BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GERALD BOROWIAK,
Claimant,
vs.
File Nos. 969403/1044783
SIPCO, INC. d/b/a MONFORT
BEEF,
A P P E A L
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
ISSUES
Claimant states the following issues on appeal:
(1) Whether or not the deputy commissioner erred concerning
when claimant's healing period ended?
(2) Whether or not the deputy commissioner erred in its
determination of the extent of claimant's industrial
disability that he suffered as a result of this cumulative
injury?
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed April 28, 1994 are adopted as final agency
action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed April 28, 1994 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the
Page 2
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final
agency decision. Segments designated by brackets ([ ])
indicate language that is in addition to the language of the
proposed agency decision.
The party who would suffer a 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 first issues to address deal with whether claimant
has sustained work-related injuries which arose out of and
in the course of his employment.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
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).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
Page 3
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational
disease covered by chapter 85A is specifically excluded from
the definition of personal injury. Iowa Code section
85.61(5); Iowa Code section 85A.8.
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets, 379 N.W.2d
368 (Iowa 1985).
*****It is ***** [determined] that claimant has
sustained a work-related injury on November 6, 1990. This
is the date on which claimant discovered that because of
pain or physical disability, he was no longer capable of
working at his regularly assigned duties. Dr. Berg has
causally related the November 6, 1990 work injury to
claimant's condition. Medical opinion supports a conclusion
that claimant has sustained a work-related injury which
arose out of and in the course of claimant's employment.
The alleged injury of November 26, 1990 is not a
separate work injury. Rather, on that date the same
condition as above manifested itself in such a fashion that
claimant was forced to seek additional medical treatment.
No new injury resulted. Consequently, there was no new
injury date. Claimant takes nothing from file number
1044783.
Claimant has demonstrated that his work injury of
November 6, 1990 is compensable and claimant is entitled to
certain benefits under the workers' compensation laws. Dr.
Dubansky did perform a permanency evaluation on claimant on
July 18, 1991. The orthopedic surgeon diagnosed claimant as
having "subscapular bursitis of the left shoulder." Dr.
Dubansky opined that the functional impairment involved the
shoulder joint and the scapula. He determined that claimant
had a seven percent permanent functional impairment rating
to the body as a whole. Dr. Dubansky also placed permanent
restrictions on claimant.
Page 4
Claimant was precluded from pushing, pulling, lifting and
from engaging in repetitive activities involving the left
upper extremity.
Dr. Berg and Dr. Wirtz did not perform permanency
evaluations on claimant. However, Dr. Wirtz did opine that
claimant should be restricted from repetitive activities
with his left shoulder. A TENS unit was also prescribed by
Dr. Berg. Claimant used the unit up until the time he was
incarcerated.
It is determined that claimant has sustained a
permanent condition to his left shoulder area as a result of
his employment with defendants. The condition is permanent
in nature. The injury is an injury to the body as a whole.
The functional impairment is in the seven percent range
as indicated by Dr. Dubansky.
Claimant argues that he has sustained an industrial
disability as a result of his permanent condition.
Defendants deny that an industrial disability exists in this
particular situation.
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, 255 Iowa 1112, 125 N.W.2d 251
(1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d
660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. 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
Page 5
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.
***** Claimant, through his own actions, entered a plea
of guilty to aiding and abetting possession of
methamphetamines. He was sentenced to 10 years in federal
prison. He is currently serving that sentence. This was
claimant's fourth felony conviction. There is no question
that claimant's criminal conduct removed him from the formal
labor market. From the date he was incarcerated, July 18,
1991, claimant was not employable. However, his
employability was unrelated to the work injury in question.
The earliest possible date on which he could be released
from prison is April 15, 2000. He cannot become a viable
member of the labor force until he is freed from prison.
Then he will serve another 10 years of supervised probation.
It is unknown what effect his felony record and his 10 year
probationary term will have upon his employability.
***** After the work injury, claimant was "running
bets" in Las Vegas. He proudly boasted during his
deposition that he had been earning $5,000.00 per week as an
independent contractor. Claimant contracted as a runner
from December of 1990 through February of 1991. He was
self-employed. This is a period of approximately 12.857
weeks. According to his exaggerated account, claimant had
devised a nearly "[f]ail safe method for betting on NBA
basketball games." He freely admitted during his deposition
that had he not been incarcerated, he would have earned a
quarter of a million dollars in 1991.
[A prison inmate that is injured while incarcerated is
barred from receiving workers' compensation benefits while
incarcerated pursuant to Iowa Code section 85.59. Under
Iowa Code section 85.36(10)(d), the rate of compensation for
an inmate who is injured while an inmate is determined under
Iowa Code section 85.59.
Page 6
Under Iowa Code section 85.45, an inmate is not entitled to
a commutation of benefits.
There is no prohibition in Iowa Code section 85.59 or
elsewhere in Iowa workers' compensation law against an
inmate continuing to receive workers' compensation benefits
after being awarded benefits for an injury received prior to
incarceration. A claimant is entitled to receive
compensation for a work injury; absent specific statutory
authority to the contrary, the fact that the claimant later
becomes incarcerated does not remove this entitlement. See
Larson's Workmen's Compensation Law, section 47.31(g);
Hoftender v. Arby Construction, Appeal Decision, March 10,
1994.
However, in the instant case, claimant was not injured while
an inmate. Claimant was injured prior to becoming an
inmate, but his entitlement to benefits had not yet been
adjudicated when he became incarcerated. There is no
statute or prior case law to offer guidance.
Normally, one of the factors of industrial disability is
claimant's earnings prior to and subsequent to the injury.
Claimant is clearly earning less in wages while incarcerated
than he was prior to his incarceration on July 30, 1991.
However, the factor of industrial disability relating to
lost earnings refers to a loss of earnings as a result of
the injury. Claimant's loss of earnings subsequent to his
injury is due to his criminal activity, not his work injury.
Claimant's incarceration interjects facts and circumstances
unrelated to the work injury into claimant's ability to be
employed.
One of the factors of industrial disability is claimant's
earnings prior to and subsequent to the injury. In this
case, claimant is not earning wages due to his
incarceration. It would be speculative to posit what
claimant's wages would be were he not incarcerated.
Claimant's testimony as to his income from gambling
activities prior to his incarceration is given little
Page 7
weight, in that by definition gambling is based on chance,
and in spite of claimant's assertion of a "system," gambling
income is not predictable. Thus, due to claimant's
incarceration, there is no reliable evidence in the record
as to whether claimant's earnings are now more than or less
than what he was earning prior to the injury. The record is
neutral in this regard. However, earnings subsequent to the
injury are but one factor of industrial disability.]
***** Claimant was permanently restricted from engaging in
production line work in packing plants. Claimant was
precluded from engaging in repetitive type activities.
Claimant had suffered a loss of earning capacity since he
was precluded from performing many factory type positions.
[Claimant was 41 years old at the time of the hearing.
Claimant has an impairment rating of seven percent of the
body as a whole as a result of his shoulder injury. Based
on these and all other factors of industrial disability,
claimant is determined to have suffered an industrial
disability of 15 percent as a result of his work injury.]
The issue of healing period benefits is in dispute in this
particular case. Claimant is requesting benefits from
November 26, 1990 through July 18, 1991. This is a period
of 33.571 weeks. Claimant was removed from his job with
defendant-employer as of November 26, 1990. ***** [Dr.
Berg opined that claimant was "nearing" maximum medical
improvement on March 8, 1991. However, Dr. Berg did not
return claimant to work until May 29, 1991. Dr. Dubansky
did not express an opinion that claimant's healing period
ended. Dr. Wirtz was unable to state when claimant's
healing period ended, other than that it was after the last
time he saw claimant, which was on March 25, 1991.
There is a dispute between the parties as to the dates
during which claimant worked in Las Vegas. A fair reading
of claimant's testimony is that he worked from December
1990, until the beginning of February 1991, and not
throughout February 1991. The evidence of claimant
attending medical appointments in Iowa during February of
1991 corroborates this reading. Claimant's healing period
will be intermittent and claimant shall not receive healing
period benefits for seven weeks during December 1990 and
January 1991.]
However, as of March, claimant had returned to Des
Moines. He was not working. Defendant employer maintained
claimant voluntarily quit his position with the company as
claimant had abandoned his job. ***** As of February 22,
1991 claimant was terminated from his position even though
he was still under physical restrictions as imposed by the
two company physicians. At the time of claimant's
termination, he had not been released to return to work with
defendant employer. He was incapable of returning to
production work. Claimant had not abandoned his job. He was
precluded from returning to it at that time.
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
Page 8
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
App. 1981). Healing period benefits can be interrupted or
intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).
***** It is therefore determined that claimant is
entitled to healing period benefits from November 26, 1990
through November 30, 1990. Claimant is again entitled to
healing period benefits from February 1, 1991 through May
29, 1991.
*****
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That with respect to file number 1044783 claimant takes
nothing from these proceedings.
That with respect to file number 969403, claimant is
entitled to healing period benefits at the stipulated rate
of two hundred fourteen and 00/l00 dollars ($214.00) per
week from November 26, 1990 through November 30, 1990; and
from February 1991 through May 29, 1991.
That with respect to file number 969403, claimant is
also entitled to seventy-five (75) weeks of permanent
partial disability benefits from May 29, 1991 at the
stipulated rate of two hundred fourteen and no/l00 dollars
($214.00) per week.
That defendants shall take credit for all benefits
previously paid to claimant.
That accrued benefits are to be paid in a lump sum
together with statutory interest at the rate of ten percent
(10%) per year.
That defendants shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this ____ day of July, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Gregory T. Racette
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, Iowa 50312
Page 9
Mr. Timothy W. Wegman
Attorney at Law
P.O. Box 9130
Des Moines, Iowa 50306-9130
1802; 1803
Filed July 29, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GERALD BOROWIAK,
Claimant,
vs.
File Nos. 969403/1044783
SIPCO, INC. d/b/a MONFORT
BEEF,
A P P E A L
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
1802
Claimant was awarded some healing period benefits as a
result of a work injury which he had sustained while he was
working as a meat packer.
1803
Claimant had been evaluated as having a 7% functional
impairment rating to the body as a whole as a result of
claimant's work injury to his left shoulder.
Claimant alleged he had sustained an industrial disability.
Defendants denied that an industrial disability existed
because on July 18, 1991 claimant was arrested for aiding
and abetting the possession of methamphetamines. Defendants
argued that as of the date of claimant's incarceration, he
had voluntarily removed himself from the labor market and
that any loss of earning capacity was purely speculative.
Claimant was immediately incarcerated following his arrest
on July 18, 1991. The earliest date on which claimant could
be released is April 15, 2000.
During his deposition, claimant boasted that after his work
injury on November 26, 1990 he had contracted with a Kansas
City individual to "run bets on NBA basketball games."
Claimant testified that he had agreed to travel to Las
Vegas. He also stated that he was given money with which he
Page 2
was to place bets. Claimant indicated he performed his
duties and that he earned approximately $5,000.00 per week
in his capacity as a runner. Claimant was self-employed in
this capacity from December 1, 1990 through February 28,
1991. Claimant also exaggerated during his deposition that
had he not been incarcerated, he would have earned a quarter
of a million dollars in 1991 as he had devised a sure way
for betting on basketball games.
It was held on appeal that claimant's incarceration did not
prevent him from receiving workers' compensation benefits.
Claimant's injury occurred prior to his incarceration, and
thus the ban under Iowa Code section 85.59 was inapplicable.
Claimant's lack of earnings is due to his incarceration, not
to his work injury. It was held speculative to project what
claimant's earnings would be were he not incarcerated. It
was also held that in spite of claimant's assertions of a
"system," gambling is by definition a source of Income that
is not consistently predictable, and therefore little weight
was given to claimant's description of what his income would
be from gambling were he not incarcerated.
Since claimant had voluntarily removed himself from the job
market through his criminal activity, it was impossible to
determine whether claimant's earnings subsequent to his
injury were less than his earnings prior to the injury.
However, this is but one factor of industrial disability and
the other factors were relied upon to determine that
claimant's industrial disability was 15 percent.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
GERALD BOROWIAK, :
:
Claimant, :
:
vs. :
: File Nos. 969403
SIPCO, INC. d/b/a MONFORT : 1044783
BEEF, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
These are proceedings in arbitration upon the petitions of
claimant, Gerald Borowiak, against his former employer, SIPCO,
Inc. d/b/a Monfort Beef, and its insurance carrier, Home
Insurance Company, defendants. In file number 969403, claimant
alleged he had sustained a work-related injury on November 6,
1990. In file number 1044783, claimant alleged he had sustained
a work-related injury on November 26, 1990. The cases were heard
on September 29, 1993 at the office of the industrial
commissioner in Des Moines, Iowa. The record consists of
claimant's exhibits 1-30. The record also consists of
defendants' exhibits A-G. Claimant did not testify in person as
he was incarcerated at the federal penitentiary in El Reno,
Oklahoma on the date of the hearing. His deposition was admitted
in lieu of claimant's live testimony.
ISSUES
The issues to be determined are: 1) whether claimant
sustained work-related injuries which arose out of and in the
course of his employment; 2) whether there are causal
relationships between the alleged work injuries and any temporary
or permanent disabilities; and 3) whether claimant is entitled to
any healing period or permanent partial disability benefits.
Page 2
FINDINGS OF FACT
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant is 41-years-old. He is the married father of a
minor child. Currently, claimant is incarcerated in the federal
correctional institution in El Reno, Oklahoma. Claimant entered
a guilty plea to the crime of aiding and abetting possession of
methamphetamines. He has been incarcerated since June of 1991.
Claimant's earliest release date from prison is April 15, 2000.
For nearly 14 years claimant was employed by the Coptic
Church. He described his employment as follows:
A I worked for the Coptic Church.
Q Can you spell that?
A C-o-p-t-i-c.
Q And where was that out of?
A That was out of Des Moines.
Q And what is the --
A Well, there was an office in Des Moines there. I
don't believe there is an office anymore. There is a
newspaper published, THE COPTIC WORLD, out of Des
Moines right now.
But the main church was in Jamaica. No, I never
went to Jamaica. There was another church down on Star
Island in Florida.
Q Where were you living when you did work for the
Coptic Church?
A Right outside of Des Moines, out by Saylorville,
out by Saylorville Marina before it was a lake.
Q Did they have a complex there of some sort or did
everybody live together?
A No, no.
Q What types of things did you do for them when you
were working for them?
A Well, I helped with some of the bookkeeping. I
helped organize different fund raising programs?
Q ...What would you do?
A Growing the food, distribution of foods,
foodstuffs.
Page 3
Q Was this kind of a co-op situation --
A Yes.
Q --the Coptic Church?
A Everybody shared. What you had belonged to --
was equally somebody else's.
Q And did you meet your wife there?
A No.
Q How long did you stay with the Coptic Church or
work for them?
