BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
PATSY LOU GRUBB,
Claimant,
vs.
File No. 971318
THE PARTS HOUSE,
A P P E A L
Employer,
D E C I S I O N
and
GREAT WEST CASUALTY 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. The decision of the deputy
filed December 31, 1991 is affirmed and is adopted as the
final agency action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of July, 1992.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harold B. Heslinga
Attorney at Law
118 North Market St.
Oskaloosa, Iowa 52577
Mr. Stephen W. Spencer
Attorney at Law
P.O. Box 9130
Des Moines, Iowa 50306-9130
9998
Filed July 30, 1992
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
PATSY LOU GRUBB,
Claimant,
vs.
File No. 971318
THE PARTS HOUSE,
A P P E A L
Employer,
D E C I S I O N
and
GREAT WEST CASUALTY COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
9998
Summary affirmance of deputy's decision filed December
31, 1991.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
PATSY LOU GRUBB, :
:
Claimant, :
: File No. 971318
vs. :
: A R B I T R A T I O N
THE PARTS HOUSE, :
: D E C I S I O N
Employer, :
:
and :
:
GREAT WEST CASUALTY COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
statement of the case
Patsy Lou Grubb filed a petition in arbitration
alleging that she sustained an injury arising out of and in
the course of her employment with defendant The Parts House
on November 20, 1990. She now seeks benefits under the Iowa
Workers' Compensation Act from that employer and its
insurance carrier, defendant Great West Casualty Company.
A hearing was held in Ottumwa, Iowa, on December 17,
1991. The record consists of joint exhibits 1 through 10,
claimant's exhibits 1 through 5 and the testimony of
claimant and Dick Grubb.
issues
The parties have stipulated to the extent of claimant's
entitlement to temporary total disability or healing period
(if defendants are liable for the injury), that any
permanent disability is an industrial disability and that
the appropriate rate of weekly compensation is $155.61.
Issues presented for resolution include:
1. Whether an employment relationship existed between
Patsy Lou Grubb and The Parts House on November 21, 1990;
2. Whether claimant sustained an injury arising out of
and in the course of employment on that date;
3. Whether the alleged injury caused either temporary
or permanent disability and the extent of the latter; and,
4. The extent of entitlement to medical benefits.
findings of fact
The undersigned deputy industrial commissioner finds:
Page 2
Patsy Lou Grubb, 57 years of age at hearing, is
currently married to Dick Grubb, but the parties are now
engaged in dissolution of marriage proceedings.
Shortly after the 1971 marriage, Dick and Patsy Grubb
formed a corporation known as Grubb Oil, Inc., after Dick
became a Standard Oil jobber for the area. Claimant was and
is vice-president/secretary and, with her husband, one of
the two stockholders. Over time, the family business
expanded. Monte Transport, Inc., was set up as a second
corporation to handle long distance trucking concerns. The
Parts House, defendant in this case, is a wholly owned
unincorporated subsidiary of Grubb Oil, Inc. The Parts
House engages in retail sales of automobile and farm
equipment parts, oxygen and acetylene gases, and operates a
repair business.
Claimant began working as a part-time bookkeeper, one
day a week. Her duties gradually expanded until she was
working on a full-time basis by approximately 1977. Ms.
Grubb did the books for all three business enterprises.
On November 21, 1990, claimant and a customer of The
Parts House went to a detached building to obtain a tank of
acetylene gas. This out building is equipped with a large
wooden door 14 feet on a side. The door is solid wood, has
no windows and is very heavy. It hangs from sliders on a
track. While opening the door, claimant twisted and pushed
when it stuck. She thereupon felt a twinge in her lower
back, although not really a pain. The next day was
Thanksgiving and the business was closed. Claimant worked
the following Friday and on every subsequent work day until
December 1, 1990. She testified at hearing that her back
began to hurt, became worse each day, and that pain began
radiating down her left leg within 1-2 days. On December 2,
claimant found herself scarcely able to get out of bed after
three tries and pain was the worst she has ever experienced.
Her daughter, Roxanne Minner, who testified by deposition on
September 12, 1991, took her to Grinnell Hospital.
Grinnell Hospital records show that claimant described
a one-week history of left lower back discomfort on December
2 which, "over the last 2 days, has begun to radiate down
the posterior aspect of her left leg, down to her ankle."
Those chart notes were prepared by Robert Minor, M.D.,
emergency room physician. The apparent intake sheet
prepared by the emergency room is illegible with respect to
certain handwritten notes in the "Nurse Assessment" section,
which presumable would detail the first history given.
Roxanne Minner testified that she heard the history, but did
not recall details.
Roxanne Minner took claimant home to her own house
where she remained three or four days under Ms. Minner's
care. Asked if she had had any conversation with claimant
as to the cause of her injury, Ms. Minner testified that
claimant talked about opening the door at The Parts House,
but also that she "wasn't sure how it happened." Later, she
testified that she was unsure claimant mentioned the door
Page 3
incident prior to being seen at Mercy Hospital Medical
Center on December 5. She also testified:
Q. Okay. Did you ever have any conversation with
Patsy over her back hurting as she came up out of
a chair?
A. I remember her saying that. I can't remember
when it was said, but I remember her saying that
she noticed when she got up out of the chair at
Thanksgiving time it really hurt or there was a
twinge and pain.
Q. Just so that we're clear, we're talking about
a time period last November, December; is that
correct?
A. Thanksgiving time.
Q. But 1990?
A. Right.
(Roxanne Minner deposition, page 17, lines 12 through 25)
Claimant did not improve during several days of bed
rest after visiting Grinnell Hospital. Ms. Minner called
family physician James Paulson, M.D., (He did not see
claimant personally) who suggested treatment at Mercy
Hospital Medical Center in Des Moines.
Claimant was seen in the emergency room there by Scott
Erwood, M.D., on December 5, 1990. Dr. Erwood is a
neurosurgeon and testified by deposition on September 17,
1991.
Dr. Erwood's contemporaneous chart notes reflect that
claimant gave a history of arising from a large chair
approximately ten days before, resulting in the onset of
discomfort in the back and left lower extremity: discomfort
which had steadily worsened over the past several days.
Left leg pain was present but improved at the time of this
visit. Dr. Erwood ordered magnetic resonance imaging
studies, which resulted in a diagnosis of left-sided disc
herniation at L4-5. Dr. Erwood recommenced immediate
surgery, but claimant declined until after assuring herself
of that physician's qualifications after consulting with Dr.
Paulson.
Thereafter, Dr. Erwood performed surgery on December
17. Results were favorable. Although Dr. Erwood assesses
Ms. Grubb as having sustained a nine percent functional
impairment to the body as a whole, he has not assigned
specific medical restrictions, advising claimant to do what
she can do. Chart notes of December 20 (signed January 12,
1991) described the December 5 visit as follows:
She indicates she has had discomfort for the past
ten days, which came on after getting out of a big
chair. She developed immediate pain in the low
Page 4
back followed by leg pain. This gradually
increased and was aggravating by riding. In
addition, she described of the left lower
extremity for the past three days.
(Exhibit 5, page 4)
Although incomplete, the last sentence of the above
quote probable refers in some way to increased or
exacerbated left leg pain over the past three days, as this
would seem to fit the context (and be consistent with the
Grinnell Hospital chart notes of December 2).
