BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ JOHN P. METZ, III, : : Claimant, : : vs. : : File Nos. 968319 METZ ENGINEERING, : 1045170 : Employer, : : and : : A R B I T R A T I O N UNION INSURANCE COMPANY, : : D E C I S I O N Insurance Carrier, : ------------------------------ : JOHN P. METZ, III, : : Claimant, : : vs. : : METZ ENGINEERING, : : Employer, : : and : : UNITED FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, John Metz, against his employer, Metz Engineering Company, and its insurance carriers, Union Insurance Company and United Fire and Casualty Company. Mr. Metz seeks workers' compensation benefits due to an alleged occupational disease. The case was brought on for a hearing before the undersigned deputy industrial commissioner on December 9-10, 1993, in Des Moines, Iowa. The record in the case consists of testimony of the claimant, I.R. Danse, M.D., Elaine Panitz, M.D., and LuRie Farlie, a workers' compensation adjuster for defendant Union Fire and Casualty Company; Page 2 joint exhibits 1-21 and 23-37; claimant's exhibits 2 and 3; defendant Union Insurance Company's exhibits 1, 2, 3, and 4a-p; and, defendant United Fire and Casualty Company's exhibits A-O and R. ISSUES The parties submit the following issues for resolution: 1. Whether claimant sustained an injury which arose out of and in the course of his employment. Although claimant has alleged two dates, July 15, 1989 and August 23, 1991, he argues that his last injurious exposure could have been as late as March 1992; 2. Whether claimant is entitled to temporary total or healing period benefits, or permanent partial or total disability benefits; 3. Whether claimant's workers' compensation rate should be based on gross weekly earnings of $889.00 per week, or a gross weekly wage of $250.00 per week. The parties stipulated that claimant was married at the time of the exposure(s) and is entitled to four exemptions; and, 4. Whether claimant is entitled to medical benefits as governed by Iowa Code section 85.27. Defendant Union Insurance Company argues that they did not provide insurance coverage after May 22, 1990 and in the event claimant is found to have sustained an occupational disease, he did not become disabled until after their coverage ended. Defendant United Fire and Casualty argues that claimant is not disabled as defined under Iowa Code section 85A.12. Iowa Code section 85A.12 provides the following information: An employer shall not be liable for any compensation for an occupational disease unless such disease shall be due to the nature of an employment in which the hazards of such disease actually exist, and which hazards are characteristic thereof and peculiar to the trade, occupation, process, or employment, and such disease actually arises out of the employment, and unless disablement or death results...within one year in case of any other occupational disease, after the last injurious exposure to such disease in such employment, or in case of death, unless death follows continuous disability from such disease commencing within the period above limited for which compensation has been paid or awarded or timely claim made as provided by this chapter and results within seven years after such exposure. Iowa Code section 85A.4 provides the definition of "disablement" in the following manner: Page 3 Disablement as that term is used in this chapter is the event or condition where an employee becomes actually incapacitated from performing the employee's work or from earning equal wages in other suitable employment because of an occupational disease as defined in this chapter in the last occupation in which such employee is injuriously exposed to the hazards of such disease. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, John Metz, III, was 43 years of age at the time of the hearing. He is married and is the father of two children, ages 13 and 14. Mr. Metz is a 1969 high school graduate, and received one year of advanced education in 1970. He earned a degree in welding from a community college. He holds a state issued certification in welding. Claimant has worked as a welder and general laborer for several employers, but started his own company in 1973. In the beginning, claimant worked as a mechanic and welder and operated a small machine shop, but by 1980, 90 percent of the company's business involved providing support services to the oil industry. These services included gasoline tank renovation, repair and cleaning. The tanks held between 500,000 gallons and 1.2 million gallons of petroleum products (gasoline, diesel fuels, etc.) and measured between 45 feet to 110 feet in diameter. Cleaning the tanks required workers to enter the tank through "manways" and use pumps and suction hoses to remove the bituminous sediment water (BSW) left in the tanks. Workers inside the tank wore protective clothing, and were provided air packs to aid in breathing. Claimant worked as a safety person for the workers inside the tanks. He stood outside of the tank and watched from the manway to assure that the workers were performing their job duties, and to assure that workers were provided enough equipment, including safety equipment. He also ran the vacuum. Claimant stated that during his work as a safety person, he wore a hat, leather gloves and leather boots. Cleaning the tanks took one day to complete, and the company cleaned 12 to 15 tanks per year. Metz Engineering also provided tank installation and repair services. Claimant explained that his workers would travel to tank farms, which consisted of earthen berms built around the gas tanks measuring three to ten feet in height built. Removal of the tanks was necessary to repair them, and the workers would use the same basic techniques as they used in cleaning the tanks, described above. Once the tanks had been repaired, they were reinstalled in the berms. The company worked on 10 to 12 tanks per year. Page 4 Other services the company provided to oil companies included valve replacements; emergency services, including clean up for oil spills and leaks; inspection of oil tanks; ground water reclamation and recovery; and renovation of piping and oil lines. Claimant testified that exposure to gasoline and diesel was an every day occurrence. Oftentimes, the product would come into direct contact with his skin while he was working on the pumps and varied in amounts from splashes to showers of gasoline. This happened two to three times per month. Inhalation of fumes was also common, and the workers attempted to work upwind of the product. Claimant stated that he frequently found himself standing in dirt which was saturated in fuel and further testified that the soles of his boots were sometimes eaten away by the fuels. Likewise, claimant worked with nuts, bolts and other parts and equipment which had been doused in fuels. Claimant's normal workday was from 7:00 a.m. to 5:00 p.m. with one hour allotted for lunch. He estimated that between 1980 and 1991, he spent 95 percent of his workday in oil terminals. During 1989, claimant noticed he was feeling fatigued. Initially, he saw his family physician at the Cogley Clinic. These records, found at joint exhibit 1, are in no particular order, but suffice it to say, claimant visited Ralph Hopp, M.D., on a number of occasions complaining of fatigue, joint and muscle pain, cold and flu symptoms, etc. Many tests were taken, and one entry (the undersigned is unable to read the full date, but the year is 1990) suggests that claimant's low blood count was related to his exposure to benzene and gasoline. (Jt. Ex. 1, p. 11) Claimant was referred to the University of Nebraska Medical Center, where in October of 1990, he was treated for neutropenia. (Jt. Ex. 11) Julie Vose, M.D., in a report dated October 10, 1990, assessed claimant's condition as "neutropenia with lymphocytosis of unknown etiology. Patient has benzene exposure." (Jt. ex. 11) In January of 1991, claimant was referred to Robert Warner, M.D., at the Heartland Oncology and Hematology clinic in Council Bluffs, Iowa. Dr. Warner's deposition is submitted as joint exhibit 14. He believes claimant is suffering from myelodysplasia with granulocytopenia, a condition which affects the bone marrow. He is of the opinion that the condition was caused by claimant's exposure to benzene. He believes the condition is permanent, and that claimant is 75 to 80 percent impaired. He bases this impairment rating on the AMA Guide to the Evaluation of Permanent Impairment. He would restrict most of claimant's activities, including driving, walking, operating heavy equipment, climbing, pushing, pulling and lifting. Dr. Warner recommends claimant be allowed to rest as often as necessary during the day, and alleviate any activities which would cause claimant to be exposed to environmental toxins. Extreme hot or cold temperatures should be avoided. (Jt. ex. 14) In 1991, claimant felt even more fatigued, and felt his ability to concentrate deteriorate. He began resting in his Page 5 pickup while at the job sites, and began to cut back on his workday. He began to feel pain in his arms, legs, back, shoulders and buttocks. Standing caused burning sensations, and he found it difficult to get into and out of his truck. He began to experience night sweats and below normal temperatures. Yet, he continued to go to the oil terminals and visited all of the job sites and crews and worked as the safety person if tank work was being performed. Eventually, claimant was treated at the Mayo Clinic and treated with a course of oral and intravenous antibiotics. Dr. Warner, his primary physician at the University of Nebraska Medical Center, performs CBC tests on a regular basis to monitor claimant's blood. (Jt. Ex. 4) In 1992, claimant was still "plodding along" at work, but continued to employ more subcontractors on various jobs. He relinquished more supervisory duties. In January of 1992, claimant was sent to Elaine Panitz, M.D., for a medical evaluation. She advised him to stop all exposures to hydrocarbons, and claimant stated that the company ended all support services to oil companies in January or February, 1992. Claimant continued his treatment program with Dr. Warner, and noticed that in March of 1992, his memory lapses increased. In 1993, claimant has relinquished more control of the business (which apparently is for sale) and currently addresses his fatigue on a daily basis in that he must take naps two times per day. He continues to suffer burning, aching and pain in his legs, hip, back, arms and shoulders. Each sensation varies in its intensity, but claimant is physically more capable in the mornings than in the late afternoons. Claimant stated that he has two headaches per week since 1990, imbalance if he stands too quickly, problems with depth perception, overall weakness and cold sores. Claimant is unable to concentrate, which affects his ability to dictate/write business correspondence and checks. Currently, he is able to walk around various job sites for only 20 minutes at a time. Claimant stated that if the business is not sold by May 1, 1994, an auction will be held in an effort to sell off the pieces. He stated that there had been no new business ventures for approximately one year. None of his physical problems existed prior to 1988. Claimant owns a ranch where he is currently having a house remodeled. He helps with the care provided to livestock which includes 15 horses (some of which are draft horses which are used in two-horse team competitions), cattle, dogs and cats. Claimant estimated that he spends 10 minutes performing duties on the ranch. A typical day includes visiting the ranch, eating lunch with friends, visiting job sites, returning to the ranch, resting and eating dinner with his family. Claimant stated that his name or initials did not always appear on invoices from the company, so the absence of his initials did not necessarily mean that he did not work on the job site on a particular day. Page 6 Claimant also stated that he had lost weight in the past year; had used coal tar shampoo to treat dermatitis on rare occasions; and continues to own a driver's license and a chauffeur's license. He admitted that the company had worked on nine to ten cellular sites/facilities during the past three years, but that he is not actively pursuing new business. His personal income has increased in the last three years, and a 6,000 square foot addition has been added to his business facility. Claimant was safety conscious, and instilled safety precautions in the business, including adhering to OSHA requirements; developing a written program addressing hazards in the work place; and, implementing a new employee training program. Protective/safety equipment was furnished to the workers. Elaine Panitz, M.D., testified on behalf of claimant. She is certified in internal, preventative and special occupational disease medicine. Her credentials are impeccable. (Jt. ex. 16) She has reviewed between 30 and 40 cases of benzene exposure. Dr. Panitz provided education to the undersigned concerning several technical and medical points. Gas and jet fuels are hydrocarbon mixtures