A About thirteen years, fourteen.
(Exhibit 28, page 12, line 15 - page 14, line 5)
Claimant's current incarceration is not claimant's first
Page 4
experience with the prison system. On three prior occasions
claimant was imprisoned in correctional institutions in the State
of Iowa. In those instances claimant was incarcerated for other
crimes involving illegal drugs, primarily involving the growing
of marijuana.
Claimant initially commenced employment with Swift Packing
Company in 1984. He was hired to work in the warehouse, to load
trucks, and to stack boxes. Claimant was forced to terminate his
employment the first time because he was sentenced to Anamosa for
five years for growing marijuana. He was released from a
correctional institution at some point. However, in 1986,
claimant was again convicted of growing marijuana and he was
subsequently incarcerated at the facility in Rockwell City. In
February of 1988, he was released to a halfway house and claimant
was re-employed in the packing plant, although Swift Packing had
been purchased by the present defendant, SIPCO, Inc.
When claimant returned to the packing plant in 1988, he was
assigned the task of "boxing chucks." His job involved grabbing
cuts of meat which weighed in the area of 50 to 60 pounds each.
Claimant grasped the meat with his hands and he pulled the
product from the conveyor belt and into boxes. Claimant
testified he handled as much as 2400 bags of meat per day. The
procedures involved the use of both of his hands.
Later claimant was transferred to the position known as
"boxing rounds." He testified his duties were more strenuous
because claimant's partner could not keep up with claimant.
Claimant indicated he used both hands in this operation too. He
remained on this job until after his work injuries occurred.
In his deposition, claimant testified he experienced pain in
the front portion of his left shoulder, in his shoulder blade and
in his neck. He attributed the pain to the pulling activities
involving his left shoulder. As of October 27, 1990, restrictions
were imposed. They included: "No use of left arm or shoulder
until further notice."
The evidence indicated claimant's first appointment with a
medical provider occurred on November 6, 1990. Defendants sent
claimant to the company physician, David Timothy Berg, M.D.
Dr. Berg testified by way of deposition. He opined that
claimant had sustained a diagnosis of cervical and thoracic
strain. According to Dr. Berg, the following occurred with
respect to claimant's shoulder condition:
Q. Would it be your opinion again -- Well, let me
ask you this: Do you have an opinion based on
reasonable medical certainty and probability that he
had suffered a cervical and thoracic strain as a result
of his work as described to you here today?
A. Yes, sir.
Q. What is that opinion?
Page 5
A. I believe that he could have sustained that type
of injury with the work he does at Monfort?
Q. Is that your opinion when you wrote these notes
too?
A. Yes, sir.
Q. Okay. Now, it says "continue present light
duty" on your prescription there; is that correct?
11-6-90. I'm sorry. Here, Doctor.
A. That is all right. I've got it.
Q. You've got it?
A. Yeah.
Q. The reason I want to ask you about that, were
you made aware that he was already on light duty, or do
you recall?
A. When he came in that day, he told the nurse that
he was doing light duty. I assumed that the medical
department at Monfort had changed his job and put him
on light duty because of the pain that he was having.
Q. Did you think that should be done at that point?
A. Yes, sir.
Q. And why is that?
A. Just to reduce the muscle strain and the
inflammation.
Q. Did you think the type of work that he described
to you if he went back to it would aggravate his
situation and make it worse?
A. Yes, sir.
(Ex. 29, p. 13, l. 4 - p. 14, l. 16)
Later in the same month, Dr. Berg referred claimant to Peter
Wirtz, M.D., an orthopedic specialist. Medications were
prescribed, including the anti-inflammatory medication, Indocin.
Dr. Berg also restricted claimant as follows: "No lifting over
20 pounds, no pushing or pulling -- I believe it's with left
arm."
On November 26, 1990, Dr. Berg removed claimant from the
workplace. The company physician testified he restricted
claimant from work because the doctor wanted to determine whether
claimant would improve with rest. Claimant also continued seeing
Dr. Wirtz.
Page 6
While claimant was restricted from work he performed some
independent contracting work as a runner. In his deposition
claimant described his self-employment:
Q So you hadn't looked for work by that time; is
that correct? By the time you got arrested.
A Well, I was out in Las Vegas placing bets for a
friend of mine. He set me up out there with funds, and
I would call him and talk to him or he would call me
every day. So, you know, I was making money doing
that.
As far as going out and actively seeking some
other job, no, I wasn't.
(Ex. 28, p. 73, ll. 9-17)
Under cross-examination, claimant described his career as a
runner. He testified under oath:
Q Because my concern is employment in the Des
Moines area based upon what happened in your plea
bargain may have some impact.
A Let's just say I can't live in Des Moines again.
Q That's what I'm getting at. When you get
released --
A I'm not going back to Des Moines. And if it is,
it's to fill out papers to leave there. Not for danger
so much to myself, but what's the possibility that they
testified against me.
(Ex. 28, pp. 92, l. 5 - l. 15)
...
Q Did you fill out any applications in 1991 after
Monfort?
A No. No, like I say, I was out there in Las Vegas,
and I was making pretty good money placing those bets,
along with I was putting my own money in there, too,
and I was doing pretty well.
See, this Mike Dannerville, the guy that was
arrested in Kansas City with the methamphetamine, his
father came up with a betting system for NBA
basketball, and he was making about a $100,000 doing it
a year, just through the basketball season.
So I was off work, and he said, Go out there and,
you know, he'd leave me with money and I could place
these bets for him and take what money I made plus my
own and make some money.
Q How much do you think you were making there?
A Five thousand a week.
Q You were making five thousand a week?
Page 8
A (Nods yes) And since I've been in here -- or
actually, before I got here -- He would never tell me
how the system worked, how this --
But I inadvertently -- I was trying to come up
with my own system and I discovered his, and I improved
his thirty percent. So now I'm sitting in here, and if
I could get back to Las Vegas, on the play-offs alone I
would have made $105,000. That's just off the
play-offs of the NBA. That's not even counting the
regular season. You know, I could have made a quarter
of a million dollars this year.
Q How long were you out in Las Vegas doing that?
A I was out there from December to February.
Q December of '91?
A '90.
Q December of '90 until February?
A Of '91.
Q Why did you come back?
A Mike was arrested in Kansas City. I had no means
of finding out the next day's bets, you know, who to
bet on or how much or anything like that. I had a
couple of teams that we were chasing. I stuck around
for them and won and flew back.
(Ex. 28, p. 99, l. 11 - p. 101, l. 4)
On approximately February 15, 1991, Dr. Wirtz modified
claimant's work restrictions to no lifting greater than 15 pounds
and no work above shoulder height. Claimant felt he was unable
to return to work because of his shoulder condition. He remained
off work until February 22, 1991, then he again returned to Dr.
Berg for a follow-up examination.
As of February 22, 1991, Dr. Berg held the opinion that
claimant was not going to improve over time and the physician
advised claimant to return to work. Dr. Berg imposed the
following restrictions relative to claimant's then condition as:
"...15-pound repetitive lifting and 5-pound occasional limit."
Claimant was to remain on the aforementioned restrictions until
March 22, 1991.
Claimant explained to the treating physician that he was
still encountering problems with his shoulder. He indicated he
had inflammation at the top of his shoulder where the humeral
head was. Dr. Berg opined that the inflammation was consistent
with the type of repetitious work which claimant was required to
perform. While Dr. Berg recommended an evaluation for the
purpose of rendering an impairment rating, the physician
Page 9
indicated he did not believe claimant's condition at that time
was a permanent condition.
Claimant continued follow-up care. Dr. Berg testified to
the following relative to claimant's condition at about the time
claimant was to return to work:
A. I agree that he wasn't going to get any better.
Every kind of treatment failed. He was off work,
didn't get any better. Probably at that point in time
he was at MMI.
(Ex. 29, p. 37, ll. 16-19)
In the spring of 1991, Dr. Berg prescribed physical therapy
and he ordered a tens unit for claimant. Dr. Berg opined the
following with respect to the rationale behind ordering physical
therapy:
A. ...Physical therapy modalities, ultrasound which
is a way of getting cortisone into that junction,
electrical stimulation, stretching the muscle, et
cetera, certainly could be beneficial and reduce his
symptoms.
(Ex. 29, p. 47, 11. 2-7)
In early May of 1991, Dr. Berg and claimant held a
conversation relative to the types of work which claimant could
perform. According to the physician's testimony, he opined that
claimant could return to work as long as he did not use his left
arm above chest or shoulder level (Ex. 29, p. 59). Later in the
same month, Dr. Berg determined it would be possible for claimant
to return to work. A slip allowing a return to work without
restrictions was issued on May 29, 1991 (Ex. 29, p. 59). As of
that date, Dr. Berg diagnosed claimant as having a "left scapular
thoracic levator scapula syndrome" (Ex. 29, p. 60, ll. 7 & 8).
The office notes of Dr. Wirtz for November 26, 1990
contained the subsequent opinion:
This patient has noted symptoms in the shoulders on
various occasions as well as grating in the left
shoulder blade recently. He also notes some tenderness
in the soft tissue mass on the right neck and right
shoulder area.
Exam shows he has a lipoma in the subcutaneous
tissue which is tender over the distal end of the
acromium on the right. Forward flexion of the shoulder
is 180/180 degrees. There is a lipoma at approximately
T6 level to the right side of the midline of the neck
area which is likewise tender. His neck flexion is
full. Left shoulder has crepitus on motion of
flexion/extension on the shoulder blade to the rib cage
area.
Page 10
Diagnosis:
1. Crepitus from left shoulder grating.
2. Lipoma, right shoulder and right neck.
The left shoulder is symptomatic with the grating in
that it causes pain and loss of strength.
It would be recommended that the continuous
repetitive left shoulder activity be restricted.
Diagnostic studies would include an MRI to rule out
the association of the shoulder blade to the rib cage.
(Ex. 1, p. 1)
Dr. Wirtz continued to treat claimant through March 25,
1991. His notes for his last day of treatment are contained in
the evidence. The physician indicated:
Patient continues with symptoms in the left shoulder
blade area and the medial aspect.
Exam shows he is tender in the rhomboid muscle on
the left. There is crepitus of the left shoulder with
Page 11
shoulder blade motion on the rib cage. He has no
tenderness in the left shoulder area.
X-ray, cervical spine, shows narrowing C4-5 in
relationship to the other spaces.
Diagnosis:
1. Disc degeneration cervical spine with left
rhomboid muscle pain.
2. Congenital left scapula grating rib cage.
3. MRI diagnosis of a tendinitis of the left
shoulder area.
At the present time the chief complaint would relate
to the left rhomboid muscle pain and the disc
degeneration versus non symptomatic condition of left
rotator cuff tendinitis and congenital shoulder blade
grating on rib cage.
Management of his chief complaint would relate to
physical therapy, medications, and activities within
his physiologic strength and dexterity.
(Ex. 1, p. 3)
In the course of his treatment Dr. Wirtz authored several
reports. As of February 11, 1991, the orthopedic surgeon
determined that the following restrictions should be placed upon
claimant:
Presently this patient would have job restrictions
of repeated over-shoulder-height activities and lifting
greater than 25 pounds on occasion. He is to recheck
again prn.
(Cl. Ex. 2)
One week later, Dr. Wirtz authored another report. He
wrote:
This condition would limit his activities as far as
over-shoulder-height activities and pulling and pushing
activities on a repetitive basis. Employment within
these restrictions is feasible. Surgical intervention
to aid and benefit this is likely to improve his range
of motion and strength postoperatively following the
rehabilitation. Patient has been advised of such and
he has taken MRI records for other opinion.
(Cl. Ex. 3)
In his report of April 15, 1993, the orthopedic surgeon
authored another medical opinion. Dr. Wirtz opined:
The work activities caused the symptoms to develop
in the left shoulder area that resulted in the Levator
scapulae syndrome.
This type of work is consistent with tendon
inflammation such as found on the 1/7/91 MRI.
Review of the MRI shows there is a tendon
Page 13
inflammation, no tendon structure tearing.
The healing period specifically is not known in that
I saw him last on 3/25/91 with symptoms and it would
have been a period of time following that when he
reached his maximum medical benefit.
The specific evaluation as to a permanent impairment
requires examination; therefore, such cannot be
determined based on my last examination 3/25/91.
The symptoms in the shoulder area with repetitive
activity will continue to be symptomatic; therefore,
recommendations would be possible avoidance of such.
(Cl. Ex. 5)
After treating with both Dr. Berg and Dr. Wirtz for a period
of time, claimant desired another opinion from an orthopedic
specialist. He sought an examination from Marvin H. Dubansky,
M.D. In the report to claimant's attorney, Dr. Dubansky opined:
Mr. Borowiak was seen again on July 18, 1991. At
that time he said there has been little or no change in
his shoulder symptoms. If he pulls backward, that is
when it gives him the most trouble.
On examination, his shoulder motion was pretty much
normal. However, as he pulled backward and moved the
scapula against the chest wall, there was a loud
grating and crepitus that could be heard and felt.
...
1. I do feel his current problem is caused by injury or
aggravation of his work at pulling and pushing
chucks and rounds from 2/29/88 to 11/6/90 at
Monfort.
2. I feel his diagnosis is that of a subscapular
bursitis of the left shoulder.
3. As he has had Voltaren, Anaprox and Ansaid
anti-inflammatories without help, I would suggest a
trial of an injection beneath the scapula with some
steroid. The patient, however, refuses to consider
this treatment. How much it would do for him is
again unknown.
4. I don't know. He tells me he has not been working
or doing things to aggravate this so he still has it
and when and if it will end, I don't know. I have
no other suggestions, but the injection and I can't
be certain that there will be no further
improvement. Therefore, as he does not want a shot,
I feel that we should say that he has reached the
end of his healing period, but I can't give you any
Page 14
dates in retrospect.
5. I don't feel he has any neck injury. Using the AMA
Guide [sic] to Physical Impairment, Third Edition,
Revised on page 38, joint crepitus which is moderate
and constant during active ROM is 20% impairment of
the joint which would be of the shoulder joint.
This would amount to 12% impairment of the upper
extremity. The shoulder joints relationship to the
whole person is 36% impairment, so that 20% of 36%
impairment would be 7% impairment of the whole
person.
6. I feel that work requiring pushing, pulling, lifting
and repetitious activities with the left upper
extremity will aggravate his left shoulder. I
believe it will more likely be permanent.
(Cl. Ex. 8, pp. 1-2)
With respect to claimant's employment with defendant, it is
clear that as of February 8, 1991, the company issued an
"Employee Separation Form." A supervisor for the company issued
the separation form. He indicated on the face of the document
that claimant had voluntarily quit because he had an unreported
absence from work. It was also uncontroverted evidence that the
company personnel manager issued a termination notice. It is
dated February 8, 1991. On that document, the personnel manager
determined the reason for the termination notice was that
claimant had "quit showing" (Cl. Ex. 23). It was also
acknowledged that as of November 26, 1990, claimant was off work
per Dr. Berg's instructions. Other than the following sentence
in Dr. Wirtz's office note for the same date, there is no medical
return to work slip:
Q. Do you have any Monfort records -- and this is
what I'm asking you -- that release him to go back to
work before he was terminated on February 8 of '91?