In his deposition testimony, Dr. Erwood reiterated his
chart notes and indicated that he received no different
history as to the onset of symptoms before claimant left the
hospital on December 20. He noted that a telephone
conversation to his nurse made reference to the door
incident on the day before Thanksgiving. Asked about the
likely cause of claimant's herniated disc, Dr. Erwood
responded:
A. Okay. The only thing I can say as far as the
cause of this disk herniation is that when the
patient was initially seen, this event of about
Thanksgiving time was not reported to me. It was
reported in retrospect after she had had surgery.
Can you have a disk herniation by pushing on a
door or some heavy object? Yes. Do many patients
not even know what caused the disk herniation,
wake up from sleep with pain? Yes, so that the
quote, "cause" of the disk herniation can be at
times not clear.
And I don't think I can clear up the issue, I
guess is where I'm coming from. I can only tell
you what was reported to me. I can tell you that
I signed a document that detailed what my nurse
was told by the patient subsequently. Could it
have happened that way? I suppose so. It wasn't
initially reported to me that way however.
(Dr. Erwood deposition, page 12, line 25 through page 13,
line 17)
And:
A. Certainly. I think the real question here in
trying to determine the cause of this disk
herniation is did Mrs. Grubb have radicular
symptoms prior to December 5, 1990, when she came
in and gave me this -- or prior to the ten days,
which would have been what, end of November
sometime, you know, did she have radicular
symptoms immediately after this injury, or was it,
in fact, only after getting out of a large chair
that she developed leg pain?
That's to me the key factor. If she had had left
Page 5
leg pain before getting out of that chair and
reporting that history to me, then I would be
concerned that the disk predated getting out of a
large chair. If on the other hand she had only
back pain and back discomfort, which is typically
a muscular symptom, prior to getting out of that
large chair, then I would think there's little
evidence to suggest that the disk herniation had
occurred prior to that event, that
getting-out-of-the-chair episode.
(Dr. Erwood deposition, page 16, line 19 through page 17,
line 14)
Page 6
conclusions of law
The parties dispute whether an employment relationship
existed between claimant and The Parts House on November 21,
1990. Claimant and Dick Grubb both testified credibly that
such a relationship existed. The record contains no
contradictory evidence. Claimant has met her burden of
proof on this issue.
The claimant also has the burden of proving by a
preponderance of the evidence that she received an injury on
November 21, 1990, which arose out of and in the course of
her 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 "out of" refer to the cause or source of the
injury. Crowe v. DeSoto Consol. School Dist., 246 Iowa 402,
68 N.W.2d 63 (1955).
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union,
et al., Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v.
DeSoto Consol. School Dist., 246 Iowa 402, 68 N.W.2d 63
(1955).
Claimant also has the burden of proving by a
preponderance of the evidence that the injury of November
21, 1990, is causally related to the disability on which she
now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516,
133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa
296, 18 N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
Patsy Grubb was a credible witness, at least insofar as
this observer does not believe she would knowingly testify
to a falsehood. It is accepted as fact that she experienced
a twinge as she described while opening a heavy wooden door
in the course of her duties as an employee of The Parts
House on November 21, 1990. Although she did not directly
testify to the chair incident on the next day, Thanksgiving,
the record makes clear that something of this sort occurred
Page 7
on that day that was sufficiently significant that claimant
pointed to this incident and no other when she gave her
history to Dr. Erwood on December 5.
There is no doubt but that claimant sustained a disc
herniation that required surgical treatment. It remains to
be determined whether the herniation occurred while claimant
was opening the door or at some other time, such as when she
arose from a chair on Thanksgiving day. The "incident" of
November 21 is not a "injury" unless it caused damage.
Therefore, the issues of "arising out of" and causal
connection shall be treated as essentially identical.
Claimant testified at hearing that radicular symptoms
appeared one or two days following the claimed work injury.
Histories taken at the Grinnell Hospital and by Dr. Erwood
suggest that radicular symptoms came on much later, perhaps
only a day or two before December 2 (when claimant visited
the Grinnell Hospital). The history claimant gave
contemporaneously is more reliable than her testimony at
hearing, both because it was contemporaneous (and not
subject to the vagaries of memory over a year later, and
after pursuing litigation) and because it was offered to
assist medical practitioners in claimant's hour of need,
rather than at a remote hearing where the only relief sought
is the award of compensation benefits.
It is possible that the door incident of November 21 in
fact directly caused the disc herniation of which claimant
now complains. However, it must be concluded that claimant
has failed to meet her burden of proof in establishing a
probability that it in fact so caused the herniation.
Claimant worked for several days after this incident without
need or treatment. The (largely illegible) chart notes of
the Grinnell Hospital do not show history of the door
incident, and claimant made note only of the chair-rising
incident when she saw Dr. Erwood on December 5. Claimant's
daughter was unsure as to whether she had even heard of the
door incident until after that hospitalization. Mr. Grubb
apparently did not learn of the incident until some time
later. On balance, Dr. Erwood's opinion favors defendants,
since he looks at the development of radicular symptoms as
tending to be most closely related to the development of an
actual herniation. As has been seen, chart notes reflect
that these symptoms came on much later, not the one or two
days testified to by claimant.
Accordingly, it must be held that claimant has failed
to meet her burden of proof in establishing a work injury
arising out of and in the course of employment and causing
the disc herniation that has resulted in functional
impairment.
The other issues are thereby rendered moot.
order
THEREFORE, IT IS ORDERED:
Claimant shall take nothing from this proceeding.
Page 8
Costs of this proceeding are assessed to defendants
pursuant to rule 343 IAC 4.33.
Signed and filed this ______ day of ____________, 1991.
______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Harold B. Heslinga
Attorney at Law
118 North Market Street
Oskaloosa, Iowa 52577
Mr. Stephen W. Spencer
Attorney at Law
Suite 300, Fleming Building
P.O. Box 9130
Des Moines, Iowa 50306-9130
5-1402.20
Filed December 31, 1991
DAVID RASEY
before the iowa industrial commissioner
____________________________________________________________
:
PATSY LOU GRUBB, :
:
Claimant, :
: File No. 971318
vs. :
: A R B I T R A T I O N
THE PARTS HOUSE, :
: D E C I S I O N
Employer, :
:
and :
:
GREAT WEST CASUALTY COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
5-1402.20
Evidence failed to show that disc herniation was caused by
work incident.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
TIMOTHY R. KUNKEL, :
:
Claimant, :
:
vs. :
: File No. 971491
STOCKMEN'S, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL CASUALTY :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Timothy Kunkel, against his employer, Stockmen's Inc.,
and its insurance carrier, Employer's Mutual Companies,
defendants. The case was heard on September 20, 1993 at the
Woodbury County courthouse in Sioux City, Iowa. The record
consists of the testimony of claimant. The record also consists
of the testimony of Jane E. Williams, adjuster for workers'
compensation. Finally, the record consists of joint exhibits 1-
42.
ISSUES
The issues for determination are: 1) whether claimant is
entitled to any healing period or any permanent partial
disability benefits; 2) whether claimant is entitled to any
medical benefits pursuant to section 85.27 of the Iowa Code; and,
3) whether claimant is entitled to any penalty benefits pursuant
to section 86.13 of the Iowa Code.
FINDINGS OF FACT
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant is 34 years old. After his high school education
claimant held positions as a seed cleaner, a cook and a janitor.
Approximately 15 years ago, claimant was diagnosed with diabetes.
Claimant testified he has an insulin injection once a day and
that he had experienced some problems with his diabetes because
he had fluctuating sugar counts.
Claimant sustained a work-related injury on December 17,
1990 when he slipped on the pavement and fell to the ground. At
the time of the work injury, claimant had only been employed for
Page 2
three hours as a janitor in the janitorial department. The
parties have stipulated that the work injury arose out of and in
the course of claimant's employment.
