Although this particular point made
by the deputy was not discussed in the appeal decision of
the Kelley case, it was not rejected, and the industrial
commissioner did affirm the decision of the deputy. Kelley
nt was satisfied
with the care being received and it was the
defendant-employer and insurance carrier that wanted a
change of care. The deputy in the Smith case stated that it
is a well known principle of workers' compensation law that
the Act is construed in the light most favorable to the
claimant citing Iowa Code section 85.27, unnumbered
paragraph 4. The deputy added that this section clearly
states that the employer has the right to choose the care
but qualified that statement by adding that the tendered
care must be offered promptly, must be reasonable and must
not entail undue inconvenience to the employee.
In the Smith case defendants became dissatisfied with
the care that they had authorized originally. In this case
defendants have become dissatisfied with the care that they
acquiesced in for a year and nine months. It was stated in
the Smith case, and can be stated in this case, that whether
there was a direct authorization of medical care or whether
it was to be implied by the conduct of the parties, in
either event, it would not affect the outcome of the
decision. The deputy in the Smith case accused defendants
of manipulation of the statute by withdrawing of the
authorization and thereby forcing the claimant to become the
dissatisfied party making it necessary to bring an action
for continued care and concomitantly delaying the care which
claimant was receiving. Santucci, in this case, like Smith
in her case, had not sought excessive care nor had either
Page 6
claimant been forum shopping at defendants' expense. Dr.
Jeffery S. Smith is the only doctor that Santucci ever saw
for treatment.
In this case, claimant's counsel alleged that claimant
has only followed a course of conservative care of
analgesics and exercise from Dr. Jeffery S. Smith. The
report of Dr. Sandra Scheler-Manigiapia attached to
claimant's petition and referred to by defendants confirms
this allegation. No surgery or other extraordinary care was
sought by claimant. Defendants made no objection to the
report of Dr. Scheler-Manigiapia, who is their own current
choice of physician.
Since defendants are the party seeking a change of care
the burden of proof should be on them to prove that the care
which claimant has been receiving was either unauthorized or
unreasonable. The care of Dr. Jeffrey S. Smith has already
been determined to be authorized. It is now determined that
there was no evidence that the care of Dr. Jeffery S. Smith
was unreasonable. Therefore it must be determined that
defendants did not prove that the care of Dr. Jeffery S.
Smith was unreasonable. Parson v. Kelly Services, File No.
940972 (Filed Oct. 26, 1992).
Wherefore, it is determined, as a matter of fact (1)
that claimant sustained an injury on October 25, 1990, (2)
that defendant employer or insurance carrier did not
actively monitor claimant's medical care by authorizing a
physician of their own choice, (3) that claimant sought the
care of his family physician, Dr. Jeffery S. Smith, (4) that
defendants expressed no objection to this care for one year
and nine months, (5) that defendants paid Dr. Smith's bills
for od to provide prompt, reasonable and
appropriate care that defendants waived the right to choose
the care. Worrell v. Griffin Wheel Co., File No. 702268
(App. Decn. Feb. 26, 1991); and defendants have not shown
that the medical care of Dr. Jeffery S. Smith is
unreasonable, inappropriate, excessive, or ineffective in
order to justify a change of care. Richards v. Dept. of
General Services, Vol. 1, No. 3, State of Iowa Industrial
Commissioner Decisions 684 (App. Decn. 1985); Smith v.
Carnation Company, II Iowa Industrial Commissioner Report
366 (1981); Kelley v. Firestone and Tire and Rubber Co.,
File No. 990797 (App. Decn., Dec. 31, 1992); Parson v. Kelly
Services, File No. 940972 (Filed Oct. 26, 1992).
ORDER
THEREFORE, IT IS ORDERED:
That defendants continue to provide and pay for the
medical care of Dr. Jeffery S. Smith to claimant
indefinitely from the date of the injury until such time
that defendants can prove that his care is not reasonable
medical care.
That the costs of this action are charged to defendants
pursuant to rule 343 IAC 4.33 and Iowa Code section 86.40.
That defendants continue to file claim activity reports
as requested by this agency pursuant to rule 343 IAC 3.1.