A. Other than the notes on November 26 of
'90 that says, "He can continue repetitive left
shoulder activity with restrictions."
(Ex. 30, p. 37, ll, 19-25)
Subsequent to his termination, claimant did not actively
seek traditional forms of employment. He was arrested in July of
1991. He remained incarcerated until he was transferred to the
Oklahoma facility. Since his transfer, claimant has worked in
the penitentiary as a welder in the metals factory shop. He
assists in the welding of metal beds. Michael Wayne Morris, Unit
Manager, Federal Bureau of Prisons, testified that claimant has
been a good worker since his admittance, and that he has had no
incident reports.
Page 15
CONCLUSIONS OF LAW
The party who would suffer a 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 first issues to address deal with whether claimant has
sustained work-related injuries which arose out of and in the
course of his employment.
The claimant has the burden of proving by a preponderance of
the evidence that the alleged injury actually occurred and that
it arose out of and in the course of employment. McDowell v.
Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words
"arising out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time, place and
circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d
415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa
1971).
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).
A personal injury contemplated by the workers' compensation
law means an injury, the impairment of health or a disease
resulting from an injury which comes about, not through the
natural building up and tearing down of the human body, but
because of trauma. The injury must be something which acts
extraneously to the natural processes of nature and thereby
impairs the health, interrupts or otherwise destroys or damages a
part or all of the body. Although many injuries have a traumatic
onset, there is no requirement for a special incident or an
unusual occurrence. Injuries which result from cumulative trauma
are compensable. McKeever Customhis work injury of November
6, 1990 is compensable and claimant is entitled to certain
benefits under the workers' compensation laws. Dr. Dubansky did
perform a permanency evaluation on claimant on July 18, 1991.
The orthopedic surgeon diagnosed claimant as having "subscapular
bursitis of the left shoulder." Dr. Dubansky opined that the
functional impairment involved the shoulder joint and the
scapula. He determined that claimant had a seven percent
permanent functional impairment rating to the body as a whole.
Dr. Dubansky also placed permanent restrictions on claimant.
Claimant was precluded from pushing, pulling, lifting and from
engaging in repetitive activities involving the left upper
extremity.
Dr. Berg and Dr. Wirtz did not perform permanency
evaluations on claimant. However, Dr. Wirtz did opine that
claimant should be restricted from repetitive activities with his
left shoulder. A TENS unit was also prescribed by Dr. Berg.
Claimant used the unit up until the time he was incarcerated.
It is determined that claimant has sustained a permanent
condition to his left shoulder area as a result of his employment
with defendants. The condition is permanent in nature. The
injury is an injury to the body as a whole.
The functional impairment is in the seven percent range as
indicated by Dr. Dubansky.
Claimant argues that he has sustained an industrial
disability as a result of his permanent condition. Defendants
deny that an industrial disability exists in this particular
situation.
Page 17
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to the
injured employee's age, education, qualifications, experience and
inability to engage in employment for which the employee is
fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v.
Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by a
medical evaluator does not equate to industrial disability.
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
Page 18
as a whole. Section 85.34.
The undersigned acknowledges that this situation is a unique
one. Claimant, through his own actions, entered a plea of guilty
to aiding and abetting possession of methamphetamines. He was
sentenced to 10 years in federal prison. He is currently serving
that sentence. This was claimant's fourth felony conviction.
There is no question that claimant's criminal conduct removed him
from the formal labor market. From the date he was incarcerated,
July 18, 1991, claimant was not employable. However, his
employability was unrelated to the work injury in question. The
earliest possible date on which he could be released from prison
is April 15, 2000. He cannot become a viable member of the labor
force until he is freed from prison. Then he will serve another
10 years of supervised probation. It is unknown what effect his
felony record and his 10 year probationary term will have upon
his employability.
It is just too speculative to determine whether claimant has
a loss of earning capacity since the date he has been imprisoned.
In fact, it may be the opposite situation in claimant's
particular case, as he had a greater earning capacity after the
work injury than he had before the work injury. After the work
injury, claimant was "running bets" in Las Vegas. He proudly
boasted during his deposition that he had been earning $5,000.00
per week as an independent contractor. Claimant contracted as a
runner from December of 1990 through February of 1991. He was
self-employed. This is a period of approximately 12.857 weeks.
According to his exaggerated account, claimant had devised a
nearly "[f]ail safe method for betting on NBA basketball games."
He freely admitted during his deposition that had he not been
incarcerated, he would have earned a quarter of a million dollars
in 1991.
It is this deputy industrial commissioner's decision that
once claimant was incarcerated on July 18, 1991, he was no longer
available for suitable work. He had voluntarily removed himself
from the labor market. It is also this deputy's determination
that it is impossible to determine any loss of earning capacity
as of the date of his incarceration. However, it is this
deputy's determination that claimant is entitled to permanent
partial disability benefits from the date claimant reached
maximum medical improvement, until July 18, 1991. It is noted
that during this time frame, claimant was permanently restricted
from engaging in production line work in packing plants.
Claimant was precluded from engaging in repetitive type
activities. Claimant had suffered a loss of earning capacity
since he was precluded from performing many factory type
positions.
The issue of healing period benefits is in dispute in this
particular case. Claimant is requesting benefits from November
26, 1990 through July 18, 1991. This is a period of 33.571
weeks. Claimant was removed from his job with defendant-employer
as of November 26, 1990. However, from about December 1, 1990
through February 28, 1991, claimant was self-employed as the
aforementioned runner. Claimant was earning approximately
Page 19
$5,000.00 per week in his capacity as a runner. Since he was
employed for that 12 week period, defendants are not liable for
healing period benefits during this time frame.
However, as of March, claimant had returned to Des Moines.
He was not working. Defendant employer maintained claimant
voluntarily quit his position with the company as claimant had
abandoned his job. This deputy determines that as of February
22, 1991 claimant was terminated from his position even though he
was still under physical restrictions as imposed by the two
company physicians. At the time of claimant's termination, he
had not been released to return to work with defendant employer.
He was incapable of returning to production work. Claimant had
not abandoned his job. He was precluded from returning to it at
that time.
Section 85.34(1) provides that healing period benefits are
payable to an injured worker who has suffered permanent partial
disability until (1) the worker has returned to work; (2) the
worker is medically capable of returning to substantially similar
employment; or (3) the worker has achieved maximum medical
recovery. The healing period can be considered the period during
which there is a reasonable expectation of improvement of the
disabling condition. See Armstrong Tire & Rubber Co. v. Kubli,
312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can
be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405
(Iowa 1986).
Both Drs. Berg and Wirtz indicated that in March of 1991,
claimant was near maximum medical improvement. Dr. Wirtz opined
that maximum medical improvement occurred on March 25, 1991.
This deputy is in agreement with the two treating physicians with
respect to maximum medical improvement. It is therefore
determined that claimant is entitled to healing period benefits
from November 26, 1990 through November 30, 1990. Claimant is
again entitled to healing period benefits from March 1, 1991
through March 25, 1991, the date Dr. Wirtz determined maximum
medical improvement had taken place. This is a period of 4.285
weeks. Prior to the date of the hearing, defendants paid
claimant 5.429 days of healing period benefits.
As aforementioned, claimant would be entitled to permanent
partial disability benefits from March 26, 1991, the date he
reached maximum medical improvement, through the date claimant
was incarcerated on July 18, 1991. This is a period of 16.429
weeks. Claimant is entitled to 16.429 weeks of permanent partial
disability benefits for this period at the stipulated rate of
$214.00 per week.
Page 20
ORDER
With respect to file number 1044783 claimant takes nothing
from these proceedings.
With respect to file number 969403, claimant is entitled to
four point two-eight-five (4.285) weeks of healing period
benefits at the stipulated rate of two hundred fourteen and
no/l00 dollars ($214.00) per week.
With respect to file number 969403, claimant is also
entitled to sixteen point four-two-nine (16.429) weeks of
permanent partial disability benefits from March 26, 1991 through
July 18, 1991, at the stipulated rate of two hundred fourteen and
no/l00 dollars ($214.00) per week.
Defendants shall take credit for all benefits previously
paid to claimant.
Accrued benefits are to be paid in a lump sum together with
statutory interest at the rate of ten percent (10%) per year.
Costs are taxed to defendants pursuant to rule 343 IAC 4.33.
Defendants shall file a claim activity report as requested
by this division and pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of April, 1994.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Gregory T. Racette
Attorney at Law
2700 Grand Avenue
Suite 111
Des Moines, Iowa 50312
Mr. Timothy W. Wegman
Attorney at Law
405 Sixth Avenue Suite 700
PO Box 9130
Des Moines, Iowa 50306-9130
1802; 1803
Filed April 29, 1994
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
GERALD BOROWIAK,
Claimant,
vs.
File Nos. 969403
SIPCO, INC. d/b/a MONFORT 1044783
BEEF,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
HOME INSURANCE COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
1802
Claimant was awarded some healing period benefits as a
result of a work injury which he had sustained while he was
working as a meat packer.
1803
For nearly 14 years, claimant had worked as a bookkeeper and
a fund raiser for the Coptic Church in Des Moines. During
his tenure with the church, claimant had a variety of
duties. Often claimant assisted with the distribution of
food to the other members of the organization. At the time
of his employment with the Coptic Church, claimant worked in
the area which is now known as Saylorville Lake. However,
the Coptic Church is headquartered in Jamaica. Claimant
testified he never visited headquarters. It is not known
why claimant's position with the church was terminated.
Prior to his work injury on November 26, 1990, claimant had
been convicted of three felony drug charges. At least two
of the charges involved the growing of marijuana.
Nevertheless, defendant-employer had always been ready to
hire claimant whenever claimant applied for a position
following his release from prison. Claimant had a good
work record during his periods of employment with this
employer
Claimant had been evaluated as having a 7% functional
impairment rating to the body as a whole as a result of
claimant's work injury to his left shoulder.
Claimant was determined to have sustained a work related
injury which occurred on November 26, 1990. He was removed
from work by the company physicians. Claimant was
restricted from returning to production line work.
In February of 1992 claimant was notified that he had been
terminated by the employer because claimant allegedly
abandoned his job as a meat packer. However, it was
determined that claimant had not reached maximum medical
improvement until March 25, 1991.
Claimant alleged he had sustained an industrial disability.
Defendants denied that an industrial disability existed
because on July 18, 1991, claimant was arrested for aiding
and abetting the possession of methamphetamines. Defendants
argued that as of the date of claimant's incarceration, he
had voluntarily removed himself from the labor market and
that any loss of earning capacity was purely speculative.
Claimant was immediately incarcerated following his arrest
on July 18, 1991. Eventually claimant entered a guilty
plea. This was his fourth felony conviction involving
illegal drugs. As a consequence of his plea entry, claimant
was sentenced to 10 years in the federal penitentiary in El
Reno, Oklahoma. The earliest date on which claimant could
be released is April 15, 2000.
During his deposition, claimant boasted that after his work
injury on November 26, 1990, he had contracted with a
Kansas City individual to "run bets on NBA basketball
games". Claimant testified that he had agreed to travel to
Las Vegas. He also stated that he was given money with
which he was to place bets. Claimant indicated he performed
his duties and that he earned approximately $5,000.00 per
week in his capacity as a runner. Claimant was
self-employed in this capacity from December 1, 1990 through
February 28, 1991. Claimant also exaggerated during his
deposition that had he not been incarcerated, he would have
earned a quarter of a million dollars in 1991 as he had
devised a sure way for betting on basketball games.
HELD: The deputy industrial commissioner held that claimant
had sustained a permanent partial disability to the body as
a whole and that claimant was entitled to permanent partial
disability benefits from the date claimant had been
determined to have reached maximum medical improvement to
the date claimant was incarcerated. However, the deputy
held that claimant's criminal conduct voluntarily removed
claimant from the labor market. The deputy also determined
that it would have been speculative to determine whether
claimant had sustained a loss of earning capacity since
claimant was incarcerated with no hopes of a release until
the year 2000. The deputy additionally determined that
despite claimant's loss of his job, he may have had an
increase in his earning capacity. Given his self-employment
as a runner in the gambling industry, and given claimant's
fail safe system for betting on the NBA basketball games, he
potentially increased his capacity for earning wages.
Held: Claimant was entitled to 16.429 weeks of permanent
partial disability benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
EARL STRAIT,
Claimant,
vs.
File No. 969547
CONTRACT SERVICES, LTD.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
LIBERTY MUTUAL INSURANCE CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Earl Strait, claimant,
against Contract Services, employer, and Liberty Mutual Insurance
Company, insurance carrier, defendants, for workers' compensation
benefits as a result of an alleged injury on November 20, 1990. On
December 14, 1994, a hearing was held on claimant's petition and the
matter was considered fully submitted at the close of this hearing.
The parties have submitted a hearing report of contested issues and
stipulations which was approved and accepted as a part of the record of
this case at the time of hearing. The oral testimony and written
exhibits received during the hearing are set forth in the hearing
transcript.
According to the hearing report, the parties have stipulated to the
following matters:
1. An employee-employer relationship existed between claimant and
Contract Services at the time of the alleged injury.
2. On November 20, 1990, claimant received an injury arising out of
and in the course of employment with Contract Services.
3. Claimant is not seeking additional temporary total or healing
period benefits.
4. If the injury is found to have caused permanent disability, the
type of disability is an industrial disability to the body as a whole.
5. If permanent partial disability benefits are awarded, they shall
begin as of April 1, 1991 for the period as stipulated.
6. At the time of injury claimant's gross rate of weekly compensation
was $623.00; he was single; and, he was entitled to one exemption.
Therefore, claimant's weekly rate of compensation is $348.90 according
to the Industrial Commissioner's published rate booklet for this
injury.
7. Medical benefits were not in dispute.
ISSUES
The parties submitted the following issues for determination in this
proceeding:
I. The extent of claimant's entitlement to permanent disability
benefits; and,
II. The extent of defendant's entitlement to credit for salary
continuation during the healing period.
FINDINGS OF FACT
Having heard the testimony and considered all of the evidence, the
deputy industrial commissioner finds as follows:
A credibility finding is necessary to this decision as defendants
placed claimant's credibility at issue during cross-examination as to
the nature and extent of the disability. From his demeanor while
testifying, claimant is found credible.
Claimant worked for Contract Services since 1983 and continues to do so
at the present time. Initially, he was a lead person or foreman but at
the time of injury he was plant manager over the crew at the Armour
plant in Mason City. Claimant's employer contracts with meatpacking
plants for cleanup operations at the plant. This work, prior to 1983
and the purchase of Armour by Con Agra, was performed directly by
Armour employees. According to claimant's boss, claimant is in charge
at the Mason City plant and is considered a good employee. Although he
is a manager, he routinely is expected to perform physical work to
assist his crew or to fill in for absent crew members.