The parties have also stipulated that the work injury
resulted in some temporary disability and some permanent
disability. The parties are in disagreement as to the nature and
extent of the disability.
On the date in question, claimant was sprawled on the ground
where he was discovered by his supervisor. Claimant testified he
returned to work and completed the remainder of his shift. That
evening claimant sought emergency medical treatment for his right
ankle. R. Cassens, M.D., attended to claimant's ankle. In the
hospital note the physician wrote:
Right ankle is edematous and tender on the lateral
side. There is a significant amount of edema
obliterating the contour around the lateral malleolus.
There is tenderness along this area, no discoloration.
There is little tenderness along the medial malleolus.
The patient is able to dorsi and plantar flex his toes
minimally due to discomfort. He is unable to rotate or
evert or invert the right foot due to discomfort.
There is no crepitus with motion. Tibialis posterior
and dorsalis pedis pulses are intact. Capillary refill
in the toenail beds of the right foot is approximately
two seconds. Sensation to light touch is intact in all
dermatomes of the right foot. There is no tenderness
along the lateral aspect of the lower leg. No knee
tenderness or right hip tenderness. VITAL SIGNS:
Temperature 99.8, pulse 88, respirations 18, blood
pressure 130/60. X-ray of the right ankle and foot
shows a distal right malleolar fracture.
ASSESSMENT:
1. Fracture of the distal lateral malleolus, right.
2. Right ankle sprain.
PLAN:
Will air cast the right ankle. The patient will be
placed on crutches. He should keep ice over the right
lateral malleolus overnight and intermittently as long
as the swelling persists. He should not bear weight on
the right lower extremity. He should keep the right
lower extremity elevated as much as possible. He was
given a prescription for Ibuprofen 600 mg., 1 po tid,
dispensed 20. He was told to take this medication with
food. He was warned of possible GI irritation due to
this medication and will watch for epigastric
discomfort, blood in the stool or black and tarry
stools, and will discontinue the medication and seek
medical advice immediately. He is to follow-up in two
days with his local physician. He should see his local
physician regarding the right distal malleolar
fracture. The patient states he does not have a local
doctor, and was given the local medical society number
Page 3
to help find a physician. He was advised to find a
physician immediately tomorrow so he can be seen on
Wednesday.
(Exhibit, page 129)
X-rays were taken on the same evening. The radiologist,
O.E. Selander, M.D., noted:
THERE IS A NON-DISPLACED FRACTURE OF THE TIP OF THE
LATERAL MALLEOLUS WITH ASSOCIATED SOFT TISSUE SWELLING.
LUNGS OTHERWISE APPEAR NORMAL.
IMP: FRACTURED LATERAL MALLEOLUS.
(Ex., p. 131)
Claimant then sought medical attention from a general
practitioner, Larry L. Hansen, M.D. The first consultation
occurred on December 19, 1990. Initially, Dr. Hansen diagnosed
claimant's condition as: "Nondisplaced right lateral malleolus
fracture" (Ex., p. 103).
One week later claimant returned to Dr. Hansen for follow up
care for a right lateral malleolar fracture. Claimant also
requested medical attention because he was feeling poorly. He
had experienced nocturnal diaphoresis, swollen glands, sore
throat, anorexia and abnormal blood sugars. Dr. Hansen ordered
certain blood tests. He is prescribed ceftin which is a
cephalosporin antibiotic and which is used to fight bacterial
infections (The Pill Book 5th ed. 1992 at page 124-125).
Approximately, two months after the work injury, Dr. Hansen
removed claimant's ankle cast. The office note of February 18,
1991 indicated the following relative to claimant's condition:
This young white male seen today for follow-up of
lateral malleolus fracture. Still has some swelling
there. Injury occurred almost two months ago, December
18th.
Cast was removed. Radiographs demonstrate incomplete
ossification. There is minimal tenderness at site.
Really no edema. Weight 153. BP 124/80.
A: Right lateral malleolus fracture.
P: Posterior splint for the next two weeks. May
partial weight bear on this. Recheck in two weeks.
Radiographs at that time.
(Ex., p. 108)
In June of 1991, claimant's attorney contacted the treating
physician relative to claimant's condition. Dr. Hansen authored
a report. It provided in part:
To answer your other questions, Mr. Kunkel's
work-related injury was a severe sprain of the right
ankle. Because of a separate distal fibular ossicle,
radiographs were initially interpreted as a fracture of
Page 4
the lateral malleolus. He was therefore initially
treated for a fracture. Thereafter, he has had
continued problems with pain and stiffness in the
ankle. I believe these complaints may gradually
improve with time or they may be static.
In regards to your question regarding diabetes
mellitus; diabetes mellitus can impair circulation
which is required for the healing process.
Additionally, due to a number of factors, wounds may
not heal as well with diabetes mellitus, especially in
the case of uncontrolled hyperglycemia. There also may
be some diabetes-induced nerve damage which can impair
the patient's sensation in the lower extremity making
re-injury of conditions such as an ankle sprain much
more likely. These factors were taken into account in
Mr. Kunkel's treatment.
Finally, the diagnostic blood tests were not directly related to
his Worker's Compensation injury. He had complaints of malaise
and cervical lymphadenopathy upon presentation here associated
with jaundice. Laboratory investigation undertaken at St. Luke's
Regional Medical Center was performed to evaluate this and any
possible interaction this may have had upon his ankle injury.
(Ex., pp. 122-123)
In April and June of 1991, claimant was also examined by
David G. Paulsrud, M.D., an orthopedic specialist. Later the
specialist evaluated claimant for purposes of making an
evaluation. Dr. Paulsraud opined:
He still has some swelling in his ankle from time to
time when he uses it. His x-rays today are unchanged.
Examination demonstrates 10o of dorsiflexion, 40o of
plantar flexion, 10o of inversion, and 10o of eversion.
He has a 10% permanent partial impairment of his lower
extremity.
(Ex., p. 83)
Claimant continued medical care with Dr. Hansen for the work
injury. The office note of July 11, 1991 indicated claimant's
poor progress with respect to his right ankle injury. It stated:
This young white male is seen today for follow-up right
ankle sprain. States he has lost 2 part time jobs due
to this ankle. Just cannot tolerate being on his foot
greater than four hours. Continues to have pain over
the lateral malleolus. He also complains today of his
leg feeling rather numb and cold. He has had pain and
popping in his knee. He has also had some pain in the
inguinal region especially his rotation of the hip. No
swelling here.
Right ankle is normal to examination. Foot is
remarkable for absence of the dorsalis pedis pulse.
Right knee does demonstrate some apparent laxity of the
anterior and posterior cruciate ligaments. Otherwise
negative. His right hip has normal range of motion.
No inguinal lymphadenopathy.
Page 5
1. Right ankle sprain, current symptomology unrelated.
2. Likely vascular insufficiency secondary to diabetes
mellitus, type II. Reported good control.
Prescribed some nonsteroidals for his arthritic
complaints. Will continue with current work
restrictions for the next one month. Recheck at that
time. I have indicated that if he has further problems
with his ankle, he should seek orthopedic consultation
again, either with Dr. Paulsrud again or another
specialist if he desires. Could work up his vascular
insufficiency at any time he desires. Otherwise plan
on discharging him from follow-up at the end of one
month as we really have nothing further to offer from
this office.