that contain the chemical benzene. Gas contains the most benzene, and vapor exposure to the same is most dangerous although it can be absorbed through the skin. Gasoline vapors can be broken down into carbons, and contains C4 (butane); C5 (pentane); C6 (benzene/hexene); C7 (talulene); and C8 (zylene). The C6 is the most damaging to bone marrow, and causes lymphatics, affects the nervous system and can damage the liver and its functions. Exposure to gasoline jet fuels can cause skin irritations (dermatitis/foliculitis); respiratory inflammation; neurologic damage (short and long term memory loss, headaches, comas and chronic central nervous dysfunction such as moodiness, depression and brain damage); and, cirrhosis of the liver. Dr. Panitz examined the claimant on January 8, 1992. Her evaluation included a review of his medical history, as well as a complete examination and various laboratory tests. She determined that claimant was suffering nonmalignant disorder of the bone marrow due to chronic solvent poisoning. Specific diagnoses also included neutropenia (low white blood cell count), mylodysplasia (abnormal platelets), and neurosthenia (fatigue and joint pain). Tests of claimant's white blood cells indicate that in 1991, he exhibited signs of mild neutropenia; in 1992, he showed a shift from mild to moderate neutropenia; and, in 1993, he showed some cell count in the severe range. In other words, there has been a progressive decline over the past two years in the number of white blood cells in claimant's blood. As a result, he is at risk for infections, inflammations and an overall alteration of his immune system. He runs a higher risk for developing more severe neutropenia. Dr. Panitz determined within a reasonable degree of medical certainty that claimant had sustained an occupational disease due to exposures during his employment with Metz Engineering Company. She stated that the inhalation and skin absorption Page 7 of benzene caused the occupational diseases (chronic solvent poisoning; neutropenia; neurosthenia; and mylodysplasia). She believed claimant was permanently and totally disabled from employment one year after the last injurious exposure, which she stated was in "mid-1992." She believes that due to his condition claimant can anticipate a shorter lifetime and is at greater risk for diseases such as leukemia, bone marrow failure and malignancy of lymphatics. She stated that after May 1990 the exposures were more injurious. She reviewed the medical bills incurred by claimant (in the amount of $73,507.36) and was of the opinion that the treatments and charges were reasonable and necessary to treat claimant's occupational disease. She disagrees that claimant's exposure to the fuels was trivial and further disagrees that any drugs taken by claimant contributed to or caused his condition. Dr. Panitz admitted that 80 percent of the time, claimant acted as a safety person while other workers cleaned out the gasoline tanks. She believed claimant could stand for one to two hours; travel as a driver or as a passenger for 100 miles; run short distances; and lift at least 20 pounds. She was aware that claimant had not yet sold his business. Furthermore, her physical examination and the history she secured from claimant showed no consistent history of elevated temperature; no bacterial infections; no enlargement of the liver or spleen; no evidence of neuropathy (muscle disease); no myositis; and, no motor neurological disease except delayed conduction across the carpal tunnel in one of claimant's wrists. (Jt. Ex. 13) A report from Dr. Panitz, dated January 14, 1992, provides the following information: In my opinion, based on currently available information, Mr. Metz is suffering from myelodysplasia, a premalignant disorder of the bone marrow, caused by repetitive occupational exposures to benzene over the past 12 years. Benzene exposures have resulted from heavy inhalation and dermal contact with petroleum hydrocarbon mixtures in his work as a maintenance engineer for major oil companies. Mr. Metz is at risk for the progression of myelodysplasia, with its attendant hazards of infection and bleeding. Unfortunately he is also at risk for malignant transformation, including leukemia, lymphoma, and other disorders of the bone marrow and lymphatic system. Since the damaging effects of benzene exposure are cumulative, I have advised Mr. Metz that avoidance of further benzene exposure is essential to prevent any additional risk. (Jt. Ex. 10, p. 1) Ilene Danse, M.D., testified on behalf of defendant United Fire and Casualty Company. Her credentials are Page 8 impeccable. (Defendant United Fire and Casualty Exhibit O) Dr. Danse provided a report, marked exhibit N, consisting of 80 pages. She reviewed various medical reports and records and performed a physical examination of the claimant. While she indicates that claimant is suffering from neutropenia, she goes on to explain that "neutropenia is most commonly caused as a drug side effect, often as an idiosyncratic reaction which is not predictably dose or duration-related." Dr. Danse identified more than 70 medications that claimant takes or has taken in the past, 42 of which can cause neutropenia. In her review of the medical documentation, she states that Julie Vose, M.D., a physician associated with the University of Nebraska Medical Center found no evidence of neutropenia at the time of her examination, October 3, 1990. (Tab 3 of Dr. Danse's report) In April and October of 1991, claimant visited the Mayo Clinic for tests. Robert Phyliky, M.D., was of the opinion that the cause of claimant's neutropenia was unknown, and at that time, claimant was advised that he did not have any infectious diseases. (Tab 6 of Dr. Danse's report) According to Dr. Danse, a bone marrow test taken in February of 1992 was unremarkable. (Tab 7 of Dr. Danse's report) (This reading is in sharp disagreement with another reading by Ilana Pachter, M.D., and Dr. Warner, who have been treating claimant). A report from Donald Macfarlane, M.D., Ph.D., indicates that after a thorough review of the various medical records and reports generated from this case, Dr. Macfarlane does not believe there is a causal connection between claimant's neutropenia and his exposure to benzene and that claimant is not disabled because of his condition. Dr. Macfarlane goes on to state that the symptoms about which claimant is complaining (i.e., fatigue and aching pains) are not indicative of neutropenia. Likewise, he stated that claimant had not had a serious bacterial infection, and he did not expect claimant's condition to worsen. (Tab 8 of Dr. Danse's report) Dr. Danse stated that poisoning due to benzene exposure was rare because people do not work with pure benzene anymore. She offered that claimant's description of his exposure to benzene revealed that appropriate safety procedures were used. She advised that claimant discontinue use of all medications in an effort to determine if the neutropenia was drug-induced. She stated that the records showed that when claimant was not taking any medications, his blood was within normal limits. Furthermore, she did not believe claimant was suffering from mylodysplasia. The diagnosis of neurosthenia was also suspect to Dr. Danse, who believed claimant was perhaps depressed. Neither did Dr. Danse believe, or find that claimant was unable to work. She recommended that claimant cease all drugs, especially the IVs of gamma globulin and the frequent blood tests, to determine if his neutropenia would disappear. She suggested further investigation into his mental condition and possible treatment of the same. Page 9 Shirley Conibear, M.D., M.P.H., also served as an expert for the case. She examined claimant on June 4, 1992, and provided a report marked as Defendant United and Fire Casualty exhibit I. She was also deposed for the case, and the transcript of her testimony is marked as Defendant Union Insurance Company exhibit 1. At this time, claimant was still working as a supervisor for the company, but was trying to avoid all contact with fumes from the gasoline or fuels. After ordering a battery of tests and reviewing results from the same, she was of the opinion that claimant did not have any significant chromosomal abnormalities, thereby ruling out leukemia. Dr. Conibear concurred with the diagnosis of chronic neutropenia, but disagreed that the condition was caused by claimant's exposure to benzene. She, too, questioned whether claimant's exposure was significant, and believed that the neutropenia was an idiopathic (cause unknown) condition. She opined that a definite diagnosis of neutropenia was made in the fall of 1992. Myelodysplasia, if a correct diagnosis (which Dr. Conibear is unwilling to concede), was diagnosed in 1990 after the bone marrow test and reading from Dr. Pachter were made. Her belief is based, in part, on the overall effect exposure to benzene has on the bone marrow, and its indiscriminate ability to damage many cell types, not just white blood cells. In other words, if claimant's condition had been caused by his exposure to benzene, other cells (red and platelets) would also be affected. Of the more than 100 blood smears that have been taken from 1977 to June of 1993, Dr. Conibear did not find any abnormalities in cell lines other than the white cells. Likewise, claimant does not have chromosomal abnormalities, which would indicate toxicity in the bone marrow. Additionally, Dr. Conibear did not believe claimant was suffering from peripheral neuropathy (damage to the nerves in the arms or legs), nor with the diagnosis of myelodysplasia (a form of leukemia); nor, that claimant had suffered from any life-threatening infections. She did feel that his condition was permanent, and that in the ensuing years, the white blood cell counts will wax and wane, as they had in the past several years. Upper respiratory infections would be anticipated, but not severe. The only treating physician associated with the case who was able to determine that claimant's neutropenia (and myelodysplasia, although not all of the health care providers diagnosed myelodysplasia) was caused by exposure to benzene was Dr. Warner. He bases his opinion, in part, on the assumption that claimant encountered almost daily exposure to the chemical. As noted in claimant's testimony, this is simply not true. The most high-risk activities were not performed daily, but on an average of 8 to 10 times per year. Most of the other physicians associated with the case have deemed the cause of claimant's neutropenia as idiopathic. Page 10 ANALYSIS AND CONCLUSIONS OF LAW The first issue to address is whether claimant has sustained an occupational disease. 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). Iowa workers' compensation law distinguishes occupational diseases from work injuries. An occupational disease is a disease which arises out of and in the course of the employee's employment. The disease must have a direct causal connection with the employment and must follow as a natural incident from injurious exposure occasioned by the nature of the employment. While the disease need not be foreseeable or expected, after its contraction, it must appear to have had its origin in a risk connected with the employment and to have resulted from that risk. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of the occupation is not a compensable occupational disease. The claimant need meet only two basic requirements to prove causation of an occupational disease. First, the disease must be causally related to the exposure to the harmful conditions in the field of employment. Second, the harmful conditions must be more prevalent in the employment than in everyday life or other occupations. Section 85A.8; McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Where an employee is injuriously exposed to hazardous conditions producing occupational disease while employed by several successive employers, the employer where the employee was last injuriously exposed is liable for the total disability. Doerfer Div. of CCA v. Nicol, 359 N.W.2d 428 (Iowa 1984). Claimant's business focused on providing various types and forms of support services for oil companies. No doubt, all of the workers were exposed to gasoline, jet fuels and other petroleum products. What is indeterminable is the extent of claimant's exposure. According to claimant, he was sometimes doused in gasoline, and on a regular basis stood in gasoline or fuel while working on job sites. He wore protective clothing, however, and typically performed the safety work on various jobs. While claimant described himself as a "hands-on manager," the undersigned is under the impression that he provided more supervisory duties than actual labor while on the job sites. This would be expected, since claimant was the owner of the company. It is recognized that claimant's treating physician has stated that claimant's condition is related to his work and exposure to benzene. Likewise, the expert hired by claimant has also formed the requisite opinion that claimant's condition is related to his work. Unlike Dr. Warner, who Page 11 believes claimant is 75 to 80 percent disabled, Dr. Panitz finds claimant totally disabled. The undersigned was persuaded most by Dr. Danse. She has extensive experience in working with oil companies and is completely familiar with OSHA regulations regarding exposure to benzene. Dr. Danse found fault with Dr Panitz' reliance upon one particular study which focused on Turkish workers and their exposure to benzene while working in a shoe factory. Dr. Danse explained that the length intensity of the exposure to these workers was much greater than that exposure to which claimant had been exposed. While not the only factor that the undersigned found persuasive, these are two significant points that need to be addressed. Additionally, while claimant testified that he oftentimes was sprayed or doused with chemicals while performing his job duties, the instances are not bourne out by his evidence. Even if claimant had shown by a preponderance of the evidence that his disease was caused by his employment, there is insufficient evidence to show that he is disabled, as defined by the Code. The evidence shows that claimant has continued to function as an officer of the company, and as an on-site supervisor of some jobs. Additionally, he continues to visit the remodeling project on his ranch. Dr. Panitz advances that claimant is totally disabled, yet the activity restrictions she places on claimant would allow him to perform many jobs that would be or could be associated with owning and operating a business. As a result, it is determined that claimant's condition is not causally related to his work. Claimant takes nothing from these proceedings. ORDER THEREFORE, it is ordered: That claimant take nothing from these proceedings. That each party shall pay their costs in pursuing or defending this claim. Signed and filed this ____ day of February, 1994 ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Daryl L Hecht Attorney at Law 614 Pierce St Page 12 P O Box 27 Sioux City IA 51102 Mr Michael W Manske Mr Timothy J Cuddingan Attorneys at Law 11605 Miracle Hills Dr Ste 300 Omaha NE 68154 Mr Joseph Cortese II Attorney at Law 500 Liberty Bldg Des Moines IA 50309 Mr Thomas M Plaza Ms Judith Ann Higgs Attorneys at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51102 5-1100; 5-1108.30 Filed February 21, 1994 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ JOHN P. METZ, III, : : Claimant, : : vs. : : File Nos. 968319 METZ ENGINEERING, : 1045170 : Employer, : : and : : A R B I T R A T I O N UNION INSURANCE COMPANY, : : D E C I S I O N Insurance Carrier, : ------------------------------ : JOHN P. METZ, III, : : Claimant, : : vs. : : METZ ENGINEERING, : : Employer, : : and : : UNITED FIRE & CASUALTY : COMPANY, : : Insurance Carrier, : ------------------------------------------------------------ 5-1100; 5-1108.30 Claimant failed to prove by a preponderance of the evidence that he sustained an occupational disease. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LORETTA STUBBS, Claimant, vs. File No. 968523 MERCY HOSPITAL MEDICAL CENTER, A R B I T R A T I O N Employer, D E C I S I O N and RELIANCE NATIONAL INSURANCE, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Loretta Stubbs, claimant, against Mercy Hospital Medical Center, employer, hereinafter referred to as Mercy, and Reliance National Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on October 18, 1990. On March 30, 1995, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. On October 18, 1990, claimant received an injury arising out of and in the course of employment with Mercy. 2. Claimant is not seeking additional healing period benefits at this time. 3. The injury is a cause of some extent of permanent disability. 4. Permanent partial disability benefits shall begin as of July 20, 1992. 5. At the time of injury claimant's gross rate of weekly compensation was $357.39; she was married; and, she was entitled to four exemptions. Therefore, claimant's weekly rate of compensation is $237.42 according to the industrial commissioner's published rate booklet for this injury. 6. Medical benefits are not in dispute. ISSUE The only issue submitted by the parties for determination in this proceeding is the nature and extent of claimant's permanent disability. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is unnecessary to this decision as defendants did not place claimant's credibility at issue during the hearing. Claimant, Loretta Stubbs, has worked for Mercy since 1988 and continues to do so at the present time. Initially, Loretta was performing duties as a phlebotomist, drawing blood samples from patients. She has continued to perform such duties on a part-time basis in the mornings ever since, despite being transferred to other jobs. Along with this phlebotomist duty, Loretta started to rotate between the chemistry and hematology departments processing blood samples. In chemistry, she would repeatedly "pop off" the rubber stoppers on the viles and place them in centrifuges to separate blood components. This required extensive use of her fingers and hands from 60-80 times an hour, primarily using her dominate right hand. In hematology, Loretta still had to remove the lids on the vials in preparing slides for microscopic observation but this work was somewhat less repetitive. Eventually, Loretta was assigned to only the chemistry department and that was when she began to have difficulty with her arms and hands in October 1990. The work injury herein involves bilateral carpal tunnel and cubital tunnel syndromes in both wrists and elbows and an ulnar nerve entrapment in the left elbow. All of these conditions are commonly known as overuse syndromes from the repetitive use of Loretta's hands and arms in her jobs at Mercy. The injury date is appropriate as the date Loretta first left work for treatment. Loretta initially sought treatment from David Berg, D.O., who treated her with medication and braces. However, when conservative therapy failed to alleviate the pain, she was referred to Ronald Bergman, D.O., and then underwent two surgeries; a left carpal and cubital tunnel release in February 1991 and a right carpal and cubital tunnel release in May 1991. Another physician, Timothy Kenney, M.D., performed a transposition of the left ulnar nerve in June 1992. Beginning in 1994, Loretta developed additional shoulder and neck pain and she started treatment in the form of physical therapy and medication. To date, the only diagnosis for this condition is degenerative disc disease. Following a change in jobs at Mercy, Loretta's shoulder and neck pain complaints have lessened. Today, Loretta continues to complain of continuing shoulder and neck pain. She also states that her upper left elbow continues to give her problems. Loretta states that her bilateral wrist pain continues and she continually drops many items. A vocational disability assessment at a Mercy Pain Center facility demonstrated some loss of grip strength. Dr. Bergman rates claimant's permanent impairment as four percent of the hand on the left and two percent of the hand on the right. Dr. Kenney opines that Loretta should have no impairment from his procedure but recommended a third independent evaluation. Keith Riggins, M.D., a board certified orthopedist, in an extensive and well written report, evaluated claimant using the AMA guidelines, converting each side into a body as a whole impairment and combined the two values together arriving at a total body as a whole impairment of 14 percent. This rating measured only the overuse extremity problems. Given the quality of his report, his stated use of the AMAguidelines and the methodology in converting the bilateral extremity impairment, Dr. Riggins' evaluation is viewed as the most credible. Therefore, it is found that the work injury of October 18, 1990, is a cause of a permanent impairment to each extremity which converts to a 14 percent permanent partial impairment to the body as a whole. As no physician has found any objective evidence of neck or shoulder injury and no physician has opined that the work injury was a cause of any impairment from neck and shoulder complaints, it is found that the work injury itself did not extent into the body as a whole. Claimant today is back to work but her extremity problems caused by the injury has resulted in a transfer to a secretarial job at Mercy. Loretta states that she is getting along fairly well in this job and Mercy has allowed accommodations for her current disability. Consequent, it is found that claimant has not suffered a total loss of earning capacity as a result of the work injury. The finding is necessary given the law on bilateral arm injuries as described in the conclusions of law section of this decision CONCLUSIONS OF LAW The claimant has shown that the work injury involved an overuse syndrome and 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 (App. 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 number of weeks of compensation allowed for that scheduled member set forth in Iowa Code section 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 was done by Dr. Riggins using the AMA guidelines. 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., III Iowa Industrial Comm'r Report 38 (App. 1982). In the case sub judice, it was found that claimant had not suffered a total loss of earning capacity, consequently her entitlement to permanent disability benefits is measured functionally. The rating by Dr. Riggins was given the most weight as his rating methodology closely tracked the law in these type of cases. 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. ORDER 1. Defendants shall pay to claimant seventy (70) weeks of permanent partial disability benefits at a rate of two hundred thirty-seven and 42/l00 dollars ($237.42) per week from July 20, 1992. 2. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 3. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1995. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Des Moines IA 50311-1540 Mr. Lee P. Hook Attorney at Law STE 700 Des Moines Bldg PO Box 9130 Des Moines IA 50306-9130 5-1803 Filed April 17, 1995 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LORETTA STUBBS, Claimant, vs. File No. 968523 MERCY HOSPITAL MEDICAL CENTER, A R B I T R A T I O N Employer, D E C I S I O N and RELIANCE NATIONAL INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Nonprecedential, extent of disability case. 1600; 5-1803 Filed April 17, 1992 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : LARRY G. REEDY, : : File Nos. 968752 Claimant, : 940673 : vs. : A R B I T R A T I O N : WCI, LAUNDRY DIVISION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. 1600 - Misrepresentation Defense Citing agency precedent, the asserted misrepresentation defense under the Larson theory was rejected. Professor Larson believes that misrepresentation of physical condition in an employment application and/or pre-employment physical should bar an employee from workers' compensation benefits for injuries arising from that condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT L. MARTIN, : : Claimant, : : vs. : File No. 968768 : 876862 IOWA DEPARTMENT OF : TRANSPORTATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Robert Martin, against the Department of Transportation and the State of Iowa, as defendants. Mr. Martin has filed two petitions and alleges work-related injuries on February 19, 1988 and December 6, 1990. The record in this case consists of testimony from the claimant and his wife; joint exhibits 1 through 5; and, claimant's exhibits 1, 2 and 3. Defendants objected to claimant's exhibit 1, and the objection was taken under advisement at the hearing. It is excluded from the evidence due to non-compliance with both the hearing assignment order and Iowa Rule of Civil Procedure 125(c). After reviewing evidence submitted on the issue, the undersigned deputy grants the state's motion to exclude testimony and medical reports from Roger Marquardt. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Robert Martin, was born on July 12, 1936, and was 55 years of age at the time of the hearing. In September of 1982, he began working for the Iowa Department of Transportation as an equipment operator I. His duties included snow removal during the winter months, mowing, weeding, picking up litter, and controlling traffic during the summer months. Claimant first experienced back problems in March of 1985. As he was performing his duties, he began to dismount from a truck and his left heel caught on the running board. Page 2 Claimant fell and experienced back pain. He continued to work, but sought medical treatment from William Boulden, M.D. Dr. Boulden ordered a CT scan, prescribed pain pills and advised claimant to stay off work. The results of the CT scan showed that claimant had a large herniated disc at L5-S1 on the left side with neuroforaminal stenosis. Claimant was also diagnosed as having central cannicular stenosis at the L4-L5 level. Claimant was treated with an epidural steroid injection, and although Dr. Boulden recommended surgery, claimant chose to undergo conservative treatment (Joint Exhibits 1, pages 1-3; Joint Exhibit 2, page 4). In April of 1985, claimant underwent a second opinion, performed by Jerome Bashara, M.D. He recommended non-operative treatment and returned to work in mid-April of 1985 (Jt. Ex. 3, pp. 5-7). Claimant returned to work without further problems. In February of 1988, claimant reinjured his low back and was off for several weeks. He returned to full duties in March of 1988 (Jt. Ex. 2, p. 8). In November of 1988, claimant again injured his back while working for defendant. He was diagnosed as having a musculigamentous strain of the cervical spine and an exacerbation of the lumbar disc injury. He was off work for several weeks, but returned to full duty work, although Martin Rosenfeld, M.D., noted that claimant's job duties could aggravate his back condition (Jt. Ex. 4, p. 13). Claimant continued with his full duties for the Iowa Department of Transportation until December 6, 1990, when he once again injured his low back. On this date, as he was cleaning a truck after his snow removal duties, claimant fell as he tripped over a water hose while descending a ladder. He felt pain in his leg and low back, but worked the remainder of the day. The following day he felt continued pain in both legs and low back, and was told by the employer to seek medical treatment from the Methodist emergency room. Claimant was referred to Dr. Bashara whom he saw on December 18, 1990. Dr. Bashara diagnosed a multiple level disc injury with bilateral sciatica, and ordered an MRI. The results of the MRI showed a herniated disc at the L3-4 level with bilateral stenosis, a distal bulge at the L4-5 level with bilateral stenosis, and degenerative changes from L3-4 through L4,5-S1 of the lumbar spine. Claimant was placed in a lumbosacral corset, was advised to undergo physical therapy three times a week for three weeks, and was kept off of work (Jt. Ex. 1, pp. 10, 15-16). From January through May of 1991, claimant continued to treat with Dr. Bashara who administered several epidural steroid injections and recommended continued physical therapy. A myelogram was ordered, and the results showed spinal stenosis with severe compression at the L3-4 and L4-5 level bilaterally. Claimant was discharged from Dr. Bashara's care on May 14, 1991, and Dr. Bashara recommended that claimant remain on sedentary activities (Jt. Ex. 1, pp. Page 3 10-12). On April 29, 1992, claimant underwent an examination by Robert Hayne, M.D., who performed an examination and assessed an impairment rating. The examination revealed that claimant did not have any reflexes, painful straight leg raising tests with limited mobility, and limited range of motion of the lumbar spine. Dr. Hayne stated that claimant had sustained a 7 percent "total disability." (Jt. Ex. 1, p. 16) Dr. Hayne was deposed for this case, and indicated that claimant was restricted from repetitive forward bending, twisting from side to side and lifting more than 30 pounds. He also restricted claimant from riding in trucks. He indicated that claimant had aggravated a preexisting condition, and recommended surgery estimating that claimant had a 60 percent chance of improvement. If surgery were performed, claimant would be able to lift 40 pounds, but his activities would still be restricted in the same manner (Jt. Ex. 4). Dr. Bashara was also deposed, and indicated that claimant should perform no bending, stooping or twisting, no heavy pushing or pulling and no prolonged sitting or standing. He was of the opinion that due to claimant's December 6, 1990 injury, he had sustained a 15 percent impairment, and stated that claimant had a 5 percent impairment due to preexisting condition (Jt. Ex. 5, pp. 16- 18). Claimant has not returned to work since his accident in December of 1990, and is currently collecting social security disability benefits. ANALYSIS AND CONCLUSIONS OF LAW Although claimant filed two petitions, agency file number 876862 (date of injury February 19, 1988), the parties present no issues to be determined in this case. Claimant was off of work for approximately two weeks and four days, and was paid temporary total disability benefits for this time. There is no indication that he sustained a permanent injury which limited his ability to carry out his regular duties. As a result, claimant's file number 876862 is dismissed. The first issue to be addressed regarding claimant's second claim is whether claimant is entitled to temporary total or healing period benefits. If claimant has sustained a permanent disability due to his work-related injury on December 6, 1990, he is entitled to healing period benefits during his recovery time. If claimant has sustained a temporary disability, he is entitled to temporary total disability benefits during his recovery time. Dr. Hayne is of the opinion that claimant had sustained a 7 percent impairment based on objective findings during an Page 4 examination on April 29, 1992. Additionally, Dr. Hayne recommended that claimant restrict his work activities such as no repetitious bending or twisting, and no lifting of more than 30 pounds. Dr. Bashara also rendered an opinion with respect to claimant's disability, and stated that claimant had a 20 percent functional impairment. Of the 20 percent impairment, Dr. Bashara factored 5 percent for a preexisting injury dating back to 1985, specifically, the L5-S1 disc, and the remaining 15 percent was related to the 1990 herniation of the L3-4 disc with pressure on the L5 nerve root. There is no evidence that the preexisting 5 percent impairment caused any disablement. As a result, it is found that claimant did sustain a permanent injury due to the work accident in December or 1990, and he is awarded healing period benefits for the time he has been off of work. The next issue to be addressed is the extent of claimant's industrial disability. 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 5 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 hearing, claimant was 55 years old. He graduated from the eighth grade, and entered the marine corp on his seventeenth birthday. Although he received training for the military police, he did not complete the preparatory school due to unsatisfactory grades. After three years, claimant received an honorable discharge, and three years later he returned to the army. He served for an additional three years and was honorably discharged. Subsequently, claimant earned a GED. Most of claimant's work history has focused on labor intensive positions. Claimant has worked in factories and foundries, and has worked on construction sites. Interspersed throughout his employment career have been jobs driving cabs and trucks. Claimant began to work for the Iowa Department of Transportation in 1982 and enjoyed eight years of steady employment until his injury in December of 1990. Apparently, claimant tried to undergo some vocational rehabilitation, but when he applied for the state program he was rejected due to the extent of his back injury and his work history. They suggested that he apply for social security disability benefits, which claimant received. Both Drs. Bashara and Hayne have advised claimant that he should not return to his employment with the Iowa Department of Transportation. Claimant has not undertaken a meaningful job search to find suitable employment. However, Dr. Hayne is of the opinion that if claimant underwent laminectomies with decompression of the contents of the spinal canal at the third, fourth and fifth lumbar interspaces, there would be a 60 percent chance that he would be able to return to the type of work he had been doing at the time of the injury. Dr. Hayne continued to recommend against heavy work, and admitted that there was a 40 percent chance that claimant would not be able to engage in a manual labor occupation. Although the Department of Transportation has paid all of the medical bills and has paid workers' compensation benefits to the claimant since December 6, 1990, no effort has been made to help claimant undertake any vocational Page 6 rehabilitation, and the Department of Transportation has been unwilling to offer claimant any type of position. It is unfortunate that a department as large as the Department of Transportation is unable to find a position which would be suitable to claimant's restrictions. In fact, claimant testified that when he sought employment with the Iowa Department of Personnel, they told him that they did not have any jobs available and stated "what do you want us to do, create a job for you?" Although Dr. Hayne recommended surgery and felt that there was a 60 percent chance that claimant would be able to return to the same occupation if he underwent the surgery, claimant has refused to undergo the medical procedures. As stated by the agency on numerous occasions, failure to undergo surgery which carries some significant risk and the outcome of which is not altogether certain does not represent an unreasonable refusal of medical care. Arnaman v. Mid-American Freight Lines, I-3 Iowa Industial Commissioner Decisions 497 (1985); Barkdoll v. American Freight System, Inc., Appeal Decision, June 28, 1988. Dr. Hayne's opinion is interesting, in that he states claimant would be able to return to the job he held when he was injured, yet Dr. Hayne imposed the same limitations on claimant regardless of whether he underwent surgery. In fact, claimant's lifting restriction would be more severe if he underwent surgery. After considering all of the factors that comprise an industrial disability, it is found that claimant has sustained a 75 percent industrial disability. ORDER THEREFORE, it is ordered: That defendants shall pay claimant permanent partial disability benefits for three hundred seventy-five (375) weeks at the workers' compensation rate of two hundred fifty-seven and 16/100 dollars ($257.16) per week beginning April 19, 1992. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are awarded credit for benefits previously paid. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Page 7 Signed and filed this ____ day of July, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Arthur C Hedberg Attorney at Law 840 Fifth Ave Des Moines IA 50309 Mr Robert P Ewald Assistant Attorney General Department of Transportation 800 Lincoln Way Ames IA 50010 Mr Noel C Hindt Attorney at Law Department of Transportation 800 Lincoln Way Ames IA 50010 5-1803 Filed July 14, 1992 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT L. MARTIN, : : Claimant, : : vs. : File No. 968768 : 876862 IOWA DEPARTMENT OF : TRANSPORTATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant, 55 years of age, sustained a work injury to his low back. He had sustained several other injuries to his back, but had always returned to work with the Iowa Department of Transportation. After the latest episode, claimant's treating physician and an evaluating doctor told claimant he would be unable to return to his prior jobs. The employer did not offer suitable employment. In order to correct claimant's physical problems, laminectomies to three discs were recommended. Claimant refused, and said refusal seemed reasonable due to physician's opinion that claimant's work restrictions would be the same with or without the surgery. 3001; 5-1803 Filed July 12, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ STEVE MESSMORE, File No. 968778 Claimant, M E M O R A N D U M vs. O F D E C I S I O N MEL INC (HOLIDAY INN), O N E X P E D I T E D Employer, P R O C E E D I N G and GENERAL CASUALTY, Insurance Carrier, Defendants. ___________________________________________________________ 3001 Gross rate includes market value of room and board given to employee, not what is charged to employees or members of the public. Room at hotel valued at customary apartment rent in geographical area of $400 per month. 