The injury in this case occurred when he slipped and hurt his back.
Claimant first received conservative care from physicians but was later
referred to David Beck, M.D., who upon a diagnosis of a herniated disc,
performed surgery on claimant's back in February 1991. Claimant,
however, had continuing problems after surgery and returning to work.
He was eventually referred to another physician, Charles Burton, M.D.,
at the Institute for Low Back Care in Minnesota. Upon a diagnosis of
recurrent herniated disc, claimant underwent a second surgery by Dr.
Burton in May 1993. Claimant again continued to have problems and was
referred back to the Low Back Institute. Dr. Burton and others on
staff have recommended a third surgery. Upon further evaluation,
physicians at the Mayo Clinic in Minnesota have recommended against
this third surgery. Claimant has justifiably refused this third
surgery. Claimant has received ratings from 5 percent to 23 percent
for permanent partial impairment to the body as a whole from effects of
this work injury. Claimant is currently restricted permanently from
repetitive bending; persistent positioning greater than 30 degrees at
the hips; any lifting over 30 pounds with only frequent lifting from 15
to 20 pounds; and, only occasional lifting up to 30 pounds. All
physicians rendering opinions in this case relate claimant's current
problems to the injury in this case although claimant had some back
pain and was off work for as much as a week on one occasion.
It is found that the work injury was a cause of significant permanent
impairment to the body as a whole. There was no evidence that claimant
had impairment prior to this work injury. Prior to the injury,
claimant was able to fully perform physical tasks involving heavy
lifting; repetitive lifting; bending; twisting and stooping; and,
prolonged standing and sitting.
Claimant is 50 years of age. Claimant's past employment has always
involved heavy work beginning with his first full time employment at
the Armour plant in 1963. His only other work was shoveling grain for
a grain dealer. Claimant certainly would have great difficulty
performing such work today. Claimant would not be easily retrained
today as he has only an eighth grade education, having dropped out of
school in the ninth grade. He has not earned a GED.
However, claimant is essentially a manager and to date is able to
perform his managerial duties satisfactorily within his current work
restrictions. Claimant's earnings today are greater than his earnings
at the time of injury.
On the other hand, a good deal of the labor market is no longer
available to him due to his permanent work restrictions. Should he
lose his job at Contract Services he would certainly find it difficult
to secure replacement employment given his age, lack of education and
past heavy labor employment. Claimant and his supervisor at Contract
Services agree that claimant's current earnings are about $100 less per
week due to his inability to return to trouble shooting work that he
did prior to 1988. He was taken off trouble shooting then at the
request of Armour management but management personnel has since
changed. Therefore, despite his current employment, claimant's
disability is significant and must be compensated.
From examination of all of the factors of industrial disability, it is
found that the work injury of November 20, 1990 was a cause of a 25
percent loss of earning capacity.
In the hearing report, it was agreed that claimant received salary in
lieu of compensation during his healing period.
CONCLUSIONS OF LAW
I. Claimant must next establish by a preponderance of the evidence
the extent of weekly benefits for permanent disability to which
claimant is entitled. As the claimant has shown that the work injury
was a cause a permanent physical impairment or limitation upon activity
involving the body as a whole, the degree of permanent disability must
be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike
scheduled member disabilities, the degree of disability under this
provision is not measured solely by the extent of a functional
impairment or loss of use of a body member. A disability to the body
as a whole or an "industrial disability" is a loss of earning capacity
resulting from the work injury. Diederich v. Tri-City R. Co., 219 Iowa
587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on
work activity may or may not result in such a loss of earning capacity.
Examination of several factors determines the extent to which a work
injury and a resulting medical condition caused an industrial
disability. These factors include the employee's medical condition
prior to the injury, immediately after the injury and presently; the
situs of the injury, its severity and the length of healing period; the
work experience of the employee prior to the injury, after the injury
and potential for rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior and
subsequent to the injury; age; education; motivation; functional
impairment as a result of the injury; and inability because of the
injury to engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to the injury
is also relevant. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985).
A showing that claimant had no loss of his job or actual earnings does
not preclude a finding of industrial disability. Michael v. Harrison
County, 34 Bien Rep., Ia Ind. Comm'r 218, 220 (App. Dec. 1979); Bearce
v. FMC Corp., 465 N.W.2d 531 (Iowa 1991) only held that continued
employment with no loss of earnings is significant evidence that should
not be overlooked in measuring loss of earning capacity. Loss of
potential employment is also a factor to consider in assessing
industrial disability. Collier v. Sioux City Comm. Sch. Dist., File
No. 953453 (App. Dec. Filed February 25, 1994).
In the case sub judice, it was found that claimant suffered a 25
percent loss of his earning capacity as a result of the work injury.
Although he is employed, his disability is aggravated by his age,
limited education and past history of only heavy labor jobs which he
can no longer perform. Such a finding entitles claimant to 125 weeks
of permanent partial disability benefits as a matter of law under Iowa
Code section 85.34(2)(u) which is 25 percent of 500 weeks, the maximum
allowable number of weeks for an injury to the body as a whole in that
subsection.
II. According to the hearing report, defendants are seeking full
credit for continuation of claimant's salary. Such a credit is limited
to the amount of worker's compensation benefits that would have been
paid. Payments of salary in excess of that amount, by specific rule,
cannot offset other disability entitlements. Division of Industrial
Services Rule 343 IAC 8.4. Also, there is no credit for payroll taxes
paid on this income.
ORDER
1. Defendants shall pay to claimant one hundred twenty-five (125)
weeks of permanent partial disability benefits at a rate of three
hundred forty-eight and 90/l00 dollars ($348.90) per week from April 1,
1991.
2. Defendants shall pay accrued weekly benefits in a lump sum and
shall receive credit against this award for healing period benefits
previously paid. The credit for salary payments against this award is
limited to the weekly rate of compensation for each week in which a
salary was 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 January, 1995.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Ave
Des Moines IA 50311-1540
Mr. Richard G. Book
Attorney at Law
500 Liberty Bldg
Des Moines IA 50309
5-1803
Filed January 23, 1995
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
EARL STRAIT,
Claimant,
vs.
File No. 969547
CONTRACT SERVICES, LTD.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
LIBERTY MUTUAL INSURANCE CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
BRENT L JENKINS,
Claimant,
vs.
File No. 969619
DEE ZEE MANUFACTURING,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
AMERICAN PROTECTION INS.,
Insurance Carrier,
Defendants.
________________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Brent Jenkins against
his former employer, Dee Zee Manufacturing, Inc. based upon an alleged
injury of December 6, 1990. The date of injury alleged is based upon
the discovery rule. The date of the last exposure was October 31,
1990. Claimant seeks compensation for healing period running from July
20, 1991 through the date of hearing. He also alleges that he is
permanently and totally disabled. He seeks payment of medical expenses
in the total amount of $4,564.12. Claimant's claim is that he was
exposed to injurious dusts while he was employed by Dee Zee
Manufacturing, Inc., that the exposure caused him to develop chronic
sinusitis which in turn led to the development of depression.
Defendants dispute that there was any injury which arose out of and in
the course of employment. They dispute that any alleged injury is a
cause of any temporary or permanent disability. They dispute the
reasonableness of the medical care which the claimant has received and
that the expenses incurred are causally connected to any alleged
injury.
The case was heard at Des Moines, Iowa on September 16, 1994. The
record consists of jointly offered exhibits 1 through 83; testimony
from Brent L. Jenkins, Kevin F. Smith, M.D., and Joyce Jenkins.
FINDINGS OF FACT
Brent Jenkins is a 25-year-old man who did not complete high school.
His medical history is significant for a 1985 accident which caused a
compression fracture in his back. In 1987 he underwent three
surgeries. After the first, a tonsillectomy, there was sufficient
concern about his psychological status that a psychiatrist became
involved in his care and prescribed amitriptyline, an anti-depressant.
No actual diagnosis of any psychological condition appears in the
records. (Exhibits 1, 2, 3) In the fall of 1986 claimant had appeared
to be depressed in the common sense of the term and to exhibit general
apathy. (Ex. 6, pp. 7, 8)
After leaving high school in early 1987 claimant moved to Des Moines.
Most of his employment was in the field of retail sales at department
stores but he had also worked as a busboy and as a security officer.
In May 1989 he was apparently employed at Prairie Meadows. He resumed
living in his parents' home in late 1989 but returned to Des Moines in
February 1990 shortly after he had commenced employment with Dee Zee
Manufacturing, Inc. on January 23, 1990.
At Dee Zee Brent worked principally in the buffing room where he used a
large sander to remove the outer layer from aluminum parts. The
process created a considerable volume of dense dust. The ventilation
system was inadequate. Personal respirator devices were not properly
used. Some employees were exposed to levels of dust which exceeded the
permissible exposure level set by OSHA. (Exs. 82, 83)
Claimant testified that he and his coworkers had a lot of difficulty
such as nasal congestion, upper respiratory infections, sinusitis,
bloody noses, productive cough, and chest pains. He spoke of a thick,
mucus discharge from the nose and mouth. Claimant testified at hearing
that he did not seek medical attention while he was employed at Dee Zee
because he did not know that the symptoms would cause a chronic
condition. While employed at Dee Zee Brent developed dermatitis due to
exposure to cutting oils. (Exs. 20, 21) The condition cleared with
treatment and avoidance of further exposure. He also developed a
severe infection as a result of a trauma to his ear. (Exs. 16, 18)
Claimant became quite concerned when he learned of the possibly
injurious exposures in his workplace. He contacted legal counsel and
sought to organize other employees. On September 19, 1990 claimant was
given a written warning by his employer for excessive tardiness and
placed on a 90-day probation. The warning makes mention of court
dates. The attendance calendar, exhibit 8, shows that a court date was
scheduled for October 18. It shows no other absences subsequent to
September 19, 1990. Nevertheless, claimant's employment was terminated
on October 31, 1990. The reason stated is excessive points for
tardiness. (Ex. 12) This supports cl This supports cl's contention
that the termination was retaliatory.
On December 4, 1990 claimant sought care at the Lutheran Hospital
emergency department. He complained of troubled breathing off and on
since mid-October with the onset of the recent episode having occurred
earlier in the day. Examination of his head, eyes, ears, nose, and
throat was negative. (Ex. 17) Similar examinations on other dates
were likewise negative. During a pre-employment physical conducted on
September 5, 1990 claimant's condition was normal with no evidence of
sinusitis. (Ex. 22) No indication of sinusitis was noted when
claimant was treated for the ear injury in July 1990. (Exs. 15, 16)
No sinusitis or respiratory symptoms were noted when claimant was
treated for the dermatitis in August 1990. (Exs. 20, 21)
Claimant conducted a great deal of research investigating the potential
health hazards of workplace dust exposures. On or about December 6,
1990 he wrote to Dee Zee Manufacturing, Inc. to notify the company that
he had been seriously injured while working at its facility. In the
letter he states that he is still unemployed and can't work due to his
health condition. He asked that his claim be referred to the workers'
compensation insurance carrier and that he be provided treatment. (Ex.
13, p. 17) A few days later, on December 10, 1990, claimant wrote to
Kemper Insurance Company informing them that he has received several
serious, long-term, work-related injuries while employed by Dee Zee
Manufacturing. He speaks of having respiratory problems and other
health impairments due to the employment. He states that his health
impairments are serious and that he is unable to take a job because he
is not capable of performing physical work. He requests assistance in
regaining his health. (Ex. 44) Claimant also wrote to Schaffner
Manufacturing relating that he had skin rashes and was searching to
find the chemicals to which he was allergic. He requested information
on four products. (Ex. 46)
Claimant entered into a course of care with Kevin Smith, M.D. He was
diagnosed as having chronic sinusitis which he felt was caused by the
nuisance dust to which claimant was exposed at Dee Zee Manufacturing,
Inc. Dr. Smith is the only physician who has diagnosed sinusitis. Dr.
Smith was unwilling to state that the depression had resulted from the
workplace exposures to dust. When claimant was seen by Dennis M.
Porto, M.D., on January 30, 1991, no definite abnormality was noted.
(Ex. 51) When seen on March 11, 1991, at the University of Iowa
Hospitals, Laurence J. Fuortes, M.D., found that claimant probably had
an adjustment disorder subsequent to acute respiratory illness which
occurred as a result of dust exposure in the workplace. (Ex. 53) On
April 9, 1991 a diagnosis of possible major depressive disorder was
made by Dr. Fuortes. (Exs. 54, 55)
In summary, this claimant has been extensively tested. The only
long-term objective abnormality or diagnosis is that of depression.
That diagnosis is consistently confirmed by Mark Preston, M.D., a
psychiatrist. Dr. Preston identified the possibility that claimant's
absenteeism problems at Dee Zee were possibility due to depression and
alcoholism. (Ex. 80, pp. 10-11) He felt that it was unlikely that
exposure to toxins at Dee Zee Manufacturing caused claimant's
depression. (Ex. 80, pp. 20-21) Dr. Preston accepted the diagnosis of
chronic sinusitis as being accurate and stated that it was probably a
significant factor in developing claimant's depression though it was
less significant than other causes. (Ex. 80, pp. 29, 45, 46, 56, 57)
In making his opinion Dr. Preston noted that the claimant's perceived
injustice and injuries were also important factors.
Claimant was also evaluated by Mark E. Thoman, M.D., a specialist in
clinical toxicology. Dr. Thoman found no sign of sinusitis when he
examined claimant in April 1994. Dr. Thoman stated that depression is
seen commonly in association with alleged or true toxic exposure. He
stated that the depression can result due to frustration over not
getting well. (Ex. 81, p. 32) Dr. Thoman related that typically
individuals afflicted with depression are frustrated and ruminate over
their condition. He stated that they read and send away for references
to help investigate their condition. (Ex. 81, p. 33-35) Dr. Thoman
indicated that claimant's depression came from him thinking about his
condition rather than from the actual exposure itself. (Ex. 81, p. 55)
He stated that it was claimant's fixation on his exposure rather than
the exposure itself that produced the depression. (Ex. 81, pp. 55-57)
Chronic sinusitis of the type which was described in the record of this
case is not a severe or life threatening condition. It is not
disabling in the sense of making a person unable to work. It is very
difficult for the undersigned to accept the proposition that such a
minor condition could produce depression in an otherwise
psychologically normal or healthy individual. Where the injury and
physical disability is severe, it is understandable that depression can
occur. In this case, however, the injury, if any, appears to have been
negligible and disability from the dust exposure appears to be
nonexistent.