(Ex., p. 110)
Dr. Hansen determined claimant reached maximum medical
improvement in August of 1991. Dr. Hansen discharged claimant
from the physician's care in the same month. The physician also
opined there was no relationship between claimant's right ankle
with its poor ability to heal and claimant's diabetes mellitus
(Ex., p. 125).
In September of 1991, claimant was evaluated by Frederick R.
Entwistle, M.D., a physiatrist at Central Plains Clinic Ltd. The
evaluator opined in relevant portion:
It would certainly appear the patient had a severe
sprain of his right ankle and now has a fair amount of
discomfort with standing. As mentioned, he apparently
tried standing 4 hours with some lighter type work and
he said the pain got worse and he couldn't do it.
I think one might want to consider a support type
stocking if he does have swelling in his foot and ankle
when he stands, which I did not objectively find at
this time. I also think it might be wise a nerve
conduction velocity study of both lower extremities by
a neurologist looking for any evidence of diabetic
induced nerve damage. These studies should be done
bilaterally, not just on one lower extremity. I also
think the patient would benefit by a bone scan to see
if there is any evidence that any reflex sympathetic
dystrophy could be playing a part at this time.
If these studies are normal, then I think the
patient would benefit by a graduated structured work
hardening type program to get him back to gainful
employment with a lessening of his pain symptomatology.
I don't think Tim Kunkel could return to work at
this time, unless it was a job where he was sitting for
perhaps a 1/2 hour to 45 minutes and then could get up
and move around a bit. Based on the fact that he
states he is unable to stand for more than 4 hours at
one time. Diabetes, clearly as Dr. Hanson pointed out,
can impact the healing process, as well as effect
nerves. I think the healing of this severe ankle
sprain has clearly done very well with full range of
Page 6
motion of the ankle and good stability. The reason for
the burning pain however might be on the diabetic
aspect and that is why I think the nerve conduction
velocity studies should be done, as well as a bone
scan. If there are any questions concerning this
report, please feel free to contact me.
(Ex., p. 93)
Nerve conduction studies which were done in October of 1991
showed the following with respect to claimant's right ankle:
Exam compatible with a general polyneuropathy such as
diabetes however the right sural sensory is more
significantly involved then would be expected compared
to the other nerve conduction studies.
(Ex., p. 95)
Claimant had a bone scan at the same time he had the nerve
conduction studies. T. A. Schultz, M.D., interpreted the tests
as follows:
FINAL IMPRESSION: 1) Abnormal Three Phase Bone Scan to
right ankle. The findings are suggestive of
osteomyelitis, however, would consider any sort of
localized vascular process such as ongoing healing
fracture, etc. Recommend clinical and/or radiographic
correlation. If osteomyelitis is a consideration,
Gallium scanning may be appropriate. The above
findings do not strongly suggest reflex sympathetic
dystrophy.
(Ex., p. 97)
Claimant also traveled to Iowa City for the purposes of
being evaluated by specialists in the Department of Orthopedics
at the University of Iowa. James D. Neopola, M.D., and Randy G.
Delacore, M.D., were the evaluating orthopedic specialists. The
clinical note for October 10, 1991 indicated:
Radiographs: AP, lateral and Mortise view of the right ankle
reveal a well-healed slightly mal-united distal lateral malleolar
fracture. There are some mild calcifications of the ankle joint
laterally. There are no other signs of degenerative joint
disease.
Assessment/Plan: It is felt that Mr. Kunkel has healed his
lateral malleolus fracture well, however, demonstrates persistent
weakness and symptoms of weakness and intermittent swelling with
prolonged standing. It is felt that he should definitely undergo
some regimen of strengthening exercises. We will send him down
to PT for dorsiflexor and evertor strengthening protocol. We
will also have him fit with an ankle lacer for stability for
prolonged standing. We think that he should return to work
part-time at first and slowly return to full-time work as
tolerated. It was also recommended that he begin
anti-inflammatory medication for his symptoms. Prescription for
Ibuprofin 800 mg. TID with meals was given. He should return to
clinic in 6-8 weeks for clinical follow-up.
(Ex., p. 161)
Page 7
In March of 1992, claimant was again evaluated. He had a
functional capacity evaluation at Siouxland Rehabilitation
Center. The evaluating team recommended:
E. Summary of Findings
Mr. Kunkel's major limiting factors were found to be poor
body mechanics and decreased cardiovascular fitness. His
strength and range of motion were within normal limits. At
no time during the evaluation did his right ankle
limit him from performing functional job tasks.
Recommendations
For the purpose of returning to work we recommend
that certain lifting restrictions be implemented in order to
reduce Mr. Kunkel's risk of injury. Please refer to the
attached grid sheet for these recommendations.
This rehabilitation program is appropriate for any
individual who has experienced a job related injury with
disabling effects that will not permit participation
in work situations. The FCE results indicated that Mr.
Kunkel's work capacity is not limited by physical
impairments. Therefore he is not a good candidate for
admission into our work hardening program.
(Ex., p. 88)
Mr. Kunkel sought another evaluation for his right ankle.
On August 11, 1993, claimant was seen by Chas. E. Keenan, Jr.,
DPM. The podiatrist issued an opinion on August 12, 1993. He
opined:
Upon examination of the right foot and ankle there
is no edema, no discoloration, and range of motion
studies are normal except for slightly limited
dorsiflexion. No pain is illicited with palpation of
the lateral malleolus and the surrounding ligamentous
structures. The ankle mortise is stable. The patient
does state that he hears a "popping" noise in his
ankle, but the range of motion studies did not reveal
this. There was no crepitus with motion. Posterior
pulses are palpable, but dorsal pulses are barely
palpable. There is absent hair growth on both feet.
His skin is cool, especially his toes. The patient
states his feet have a tendency to be cold. Mr. Kunkel
does have slight hammer toe deformities bilaterally of
the second, third, and fourth digits.
Upon review of x-ray reports and x-rays I do believe there was
a fracture of the distal portion of the fibula. The patient does
relate that when he fell his foot was severely inverted. This
would cause an avuision [sic] fracture. X-rays were taken on
August 11 and showed complete healing of the fracture site. This
would rule out the diagnosis of an accessory ossicle of the
fibula.
In regards to the questions addressed in your August 9 letter,
my opinions are:
1. Mr. Kunkel has a 10% permanent partial
disability because of a fractured ankle
sustained in his fall at Stockmen's
2. His injuries were a result of his fall at
Page 8
Stockmen's.
3. I see no problem for future employment
opportunities.
4. Possible restrictions would be limitations of
time spent working on his feet.
5. His diabetic condition will have no impact on
his injury and impairment rating.
(Ex., pp. 188-189)
Dr. Keenan's opinion concurred with the opinion of Dr.
Paulsrud. Both evaluating physicians deemed claimant as having a
10 percent impairment to the right foot.
Claimant was able to return to gainful employment. However,
as of the date of the hearing, claimant had only been employed on
an occasional basis. He worked for his sister in her upholstery
business. The position was only part-time.
CONCLUSIONS OF LAW
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 worker
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled to
compensation except as the statute provides. Soukup v. Shores
Co., 222 Iowa 272, 268 N.W. 598 (1936).
Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2). Permanent
partial disabilities are classified as either scheduled or
unscheduled. A specific scheduled disability is evaluated by the
functional method; the industrial method is used to evaluate an
unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d
886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa
1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95
(1960).
An injury to a scheduled member may, because of after
effects or compensatory change, result in permanent impairment of
the body as a whole. Such impairment may in turn be the basis
for a rating of industrial disability. It is the anatomical
situs of the permanent injury or impairment which determines
whether the schedules in section 85.34(2)(a) - (t) are applied.
Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986);
Blacksmith, 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber
Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272,
268 N.W. 598 (1936).
Claimant has proven by a preponderance of the evidence that
he has sustained a work-related injury. Medical evidence
supports claimant's claim that the injury is permanent in nature.
The impairment is 10% to the lower extremity. According to
section 85.34(2)(o), claimant is entitled to 22 weeks of
permanent partial disability benefits. Claimant has not
established that his injury extends beyond the scheduled member,
despite claimant's diabetes which is a pre-existing condition.
The parties have stipulated that this injury is a scheduled
member injury to the right lower extremity.
Claimant's next claim is for increased healing period
benefits. 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
Page 10
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. Kubil, 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). Claimant is alleging that he
is owed healing period benefits from December 17, 1990 through
May 31, 1992. Defendants maintain that healing period benefits
are only due from December 17, 1990 through August 8, 1991.
There is no question, Dr. Hansen has opined that claimant
had reached maximum medical improvement as of the end of August
1991. However, claimant was unable to return to full time work
as of that date. It is this deputy industrial commissioner's
determination that as of March 20, 1992, claimant was able to
return to gainful employment which was substantially similar to
the employment which claimant had held as of the date of the work
injury. On the March 20th date, experts at the Siouxland
Rehabilitation Center opined that claimant was capable of
performing janitorial duties as of that date (Ex., p. 88).
In light of the above, claimant is entitled to 65.714 weeks
of healing period benefits from December 17, 1990 through March
20, 1992 and at the stipulated rate of $127.10 per week.
The next issue to address is the issue dealing with medical
expenses pursuant to section 85.27 of the Iowa Code. Claimant is
not entitled to be reimbursed for certain medical expenses which
were related to treatment for claimant's "flu like symptoms."
Those symptoms were unrelated to the injury to the right lower
extremity. Likewise, certain blood tests which were ordered by
Dr. Hansen were unrelated to claimant's work injury. Rather
those tests were ordered because of claimant's flu like symptoms.
Defendants are now responsible for unrelated medical care and
bills.
Defendants are responsible for the following:
Walgreen's 12/19/90 $5.09
Walgreen's 1/05/91 $5.09
_____
Total $10.18
Hy-Vee 12/18/90 $ 3.87
Claimant also testified that as of the date of the hearing,
he was entitled to mileage as follows: "20 miles at .21 per
mile = $4.20. Claimant is entitled to $18.25 in medical
expenses."
The final issue to address is the issue dealing with penalty
benefits pursuant to section 86.13 of the Iowa Code. Section
86.13 permits an award of up to 50 percent of the amount of
benefits delayed or denied if a delay in commencement or
termination of benefits occurs without reasonable or probable
cause or excuse. The standard for evaluating the reasonableness
of defendants' delay in commencement or termination is whether
the claim is fairly debatable. Where a claim is shown to be
Page 11
fairly debatable, defendants do not act unreasonably in denying
payment. See Stanley v. Wilson Foods Corp., File No. 753405
(App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant,
File No. 818849 (App. November 1, 1989).
Claimant presented absolutely no evidence on this issue.
Claimant has not proven by a preponderance of the evidence that
he is entitled to any benefits pursuant to section 86.13.
ORDER
Defendants shall pay unto claimant twenty-two (22) weeks of
permanent partial disability benefits at the stipulated rate of
one hundred twenty-seven and 10/l00 dollars ($127.10) per week
commencing on March 21, 1992.
Defendants shall also pay unto claimant sixty-five point
seven-one-four (65.714) weeks of healing period benefits from
December 17, 1990 through March 20, 1992 at the stipulated rate
of one hundred twenty-seven and 10/l00 dollars ($127.10) per
week.
Defendants shall also pay unto claimant eighteen and 25/l00
dollars ($18.25) in reimbursable medical expenses.
Defendants shall take credit for all permanent partial
disability 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 March, 1994.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Ms. Patricia K. Wengert
Attorney at Law
632 - 640 Badgerow Building
P O Box 1194
Sioux City, Iowa 51102
Mr. Steven E. Ort
Attorney at Law
121 West Main
P O Box 143
Page 12
New London, Iowa 52645
Mr. William G. Brewer
Attorney at Law
6305 SW 9th St4 1
Des Moines, Iowa 50315
5-1802
Filed March 17, 1994
MICHELLE A McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TIMOTHY R. KUNKEL,
Claimant,
vs.
File No. 971491
STOCKMEN'S,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
EMPLOYERS MUTUAL CASUALTY
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1802
Claimant was awarded additional healing period benefits
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JULIA ALLEN,
Claimant,
vs.
File No. 971728
STATE OF IOWA-INSURANCE DIV.,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
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.
ISSUE
The issue on appeal is: Whether the deputy's determination
of the claimant's credibility is supported by substantial
evidence.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed September 22, 1993 are adopted as final
agency action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed September 22, 1993 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision. Segments designated by
brackets ([ ]) indicate language that is in addition to the
language of the proposed agency decision.
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on October 12,
1990, which arose out of and in the course of her
employment. McDowell v. Town of Clarksville, 241 N.W.2d
904, 908 (Iowa 1976); Musselman v. Central Telephone Co.,
154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of"
have been interpreted to refer to the cause and origin of
the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consolidated School District,
68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of"
Page 2
refer to the time, place and circumstances of the injury.
McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An
injury occurs in the course of the employment when it is
within the period of employment at a place the employee may
reasonably be, and while the employee is doing work assigned
by the employer or something incidental to it. Cedar Rapids
Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa
1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at
130.
The supreme court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35, 38 (1934).
In this case the court found that a personal injury, is an
injury to the body, the impairment of health, or a disease,
not excluded by the Workers Compensation Act, which comes
about, not through the natural building up and tearing down
of the human body, but because of a traumatic or other hurt
or damage to the health or body of an employee. The injury
to the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist court further observed that while a
personal injury does not include an occupational disease
under the Workmen's Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
An injury must both arise out of and in the course of
employment. To arise out of employer refers to the cause of
the source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d
63. The words "in the course of employment" refer to the
time, place and circumstances of the injury. McClure, 188
N.W.2d 283.
Page 3
At the hearing, claimant alleged that on October 12, 1990,
while holding an individual who was having a seizure, his
chair broke and they both fell to the ground. Claimant
produced no corroborating witnesses to the incident.
Claimant lost no time from work until November 22, 1990.
Although claimant alleges that she immediately told her
supervisor of the incident, a first report of injury
received by the industrial commissioner's office on January
4, 1991, indicates that the employer first knew of
claimant's condition on December 24, 1990 (ex. D).
***** Dr. Johnson reported on January 16, 1991, as
follows: "Julia tried to support the patient, her chair
broke, she fell back and experienced pain in the low back.
She then had onset of discomfort extending down the right
leg." (ex. 1-1). On February 13, 1991, claimant reported
to Dr. Boulden that after she fell to the floor, she
developed low back pain a few days later (ex. 1-4).
Claimant told the physician at the University of Iowa that
her back pain began two days after the October 12, 1990
incident (ex. 7-47). On January 3, 1991, Dr. Haag reported
that claimant had an accident at work the end of September
or the first part of October and her back has hurt since
(ex. 4-29).