That the undersigned has been delegated the authority
to issue final agency action in this matter. Appeal of this
decision, if any, would be by judicial review pursuant to
Iowa Code section 17A.19.
Page 8
Signed and filed this ____ day of April, 1993.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. J. Drew Chambers
Attorney at Law
86 Main Ave., PO Box 3055
Clinton, IA 52732
Mr. Craig A. Levien
Attorney at Law
600 Union Arcade Bldg.
Davenport, IA 52801
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SHEILA SELLS, :
:
Claimant, :
: File Nos. 1026741 968142
vs. :
: A R B I T R A T I O N
IBP, INC., :
: D E C I S I O N
Employer, :
Self-Insured :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Sheila Sells,
claimant, against IBP, Inc., employer, hereinafter referred to as
IBP, defendant, for workers' compensation benefits as a result of
alleged injuries on November 17, 1990 and August 31, 1991. On
June 15, 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. An employee-employer relationship existed between
claimant and IBP at the time of the alleged injuries.
2. Claimant is not seeking additional temporary total or
healing period benefits in this proceeding.
3. If permanent partial disability benefits are awarded,
they shall begin as of April 20, 1992.
4. At the time of injury, claimant's gross rate of weekly
compensation was $260; she was married; and, she was entitled
to four exemptions. Therefore, claimant's weekly rate of
compensation is $182.18 according to the Industrial
Commissioner's published rate booklet for this injury.
5. Medical benefits are not in dispute.
Page 2
ISSUES
The parties submitted the following issues for determination
in this proceeding:
I. Whether claimant received an injury arising out of and
in the course of employment;
II. Whether there was timely notice to employer of a claimed
psychological injury under Iowa Code section 85.23.
III. 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:
To the extent credibility was an issue, from her demeanor
while testifying, claimant is found credible.
Claimant worked for IBP from September 28, 1990, until
February 15, 1992, at which time she left work due to physician
imposed activity restrictions. Claimant worked in various
laborer jobs on the line at defendant's meat processing plant
Her jobs all involved very repetitive use of claimant's hands,
arms, shoulders, and back.
On or about November 17, 1990, claimant injured her lower
back lifting large pieces of fat from a barrel. This arose out
of and in the course of her employment at IBP. Claimant was off
work four to five days and received treatment in the form of ice
packs and physical therapy. Claimant returned to a lighter duty
job of casing puller. This job involved a great deal of
repetitive gripping. Her upper back began to bother her and both
hands became swollen. She then was transferred to the cut floor
and put on the belly line taking lean meat off of pieces of fat.
This job also involved extensive use of her hands and arms. In
the Spring of 1991, claimant's right hand, wrist and elbow along
with her upper back again began to hurt. She then was given a
splint and arm sling but continued working. In July 1991, she
returned to full duty and back to her regular job.
In August 1991 she was put on the fat back line using a
larger wizard knife and began to have more serious problems with
her hands and arms including locking of her fingers. She also
had elbow and back complaints, especially in the upper back.
At this time claimant received another injury arising out of and
in the course of her employment at IBP. Claimant was referred
for medical treatment and placed on light duty. Claimant then
began a program of physical therapy. Due to activity
restrictions against repetitive work, especially with the wizard
Page 3
knife, claimant was given a medical leave of absence. She hasn't
worked for IBP or anyone else since. Claimant was terminated by
IBP a year later for an inability to return to work.
The work injury of November 17, 1990 is not found to be a
cause of a any permanent impairment to any part of the body.
Although claimant was off work for a few days for back pain, she
recovered and eventually returned to full duty. No medical
opinion evidence was offered to show any lasting effects from
this injury.
The work injury on or about August 31, 1991 is found to have
caused significant, permanent impairment to the body as a whole
due to chronic hand, arm and back pain. Claimant had little or
no physical problems before working at IBP. Despite a removal
from the harmful repetitive work at IBP, claimant has not fully
recovered. All physicians offering opinions in this case opine
that claimant has suffered some degree of permanent impairment
from overuse syndrome to her hands, arms, neck and back. The
actual percentage of impairment is not particularly important in
this industrial disability case. What is important are
claimant's physician imposed severe, permanent restrictions upon
her physical activity. The most recent restrictions are from
Arnold Delbridge, M.D., an orthopedic surgeon who limits
claimant's lifting to 10 pounds; standing to one to two hours;
sitting no more than 15 minutes without changing positions;
walking only one to two hours; no repetitive bending, twisting or
turning; and, no reaching, pushing or pulling over 10 pounds.