The record in this case does show a great deal of rumination and
fixation on the dust exposure. There is no showing of sinusitis
symptoms at any point during the time that the claimant was employed at
Dee Zee Manufacturing but it would not be uncommon or unexpected for
some to have existed. Almost anyone has running noses, hay fever type
symptoms, colds and upper respiratory infections at random times. It
is doubtful that claimant being employed at Dee Zee Manufacturing would
have made him immune from such common ailments. There is no medical
opinion in the record of this case which directs work restrictions or
finds a permanent impairment as a result of sinusitis. The evidence
simply fails to show that it is probable, rather than merely possible,
that the workplace caused chronic sinusitis. It is impossible to know
all of claimant's exposures which could produce symptoms such as those
of sinusitis which have been observed. It is extremely unlikely that
an exposure that ended on October 31, 1990 would not be producing those
symptoms in September 1990 but would produce the symptoms on and after
December 4, 1990.
Though claimant was not receiving medical care and was not closely
observed prior to the time he left Dee Zee Manufacturing there is
reason to believe that his depression may have already been ongoing,
though perhaps not fully developed. There is evidence which suggests
that he might be particularly susceptible to developing depression.
Simply stated, it is difficult to attribute this claimant's depression
to his work at Dee Zee Manufacturing, Inc. because the chronic
sinusitis has not been established as having its origin in that
employment. Further, from the record made, it does not appear that the
exposure was particularly great or that the effects of the exposure
were of a disabling magnitude. The undersigned finds that the evidence
which attributes this claimant's depression to his employment at Dee
Zee Manufacturing, Inc. is simply unpersuasive. The evidence to the
contrary is stronger.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not established has
the burden of proving that issue by a preponderance of the evidence.
Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a preponderance of the
evidence that the alleged injury actually occurred and that it arose
out of and in the course of employment. McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co.,
261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer
to the cause or source of the injury. The words "in the course of"
refer to the time, place and circumstances of the injury. Sheerin v.
Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188
N.W.2d 283 (Iowa 1971).
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).
A personal injury contemplated by the workers' compensation law means
an injury, the impairment of health or a disease resulting from an
injury which comes about, not through the natural building up and
tearing down of the human body, but because of trauma. The injury must
be something which acts extraneously to the natural processes of nature
and thereby impairs the health, interrupts or otherwise destroys or
damages a part or all of the body. Although many injuries have a
traumatic onset, there is no requirement for a special incident or an
unusual occurrence. Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251
(1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d 158 (1949); Almquist v.
Shenandoah Nurseries, Inc., 218 Iowa 724, 254 N.W. 35 (1934). An
occupational disease covered by chapter 85A is specifically excluded
from the definition of personal injury. Iowa Code section 85.61(5);
Iowa Code section 85A.8.
Since this claim is based upon an allegation of trauma from injurious
dust exposure the "impact rule" is available as a basis for
compensation. Coghlan v. Quinn Wire & Iron Works, 164 N.W.2d 848 (Iowa
1969); Gosek v. Garmer & Stiles Co., 158 N.W.2d 731, 733 (Iowa 1968)
In order for the impact rule to be applied, however, the trauma must be
real, not imagined. Newman v. John Deere Ottumwa Works, 372 N.W.2d 199
(Iowa 1985) In this case it is concluded that the alleged trauma was
so mild as to be nonexistent or imagined. While claimant may well have
had sinusitis several months after his employment ended, the record
simply fails to show that the employment at Dee Zee Manufacturing, Inc.
caused this claimant to develop sinusitis.
It is also appropriate to examine this case as a mental-mental injury
claim. In cases of nontraumatically-caused mental injury, the
industrial commissioner follows the "Wisconsin" rule which is favored
in 1B Larson The Law of Workmen's Compensation, 42.23(b). Desgranges
v. Dep't of Human Services, File No. 760747 (App. Dec. August 19,
1988).
Under the "Wisconsin" rule, a nontraumatically-caused mental injury is
compensable only when the injury "resulted from a situation of greater
dimensions than the day-to-day mental stresses and tensions which all
employees must experience." Swiss Colony v. Dep't of Indus.,
L._&_H._R., 72 Wis. 2d 46, 240 N.W.2d 128 (1976). In other words, both
medical and legal causation must be resolved before finding an injury
arising out of employment. The medical causation issue involves an
examination into the cause and effect relationship between the stresses
and tensions at work and the mental difficulties. If the medical
causation issue is resolved in favor of the claimant, legal causation
is examined. Legal causation involves a determination of whether the
work stresses and tensions, when viewed objectively and not as
perceived by claimant, were "out of the ordinary from the countless
emotional strains and differences that employees encounter daily
without serious mental injury." School Dist. #1 v. Dep't of Indus., L.
& H. R., 62 Wis. 2d 370, 215 N.W.2d 373 (1974).
The record of this case fails to show that this claimant was subjected
to any level of stress which was out of the ordinary from that which
employees encounter on a daily basis without sustaining serious mental
injury.
It is therefore concluded that Brent Jenkins has failed to prove by a
preponderance of the evidence that either his sinusitis or depression
was proximately caused by anything associated with his employment at
Dee Zee Manufacturing, Inc., either directly or as an aggravation of a
preexisting condition. The apparent lack of sinusitis symptoms at the
times claimant received medical care while he was employed at Dee Zee
Manufacturing, Inc. when combined with the interval between his leaving
that employment and the diagnosis by Dr. Smith outweighs the
explanation from Dr. Smith in view of the other opinion evidence in the
record. The undersigned determines that the claimant has failed to
carry his burden of proof on the issue of causation.
ORDER
IT IS THEREFORE ORDERED that claimant take nothing in this proceeding.
Each party is responsible for paying the costs incurred in
participating in this proceeding. Neither party shall recover costs
from the other.
Signed and filed this __________ day of December, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Max Schott
Attorney at Law
6959 University Ave
Des Moines, Iowa 50311-1540
Mr. Harry Dahl III
Attorney at Law
974 - 73rd St, STE 16
Des Moines, Iowa 50312
51108.30 51402.30 52205 52204
Filed December 16, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
BRENT L JENKINS,
Claimant,
vs.
File No. 969619
DEE ZEE MANUFACTURING,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
AMERICAN PROTECTION INS.,
Insurance Carrier,
Defendants.
________________________________________________________________
51108.30 51402.30 52205 52204
Claimant with proven diagnosis of depression sought to attribute the
condition to nuisance dust exposure at his place of employment. While
the evidence showed a possibility of exposure exceeding OSHA standards,
the evidence failed to show that such exposure caused any health
impairment. A long interval of time between the claimant's termination
of employment and onset of medical care rendered the likelihood of
causation remote for a sinusitis condition. The claimant alleged that
the sinusitis condition caused him to develop depression. The
claimant's evidence was found to be unconvincing.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
EARL S. KEENER,
Claimant,
vs.
File No. 969789
HARRETT CORPORATION,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
GREAT WEST CASUALTY COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Earl S.
Keener, claimant, against Harrett Corporation, employer and
Great West Casualty Company, insurance carrier, for benefits
as the result of an injury which occurred on November 19,
1990. A hearing was held in Des Moines, Iowa, on June 1,
1993, and the case was fully submitted at the close of the
hearing. Claimant was represented by Greg S. Noble.
Defendants were represented by Terrance D. Brown. The
hearing, which was scheduled for six hours, actually
consumed approximately 12 hours, and generated a 445 page
transcript. The record consists of the testimony of Earl S.
Keener, claimant, Linda Keener, claimant's wife, Roger
Marquardt, vocational rehabilitation consultant, Michael J.
Taylor, M.D., a board certified psychiatrist, Kent Jayne, a
vocational rehabilitation consultant, and Glen McCravy,
vice-president of risk management, claimant's exhibit's 1
through 3, exhibit 5 (a video), exhibits 6 through 21, 27,
28 and 36, and defendants' exhibits F, G, H, I, K, M, V
(surveillance video), W (surveillance video), X
(surveillance video), and exhibits LL, MM, and NN. Martha
Eschliman, defendants' workers compensation claim
administrator, was also present in the courtroom at the time
of the hearing. The deputy ordered a transcript of the
hearing. Both attorneys submitted outstanding post-hearing
briefs.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing.
Whether claimant is entitled to temporary disability
benefits, and if so, the nature and extent of benefits to
which he is entitled to include whether claimant is entitled
Page 2
to pain management treatment and a running award of
temporary disability benefits;
Whether the injury of November 19, 1990 was the cause
of permanent disability to include a mental depression
caused by a scheduled member injury;
Whether claimant is entitled to permanent disability
benefits, and if so, the nature and extent of benefits to
which he is entitled, to include whether claimant sustained
an injury to a scheduled member or members or whether
claimant sustained an injury to the body as a whole, to
include whether claimant is an odd-lot employee;
Whether claimant is entitled to medical benefits; and
Whether claimant is entitled to penalty benefits.
FINDINGS OF FACT
entitlement to temporary disability benefits
It is determined that claimant is entitled to 53.857
weeks of temporary (healing period) disability benefits for
the period from November 19, 1990, the date of the injury to
December 1, 1991, the date on which the treating orthopedic
surgeon stated that claimant could return to his usual
employment as a truck driver (Exhibit K, pp. 13-15). Iowa
Code section 85.34(1).
After the accident, claimant's left tibial plateau
fracture was repaired by Jay L. Levin, M.D., with a metal
plate and ten metal screws. The right arm was immobilized
by a sling to promote the healing of the a nondisplaced
fracture of the right scapula (Ex. K, p. 1).
Claimant returned home to Ashland, Ohio and was then
treated by Stephen Yoder, M.D., an orthopedic surgeon. Dr.
Yoder ordered a right shoulder arthrogram on January 28,
1991 and it was negative for a rotator cuff tear (Ex. 6, p.
7). A bone scan of the right shoulder ordered by Dr. Yoder
on February 6, 1991 was essentially normal but the bone scan
of the left knee was abnormal. The radiologist reported
"Slightly abnormal uptake of the radionuclide in the right
shoulder." (Ex. 6, p. 9). The bone scan of the left knee on
the same date disclosed "Diffuse abnormal uptake of the
radionuclide in the left knee and left ankle." (Ex. 6, p. 9)
(emphasis supplied).
Claimant became unhappy with Dr. Yoder because he did
not feel that he was improving under his care and the
insurance carrier transferred claimant's care to another
orthopedic surgeon, Richard F. Rose, M.D., who first saw
claimant on April 1, 1991.
Defendants emphasized, and claimant admitted at the
hearing, that in his deposition claimant described Dr.
Yoder, who is a board certified orthopedic surgeon, as a
"fruitcake" and a "nut". (Tran. p. 155).
Page 3
Dr. Rose stated that the open reduction and internal
fixation of the left tibia with a long plate and screws
produced excellent alignment. He added that x-rays of the
scapula fracture showed that it was stable. Dr. Rose
commented that the shoulder was not injured, only the
scapula. Claimant continued to complain of pain in his left
knee and discomfort in his right shoulder (Ex. K, p. 6).
On May 5, 1991, Dr. Rose performed an arthroscropic
surgery on the left knee. He also removed three of the
screws in claimant's left knee because one of them was
protruding. It was believed that this was causing
claimant's left knee pain at this time.
While anaesthetized Dr. Rose put claimant's right arm
and shoulder through a full range of motion and stated that
there was no impingement in the right shoulder or any
adhesive capsulitis (E. K, pp. 5 & 6). Dr. Rose said that
once the screws were taken out that claimant should have no
more pain in his left knee (Ex. K, p. 4). Dr. Rose said
that claimant's continued complaints about his right
shoulder were so "varied and extreme" that Dr. Rose referred
claimant to a shoulder specialist for evaluation (Ex. K, p.
5).
Claimant saw Robert Bell, M.D., an orthopedic surgeon
and shoulder specialist on September 17, 1991. Dr. Bell
ordered an arthrogram of the right shoulder on October 2,
1991. It showed no evidence of a rotator cuff tear but it
did show some degenerative spurring of the acromioclavicular
joint (Ex. 7, p. 1). Dr. Rose said that claimant's fracture
was to the body of the scapula and not in the
acromioclavicular joint. Dr. Bell said that he had no
explanation for the tenderness, discomfort, pain, auditory
disturbances in claimant's right ear, paresthesias in his
right arm and paraspinal spasms in claimant's lumbosacral
spine. Dr. Bell said he did not know of anything he could
do for claimant. He recommended against surgery. Dr. Bell
concluded, "It is difficult to piece all these together but
I think it best that I not do anything surgically with him."
(Ex. M, p. 5).
The notes of Dr. Rose show that he discussed Dr. Bell's
examination of claimant with Dr. Bell on September 24, 1991
and that possible pain management and possible malingering
were discussed (Ex. K, p. 5).
Defendants emphasized that Dr. Rose noted that claimant
strenuously resisted his examination of his right shoulder
and that the doctor told claimant "... if he used as much
strength on his therapy as he does to resist my exam, he
would be probably doing better." (Ex. K, p. 4).
On August 29, 1991, Glen McCravy, vice-president of
insurance and safety, wrote to Dr. Rose to find out if
claimant could drive a truck or perform light duty work in
the shop on trailers. He included job descriptions of each
job (Ex. K, pp. 9 & 10). Dr. Rose responded on September
10, 1991 that he recommended against heavy work due to the
right shoulder complaints but that eventually claimant would
Page 4
have a good shoulder. He mentioned that claimant had been
referred to Dr. Bell for an evaluation of his right
shoulder. Because of the undetermined status of the right
shoulder, Dr. Rose recommended that claimant perform light
duty in the trailer shop as good therapy for his shoulder
until he regains full strength and pain-free motion of his
right shoulder (Ex. K, p. 12).
Light work is not equated to medically capable of
returning to substantially similar employment when that
employment involved heavy work. McCravy's description of
claimant's job as a truck driver involved heavy work (Ex. K,
p. 10).
No doctor had issued a permanent impairment rating.
Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124, 126
(Ia. Ct. App. 1984); Lowe v. Iowa State Penitentiary, file
number 776977 (App. Decn., December 16, 1988); Schutt v.
Riverside Book and Bible, file number 666100
(Review-Reopening Decn., January 22, 1990).
Claimant was still being actively treated. Armstrong
Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65
(1981); Keifer v. Iowa Public Service Company, file no.
830461 (Arb. Decn. June 27, 1991) Keifer is a final
decision.
Furthermore, there is no duty on the part of the
employee to return to light duty work or work with
restrictions, nor is there any obligation on the part of an
injured employee to seek out the employer and attempt to
return to light duty work or work with restrictions. If
either the employer or insurance carrier wish to mitigate
the amount of workers' compensation benefits which they
rightfully owe for the full period of temporary disability
recovery, then the burden is on defendants to obtain a
release to return to work light duty or with restrictions
and then seek out the employee and make an offer of light
duty work or work within the doctor's restrictions. Morris
v. Mike Brooks, Inc., file number 891286, filed July 12,
1991 and affirmed by the industrial commissioner in a short
form affirmance on August 27, 1992. This holding also is
compatible with Iowa Code section 85.33(2)(3)(4) with
respect to temporary partial disability. This statement of
the law is further supported by Helmle v. Beatrice Cheese,
Inc., file no. 918749 (Arb. Decn. November 27, 1991).