Despite the above assertions, it must be noted that on
October 15, 1990, three days after the alleged incident,
claimant was seen in the emergency room with complaints of
left facial muscle spasms which started when she was playing
bingo on October 14, 1990. She was admitted as an inpatient
for further evaluation. It was noted that claimant had been
under a great deal of stress and the physician was unsure
whether her speech and memory problems were related to the
stress or to a transient ischemic attack. A complete workup
was performed and the results were negative. At no time
during the course of her hospitalization did claimant
mention the October 12, 1990 work incident and presented
with no musculoskeletal complaints, including low back pain
(ex. A-2).
On November 26, 1990, claimant presented to Mercy
Medical Clinic where she saw Dr. Haag. Her complaints were
referable to a cold in her chest and the possibility of
bronchitis. She also stated that she has been down for
three weeks with discomfort in the lower lumbar area. She
made no mention of a work incident or injury (ex. 4-23).
She returned to Dr. Haag for follow-up evaluations on
November 29, 1990; December 6, 1990; December 10, 1990; and
December 14, 1990. At no time during any of those visits
did she relate to Dr. Haag that she experienced a traumatic
incident at work which could have possibly caused her back
discomfort (ex. 4-23-28).
On December 18, 1990, claimant was seen in the
emergency room with complaints of neck, shoulder and back
pain. She reported a nine-week history of low back pain but
denied any history of trauma (ex. 9-63). It was not until
December 27, 1990, when she saw Dr. Flapan that she mentions
Page 4
the alleged October 12, 1990 work incident (ex. 5-41).
***** She told Dr. Johnson that another individual sat down
beside her desk (ex. 1-1). She told Dr. Wirtz that she was
sitting on a chair and fell off to the left side with
another person on top of her (ex. 3-22). Dr. Green was told
that the person sitting next to her had a seizure and in her
attempt to protect him from falling she sustained an injury
to her back (ex. 5-42). She told Dr. Flapan that she
injured her back when trying to protect an individual
standing near her desk from falling while he was having a
seizure (ex. 5-41).
*****
[Claimant's version of her injury is accepted as truthful.
Claimant gave accounts of how the injury occurred to several
doctors on several occasions. For all practical purposes,
the accounts are consistent and are not refuted by other
evidence in the record.
Although the record also contains occasions when claimant
denied trauma to her doctors, the record as a whole shows
that claimant has been consistent in asserting the October
12, 1990 incident as the source of her present back
problems. In addition, the record contains evidence that
claimant suffers from memory loss as a result of a series of
strokes, which would also account for those occasions when
claimant failed to mention the seizure incident to her
physicians. Thus, it is concluded that claimant did suffer
an injury arising out of and in the course of her employment
on October 12, 1990 while trying to assist an office visitor
who suffered an epileptic seizure.
Claimant also bears the burden of proof to show that her
present condition is causally connected to her work injury.
Claimant's x-rays in December of 1990 led to the conclusion
that claimant suffered from degenerative disc disease. In
December of 1990, Dr. Flapan diagnosed claimant's condition
as inflammatory arthritis. Dr. Rodney E. Johnson, M.D., in
January of 1991, stated that claimant's condition was one of
myofascial pain, and that her symptoms were disproportionate
to the work injury. Dr. Peter Wirtz also stated that
claimant's back condition was due to degenerative disc
disease and not caused by her work injury.
However, Keith Riggins, M.D., upon referral from claimant's
attorney, felt that claimant's condition was a herniated
disc, and that the condition was caused by claimant's fall
on October 12, 1990.
Page 5
Dr. Boulden, after initially diagnosing degenerative disc
disease, stated in August of 1993 that claimant's condition
was causally connected to her October 12, 1990 injury, and
assigned a rating of seven percent permanent partial
impairment. Dr. Boulden stated that he agreed with Dr.
Riggins' "cause and effect relationship," but at the same
time Dr. Boulden stated he also agreed with "Dr. Wirtz's
report since nothing has ever been said in his report about
a herniated disc." Dr. Wirtz found in his report that there
was no causal connection between claimant's symptoms and her
work injury. Although confusing, this statement is read to
mean that Dr. Boulden felt that Dr. Wirtz's opinion on
causation was incorrect because Dr. Wirtz was not aware of
the disc herniation. At any rate, clearly Dr. Boulden
states that claimant's current condition is caused by her
work injury.
Both Dr. Riggins and Dr. Boulden have expressed an opinion
that claimant's current back condition is at least in part
caused by her work injury. Dr. Wirtz's opinion that the
back condition is not caused by the work injury is based on
a report that fails to mention the presence of claimant's
herniated disc. The testimony of Dr. Riggins and Dr.
Boulden will be given the greater weight. Claimant has
carried her burden of proof to show that her present back
condition is at least in part caused by her work injury of
October 12, 1990.
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 v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
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
Page 6
injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Iowa Code section
85.34.
Claimant was 55 years old at the time of the hearing, and
had a ninth grade education. Claimant has an eleven percent
impairment rating for her back as a result of the work
injury imposed by Dr. Riggins, as well as a restriction
against repetitive lifting and lifting over 20 pounds. Dr.
Boulden also stated that claimant's condition is causally
connected to her work injury and assigned a five percent
impairment rating. Claimant is still employed with
employer.
Based on these and all other factors of industrial
disability, claimant is found to have an industrial
disability of 15 percent as a result of her work injury of
October 12, 1990.
Page 7
There is no indication in the record that claimant suffered
any back problems prior to her work injury. Although part
of claimant's present disability may be attributable to an
aggravation of her degenerative disc disease, clearly this
condition was not disabling prior to her work injury. An
apportionment is not appropriate. Bearce v. FMC
Corporation, 465 N.W.2d 531 (Iowa 1991).]
WHEREFORE, the decision of the deputy is reversed.
ORDER
THEREFORE, it is ordered:
That defendants are to pay unto claimant healing period
benefits from November 26, 1990 to March 21, 1991, at the
rate of two hundred fifty-one and 35/100 dollars ($251.35)
per week.
That defendants are to pay unto claimant seventy-five (75)
weeks of permanent partial disability benefits at the rate
of two hundred fifty-one and 35/100 dollars ($251.35) per
week.
That defendants shall pay accrued weekly benefits in a lump
sum.
That defendants shall pay interest on unpaid weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
That defendants is to be given credit for benefits
previously paid.
That defendants shall pay claimant's medical expenses.
Defendants shall pay the future medical expenses of claimant
necessitated by his work injury.
That defendants shall file claim activity reports as
required by this agency pursuant to rule 343 IAC 3.1(2).
That defendants shall pay the costs of this matter including
the transcription of the hearing.
Signed and filed this ____ day of March, 1994.
Page 8
--------------------------
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Christopher D. Spaulding
Attorney at Law
840 Fifth Ave.
Des Moines, Iowa 50309-1398
Mr. James F. Christenson
Assistant Attorney General
Tort Claims Division
Hoover State Office Bldg.
Des Moines, Iowa 50319
1108; 1803
Filed March 28, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JULIA ALLEN,
Claimant,
vs.
File No. 971728
STATE OF IOWA-INSURANCE DIV.,
A P P E A L
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
____________________________________________________________
1108; 1803
Claimant was credible in relating her injury, which involved
falling from her chair after moving to help a visitor at her
desk who suffered an epileptic seizure. Claimant proved
causal connection and was awarded 15 percent industrial
disability.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JULIA ALLEN, :
:
Claimant, :
:
vs. :
: File No. 971728
STATE OF IOWA-INSURANCE DIV., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
STATE OF IOWA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Julia
Allen, claimant, against Insurance Division, employer, and
State of Iowa, insurance carrier, defendants, to recover
benefits under the Iowa Workers' Compensation Act as a
result of an injury sustained on October 12, 1990. This
matter came on for hearing before the undersigned deputy
industrial commissioner on September 16, 1993, in Des
Moines, Iowa. The record was considered fully submitted at
the close of the hearing. The claimant was present and
testified. The documentary evidence identified in the
record consists of claimant's exhibits 1 through 11 and
defendants' exhibits A through F.