Claimant is specifically restricted from using hand held knifes.
Claimant also asserts that she suffered from psychological
problems as a result of the original August 31, 1991 injury.
Claimant has had a long history of recurrent depression with
episodes of attempted suicide. She also has a history of
substance abuse. Both of these are found to have been aggravated
by her work injury. However, claimant failed to show by medical
evidence that this psychological aggravation permanently worsened
her prior-existing depression problems. Claimant received some
treatment from a mental health clinic after the injury but this
was discontinued when claimant started to received psychogenic
medication from her family physician.
Due to her physical limitations, claimant is unable to
return to her former work at IBP and IBP has refused to rehire
claimant in any capacity. Claimant's past work history consists
of cook, waitress, machine operator and heavy masonry work along
with housekeeping. Claimant's current physical limitations
precludes much of this type of employment. Physicians in this
case do not preclude any type of return to work and vocational
counselors have opined that based upon current physician imposed
restrictions, claimant is still capable of very light or
sedentary work paying mostly minimum wage on a part-time basis.
Claimant views herself as totally disabled and has made no
Page 4
effort to secure suitable replacement employment. She states she
cannot return to cook or waitress work. One of her former
employers testified that she believes claimant cannot return to
cooking. However, this was only from observation of claimant's
pain behavior, not from an objective viewpoint. One vocational
expert states that this psychological component, real or
perceived, makes claimant totally unemployable. However, again
there is no evidence to suggest that this current mental
component is the result of the aggravation or just a continuation
of her preexisting problems and not related to the work injury
such as her past difficulties with substance abuse. Claimant
has never had a consistent, steady employment history and moved
from job to job frequently. Her employment history would not be
good even without this work injury. Viewed objectively and based
upon a return to work in sedentary occupations and estimates by
vocational experts, it is found that claimant has suffered an
actual loss of income in the range of only 30 to 40 percent
despite a failure to return to work. Claimant is 42 years of
age. Claimant has a high school education. Claimant does not
appear to be highly motivated to return to any type of work.
From examination of all of the factors of industrial
disability, it is found that the work injury of August 31, 1991,
was a cause of a 35 percent loss of earning capacity.
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.
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 established two work
Page 5
injuries, however, only one was found to have caused permanent
disability.
II. The notice issue is moot. Although it was found that
the work injury aggravated a prior existing mental condition, it
was not found that this aggravation permanently worsened the
prior condition.
In any event, the mental component of this injury was not a
separate event and merely flowed from the work injury. No new
notice need be given of conditions caused by a work injury when
notice was given of the original injury. See Lawyer & Higgs,
Iowa Workers' Compensation--Law and Practice (2d Ed.), Section 10
et seq.
III. The claimant has the burden of proving by a
preponderance of the evidence that the work injury is a cause of
the claimed disability. A disability may be either temporary or
permanent. In the case of a claim for temporary disability, the
claimant must establish that the work injury was a cause of
absence from work and lost earnings during a period of recovery
from the injury. Generally, a claim of permanent disability
invokes an initial determination of whether the work injury was
a cause of permanent physical impairment or permanent limitation
in work activity. However, in some instances, such as a job
transfer caused by a work injury, permanent disability benefits
can be awarded without a showing of a causal connection to a
physical change of condition. Blacksmith v. All-American, Inc.,
290 N.W. 2d 348 (Iowa 1980).
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
Page 6
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 a 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.
(Appeal Decision, Feb. 28, 1985).
In the case sub judice, it was found that claimant suffered
a 35 percent loss of her earning capacity as a result of the work
injury. Such a finding entitles claimant to 175 weeks of
permanent partial disability benefits as a matter of law under
Iowa Code section 85.34(2)(u) which is 35 percent of 500 weeks,
the maximum allowable number of weeks for an injury to the body
as a whole in that subsection.