Furthermore, the industrial commissioner has determined
that temporary disability is not terminated even when the
employer offers light duty work to the employee which the
employee declines. Webb v. Lovejoy Construction Co., II
Iowa Industrial Commissioner Report 430, 441 (Appeal Decn.
1981).
On November 27, 1991, Dr. Rose wrote to the vocational
rehabilitation case manager that with respect to claimant's
left knee,
He has since gone on to make a complete
recovery from the knee problem. He has a good
Page 5
knee and I don't anticipate him having any further
problems or disability involving the left knee. I
think that he can return to work without any
limitations for use of the left knee (Ex. K, p.
13).
On November 27, 1991, with regard to claimant's right
shoulder, Dr. Rose wrote the following.
The second problem is his right shoulder. He
sustained a minor fracture of the right scapula.
He, subsequently, had persistent pain in the
shoulder and this was treated with physical
therapy and anti-inflammatory medication. His
progress was poor. He was seen by a shoulder
specialist, Dr. Robert Bell, who performed an
arthrogram of the right shoulder to rule out the
possibility of any rotator cuff or intra articular
problems. The shoulder arthrogram was normal.
The advice of Dr. Bell was that time alone would
cure this and that he did not require any further
physical therapy. I feel that he has healed the
fracture of the right scapula. The present pain
that he is having is secondary to disuse atrophy,
but that there is no significant pathology in the
right shoulder. I believe that there is no
permanent disability related to this right
shoulder. I believe that he has obtained 80% of
his maximum medical return. I do feel that he has
made a significant return due the fact that he is
able to paint and used a jackhammer at home during
the summer of 1991. I do not feel that he has
obtained maximum medical improvement on the right
shoulder, but I think that he definitely will some
time in the near future. I think this can be
greatly aided by his performing the exercises that
he was taught in physical therapy (Ex. K, pp. 13 &
14).
On November 27, 1991, with respect to claimant's
ability to return to work, Dr. Rose reported as follows.
In regards to your fourth question regarding
when I anticipate he'll return to his job as a
truckdriver on a fulltime basis, I feel that he is
physically able to drive a truck, I think that
there is a tremendous problem with patient
cooperation and that this may make it difficult
for him to return right now. The fact that he is
able to paint and use a jackhammer at home
suggests that he has the physical capacity to
return to his job as a truckdriver. The fact that
he is able to walk three miles a day, by history,
indicates that the knee has fully recovered enough
to enable him to return to work. I think that he
has no permanent disability related to either his
knee or his shoulder problem. I believe that he
has made a complete maximum medical improvement
for the left knee and an 80% recovery from the
right shoulder. I feel that in the next two
Page 6
months he should certainly resolve the right
shoulder problem. I feel that by history he has
made the complete improvement of both shoulder and
knee, but that patient cooperation has been an
exceedingly frustration problem in his recovery.
I feel that there is no problem in his returning
to his work as a truckdriver at the begining [sic]
of December 1991. I believe that he will do no
harm to the shoulder by returning to his work as a
truckdriver (Ex. K, pp. 14 & 15).
Whether temporary disability is to be terminated
pursuant to Iowa Code section 85.33(1) in the case of where
there is no permanent disability, or whether it is to be
terminated pursuant to Iowa Code section 85.34(1) in the
case of where there is permanent disability, in either case,
temporary disability terminates when it is determined that
the employee is "medically capable of returning to
employment substantially similar to the employment in which
the employee was engaged at the time of the injury..."
Thus, on November 27, 1991, even though claimant had not in
fact returned to work, and even though claimant had not
attained maximum medical improvement, nevertheless, Dr. Rose
said that he was able to perform his old job as a truck
driver. Therefore defendants have proven that claimant was
medically capable of returning to substantially similar
employment at that time.
Therefore, it is determined that claimant is entitled
to 53.857 weeks of temporary disability benefits for the
period from November 19, 1990, the date of the injury, until
December 1, 1991, the date on which Dr. Rose, the treating
orthopedic surgeon, determined that claimant could return to
driving a truck again.
Claimant contends that he was and is entitled to pain
management treatment and is entitled a running award of
temporary disability benefits. However, when Dr. Rose and
Dr. Bell considered pain management treatment, they also
considered whether claimant was malingering, according to
the notes of Dr. Rose on September 24, 1991, and after this
discussion neither Dr. Rose nor Dr. Bell either considered
or recommended pain management treatment (Ex. K, p. 5). On
the contrary, Dr. Bell said that there was nothing more that
he could do for claimant. Dr. Rose said that Dr. Bell said
that the only remedy was the passage of time (Ex. K. p. 13).
Dr. Rose said in his final report of November 27, 1991 that
claimant was fully recovered, or that his shoulder would be
fully recovered in a couple of months (Ex. K, p. 14).
Subsequent to the treatment of Dr. Rose and Dr. Bell,
other physicians, primarily Roger Snyder, M.D., claimant's
family physician and other medical care providers that Dr.
Snyder referred claimant to, recommended pain management.
However, these recommendations were based on the subjective
symptoms and complaints that claimant related to these
persons rather than objective medical tests or other
objective evidence of incapacitating pain. Furthermore, it
will be demonstrated later that Dr. Snyder and these other
medical care providers were not provided with a complete
Page 7
history of claimant with respect to his previous mental
depression and also their opinions are discredited by
defendants' videos of claimant performing manual labor which
is inconsistent with the condition that claimant related to
these medical providers. Michael J. Taylor, M.D., a board
certified psychiatrist, and Kent Jayne, MA, CRC, ABVE,
defendant's vocational rehabilitation specialist, testified
that the work claimant performed in the videos was totally
inconsistent with the subjective symptoms and complaints
that he related to these other medical providers. Even Dr.
Ward, claimant's board certified independent evaluating
orthopedic surgeon did not recommend pain management (Exs. 9
& 21). Wherefore, it is determined that claimant is not
entitled to additional healing period benefits for the
purpose of obtaining pain management treatment, nor is
claimant entitled to a running award of temporary disability
benefits as contended by claimant on the basis that he has
not received reasonable medical treatment pursuant to Iowa
Code section 85.27.
causal connection/entitlement/permanent disability
It is determined that the injury to claimant's left
knee is an injury to a scheduled member and that the injury
to claimant's right scapula is an injury to the body as a
whole.
It is further determined that the injury to the left
knee was the cause of permanent disability and that the
injury to the right scapula was not the cause of permanent
disability.
It is determined that claimant has sustained a 15
percent permanent impairment to his left leg because of the
injury to his left knee and that claimant is entitled to 33
weeks of permanent partial disability benefits.
It is further determined that the left knee and right
scapula injury of November 19, 1990 was not the cause of
mental depression; and therefore claimant has not sustained
an injury to the body as a whole for that reason and he is
not entitled to industrial disability benefits for that
reason.
As previously mentioned, Dr. Rose, the treating
orthopedic surgeon, determined that claimant had (1)
achieved a complete recovery of his left knee and (2) a
nearly complete recovery of his right scapula and (3) that
there was no permanent disability in either the left knee or
the right scapula and (4) that claimant could return to work
as a truck driver without any permanent restrictions or
limitations (Ex. K, pp. 13-15). It is noted that even
though Dr. Rose gave a final evaluation on November 27,
1991, he had not actually seen claimant since his last
office visit on September 24, 1991, a period of two months
(Ex. K, pp. 5 & 14).
Five days after the November 27, 1991 letter of Dr.
Rose, claimant then saw his family physician, Dr. Snyder for
the very first time for this injury for a "disability
Page 8
evaluation." In the course of his treatment with Dr. Snyder
the doctor mentions several subjective pain complaints and
several subjective limitations of claimant's left leg and
right shoulder as well as other parts of his body. There is
no evidence that Dr. Snyder performed any objective tests or
reviewed any of the objective tests that had previously been
performed by Dr. Levin, Dr. Yoder, Dr. Rose or Dr. Bell.
Dr. Snyder diagnosed myofascial pain syndrome and later
described it as post-traumatic fibrositus and fibromyalgia
syndrome. Dr. Snyder considered claimant to be permanently
and totally disabled from his previous employment, at his
first examination of claimant (Ex. 3, pp. 1-21). On March
5, 1992, Dr. Snyder determined that claimant was
"unemployable." (Ex. 3, p. 15). On November 12, 1992, Dr.
Snyder said claimant was totally disabled (Ex. 3, p. 20).
On November 18, 1993, he said he hoped it was not permanent
(Ex. 3, p. 21). Even after Dr. Snyder viewed the videos he
declined to change his opinion.
Claimant attempted a work evaluation program for entry
into a rehabilitation program on March 16, 1992 but due to
his inability to persist in the exercises for the required
length of time he was sent home after two and one-half days
(Ex. 16, pp. 1-4).
On May 18, 1992, Ernie Andrews, Ph.D, a psychologist,
evaluated claimant and completed an MMPI-2 profile and
determined that claimant was mentally disabled and that his
mental disability was caused by this injury (Ex. 8, pp. 9 &
10).
On June 29, 1992, claimant was examined by Ronald M.
Yarab, M.D., at the request of Dr. Snyder, for complaints of
migrating numbness in his face and arm, myofascial symptoms
in his neck, shoulders and back and sleep disturbance. Dr.
Yarab attempted to perform an EMG but claimant did not
permit him to complete the examination. Dr. Yarab
recommended a CT scan of the head (Ex. 10, pp. 1 & 2). Also
on June 29, 1992, claimant was examined by Jeff Strakowski,
M.D., who found "Significant pain behavior and guarding of
right shoulder but essentially full ROM when done carefully.
Normal joint ROM elsewhere including low back and left
knee." (Ex. 17, p. 1).
On July 3, 1992, William B. Schonberg, Ph.D., a
psychologist, interviewed and tested claimant. He recorded
several subjective complaints such as (1) pain throughout
his body producing discomfort, frustration and anger, (2)
limited movement and ability to stand, sit, walk, bend and
lift, (3) difficulty swallowing, (4) limited vision, (5)
sleep disturbance, (6) low energy level, (7) feelings of
being unhappy, frustrated, angry, hopeless, helpless,
worthless and down in the dumps. Dr. Schonberg performed an
MMPI-2 as well as other tests. He found that claimant had
psychological factors affecting his physical condition and
recommended that he not try to return to work before the
completion of psychotherapy (Ex. 12, pp. 1-6).
On July 21, 1992, claimant was examined by Richard
Ward, M.D, a board certified orthopedic surgeon. Dr. Ward
Page 9
examined both old and new x-rays and found no abnormalities.
Based on claimant's information and the range of motion that
claimant demonstrated to him at that time he determined that
claimant had a permanent partial disability of 30 percent
(Ex. 9, pp. 1-3). Unfortunately, however, Dr. Ward did not
identify what was disabled, the left knee, the right scapula
or the other parts of his body claimant complained about.
Dr. Ward did not identify whether this was an impairment to
one or more scheduled members or whether it was to the body
as a whole or some combination of all of these factors. Dr.
Ward felt that the left knee would preclude claimant from a
job that would require him to walk a lot or to be on his
feet a lot (Ex. 9, p. 3). It is noted that this was a one
time evaluation for the purposes of litigation which was
addressed to claimant's counsel.
Dr Ward did not state that claimant was precluded from
returning to work as a truck driver or that he had any
permanent restrictions (Ex. 9). Dr. Ward found that there
was one inch of atrophy in the left thigh compared to the
right but did not say what caused it (Ex. 9, p. 2).
On September 24, 1992, claimant was evaluated by Roger
Marquardt, CRC, CIRS, a vocational rehabilitation consultant
who determined that claimant could only perform sedentary
activity (Ex. 11, pp. 1-4). On March 30, 1993, after
Marquardt had reviewed the videos he stated "... Earl Keener
cannot competitively perform any work activity as it would
normally be performed for pay or profit." (Ex. 11, p. 6).
On October 5, 1992, George W. Waylonis, M.D., director
of physical medicine and rehabilitation at the Riverside
Methodist Hospital wrote to Dr. Snyder. He recommended (1)
a CT scan of the brain, (2) that claimant stop excessive use
of medications and switch to Tylenol, (3) that claimant
continue an exercise program and (4) that further
consideration be given to a pain management program. Dr.
Waylonis stated that claimant had all of the features of a
post-traumatic myofascial pain syndrome (Ex. 19).
On October 12, 1992, Dr. Taylor, a board certified
psychiatrist, said that based on the reports of Dr. Andrews
and Dr. Schonberg, that he, Dr. Taylor, concluded that
claimant was suffering from a major depressive disorder.
Dr. Taylor recommended anti-depressive medications rather
than psychotherapy (Ex. 13, pp. 1 & 2).
Linda Sullivan, a rehabilitation counselor with the
Ohio Rehabilitation Services, viewed the videos and
concluded on March 23, 1993 that they did not change her
opinion that claimant is not capable of competitive
employment. She did not believe that claimant could work
eight hours a day and five days a week (Ex. 18, pp. 1 & 2).
On February 9, 1993, Dr. Taylor issued a new report.
He stated that he had reviewed all of the evidence in this
case and after reviewing the videos he recanted his opinion
that claimant was suffering from a major depressive disorder
(Ex. F). He further testified that the activities he
observed on the videos were wholly inconsistent with the
Page 10
information claimant provided to all of the above mentioned
health care providers after claimant saw Dr. Snyder on
December 5, 1991.
Dr. Taylor said that claimant demonstrated a full range
of motion in his right shoulder, elbow and wrist while
painting a shed as well as good grip strength to hold the
brush and to extend his arm for long periods of time. He
said claimant stood firmly, bore weight on both legs,
painted surfaces well over his head and did not demonstrate
the slightest pain or discomfort (Ex. F, p. 1). The doctor
said that claimant lifted bags of cement or gravel with both
hands and arms, mixed mortar with both hands and arms,
pounded with a hammer in his right hand and dug with a
shovel using both arms. He said that claimant was able to
climb in and out of the covered pickup truck with a topper
on it to unload sand or gravel which required stooping,
bending and lifting. He said that claimant could arise from
a sitting position on a concrete block with ease and with no
apparent discomfort. He said claimant performed heavy
physical labor (Ex. F, p. 2). Claimant testified that the
bags contained sawdust and that he over-medicated himself in
order to paint the shed.
Dr. Taylor testified that both MMPIs demonstrated that
claimant had a tendency to exaggerate his physical symptoms
which called claimant's credibility into question. He
testified that neither of claimant's MMPI tests were
consistent with the major depressive disorder. Dr. Taylor
wrote, "I think that it would be extremely difficult for any
clinician to arrive at any accurate assessment of Mr.