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ STEVE MESSMORE, File No. 968778 Claimant, M E M O R A N D U M vs. O F D E C I S I O N MEL INC (HOLIDAY INN), O N E X P E D I T E D Employer, P R O C E E D I N G and GENERAL CASUALTY, Insurance Carrier, Defendants. ___________________________________________________________ An original notice and petition invoking expedited procedures under 343 IAC 4.44 was filed on April 28, 1994 and a telephonic hearing was conducted on July 11, 1994. The issues presented were the extent of claimant's entitlement to healing period benefits, permanent disability benefits and rate of compensation along with interest. A detailed decision was dictated into the record on the day of the hearing and will not be reproduced in typewritten form unless there is an appeal by the parties at which time the procedures under the administrative code will be followed. Any rights of appeal will run from the date of the decision dictated into the record, July 11, 1994. This memorandum is solely for the purpose of the agency file. The evidence consisted of two joint exhibits and the testimony of claimant and one defense witness. After consideration of all evidence and argument of counsel, the deputy ordered the defendants to pay additional healing period benefits at a higher rate of compensation than it had voluntarily paid. However, no additional permanent disability benefits were awarded. Costs were assessed against the defendants. Credit was given for weekly benefits already paid. Signed and filed this ____ day of July, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 2 Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave SW STE 114 Cedar Rapids IA 52404 Ms. Anne L. Clark Attorney at Law Terrace CTR STE 111 2700 Grand Ave Des Moines IA 50312-5215 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JAMES BOWDEN, : : Claimant, : : vs. : : File No. 968795 STONE CONTAINER CORPORATION, : : 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 Claimant, James Bowden, seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against defendant, Stone Container Corporation, and its insurance carrier, Kemper Insurance Company. Mr. Bowden asserts that he sustained a psychological injury arising out of and in the course of his employment on October 30, 1990. This cause came on for hearing in Burlington, Iowa on September 29, 1992. Testimony was received from claimant, Cary LeMaster, Dan Bursell and Jerry Boecker. Joint exhibits 1-16 were received into evidence. ISSUES The parties have stipulated that an employment relationship existed between claimant and employer at the time of the alleged injury, to the rate of compensation ($307.67 per week) and to defendants' entitlement to credit for sick pay/disability benefits under Iowa Code section 85.38(2). During the course of hearing, claimant withdrew his claim for permanent partial disability. Remaining issues presented for resolution include: 1. Whether claimant sustained an injury arising out of and in the course of his employment on October 30, 1990; 2. Whether the alleged injury caused temporary disability; 3. The extent of temporary disability, if any; 4. Entitlement to medical benefits; and Page 2 5. Whether penalty benefits should be assessed. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: James Bowden, 30 years of age at hearing, is a sel-described short tempered and prideful individual, one prone to frustration and anger at perceived slights. Mr. Bowden has been employed by Stone Container Corporation, a manufacturer of cardboard boxes, for some six years. During this time, he developed frustration over a number of minor issues and filed a number of grievances. Some, he now concedes, were "piddly" in nature. Claimant conceded also an inclination to verbalize and display his anger at various grievance hearings. General supervisor, Cary LeMaster, also pointed out that claimant was reputed to have a fiery temper and was generally confrontational in his dealings with management and fellow workers. Plant manager Dan Bursell testified that claimant had a violent temper, such that he himself was apprehensive of potential violence. Plant supervisor, Jerry Boecker, noted that claimant had threatened him (the nature of the threat was not disclosed) when a crew, including claimant, was ordered to re-stack a number of cardboard boxes. Claimant became overwrought during the course of a grievance procedure in October 1990. As a result, the employer referred him for psychiatric evaluation to S. Kantamneni, M.D., a psychiatrist, and Patrick Ewing, a clinical psychologist associated with Dr. Kantamneni. As a result of this evaluation, claimant was taken off work for two weeks, being released effective November 12, 1990. When claimant attempted to return to work, he was refused admission to the plant for failure to bring a written release (claimant did not know one was required). He was suspended for one day as a result of this, then discharged from employment, although the dispute was eventually resolved and claimant rehired. Mr. Bowden now believes he has his temper under control and the employment relationship seems much less confrontational in nature. Dr. Kantamneni reached a diagnosis of adjustment disorder in his letter of November 1, 1990: Essentially this involves a stronger reaction than might be expected in response to a psycho-social stresser. In order to qualify for this diagnosis, the reaction must cause an impairment in occupational functioning or in social activities or relationships with others. The psycho-social stresser in your case is job stress. (Exhibit 2, Page 7). Dr. Kantamneni and Mr. Ewing wrote later (January 28, Page 3 1991) that Mr. Bowden's condition had manifested itself by reason of anger and anxieties stemming directly from his concerns at work. Mr. Ewing's chart notes refer on multiple occasions to claimant's "irrational" beliefs, "undoubtedly related to his difficulty at work." When cross-examined as to what treatment it was that he felt was unfair, claimant pointed to two specific concerns. On one occasion, he had made an error in "running" a number of cardboard boxes, and was personally offended when Dan Bursell hung a sample of the error over the machine. Bursell pointed out that he done so as a way of reminding the crew not to make the same mistake again. Mr. Bowden also complains that Bursell criticized him behind his back to other employees, although he agreed that other workers intentionally told him stories just to get him "riled up." Bursell denied ever criticizing claimant to other employees, a credible denial. CONCLUSIONS OF LAW The parties dispute whether claimant sustained an injury arising out of and in the course of her employment. This is his burden to prove. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). The standard for determining whether a mental injury arose out of and in the course of employment was recently discussed in Ohnemus v. John Deere Davenport Works, File No. 816947 (App. Decn., February 26, 1990) and Kelley v. Sheffield Care Center, File No. 872737 (App. Decn., October 31, 1991) as follows: "In order to prevail claimant must prove that he suffered a non-traumatically caused mental injury that arose out of and in the course of his employment. This matter deals with what is referred to as a mental-mental injury and does not deal with a mental condition caused by physical trauma or physical condition caused by mental stimulus. The supreme court in Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), recognized that issues of causation can involve either causation in fact or legal causation. As stated in footnote 3 at 369 N.W.2d 810: We have recognized that in both civil and criminal actions causation in fact involves whether a particular event in fact caused certain consequences to occur. Legal causation presents a question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by that event. State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Causation in fact presents an issue of fact while legal causation presents an issue of law. Id. "That language was the basis of the language in Page 4 Desgranges v. Dept of Human Services, (Appeal Decision, August 19, 1988) which discussed that there must be both medical and legal causation for a nontraumatic mental injury to arise out of and in the course of employment. While Desgranges used the term medical causation the concept involved was factual causation. Therefore, in this matter it is necessary for two issues to be resolved before finding an injury arising out of and in the course of employment - factual and legal causation. Proving the factual existence of an injury may be accomplished by either expert testimony or nonexpert testimony. .... "Not only must claimant prove that his work was the factual cause of his mental injury, claimant must also prove that the legal cause of his injury was his work. In order to prove this legal causation claimant must prove that his temporary mental condition "resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience." Swiss Colony v. Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 1976)." Kelley v. Sheffield Care Center, File No. 872737 (App. Decn., October 31, 1991). Dr. Kantamneni and Mr. Ewing are of the view that the time claimant lost from work was due to anger from perceived work stresses. There is no indication that the underlying personality disorder was caused by work, and claimant agrees that he has always been hot-tempered. Claimant has established that "stresses" and problems at work, as perceived by him bear a causal relationship to his being taken off work for two weeks for psychological reasons. This meets the "causation in fact" test. But, this only points up the importance of the "causation in law" test, since claimant's perceptions are not necessary reliable. The record does not show that claimant's temporary mental condition "resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience." Claimant has spoken of a gradual build-up of tensions and frustrations, but has not presented evidence as to specifics, except two: the posting of a defective product and hearsay allegations that the plant supervisor criticized him behind his back. The employer surely had a good reason to post the defective product, so as to prevent future similar mistakes. This was not directed at claimant personally, although, given his general attitude, he perceived it as such. His concern that Bursell criticized him behind his back was ill-founded, as Bursell convincingly explained that he did no such thing. Claimant himself admits that fellow workers would tell him stories just to get him "riled up." Page 5 Because claimant has failed to establish "causation in law" of his temporary disability, the case must be resolved in favor of defendants. Other issues are thereby rendered moot. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from these proceedings. The costs of this action are assessed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of October, 1992. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr James P Hoffman Attorney at Law Middle Road PO Box 1087 Keokuk Iowa 52632-1087 Ms Vicki L Seeck Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport Iowa 52801-1596 2204 Filed October 5, 1992 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JAMES BOWDEN, Claimant, vs. File No. 968795 STONE CONTAINER CORPORATION, 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. ___________________________________________________________ 2204 Wisconsin rule was applied in "mental/mental" stress case. Claimant proved "causation in fact" in that work stresses were causative of his emotional outburst, but failed to establish "causation in law" since his perceptions were not reliable and work conditions were not of greater dimension than the day to day stresses which all employees experience. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : WILLIAM C. GEIST, : : Claimant, : : vs. : : File No. 968840 PAYLESS CASHWAYS, : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CONTINENTAL LOSS ADJUSTING, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a contested case proceeding under Iowa Code chapter 17A upon a petition in arbitration filed by claimant William C. Geist against his former employer, Payless Cashways, and its insurance carrier, Continental Loss Adjusting. Mr. Geist sustained a work injury on October 21, 1990, and now seeks further benefits under the Iowa Workers' Compensation Act. Defendants agree that claimant sustained an abdominal injury, but deny Mr. Geist's claim that he also injured his back at the same time. This case was heard and fully submitted in Davenport, Iowa on June 14, 1994. The record consists of defendants' exhibits A-P, claimant's exhibits 6, 10 and 11 and the testimony of claimant and Scott Forbes. Deposition testimony of Daniel Tully and Dr. Harold Miller is included among the exhibits. ISSUES The parties have stipulated to the following: 1. Claimant sustained injury arising out of and in the course of employment on October 21, 1990; 2. The injury caused temporary disability; 3. The correct rate of weekly compensation is $173.52; 4. Affirmative defenses have not been raised; 5. Although disputed, medical providers would testify to the reasonableness of fees and treatment and defendants offer no Page 2 contrary evidence; and, 6. Defendants have voluntarly paid 1.571 weeks of compensation at the rate of $156.44. Issues presented for resolution include: 1. Whether the injury caused permanent disability; 2. The extent of temporary total disability or healing period; 3. The nature, extent and commencement date of permanent disability, if any; and, 4. Entitlement to medical benefits, including whether disputed expenses are causally connected to the work injury. Defendants also sought to defend against disputed medical benefits on the basis that the same were not authorized. The authorization defense was ruled invalid because defendants have denied liability on the claim, thereby forfeiting the right to control the course of treatment. This claim involves a discrete lifting injury sustained on October 21, 1991. Mr. Geist was also involved in a similar incident on October 19. It was ruled at hearing that only the October 21 injury is properly at issue in this proceeding. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: William Geist, 35 years of age at hearing, was employed by Payless Cashways (a lumber and building materials supplier) as a delivery driver in October 1990. Many of the delivery items were characteristically heavy and bulky, such as lumber, stoves, sinks, roofing materials and the like. Claimant had previously worked in the warehouse, filling orders and generally assisting customers. On October 19, 1990, claimant delivered a wood burning stove to a customer who assisted him in unloading the device from his truck. In so doing, the customer partially lost his grip, putting an increased strain on claimant. Mr. Geist described that by the end of this day, he felt like he had a "pinched nerve" in the back, so he visited Dr. Lee Nelson, apparently a chiropractor. Dr. Nelson's notes refer to moderate lumbosacral pain with findings of decreased range of motion, tenderness and "muscle bundles" (an expression unfamiliar to this reader). Claimant was treated with a spinal adjustment and advised to return in one week. As previously noted, any claim relating to this incident is not properly at issue in this proceeding. Page 3 On October 21, claimant was involved in a similar incident while delivering a second woodburning stove to a customer known as Daniel Tully. Mr. Tully testified by deposition on November 12, 1993. The two men attempted to move the heavy stove into Tully's house, and had reached the porch; while putting the stove down, Tully partially lost his grip: Q. Was there a point there, then, when he was holding the entire weight of the stove because your end had slipped from your hands? A. I may remember it more favorably to myself. It's like as it was slipping from my hands I may still have been in touch with it, but, you know, as it was going to the ground he was still trying to hold it up. Q. All right. A. Hold up his end. Q. And you were supporting as much of your end that -- A. Yeah, it was falling from my hands. (Tully Deposition, Pages 8-9) Claimant was seen on October 22, October 29 and November 5 by three separate physicians at a medical clinic known as Express Care North - Urgent Care Center. The undersigned thinks the records of those three visits to be the most significant evidence in this record. On October 22, claimant was seen by Dr. Marilyn Lensing. The only symptoms noted were of tenderness to the epigastric abdominal wall (an area reaching from slightly above the navel to the sternum). The history "as described by patient" is recorded as "injured abdominal wall while helping lift 500 lb. stove." No record whatsoever was made of low back complaints. Dr. Lensing diagnosed abdominal wall muscle strain and released claimant to return to limited duty work with lifting, bending and stooping restrictions. On October 29, claimant was seen by Dr. Roberts. Chart notes reflect that claimant returned for a recheck of abdominal wall strain and was quoted as feeling like he would vomit every day. No back complaints were charted. Dr. Roberts diagnosed abdominal muscle wall strain and again released claimant to limited duty work with restrictions. Claimant returned to Express Care North for the last time on November 5. This time, he was seen by Harold W. Miller, M.D., a board certified family practice specialist who testified by deposition on November 12, 1993. Notes prepared by a registered nurse on this visit show Page 4 that claimant returned for a recheck of abdominal wall strain and directly quoted claimant: "Has no pain." The nurse also charted no reports of nausea. According to Dr. Miller, the use of quotation marks in such a chart note is intended to closely reflect claimant's actual words. Dr. Miller found no localized tenderness or ecchymosis of the abdominal wall, reported that claimant's back was non-tender to percussion, and returned Mr. Geist to full work activity without restriction. The first report of injury filed in this matter show that claimant was off work commencing October 22 and that he returned to work on November 5, 1990. The form 2A also filed in this case reflects payment of temporary total disability benefits consistent with those dates. Official notice is hereby taken of the first report of injury and the form 2A. It is determined under Iowa Code section 17A.14(4) that fairness to the parties does not require an opportunity to contest these facts. According to Dr. Miller, the incident in which claimant was injured was capable of causing a low back injury. However, Dr. Miller also noted that his staff is trained to routinely require whether other parts of the body hurt, beyond those complained of. He did not believe that Ibuprofen (which claimant had been taking for his abdominal wall complaints) would mask any significant back pain and believed it was likely that someone who had a back injury would complain of back pain two weeks after that injury. If complaints of back pain had been made, on any of claimant's three visits between October 22 and November 5, this observer has little doubt but that they would have been properly recorded. On November 5, Dr. Miller even percussed claimant's back, largely because this was not the first occasion claimant presented with a work injury. He testified: A. The usual mechanism would be that I would percuss the back in three -- in a situation such as this, percuss the back in three or four locations and ask the patient whether they noticed any pain. Q. All right. A. And if they said "no," the back is nontender; that would be my usual procedure under those circumstances. (Miller Deposition, Page 15) Here, it is worth noting that claimant has given subsequent histories that very much emphasize not only back pain, but radicular symptoms. These histories, by the way, come much later in time and are almost certainly influenced by this very litigation (claimant's petition was filed on September 16, 1991). For example, the history taken by evaluating neurosurgeon Richard Roski on December 14, 1992 reflect: Page 5 He was working at Payless Cashway two years ago and was unloading a woodburner. He had this at about waist level with another employee who dropped his side. This caused him to carry the weight but at the same time he was pulled forward. He immediately had low back pain that radiated into the abdomen on the right side. He has continued to have constant pain in the center and to the right in the low back. Dr. Robert J. Chesser, on September 2, 1992, records a history of claimant developing back and lower extremity pain in October 1990 which had been steadily increasing since that time. Dr. B. E. Krysztofiak, a consulting physical medicine and rehabilitation specialist, reported on February 16, 1993 a history of: "He apparently developed acute pain in the lower back while unloading a wood stove, since then the patient has been experiencing continuing pain in the lower back more on the right side than on the left side as previously reported." It is absolutely unbelievable that complaints of an acute back injury with radiating symptoms would not have been charted during claimant's three visits to Express Care North. It is found as fact that claimant did not experience back or radicular symptoms between October 22 and November 5, 1990, when he was under active treatment at Express Care North. As of October 5, claimant reported having no pain, a condition absolutely contrary to the inaccurate histories given to later physicians. As it happens, claimant did subsequently develop some back pain, although with no apparent association to the subject work injury. The extent of claimant's symptoms and objective findings are disputed by different medical experts, but it is unnecessary to resolve those issues because claimant fails to persuade that he injured his back on October 21, 1990. On November 17, 1990, nearly a month later, claimant was seen by a chiropractor, Robert W. Duncalf, with a complaint of lower back pain. Dr. Duncalf has written that: "Our records do not show that it was a work related injury." When claimant was later seen (March 19, 1991) at the University of Iowa Hospitals and Clinics, chart notes reflect a history of lower back pain beginning in late November 1990, a pre-litigation report consistent with a November injury, but inconsistent with Mr. Geist's claim here. Dr. Miller has further opined as follows: Q. And when you saw him on November 5th, you released him to return to work without restriction? A. That's true. Q. Okay. Does that mean in your mind Page 6 that any condition for which he was being seen at the clinic had resolved? A. Yes. (Miller Deposition, Pages 25-26) CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). 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). The parties have stipulated that claimant sustained injury arising out of and in the course of employment. Defendants agree that claimant sustained an abdominal wall injury, but deny that claimant injured his back. Based on the records of Express Care North and the opinion of Dr. Miller, it is concluded that claimant failed to meet his burden of proof in establishing that subsequent development of back symptomatology is causally related to the abdominal wall injury of October 21, 1990. The physicians who have supported a causal nexus have done so on the basis of inaccurate histories. Claimant did not suffer or complain of back pain during his treatment at Express Care North. The abdominal injury has not been shown to have caused permanent disability. All impairment ratings and recommended restrictions relate to claimant's back condition, not the abdominal wall condition which had resolved by November 5, 1990. Accordingly, claimant is not entitled to an award of permanent disability benefits. However, claimant was off work from October 22 through November 4, 1990, a total of 14 days. Because claimant did not sustain a permanent injury, this disability must be Page 7 compensated as temporary total disability under Iowa Code section 85.32 and 85.33, not as healing period under section 85.34(1). Section 85.32 provides: Except as to injuries resulting in permanent partial disability, compensation shall begin on the fourth day of disability after the injury. If the period of incapacity extends beyond the fourteenth day following the date of injury, then the compensation due during the third week shall be increased by adding thereto an amount equal to three days of compensation. In this case, claimant's period of incapacity was of fourteen days duration, but extended to the fifteenth day following the date of injury. The section is keyed to the date of injury, not the first day of disability. Accordingly, claimant is entitled to fourteen days of temporary total disability benefits (2 weeks) at the stipulated compensation rate. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay claimant two (2) weeks of temporary total disability benefits at the rate of one hundred seventy-three and 52/100 dollars ($173.52) per week commencing October 22, 1991. Defendants shall have credit for all voluntary payments of benefits previously made. Accrued benefits shall be paid in a lump sum together with statutory interest. Each party shall be responsible for its own costs. Signed and filed this ____ day of August, 1994. ________________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr A Fred Berger Attorney at Law 900 Kahl Building Davenport Iowa 52801 Ms Deborah A Dubik Mr Craig A Levien Page 8 Attorneys at Law 600 Union Arcade Building 111 East Third Street Davenport Iowa 52801-1596 1801 Filed August 19, 1994 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ WILLIAM C. GEIST, Claimant, vs. File No. 968840 PAYLESS CASHWAYS, A R B I T R A T I O N Employer, D E C I S I O N and CONTINENTAL LOSS ADJUSTING, Insurance Carrier, Defendants. ___________________________________________________________ 1801 Claimant sustained temporary disability as the result of an abdominal wall injury. He was off work for fourteen days commencing the day following injury. However, under section 85.32, compensation during the third week is increased by adding the three-day waiting period where "the period of incapacity extends beyond the fourteenth day following the date of injury." Even though claimant was only disabled for fourteen days, the final day was the fifteenth day from the date of injury. The section is keyed to the date of injury, not the first day of disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BONNIE ENGALDO, Claimant, vs. File No. 968978 IPSCO STEEL, INC., A P P E A L Employer, D E C I S I O N and CIGNA, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 4, 1994 is affirmed and is adopted as the final agency action in this case with the following additional analysis: The presence of Mr. Havens in the courtroom and his failure to testify does not carry any significance. His presence and failure to testify have not been relied on in this decision. However, the claimant's description of her work conditions and her description of the employer's conduct are in the record and are unrebutted. The fact that Dr. Robb altered his opinion on the extent of claimant's disability is only part of the medical evidence. In addition, claimant has offered a credible explanation for the reference to prior low back problems. In addition, Dr. Robb did not alter his opinion on causal connection. Contrary to the employer's assertion, an employer's refusal to rehire an injured worker is a factor to be considered in assessing industrial disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). In this case, the employer's failure to rehire the claimant in a position consistent with her restrictions as well as the employer's failure to honor those restrictions after becoming aware of them are considered in assessing claimant's industrial disability. Claimant is able to perform some recognized jobs in the job market. Claimant herself indicated a desire to return to factory work. Claimant is not an odd-lot employee. Claimant and defendants shall share equally the costs of the Page 2 appeal including transcription of the hearing. Defendants shall pay all other costs. Signed and filed this ____ day of June, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. John M. Bickel Attorney at Law P.O. Box 2107 Cedar Rapids, Iowa 52406 Mr. James M. Hood Attorney at Law 302 Union Arcade Bldg. Davenport, Iowa 52801 5-1803; 3700 Filed June 28, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BONNIE ENGALDO, Claimant, vs. File No. 968978 IPSCO STEEL, INC., A P P E A L Employer, D E C I S I O N and CIGNA, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Claimant awarded 35 percent industrial disability. 