ORDER
THEREFORE IT IS ORDERED:
1. Defendant shall pay to claimant one hundred
seventy-five (175) weeks of permanent partial disability benefits
at a rate of one hundred eighty-two and 18/100 dollars ($182.18)
per week from April 20, 1992.
2. Defendant shall pay accrued weekly benefits in a lump
sum and shall receive credit against this award for all benefits
previously paid.
3. Defendant shall pay interest on weekly benefits awarded
Page 7
herein as set forth in Iowa Code section 85.30.
4. Defendant 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.
5. Defendant 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 July, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Ms. Cynthia A. Scherrman
Mr. Bruce L. Gettman, Jr.
Attorneys at Law
P.O. Box 2615
Waterloo, IA 50704
Mr. John M. Comer
Attorney at Law
P.O. Box 515, Dept. #41
Dakota City, NE 68731
5-1803
Filed July 14, 1994
Larry P. Walshire
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SHEILA SELLS,
Claimant,
File Nos. 1026711 968142
vs.
A R B I T R A T I O N
IBP, INC.,
D E C I S I O N
Employer,
Self-Insured
Defendant.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BENJAMIN OATES, :
: File No. 968306
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
CONAGRA FROZEN FOODS, INC., :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Benjamin
Oates, claimant, against Conagra Frozen Foods, Inc,
employer, hereinafter referred to as Conagra, self-insured,
defendant, for workers' compensation benefits as a result of
an alleged injury on October 12, 1990. On April 16, 1992, 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 prehearing report of con
tested 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 that an employee-employer relationship existed
between claimant and Conagra at the time of the alleged
injury.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
I. Whether claimant received an injury 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.
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
Page 2
defendant placed claimant's credibility at issue during the
hearing as to the nature and extent of the injury and dis
ability. From his demeanor while testifying, claimant is
found credible.
Claimant, age 61, claims that he injured himself from a
fall while working at Conagra on October 12, 1990. The
occurrence of this fall was hotly contested at hearing.
However, whether or not the fall was actually witnessed by
someone other than claimant, claimant is believed and it is
found that a fall occurred sometime in October and he first
received treatment on October 17, 1990 for this fall at the
emergency room of the University of Nebraska Medical Center.
Claimant is obviously confused as to exact dates but there
is little dispute that he reported to the emergency room
doctors that a fall occurred and he had pain and swelling of
his right testicle since. He also complained of bleeding
while urinating.
The problem with claimant's case is first, he failed to
establish that he lost more than three days from work as a
result of the fall. Again his dates were confused and his
own testimony reflected absences from work less than three
days.
Secondly, there is no doctor that supports claimant's
position that the persistent pain, swelling and bleeding
since the fall is attributable to the fall. The physicians
from the Urology Department at the University Medical Center
suggests the contrary.
Therefore, although claimant has shown by the evidence
that he fell, he has failed to demonstrate that he suffered
any injury as a result of the fall or that the treatment he
received for swelling, pain and urinary bleeding is causally
connected to the fall.
CONCLUSIONS OF LAW
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 Community Sch.
v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol.
Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955).
In this case, claimant failed to carry his burden of
proof to shown that the incident at work was a cause of the
problems he is experiencing with swelling and bleeding in
his urinary tract.
However, the claimant appeared honest at hearing and
the claim was arguable as claimant believed the pain and
swelling began soon after the fall. He lost his case due to
the utter absence of supportive medical opinion.
Consequently, he will be awarded costs.
ORDER
Page 3
1. Claimant's claim is dismissed with prejudice.
2. Defendant shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
Signed and filed this ____ day of June, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. F. J. Kraschel
Attorney at Law
403 1st Federal Savings & Loan
Council Bluffs IA 51501
Mr. John F. Thomas
Mr. Ronald L. Comes
Attorneys at Law
One Central Park Plaza
222 S Fifteenth St #1100
Omaha NE 68102
5-1803
Filed June 9, 1992
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
BENJAMIN OATES,
File No. 968306
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
CONAGRA FROZEN FOODS, INC.,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.