Keener's current condition based solely on information
provided to that clinician by Mr. Keener." (Ex. F, p. 3).
Dr. Snyder relied entirely on the information related
to him by claimant as did the other physicians,
psychologists, vocational rehabilitation persons and
therapists who saw claimant after Dr. Snyder. Dr. Ward's
x-rays were normal. He too relied on claimant's subjective
information and demonstrated ability to move his shoulder.
Dr. Taylor dogmatically stated, "He clearly was not
'permanently disabled'." (Ex. F, p. 2).
Dr. Taylor concluded,
As a medical doctor, who has evaluated a number
of Workers'' Compensation Claimants and reviewed a
number of physical therapy evaluations, range of
motion evaluations, etc., it is my opinion that,
aside from his limp, which is probably indicative
of the difficulties that he has in his left knee,
there was no limitation of range of motion of his
left or right upper extremity, or his right lower
extremity. It is difficult for me to assess the
limitations, if any, of his left lower extremity.
The facility with which he climbed into his pickup
truck, spread gravel around with both legs, arose
from a sitting position very low to the ground
without difficulty, all lead me to believe that
Page 11
any deficits in the left lower extremity would be
minimal (Ex. F, p. 3).
Kent A. Jayne, a vocational rehabilitation consultant,
examined all or most of the evidence in this case and
prepared a report on February 3, 1993. He too found that
claimant's report of his pain and symptoms to the medical
providers were inconsistent with the videos which showed
claimant performing extensive manual labor functions. Jayne
visited employer's place of business and made an
investigation and concluded that claimant was capable of
driving the truck he examined. In addition he found that
accommodations could be made to make it possible for
claimant to drive a truck such as (1) drop and pick loads,
(2) air assisted push button clutch and (3) an air ride
seat. Jayne concluded that claimant was employable in the
open labor market given his current capacities and adequate
motivation (Ex. H & I).
Dr. Taylor also testified extensively at the hearing.
Among other things he testified as follows,
Q. On the basis of that videotape can you tell
me whether you reached an opinion as to whether or
not the activities displayed by Mr. Keener were
consistent or inconsistent with the information
contained in his medical records, primarily those
of Doctor Snyder?
A. The activities that he showed -- that he
demonstrated himself to be capable of in that
videotape were wholly inconsistent with the
limitations and complaints described in his
complaints to Doctor Snyder and in his answers to
interrogatories (Tran. p. 284)
The psychiatrist testified that claimant's complaints
were subjective, which means they were unverifiable and
unmeasurable whereas the videos would be considered
objective information (Tran. p. 287).
At the hearing Dr. Taylor described several parts of
the videos where claimant performed work with his right
shoulder and left knee that demonstrated his actual ability
was inconsistent with the complaints and symptoms that he
had reported to the doctors, psychologists and
rehabilitation specialists. Dr. Taylor testified, "It was
my opinion that the activities shown on the videotape were
very inconsistent with his complaints to his doctors."
(Tran. pp. 291 & 292).
He also stated the videos contradicted the statements
which claimant made in his interrogatories (Tran. pp.
296-298). At the same time Dr. Taylor confirmed that
claimant's limp was consistent in all of the videos and it
would confirm claimant's allegation that he can nor longer
run or jog (Tran. p. 305).
Scott Gratias testified by deposition on May 21, 1993
that he surveilled Claimant's activities on October 27, 1992
Page 12
and observed and videotaped claimant unload, empty and
spread several bags of what appeared to be gravel with both
legs and feet and both arms and hands without any apparent
impairment or difficulty. He indicated claimant entered and
exited the back of the covered pickup without apparent
difficulty.
Gratias testified that on October 28, 1992 he
personally observed and videotaped claimant go to a wood
store and pick up a load of lumber materials, drive to a
construction site and worked for approximately four and
one-half to five hours. He said he saw claimant carry,
hammer and chisel concrete blocks. He said he saw him carry
trim boards. He said he saw claimant mix cement with a hoe.
He said he saw claimant use two different saws to cut
boards. He said he saw him use a shovel. He said he saw
claimant use a power drill. The witness said claimant
performed all of these activities with both upper
extremities and it did not appear to the witness that
claimant experienced any difficulty in the use of his right
hand, arm or shoulder. He also acknowledged that claimant
did walk with a limp. He said he saw claimant bend over,
squat and kneel down on several occasions without apparent
difficulty. He testified that he also saw and videotaped
claimant mowing his yard with a riding mower on October 29,
1992 (Ex. LL).
Mike Mazza testified by deposition on May 18, 1993 that
he observed and video taped claimant on May 22, 1992
standing on a step ladder and painting a shed for
approximately an hour with his right hand and arm without
any apparent difficulty. He related that claimant walked
with a definite limp all of the time (Ex. MM).
Claimant's video of a healthy person performing his job
and his comparative inability to perform it had little
probative value (Ex. 5).
Dr. Taylor testified that the MMPI of Dr. Andrews was
invalid because claimant exaggerated his answers to the
questions which were asked. He described claimant's answers
to the questions as "fake bad." (Tran. p. 10). Dr. Taylor
also found the answers to the MMPI administered by Dr.
Schonberg as an attempt to exaggerate. Dr. Schonberg
thought that claimant exaggerated the answers (Tran. p.
312). Dr. Taylor indicated that the opinions of the other
clinicians were impaired because they were not based upon
reliable information. Dr. Taylor testified,
Q. Could you tell the Court why you believe
that to be so?
A. Because it's important to have accurate,
objective, valid information, and based upon the
information that Mr. Keener has given to various
clinicians as opposed to what I have observed him
doing on those videotapes the information that he
has given to clinicians has not been accurate,
objective or valid (Tran. pp. 312 & 313).
Page 13
Dr. Taylor testified that the reason he recanted from
his earlier opinion that claimant was suffering from a major
depressive disorder was his review of the raw data from a
psychological testing and his review of the video tapes
(Tran. p. 319).
Dr. Taylor said that his interpretation of the MMPI
was, "Not in the pattern that we would expect with
depression, with major depressive disorder, no." (Tran. p.
330).
Kent Jayne testified at the hearing that "My opinion in
viewing the tapes that were provided, specifically the tapes
in May of 1992 and October of 1992, would appear to be
inconsistent with the doctors' reports that were issued
around those same times." (Tran. p. 336). Jayne added that
based upon the work behaviors he observed on the video tapes
that claimant was employable and "To be conservative, yes, I
did form an opinion and that opinion is that I believe he's
capable of a light-medium category of work, somewhere
between light and medium." (Tran. p. 344 & 345).
The opinion of Dr. Taylor and Kent Jayne are more
realistic than the opinions of Dr. Snyder, Dr. Andrews, Dr.
Yarab, Dr. Schonberg, Dr. Waylonis and Roger Marquardt.
Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187,
192 (Iowa 1985). The weight to be given expert testimony
may be affected by the completeness of the premise given the
expert and the surrounding circumstances. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
Furthermore, the fact that Dr. Taylor is a board certified
psychiatrist since 1976 may accord his testimony greater
weight, particularly on the subject of mental depression,
than a family physician, orthopedic doctors, and
psychologists. Reiland v. Palco, Inc., Thirty-second
Biennial Report of the Industrial Commissioner 56 (1975);
Dickey v. ITT Continental Baking Co., Thirty-fourth
Biennial Report of the Industrial Commissioner 89 (1979).
This deputy, who also viewed all of the video tapes from
beginning to end, is also forced to concur that the video
tapes were not reconcilable with the symptomatology that
claimant related to these various doctors and therapists.
Defendants' counsel impeached claimant's credibility on
several points (Tran. pp. 120-187). Notably, claimant
failed to tell Dr. Andrews and Dr. Schonberg that he had
received prior counseling, and had been treated for
depression with Norpramin for several years starting in 1976
through at least 1987 (Tran. pp. 120-141). Claimant
contended that he had difficulty readjusting after service
in Vietnam, that he was high-strung, and that the Norpramin
was prescribed to help him control his temper. However,
these contentions were not supported by the medical records
introduced into evidence.
Claimant admitted that he took Norpramin after his
discharge from the military service in 1971 (Tran. pp.
124-127). Defendants alleged that it was for depression and
claimant contended it was for his bad temper. Claimant
admitted that he was taking Norpramin in 1976 and that he
Page 14
was taking it still in 1987, which is a period of eleven
years (Tran. pp. 130 & 131). Claimant admitted that he was
treated with Norpramin for depressive syndrome in 1982
intermittently until the Spring of 1985 (Tran. p. 128).
This treatment is not included in the history given to
either Dr. Andrews or Dr. Schonberg (Ex. 8 & 12).
Claimant acknowledged that he had used a leg brace
(which was also described as a walking cast), a cane and a
wheelchair from time to time but that none of these items
were in evidence where he (1) painted a shed standing on a
ladder, (2) unloaded large bags from a pickup truck with a
topper and spread the contents of the bags on the ground,
(3) picked up a load of lumber at the wood store and engaged
in a construction project where he carried and broke
concrete blocks with a hammer, sawed and carried pieces of
lumber, used a power drill, mixed cement with both hands and
arms with a hoe, and (4) mowed his yard on a riding mower
(Tran. pp. 144-153; Exs. V, W & X)).
Defendants' counsel in his post-hearing brief itemizes
twenty-one separate and distinct points on which he
impeached claimant's credibility at the time of hearing
(Defendants' Post-Hearing Brief, pp. 16-21 & 25).
Wherefore, from the foregoing evidence it is determined
that the injury of November 19, 1990 was the cause of a
scheduled member injury to the left knee and that the injury
to the right scapula was an injury to the body as a whole.
The knee is on the leg side of the hip joint and the scapula
is on the body side of the shoulder joint.
It is further determined that the weight of the
evidence did establish that claimant sustained a permanent
impairment and disability to his left knee but that it did
not establish that claimant sustained a permanent impairment
or disability to his right scapula or shoulder.
With respect to the scapula, Dr. Rose defined it as a
"minor fracture." (Ex. K, p. 13). Two arthrograms were
negative for any rotator cuff injury or damage. One of them
was performed at the request of Dr. Yoder on January 28,
1991 (Clm. Ex. 6, p. 7), the other one was performed for Dr.
Bell on October 2, 1991 (Clm. Ex. 7, p. 1). The bone scan
of the shoulder ordered by Dr. Yoder on February 6, 1991 was
only slightly abnormal whereas the bone scan of the left
knee was diffusely abnormal (Ex. 6, p. 9). Thus, the left
knee, has been the worst injury since the very beginning but
there is no specific evidence of impairment or disability in
the right scapula or shoulder.
With respect to the left knee injury it should be noted
that claimant fell 13 feet from a load of wallboard and
fractured the tibial plateau. The injury required an open
reduction and internal fixation which required a long metal
plate and ten metal screws. The left knee required a second
arthroscopic surgery to remove three of the screws and trim
up the wound. Claimant is still carrying the metal plate
and seven of the screws in his left tibia. The videos show
claimant walking with a limp consistently. Dr. Taylor took
Page 15
note of this fact that claimant consistently walked with a
limp and he testified that this corroborated claimant's
testimony that he could no longer run or jog since this
injury because of the limp in his left leg. Therefore,
there is evidence of permanent impairment and disability in
the left leg (Tran. p. 305).
Dr. Ward found that claimant sustained a 30 percent
permanent partial disability, but unfortunately he failed to
specify where the disability was located, whether it was to
the knee or the scapula, or whether he meant it was a
scheduled member impairment or an impairment to the body as
a whole. Nevertheless, Dr. Ward's report does stand for the
fact that claimant has a 30 percent disability someplace in
his opinion. In the opinion of this deputy the worst injury
is to the left knee. When Dr. Ward's assessment of
disability is considered with all of the evidence in this
case it is the opinion of this deputy that a substantial
portion of this disability would be attributable to
claimant's left knee. The fracture to the body of the
scapula was described as non-displaced and was reported by
Dr. Rose to have healed without further difficulty.
Claimant displayed the wound to his knee at the hearing
and he was observed by the deputy to walk with a limp. The
absence of a functional impairment rating does not preclude
an award in the case of a scheduled member. The Iowa
Administrative Procedure Act, Chapter 17A.14(5) recognizes
that the agency's experience, technical competence and
specialized knowledge may be utilized in the evaluation of
the evidence. Precedent supports a deputy arriving at a
determination of impairment after viewing the injured member
and after seeing and hearing the witness even when there is
no physician awarded impairment rating. Walker v.
Sheller-Globe Corp., Vol. 2, No. 1, State of Iowa Industrial
Commissioner Decisions page 473 (October 12, 1984); Arce v.
Sandra Pollock, IV Iowa Industrial Commissioner Reports 14
(November 8, 1983); Conyers v. Linn-Casler Joint Venture, II
Iowa Industrial Commissioner Reports 309, (Appeal Decn. Dec.
12, 1984); Langrehr v. Warren Packaging Corp., Thirty-fourth
Biennial Report of the Industrial Commissioner 179, 180
(January 22, 1980).
An award can be based upon the severity of the injury,
the necessity of surgery or surgeries and the recorded
continuing symptomatology of claimant, to include that
disability found to exist in surveillance videos. Pizza Hut
of Washington, Inc., v. St. Paul Fire Marine Insurance Co.,
II Iowa Industrial Commissioner Reports 317 (April 16,
1982).
Evidence considered in assessing the loss of use of a
particular scheduled member may entail more than a medical
rating pursuant to standardized guides for evaluating
permanent impairment. A claimant's testimony and
demonstrated difficulties incurred in using the injured
member and medical evidence regarding the general loss of
use may be considered in determining the actual loss of use
compensable. Soukup v. Shores Co., 222 Iowa 272, 268 N.W.2d
598 (1936). The Soukup case also stands for the proposition
Page 16
that the industrial commissioner can consider any evidence
so long as it does not include industrial disability
factors. Schell v. Central Engineering Company, 232 Iowa
421, 4 N.W.2d 399 (1942).
When claimant exposed his knee for viewing at the
hearing he testified, that he gets big knots in his knee,
the knee swells up and the more he is on it the bigger it
gets. Claimant testified as follows, "Right through here,
you can see it, if I move my feet there are big knots right
here and this turns all black and right in through here, it
just feels like there's something in there just grinding
back and forth, like an old rusty door hinge." (Tran. pp. 62
& 63).
Therefore, using this criteria and based upon the
evidence summarized above it is the determination of this
deputy that claimant has sustained a 15 percent permanent
impairment to his left knee and is entitled to 33 weeks of
permanent partial disability benefits pursuant to Iowa Code
section 85.34(2)(o).
It is the determination of this deputy that there is no
demonstrated impairment to the right scapula based upon the
evidence summarized above other than claimant's subjective
complaints that he cannot lift his shoulder above 90
degrees, however, this statement was at least partially
discredited in the video tapes. Likewise, Dr. Taylor
testified that claimant had a full range of motion of his
right wrist, elbow and arm.