3700 No inference was to be drawn from fact that defendants' representative was in the hearing room but did not testify; but, fact that claimant's testimony was unrebutted was relied upon. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BONNIE ENGALDO, : : Claimant, : : vs. : : File No. 968978 IPSCO STEEL, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on December 7, 1993, at Davenport, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on November 5, 1990. The record in the proceeding consists of the testimony of the claimant; joint exhibits A through W; and defendants' exhibit 1. ISSUES The issues for resolution are: 1. Whether there is a causal connection as to any healing period, temporary total disability or permanent partial disability and claimant's alleged November 5, 1990 injury; 2. The nature and extent of claimant's permanent disability and entitlement to disability benefits, if any; and, 3. Whether claimant is an odd-lot candidate. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is 35 years old and completed the eighth grade and failed the ninth grade. Claimant obtained her GED but has no other formal education. Claimant listed several drugs that she used with her former husband who she indicated was a drug user. Claimant used drugs for approximately two and one-half years but contends she was never arrested and has no criminal Page 2 background. Claimant has seen a psychiatrist and psychologist prior to her November 5, 1990 injury. Claimant indicated she was diagnosed with a panic disorder in 1985 and an anxiety disorder in 1988. Claimant said that she was treated from February 1990 through May 1990 for swelling behind the knee and needed a bone scan. During this period, she had pain in her neck and back, also. Claimant was asked concerning the cause of those symptoms and she indicated she began working for Swiss Colony and she was sitting at a desk using the phone a lot. Claimant described her anxiety disorder as an overreaction of the adrenaline glands and that she gets headaches, her neck becomes stiff and affects her ears, she begins sweating and has difficulty breathing. She indicated that when anxiety comes on, her head feels swollen and this extends into the neck muscles and into the shoulder and back. Claimant said her anxiety disorder came to a head in 1988 and she was hospitalized in June of 1988. Claimant stated that prior to November 1990, she was never injured or had prior muscular complaints and never went to a neurologist or orthopedist. Claimant's attention then was called to joint exhibit M in which she went to the chiropractor on March 25, 1988 with complaints of ear, head, shoulder and back pain and pain in the upper neck right side. She had been dizzy and short of breath with anxiety and abdominal pain. She indicated she had first noticed her symptoms of pain in the neck, shoulders and back one month earlier. Claimant contended that this treatment was not for her low back and that page 4 of said exhibits shows the adjusted area, which is the cervical area. Claimant said she was never treated for low back problems prior to November 1990. Claimant then was specifically questioned as to joint exhibit W which is a list of businesses she worked at during her work history. She went into detail as to the nature of the job and what it entailed. Claimant indicated that from 1975 through 1990, she basically had steady employment. She said she worked up to three jobs a day during the 1980 to 1982-1983 period which encompassed about 16 hours per day. Claimant said that the job with defendant employer was the best job she ever had, which paid $8.15 per hour. Prior to that her best job was a $6 per hour job at Swiss Colony. She also indicated that she got more benefits with defendant employer. Prior to claimant beginning work with defendant employer on August 6, 1990, she had two interviews and an extensive physical. This physical included a driving test and exercises (including setups and 15 pushups) at a clinic. Claimant described the nature of her work with defendant employer. She described the weights that this job Page 3 required her to lift, the required bending of her low back, extending her arms, and holding things in her arms. Claimant described how she was injured on November 5, 1990. It occurred while she was lifting a corner of a 450 pound object to get it over a crack and felt a sharp pain in her back radiating down to her left. She saw the doctor on November 5, 1990. He recommended light duty and no lifting over 10 pounds and no pulling, pushing or bending. She was to come back in 10 days. Claimant came back in 10 days. She told the doctor her employer did not honor the restrictions and that she had been lifting 20 pound parts out of boxes and showed the doctor how she was bending and twisting. The doctor again, as reflected in his notes, wrote that she was not to lift over 10 pounds for a week. (Jt. Ex. H) On November 24, 1990, claimant was laid off with 16 other people. Claimant felt this was a general layoff but found out later that they had abolished her job. She said when she was trained she had been trained to do several other jobs, also. On December 26, 1990, John M. O'Shea, M.D., released claimant to return to work on December 31, 1990. The doctor's notes further reflect that on December 31, 1990, he then referred claimant to an orthopedic surgeon since claimant wasn't responding to conservative treatment and he took claimant off work until she saw a Dr. Ginther. Defendants contend that this ended claimant's healing period and claimant contends it does not. There were several other notes or letters in joint exhibit H in which Dr. O'Shea refers to claimant returning to work on December 31; yet, these seem inconsistent with him recommending her to stay off work and see Dr. Ginther. Claimant then went to work hardening which occurred over the period from February 4, 1991 to March 14, 1991, involving 18 sessions out of 27 scheduled sessions. Claimant described what her sessions were comprised of but they were set up to help her get back to the physical status necessary to do the job she had at the time of her injury. (Jt. Ex. K) After the last of the sessions, the physical therapist indicated claimant will be returning to Dr. Ginther for re-evaluation and they will wait for the orders regarding her future care. Dr. Ginther's' notes are joint exhibit N. Claimant indicated that the defendants hired a rehabilitation person for her and that that person went with her, set up the doctor appointments, and went with her to the doctor, including Dr. Ginther. They were aware that Dr. Ginther sent her to a work hardening program but they discontinued her benefits through November 27, 1991, anyway. Claimant testified that she was sent to a neurologist, Michael L. Cullen, M.D., and the appointment was set up by the rehabilitation consultant. Claimant indicated the doctor didn't do much but did an evaluation and examined her and took a history. As reflected on page 2 of joint exhibit Page 4 O, the doctor opined claimant had a 5 percent impairment of the whole person due to her November 5, 1990 injury. He also indicated in this April 11, 1991 report that she was limited as to what she could lift, frequency, etc. (Jt. Ex. O, pp. 1-2) Claimant then testified that the doctor's secretary told her that if the claimant wanted to see an attorney, she did not have to come back to them and indicated they fired her as a patient. This is supported by the March 4, 1992 letter of joint exhibit O wherein the doctor indicated he found it very difficult to function when the first individual that the claimant calls for medical advice is her attorney and that he recommended, therefore, she seek medical care elsewhere. The undersigned finds nowhere in the record in which the first person claimant called for medical advice was her attorney. The doctor, as indicated earlier, had written a report on April 11, 1991. Joint exhibit P is the records of W. John Robb, M.D. In a letter dated May 30, 1991, he was unable to rate claimant but indicated that she had not received full recovery and that she would reach maximum recovery within the next six to nine months. In his June 25, 1991 notes, he indicated he had told the rehabilitation consultant, Barbara Laughlin, that it was going to be two to three months of dedicated exercise routine that is going to result in improvement of claimant's ability to return to some type of work. He then set up physical therapy for claimant. Defendants' exhibit P contains a December 2, 1991 letter of Dr. Robb in which he opines claimant has a 5 percent permanent impairment of her body as a whole and indicated she could do light work and lifting 10 to 20 pounds on an occasional basis at first and then heavier weights could be attempted. He didn't think she would ever be able to return to lifting over 50 pounds. Defendants also indicated that claimant's complaint at that time was in her neck and shoulders and that the lumbosacral spine strain had recovered. Claimant then related that her own attorney sent her to Robert J. Chesser, M.D., who opined in his June 5, 1992 letter encompassed in joint exhibit R that claimant had a 9 percent permanent impairment to her body as a whole. She also had restrictions. In a November 18, 1993 letter, Dr. Robb then withdrew his previous 5 percent permanent impairment and indicated claimant did not have any impairment from her November 1990 accident. He changed his mind based on what he indicated was further review of the additional extensive medical history of claimant based on her subjective complaints. This change of mind is questionable under the circumstances and being so close to the hearing. After claimant's release by Dr. Robb to return to light duty on November 27, 1991, claimant said she didn't look for work right away and disagreed with Dr. Robb. Claimant Page 5 indicated she started looking for work in February 1992. Claimant then related the various places she contacted for employment. Claimant indicated she likes factory work because the time goes faster and strange people affect her and her anxiety gets high. She indicated that in a factory setting, the anxiety situation is better once she gets use to the place. She related any job she tried and her reason for not being able to continue working. She cited her restrictions as being a limiting factor. She went through vocational rehabilitation and indicated that they would call her if they found something and they have never called her. (Jt. Ex. V) Claimant indicated that any job she obtained was on her own and that the defendant employer has done nothing to help her get a job nor have the rehabilitation people hired by defendant employer. She indicated she couldn't do her prior job with defendant employer. She acknowledged she is currently going to a Dr. Kayo. She is on Xanax to keep her from getting panic attacks. She acknowledged that she is addicted to Xanax but indicated it helps her panic attacks and it is monitored by the doctor once a month. She indicated she couldn't drive before it was regulated. She indicated that her panic attacks cause different muscles to be affected versus her activity when she works. It seems like Xanax affects her neck area and the muscles. She emphasized that the panic attacks do not affect her low back. Claimant emphasized that the only injury she is claiming in this case is to her low back and not anywhere else. She also does not contend that her panic attacks are caused by her work injury of November 5, 1990. She said she was originally contending her upper back was also involved but has dropped that from this case. On cross-examination, claimant denied that she has a substance abuse problem. She