ISSUES
Pursuant to the hearing report and order approving same
dated September 16, 1993 the parties have presented the
following issues for resolution:
1. Whether claimant sustained an injury on October 12,
1990, which arose out of and in the course of employment
with employer;
2. Whether the alleged injury is the cause of
temporary disability during a period of recovery;
3. Whether the alleged injury is a cause of permanent
disability;
4. The extent of temporary or permanent disability, if
any; and
5. Whether claimant is entitled to medical benefits
under Iowa Code section 85.27.
FINDINGS OF FACT
Page 2
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
Claimant was born on May 9, 1938, and completed the
ninth grade of school. Her work activity has been as a
waitress, nurse's aide, check sorter, mail girl, and
clerical worker. She commenced working for employer in
1975. In 1979 she terminated her employment in order to
work with her husband who was an over-the-road truck driver.
She returned to state employment in 1981. She is classified
as a clerk 4. Claimant testified that on October 12, 1990,
a young man who was visiting his mother at work had a
seizure. This occurred while he was sitting in a chair next
to her. In an attempt to control his shaking, she grabbed
and held him in her arms. He was shaking so vigorously that
his chair broke and he fell toward her and overturned her
chair and they both fell to the floor. She stated she
reported the incident to her supervisor, Beth Stuchel,
Deputy Insurance Commissioner. She lost no time from work
until Monday, November 26, 1990. She stated that although
she initially felt some pain in the small of her back which
radiated down her right leg, it was not severe enough to
preclude her from working until November 23, 1990, when she
could not get out of bed.
The pertinent medical evidence reveals that on November
26, 1990, claimant presented to Mercy Medical Clinic where
she saw her family doctor, S.W. Haag, M.D. Her symptoms
were referable to a chest cold and lower lumbar pain. She
was diagnosed with bronchitis and myofascial strain.
Medication was prescribed. A follow-up visit on November
29, 1990, noted improvement in her condition. Later, her
condition deteriorated (exhibit 4-23-27). On December 9,
1990, she presented to Mercy Hospital emergency room.
X-rays of the lumbosacral spine revealed disc space
narrowing and L4-5 indicative of degenerative disc disease
and facet arthropathy at L5-S1 (ex. 9-59).
Claimant's back symptomatology did not improve and Dr.
Haag referred her for an MRI evaluation. On December 18,
1990, claimant presented to Mercy Hospital emergency room
with a nine-week history of low back pain. She denied any
history of trauma. She related that she had no prior
history of back problems. Her complaints were also
referable to aching in her shoulders and neck without any
history of trauma to these areas. She underwent C spine and
bilateral shoulder x-rays which were interpreted as
negative. The verbal report obtained from Dr. Grissom
revealed MRI findings of disc degeneration at L4-5 and L5-S1
with no evidence of disc herniation (ex. 9, pp. 60-64).
The MRI report is exhibit 9, pages 72 through 74.
Nicholas DeVries, M.D., read the results as showing the
following:
1. L4-5 right lateral protrusion/HNP, posteriorly
depressing the right L5 nerve root, narrowing the
Page 3
right lateral recess and causing moderate right
foraminal stenosis as detailed above.
2. Small central noncompressive protrusion of the
L5-S1 disc.
3. Mild to moderate degeneration of the L4-5 and
5-S1 discs for age.
Claimant was referred by Dr. Haag to Iowa Orthopaedic
Center. She saw Marshall Flapan, M.D., on December 27,
1990. Claimant related a 12-week history of discomfort in
both arms and low back with radiation to the right lower
extremity. She attributed her symptoms to an incident at
work while trying to protect an individual who was standing
near her desk at work from having a seizure and hurting
himself. She denied any history of back problems. On
examination she was able to bend over and touch her
midtibias. Straight leg raising tests were bilaterally
negative. Motor testing failed to demonstrate any weakness
of the muscle groups in the lower extremity. Dr. Flapan
felt her symptoms were suggestive of inflammatory arthritis.
She was advised to continue taking Voltaren twice a day (ex.
5-41).
On January 3, 1991, claimant met with Dr. Haag. He
discussed with her the results of Dr. Flapan's evaluation.
She stated that she was unhappy with his consult. She also
stated that she had an accident at work the end of September
or the first part of October and her back has hurt ever
since. She was referred to Thomas Bower, L.P.T., for
physical therapy (ex. 4-29).
Claimant was evaluated by Mr. Bower on January 3, 1991.
She related the onset of symptoms to October 1, 1990. She
was unable to identify any trauma. Claimant also presented
with complaints of bilateral shoulder pain. On January 10,
1991, claimant presented with more significant problems with
her shoulders than with her lower back. Mr. Bower requested
that Dr. Haag evaluate the situation (ex. 6, 43-46).
Dr. Haag referred claimant to the Iowa Institute of
Orthopaedics. On January 16, 1991, she was examined by
Rodney E. Johnson, M.D. Dr. Johnson reported as follows,
"Apparently she was at her desk, another individual sat down
beside her desk and proceeded to have a seizure. The
individual was going to fall forward. Julia tried to
support the patient, her chair broke, she fell back and
experienced pain in the low back." (ex. 1-1).
After examination, Dr. Johnson had no explanation for
claimant's acute onset of arm pain and shoulder pain. He
requested a cervical MRI which was negative. Dr. Johnson
felt that the majority of her pain was myofascial. He noted
that her complaints were disproportionate to her physical
findings (ex. 1-1-3).
Dr. Haag then referred claimant to William R. Boulden,
M.D. She told him that on October 12, 1990, when a person
in the chair next to her seized, she grabbed him around the
Page 4
waist, his chair broke and they both fell down. A few days
later she developed low back pain which increased and went
down her leg. She stated that by Thanksgiving, she could
barely walk. Dr. Boulden reviewed her x-rays and felt that
her pathology was due to degenerative disc disease at L4-5
(ex. 1-4-5).
Claimant saw Dr. Boulden for follow-up evaluation on
March 20, 1991. At this time, her leg pain had subsided and
she stated that she was 100 percent better. He released her
to return to work effective March 21, 1991. He stated that
she should move around her desk every half hour or so (ex.
1-6).
On August 8, 1991, claimant saw Kirk D. Green, D.O.
She presented with complaints of intermittent leg pain and
paresthesias. Dr. Green stated there was nothing more he
was able to do for her and recommended evaluation at the
University of Iowa Spine Clinic (ex. 5-42).
Claimant presented to the University of Iowa Medical
Center on October 16, 1991. AP and lateral
flexion/extension films of the lumbar spine were obtained.
These were reviewed along with her MRI which was performed
in December 1990. A mild L4-5 bulge was observed. The
plain films were essentially unremarkable. The
rehabilitation consultant felt that claimant would not be a
good candidate for their two-week outpatient program (ex.
7-8).
Claimant was involved in a motor vehicle accident on
November 29, 1992. She testified that she fractured her
clavicle (ex. B-3).
Claimant was referred by defendants to Peter Wertz,
M.D., on May 13, 1993. An examination revealed full range
of motion and no neurologic involvement. Dr. Wertz
indicated that claimant's lumbar degenerative disc disease
is a natural progressive condition and he cannot relate the
October 1990 incident as a cause of her impairment. He
stated that her disease relates to a 5 percent impairment of
the body as a whole (ex. 3-21-22).