It is determined that the injury of November 19, 1990
was not the cause of a mental depression or the cause of the
myriad complaints that claimant related to Dr. Snyder, Dr.
Andrews, Dr. Yarab, Dr. Schonberg, Dr. Waylonis with respect
to his vision, speech, facial paresthesias, neck, cervical
spine, lumbar spine and right side symptoms and complaints.
As Dr. Taylor pointed out, the conclusions of these medical
care providers were based upon an inaccurate history and an
unrealistic appraisal of what claimant's true physical
abilities were based upon what he demonstrated he could do
in the videos. Claimant's symptoms and complaints as
reported to these doctors as well as other vocational
rehabilitation persons is inconsistent with what he
demonstrated he could do in the videos and on some points is
totally irreconcilable with his demonstrated ability in the
videos.
Wherefore, it is determined that claimant has not
demonstrated a mental depression caused by a scheduled
member injury.
MEDICAL
It is determined as a matter of fact that the medical
treatment which brought about the unpaid medical bills of
Dr. Andrews, the VA Medical Center, Super X Drugstores, Dr.
Snyder and Dr. Waylonis in the total amount of $1,717.11
were not caused by the injury of November 19, 1990.
Defendants contended that they paid over $42,000 in medical
Page 17
expenses for the treatment of claimant's symptoms and
complaints (Tran. p. 13).
PENALTY BENEFITS
It is determined that claimant is entitled to penalty
benefits for temporary disability benefits but not for
permanent disability benefits.
Glen McCravy, vice-president of risk management,
testified that claimant was paid temporary disability
benefits through September 26, 1991. McCravy contended that
he received verbal information on August 27, 1991 that
claimant had reached maximum medical improvement based on a
report of a vocational rehabilitation case manager to the
effect that Dr. Rose had stated that claimant could perform
light duty. Hence, claimant was sent an auxier letter on
August 27, 1991 and benefits were terminated on September
26, 1991 (Tran. pp. 372-375).
First of all, a release to return to light duty is no
justification to terminate either temporary total disability
or healing period benefits. Defendants are presumed to know
the law or that they will find out what it is before
terminating an injured worker's temporary disability
benefits when he has no other source of income caused by the
injury for which the defendants were liable.
Iowa Code section 85.33(1) provides that temporary
total disability benefits can be terminated when (1) the
employee has returned to work or (2) is medically capable of
returning to employment substantially similar to the
employment in which the employee was engaged at the time of
the injury, whichever occurs first. With respect to healing
period benefits Iowa Code section 85.34(1) provides that
these same two criteria apply, plus a third one of when it
is medically indicated that significant improvement from the
injury is not anticipated, again, whichever occurs first.
In this case, claimant had not returned to work, it had not
been determined that claimant was medically capable of
returning to substantially similar employment and it had not
been determined that claimant had reached maximum medical
improvement.
Second, the documentary evidence demonstrates the
unreasonableness of the termination of benefits by
defendants in this case. McCravy did not even write to Dr.
Rose for an opinion until August 29, even though the auxier
letter went out on August 27, 1991 (Ex. K, pp. 10 & 11).
When Dr. Rose responded on September 10, 1991, he made it
clear that claimant was not capable of performing his old
job or substantially similar employment when his temporary
benefits were cut off. Dr. Rose stated on September 10,
1991,
"At present, I don't feel that Mr. Keener can
do much heavy work with his right shoulder. He
should resolve this problem. I think that
eventually he is going to have good use of the
shoulder.
Page 18
At present, he has been referred to a shoulder
specialist to see if he can have any better luck
with Mr. Keener than I have had and so much of his
prognosis will be determined by the shoulder
specialist. I think there should be no problem
with Mr. Keener doing light duty in the trailer
shop. I think this would be good therapy for him
until he regains full strength and painfree motion
of his right shoulder (Ex. K, p. 12)
The fact that the vocational rehabilitation case
manager reported to the insurance carrier on August 27, 1991
that "Dr. Rose stated that Mr. Keener was at maximum medical
improvement and that Dr. Rose, verbally, ok'd light duty."
(Ex. 15, p. 20) is not evidence sufficient to terminate
healing period. Furthermore, this was a hearsay statement
of Dr. Rose (twice removed) made by the vocational
rehabilitation case manager. Defendants had no
documentation from Dr. Rose to this effect. Claimant had not
returned to work and claimant was not capable of returning
to substantially similar employment because he was
restricted to light duty work. The maximum medical
improvement standard was inapplicable because Dr. Rose, the
treating physician, contended at all times that claimant had
not sustained any permanent disability. Defendants had not
paid any permanent disability and never did pay any
permanent disability.
Furthermore, Dr. Rose's statement about a maximum
medical improvement was equivocal. On the one hand he said
claimant had attained maximum medical improvement yet in his
final report on November 27, 1991, he states claimant had
attained only 80 percent of maximum medical improvement.
McCravy sought by letter to verify claimant's status by
his letter of August 29, 1991, after he sent the auxier
letter on September 27, 1991 (Ex. K, pp. 10 & 11) and did
not as yet have a response from Dr. Rose because Dr. Rose
did not write his letter in response until September 10,
1991 (Ex. k, p. 12). When the response was received Dr.
Rose made it clear that (1) claimant was not capable of
substantial similar employment (2) that claimant had not
attained maximum medical improvement. Neither had claimant
returned to work. At that time claimant had been referred
by Dr. Rose to a specialist for an opinion on his shoulder;
and Dr. Rose commented, "At present, I don't feel that Mr.
Keener can do much heavy work with his right shoulder. He
should resolve this problem. I think that eventually he is
going to have good use of the shoulder." (Ex. K, p. 12).
Defendants were not justified in terminating benefits.
Thus, defendants unjustified premature termination of
claimant's workers' compensation benefits was an
unreasonable termination without probable cause or excuse.
Iowa Code section 86.13(4). Since defendants contended
there was no permanent impairment or disability they were
not at liberty to use the maximum medical improvement
standard in Iowa Code section 85.34(1). And at that point
there was no evidence that claimant had sustained a
Page 19
permanent impairment according to Dr. Rose who was the
treating physician. On the contrary, Dr. Rose indicated
that there was no permanent impairment.
Defendants had absolutely no documentary evidence from
the treating physician that anyone of the three conditions
which would allow them to terminate healing period benefits
or temporary total disability benefits had occurred until
Dr. Rose stated on November 27, 1991 that claimant could
return to work as a truck driver. This is the equivalent of
stating that claimant could return to substantially similar
employment.
Therefore, there is no question that defendants, based
upon there own documentary evidence, and the testimony of
McCravy unjustly terminated claimant's temporary disability
benefits without reasonable or probable cause or excuse and
therefore claimant is entitled to an award in the amount of
50 percent of the benefits that were unreasonably denied.
Iowa Code section 86.13(4).
Claimant is not entitled to penalty benefits for the
failure of defendants to pay permanent partial disability
benefits because it was fairly debatable as to whether
claimant would be entitled to them. Dr. Rose had determined
that claimant had no permanent impairment or disability.
Dr. Ward determined that claimant had a 30 percent permanent
partial disability but the meaning of his determination was
a mystery. Therefor, it was fairly debatable as to whether
claimant was entitled to penalty benefits for defendants
failure to pay permanent disability benefits based on the
facts and evidence in this case. Dolan v. Aid Insurance
Co., 431 N.W.2d 790 (Iowa 1989); Dodd v. Oscar Mayer Foods
Corp., File No. 724378 (1989); Collins v. K Mart Corp., File
No. 921081 filed March 11, 1993.
Claimant's benefits were stopped on September 26, 1991.
They should have been continued until December 1, 1991.
This is a period of 9.429 weeks. Fifty percent of the
stipulated rate of $270.88 per week is $135.44. Therefore
claimant is entitled to an award of $1,277.06 in penalty
benefits (9.429 weeks x $135.44=$1,277.06).
CONCLUSIONS OF LAW
Wherefore, based on the foregoing and following
principles of law, these conclusions of law are made.
That claimant sustained the burden of proof by a
preponderance of the evidence that he is entitled to 53.857
weeks of temporary disability benefits at the rate of
$270.88 per week in the total amount of $14,588.78.
That claimant sustained the burden of proof by a
preponderance of the evidence that the injury that the
injury was the cause of permanent disability to claimant's
left knee but that it was not the cause of permanent
disability to claimant's right scapula or right shoulder nor
was the injury the cause of a mental depression. Bodish v.
Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl
Page 20
v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945);
Mortimer v. Fruehauf Corp., 502 N.W.2d 12 (Iowa 1993).
That claimant sustained the burden of proof by a
preponderance of the evidence that he sustained a 15 percent
scheduled member permanent impairment and permanent
disability to his left leg and is entitled to 33 weeks
permanent partial disability benefits. Iowa Code section
85.34(2)(o); Soukup v. Shores Co., 222 Iowa 272, 268 N.W.2d
598 (1936).
That claimant did not sustain the burden of proof by a
preponderance of the evidence that he is entitled to any
industrial disability benefits for an injury to the body as
a whole for right scapula, his right shoulder or for mental
depression. Iowa Code section 85.34(2)(u).
That claimant did not sustain the burden of proof by a
preponderance of the evidence that he is entitled to the
$1,717.11 of medical benefits claimed at the time of the
hearing. Iowa Code section 85.27.
That claimant did sustain the burden of proof by a
preponderance of the evidence that he is entitled to penalty
benefits for the period from September 26, 1991 to December
1, 1991 Iowa Code section 86.13(4) when defendants unjustly
deprived him of temporary disability benefits; but he did
not sustain the burden of proof by a preponderance of the
evidence that he is entitled to penalty benefits for
defendants failure to pay permanent disability benefits.
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant fifty-three point eight
five seven (53.857) weeks of healing period benefits to
claimant at the stipulated rate of two hundred seventy and
88/100 dollars ($270.88) per week in the total amount of
fourteen thousand five hundred eighty-eight and 78/100
dollars ($14,588.78) commencing on November 19, 1990.
That defendants pay to claimant thirty-three (33) weeks
of permanent partial disability benefits at the rate of two
hundred seventy and 88/100 dollars ($270.88) in the total
amount of eight thousand nine hundred thirty-nine and 04/100
dollars ($8,939.04) commencing on December 1, 1991.
That defendants are entitled to a credit of forty-four
point four two nine (44.429) weeks of workers' compensation
benefits paid to claimant prior to hearing at the rate of
two hundred seventy and 88/100 dollars ($270.88) per week in
the total amount of twelve thousand thirty-four and 93/100
dollars ($12,034.93).
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
Page 21
That defendants pay to claimant nine point four two
nine (9.429) weeks of penalty benefits at the fifty percent
(50%) rate of one hundred thirty-five and 44/100 dollars
($135.44) per week in the total amount of one thousand two
hundred seventy-seven and 06/100 dollars ($1,277.06). The
penalty benefits are to be paid in a lump sum and interest
will accrue from the date of this decision.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the
transcript of hearing, are charged to defendants pursuant to
rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
That defendants pay to claimant the cost of the
sixty-five dollars ($65) industrial commissioner's filing
fee; one hundred fifty dollars ($150) for the expert
testimony of Roger Marquardt; and one hundred fifty dollars
($150) for the expert testimony of Dr. Snyder and
seventy-eight and 46/100 dollars ($78.46) for the witness
fee of Linda Keener for the Iowa mileage and ten dollars
($10.00) for one day in court. These costs total four
hundred forty-three and 46/100 dollars ($443.46).
That defendants file claim activity reports as
requested by this agency. Rule 343 IAC 3.1.
Signed and filed this ____ day of February, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Greg S. Noble
Attorney at Law
2323 Grand Ave.
Des Moines, IA 50312
Mr. Terrance Brown
Mr. R. Jeffrey Lewis
Attorneys at Law
2600 Ruan Center
Des Moines, IA 50309
1802, 1108, 1803, 1401, 1402.40,
14002.60, 2204, 3102, 3701, 2501,
2700, 4000.2
Filed February 9, 1994
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
EARL S. KEENER,
Claimant,
vs.
File No. 969789
HARRETT CORPORATION,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
GREAT WEST CASUALTY COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
1802
It was determined that claimant was entitled to
additional healing period benefits for the reason that
defendants cut off his benefits more prematurely than
permitted by either Iowa Code sections 85.33(1) or 85.34(1).
A release to light duty under either section does not
meet the requirements to terminate temporary benefits when
claimant is a truck driver and his duties include heavy
work. Several cites of authority are given.
Defendants were precluded from using the maximum
medical improvement standard when they denied that claimant
was permanently injured and never paid any permanent
disability benefits.
Claimant was not entitled to (1) additional healing
period benefits for pain management treatment or (2) for a
running award of healing period benefits because defendants
did not provide pain management treatment.
1108
It was determined that the injury was the cause of
permanent disability to claimant's left knee but it was not
the cause of permanent disability to claimant's right
scapula, right shoulder or his mental depression.
1803, 1401, 1402.40, 1402.60, 2204, 3102, 3701
Claimant was awarded 33 weeks of permanent partial
disability benefits based on a 15 percent scheduled member
permanent impairment and permanent disability to the left
Page 2
knee.
It was determined that in the absence of a physician's
rating, agency expertise and agency precedent allows a
deputy to determine the amount of impairment to a scheduled
member, particularly after personal observation of the
condition of claimant at the hearing, so long as industrial
factors are not used. Several cites to agency precedents
are given.
Claimant was not odd-lot because this was ultimately
determined to be a scheduled member injury. Furthermore,
claimant only inquired about two jobs in a two and one-half
year period. Additionally, there was professional
vocational rehabilitation evidence that claimant could
perform light to medium work.
Three very effective surveillance videos, plus the live
testimony of a board certified psychiatrist, and an
effective vocational rehabilitation consultant, outweighed
claimant's testimony and subjective complaints to several
doctors, psychologists, and vocational rehabilitation
specialists, and one occupational therapist that he suffered
from a myriad number of incapacitating disabilities. The
videos were irreconcilable with his testimony and subjective
complaints to the numerous medical care providers. Most of
claimant's subjective complaints were not supported by
objective evidence. The psychiatrist characterized
claimant's MMPI results as "fake bad". Claimant's video,
showing a healthy person doing his job and how he was unable
to do it, had little probative value.
2501, 2700
Defendants contended they had provided over $42,000 in
medical benefits. It was determined that the medical
expenses submitted by claimant at hearing, that defendants
had refused to pay, were not caused by this injury.
4000.2
Claimant was awarded 50 percent penalty benefits for
the healing period benefits that employer cut off
prematurely without reasonable or probable cause or excuse.
Defendants clearly violated claimant's statutory right to
these benefits unjustly. Claimant was not entitled to
penalty benefits on permanent disability benefits. The
permanent benefits issue was fairly debatable.