indicated that she is only addicted to Xanax. She disagreed that she has alcohol abuse problems. Joint exhibit A is the records of L.B. Hussey, M.D., and covers a period of time up to September 20, 1988. There is no question from these records that claimant has been on a considerable amount of medication and drugs. The records of Dr. Benjamin Sy are in joint exhibit B. They cover a period of time up to November 22, 1989. Again, there is no question that claimant has been on medication for her anxiety and depression. It appears any mention of pain involves the neck or mid-back. The records of Pragna Bhatt, M.D., are reflected in joint exhibit C. Joint exhibit E is the records of Grey M. Woodman, M.D., and they go to a period of July 20, 1989. Joint exhibit F is the records of Dr. Ruperall, of the Morrison Hospital, and they go to February 24, 1990. Joint exhibit G is the records of B.G. Lambos, M.D. Joint exhibit H is the records of John M. O'Shea, M.D., which has been referred to in more detail earlier. Joint exhibit I is Samaritan Health System records. Joint exhibit P is the record of W. John Robb, M.D., which has been previously referred to. Joint exhibit K is the Work Hardening and Fitness Center records and L is the records of Sinnissippi Page 6 Mental Health Center. These records involve claimant's anxiety and panic problems in 1992 and also part of 1988. They reflect what has also been testified to by the claimant that she was suffering from her anxiety disorders prior to and after her November 5, 1990 injury. She also testified that she currently is troubled by these same problems. She emphasized she wasn't making claims for these problems. Joint exhibit M is the records of Associated chiropractors. Joint exhibit N is the records of Dr. Ginther, which have been previously referenced to. Joint exhibit O is the records of Michael L. Cullen, M.D., who had given claimant a 5 percent impairment due to her November 5, 1990 injury and was previously referred to. Joint exhibit P is the record of W. John Robb, M.D., which has previously been referenced. The defendants stipulated that the injury arose out of and in the course of claimant's employment on November 5, 1990. The dispute is the extent of healing period or temporary total disability, any permanent disability, if any, and the causal connection as to the same. Claimant contends the healing period should begin November 24, 1990, which is the date claimant was off work which actually was a layoff through November 27, 1991. Defendants contend claimant's healing period began November 24, 1990 through December 31, 1990. Defendants rest their position on the fact that Dr. O'Shea in November of 1990 indicated claimant could return to work on December 31, 1990. There is also reference at that time that he decided to send her to Dr. Ginther and that she was to be off work until she saw him. Claimant without question was off work through a doctor's orders. There are actually several periods one could probably pick thereafter to determine claimant's healing period. Claimant ended her work hardening on March 14, 1991, and there is indication that her healing period therefore ended April 11, 1991. Dr. Robb, in joint exhibit P, indicated on May 30, 1991, that claimant had not yet reached recovery yet and it might be six to nine months thereafter until she reached maximum recovery. Dr. Robb, on May 9, 1991, indicated claimant couldn't return to work but maybe she could on September 9. There is a December 2, 1991 letter in which on November 27, 1991, the doctor said claimant could return to light work. In that same letter, Dr. Robb opined a 5 percent permanent impairment to claimant's body as a whole. The undersigned believes without question that the healing period did not end on December 31, 1990, as defendants contends as the overwhelming medical evidence shows that she wasn't able to and, in fact, the doctor who made that comment referred her to another doctor and indicated she should be off work until she saw that doctor. There is no indication that that doctor then put her back to work at a time even close to Dr. O'Shea's comments in November of 1990. The undersigned finds the greater weight of medical testimony shows that claimant was in a healing period through November 27, 1991, as reflected in Dr. Robb's December 2, 1991 letter. When the claimant was in his Page 7 office on November 27, 1991 for evaluation, he then made the conclusions referred to above. The undersigned realizes claimant has anxiety and panic disorder attacks and these have had an effect on her. The fact is the record is overwhelming that claimant has had these problems for years and was in fact working and able to work notwithstanding these attacks. Claimant has not made a big effort to try to find employment. This is particularly unfortunate under the current status of the law in regards to the Americans With Disabilities Act in which certain questions can not be asked of a potential employee as far as their past medical until after a job has been offered to her. It is also obvious that claimant's panic attacks and anxiety disorder has and is affecting her ability to either get a job or the type of job due to the fact that her association with people, the numbers, etc. can set off her attacks. She is making no claim that these are the result of her November 5, 1990 injury. Claimant is not an odd-lot candidate. As to claimant's permanent disability, the undersigned finds that in addition to her November 5, 1990 injury having caused claimant to concur an extensive healing period, it also caused claimant to incur industrial disability. The undersigned finds that the greater weight of testimony reflects that claimant did incur an injury on November 5, 1990 which resulted in claimant receiving a permanent impairment to her body as a whole but also considerable rigid restrictions of which there is no evidence they have currently been removed. Several doctors had the same or similar restrictions for the claimant as far as lifting, twisting, etc. There is no evidence that claimant could perform the job she was performing at the time of her November 5, 1990 injury and that it is undisputed that claimant was doing her job at the time of her injury. The evidence is also clear on the present record that after claimant's injury, she was sent back to work with restrictions and that the employer did not obey those restrictions and allowed the claimant to proceed as if there were no restrictions. Claimant continued to do her same job that caused her injury originally and it is undisputed and obvious to the undersigned that claimant was doing lifting many times a day, sometimes several hundred times, all in violation of her restrictions. The undersigned additionally feels that this aggravated claimant's condition and made it worse and made it more severe than it might have been had the employer followed the restrictions. The undersigned might note that an R. Bruce Havens, the director of personnel for defendant employer, was in the courtroom through the whole proceedings. Before the defendants rest their case, he was asked by defendants' attorney as to whether he wanted to testify or as to whether he wanted to add anything further and he said he didn't. The undersigned therefore presumes that Mr. Havens could not dispute the contentions claimant made as far as her work conditions and the company violating her restrictions, etc. Page 8 Otherwise, it is presumed by the undersigned he would have testified under oath contrary to claimant's testimony if he found it to be untrue. There is no evidence that the rehabilitation expert or consultant hired by the defendants made any effort to find claimant a job or to try to get her back to work with defendant employer. The claimant indicated that factory work is what she would like to do if she was able to do anything because of her panic attacks and disorder and the necessity of being either more by herself or with people she is familiar with and not with a lot of people in a lot of contact communications. Defendant employer has done nothing since her layoff in this regard. Claimant has not been able to hold a job that she is able to do. Again, as mentioned earlier, things other than her work injury is contributing to this. There is no question claimant has a long history of care concerning her panic attacks and anxiety disorder. It is also evident that claimant was operating notwithstanding the same until her injury and at least until she was laid off. Defendants also contend that the Xanax that claimant is taking and is addicted to is really causing claimant's low back problems and as claimant testified, she is not contending that she has taken Xanax because of her work injury. There is no proof that the Xanax is in fact causing claimant's low back problems. There is evidence that when claimant has an attack, her neck muscles in the cervical area and in her shoulder area tighten up and are affected. As claimant testified, she is not claiming any cervical injury. There is considerable medical evidence as to claimant's cervical problems and claimant has withdrawn her claim that those are caused mostly by her work injury. The undersigned believes that claimant would still be working with defendant employer notwithstanding her anxiety or panic attacks had she not been injured on November 5, 1990 and had the employer not obeyed her restrictions and kept her working at the same job until she was laid off around November 24, 1990. As indicated earlier, defendants had an opportunity to deny this occurred. This continuing work in violation of restrictions occurred. Claimant has a loss of income. Taking into consideration claimant's medical history prior to and after her November 5, 1990 injury, her work experience prior to the injury and after injury; her rehabilitation; extent of her healing period, her age, education, emotional and physical state; her wages prior to her injury and after her injury; her inability to engage in employment for which she is fitted as a result of her injury; the location and severity of her injury; her motivation; education; functional impairment; and the refusal of employer to give claimant any work after her injury, the undersigned finds claimant has incurred a 35 percent industrial disability. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate Page 9 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). In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Guyton, 373 N.W.2d at 105. The burden of persuasion on the issue of industrial disability always remains with the worker. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer, however. If the employer fails to produce such evidence and if the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. 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 the employee is fitted. Olson v. Goodyear Serv. 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 Page 10 a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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 the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. 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 as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Iowa Code section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing Page 11 period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). It is further concluded that claimant's November 5, 1990 injury caused claimant to incur a healing period beginning November 24, 1990 through November 27, 1991, encompassing 52.714 weeks. It is further concluded that claimant incurred an industrial disability of 35 percent with benefits to begin on November 28, 1991. It is further concluded that all benefits shall be paid at the weekly rate of $220.66. The parties stipulated to a $225.32 rate but claimant is single with one dependent child. It is further concluded that claimant is not an odd-lot candidate and is not entitled to recover benefits under the odd-lot theory. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of two hundred twenty and 66/100 dollars ($220.66) for the period beginning November 24, 1990 through November 27, 1991, encompassing fifty-two point seven one four (52.714) weeks. That defendants shall pay unto claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of two hundred twenty and 66/100 dollars ($220.66) beginning November 28, 1991. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The undersigned understands from the statement of counsel that twenty-three thousand eight dollars and 66/100 dollars ($23,008.66) has previously been paid by the defendants. 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 January, 1994. Page 12 ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr James M Hood Attorney at Law 302 Union Arcade Bldg Davenport IA 52801 Mr John M Bickel Attorney at Law 500 Firstar Bank Bldg P O Box 2107 Cedar Rapids IA 52406-2107 5-1803 Filed January 4, 1994 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BONNIE ENGALDO, : : Claimant, : : vs. : : File No. 968978 IPSCO STEEL, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant awarded 35% industrial disability.