Claimant was referred by her attorney to Keith W.
Riggins, M.D., for evaluation on July 20, 1993. Claimant
related that her condition has been essentially stable since
March 21, 1991. Dr. Riggins read the MRI performed on
December 18, 1990, as demonstrating herniation of the L4-5
disc on the right with impingement on the nerve roots at
that level. He stated as follows: "Ms. Allen's current
impairment is felt to be secondary to presence of herniated
nucleus pulposus at the L4-5, right, which is considered due
to her episode of fall described as occurring in the course
of her employment in October of 1990." (ex. 2-19).
Dr. Riggins gave claimant an 11 percent permanent
impairment rating and restricted her from performing
activities requiring repetitive forward bending beyond 30
degrees, repetitively lifting of greater than 20 pounds or
occasional lifting of greater than 30 pounds, or prolonged
Page 5
sitting or standing in one position (ex. 2-19-20).
On August 13, 1993, Dr. Boulden reported to claimant's
attorney as follows: "Based on the history that you have
enclosed to us, it is my opinion that the accident that she
described in October of 1990 was the incident or factor to
cause her to develop sciatica pain from a herniated disc."
(ex. 1-7).
CONCLUSIONS OF LAW
The first issue to be determined is whether claimant
sustained an injury on October 12, 1990, arising out of and
in the course of employment with employer.
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on October 12,
1990, which arose out of and in the course of her
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904,
908 (Iowa 1976); Musselman v. Central Telephone Co., 154
N.W.2d 128, 130 (Iowa 1967). The words "arising out of"
have been interpreted to refer to the cause and origin of
the injury. McClure v. Union County, 188 N.W.2d 283, 287
(Iowa 1971); Crowe v. DeSoto Consolidated School District,
68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of"
refer to the time, place and circumstances of the injury.
McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An
injury occurs in the course of the employment when it is
within the period of employment at a place the employee may
reasonably be, and while the employee is doing work assigned
by the employer or something incidental to it. Cedar Rapids
Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa
1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at
130.
The supreme court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers Compensation Act, which comes about,
not through the natural building up and tearing down of the
human body, but because of a traumatic or other hurt or
damage to the health or body of an employee. The injury to
the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist court further observed that while a
personal injury does not include an occupational disease
under the Workmen's Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
Page 6
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
An injury must both arise out of and in the course of
employment. To arise out of employer refers to the cause of
the source of the injury. Crowe, 246 Iowa 402 68 N.W.2d 63.
The words "in the course of employment" refer to the time,
place and circumstances of the injury. McClure, 188 N.W.2d
283.
At the hearing, claimant alleged that on October 12,
1990, while holding an individual who was having a seizure,
his chair broke and they both fell to the ground. Claimant
produced no corroborating witnesses to the incident.
Claimant lost no time from work until November 22, 1990.
Although claimant alleges that she immediately told her
supervisor of the incident, a first report of injury
received by the industrial commissioner's office on January
4, 1991, indicates that the employer first knew of
claimant's condition on December 24, 1990 (ex. D).
The documentary evidence compels the undersigned to
find that claimant did not sustain an injury arising out of
and in the course of her employment with employer on October
12, 1990. Dr. Johnson reported on January 16, 1991, as
follows: "Julia tried to support the patient, her chair
broke, she fell back and experienced pain in the low back.
She then had onset of discomfort extending down the right
leg." (ex. 1-1). On February 13, 1991, claimant reported
to Dr. Boulden that after she fell to the floor, she
developed low back pain a few days later (ex. 1-4).
Claimant told the physician at the University of Iowa that
her back pain began two days after the October 12, 1990
incident (ex. 7-47). On January 3, 1991, Dr. Haag reported
that claimant had an accident at work the end of September
or the first part of October and her back has hurt since
(ex. 4-29).
Despite the above assertions, it must be noted that on
October 15, 1990, three days after the alleged incident,
claimant was seen in the emergency room with complaints of
left facial muscle spasms which started when she was playing
bingo on October 14, 1990. She was admitted as an inpatient
for further evaluation. It was noted that claimant had been
under a great deal of stress and the physician was unsure
whether her speech and memory problems were related to the
stress or to a transient ischemic attack. A complete workup
was performed and the results were negative. At no time
during the course of her hospitalization did claimant
mention the October 12, 1990 work incident and presented
with no musculoskeletal complaints, including low back pain
(ex. A-2).
On November 26, 1990, claimant presented to Mercy
Medical Clinic where she saw Dr. Haag. Her complaints were
referable to a cold in her chest and the possibility of
bronchitis. She also stated that she has been down for
three weeks with discomfort in the lower lumbar area. She
made no mention of a work incident or injury (ex. 4-23).
Page 7
She returned to Dr. Haag for follow-up evaluations on
November 29, 1990; December 6, 1990; December 10, 1990; and
December 14, 1990. At no time during any of those visits
did she relate to Dr. Haag that she experienced a traumatic
incident at work which could have possibly caused her back
discomfort (ex. 4-23-28).
On December 18, 1990, claimant was seen in the
emergency room with complaints of neck, shoulder and back
pain. She reported a nine-week history of low back pain but
denied any history of trauma (ex. 9-63). It was not until
December 27, 1990, when she saw Dr. Flapan that she mentions
the alleged October 12, 1990 work incident (ex. 5-41).
However there are conflicting versions of the incident in
the record. She told Dr. Johnson that another individual
sat down beside her desk (ex. 1-1). She told Dr. Wertz that
she was sitting on a chair and fell off to the left side
with another person on top of her (ex. 3-22). Dr. Green was
told that the person sitting next to her had a seizure and
in her attempt to protect him from falling she sustained an
injury to her back (ex. 5-42). She told Dr. Flapan that she
injured her back when trying to protect an individual
standing near her desk from falling while he was having a
seizure (ex. 5-41).
Claimant appeared at the hearing and testified that she
injured her back while holding a young man who was having a
seizure. She stated she reported the incident to her
supervisor. However, this is refuted by the first report of
injury. She stated that the incident was witnessed by other
workers but none appeared to give corroborating testimony.
There is evidence in the record which conflicts with her
description of the injury. She sought medical treatment
three days after the alleged injury and made no mention of
the incident or the injury.
The credibility of a witness is always at issue.
Claimant's inconsistent statements make it impossible to
support a recovery in this case. Accordingly, it is
determined that claimant did not sustain an injury which
arose out of and in the course of her employment with
employer. Claimant has not met her burden of proof.
This determination is dispositive of the entire case
and further analysis is unnecessary.
Page 8
ORDER
THEREFORE IT IS ORDERED:
Claimant shall take nothing from these proceedings.
The parties shall pay their own costs.
Signed and filed this ____ day of September, 1993.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Roger Owens
Mr. Christopher Spaulding
Attorneys at Law
840 5th Ave.
Des Moines, Iowa 50309-1398
Mr. James Christenson
Assistant Attorney General
Hoover State Office Bldg
Des Moines, Iowa 50319
51100
Filed September 22, 1993
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JULIA ALLEN,
Claimant,
vs.
File No. 971728
STATE OF IOWA-INSURANCE DIV.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
STATE OF IOWA,
Insurance Carrier,
Defendants.
___________________________________________________________
51100
Claimant did not prove by a preponderance of the evidence
that she sustained a back injury as a result of a
work-related incident. Claimant appeared at the hearing and
testified to suffering a traumatic event. She did not
report the event to her supervisor until two months
afterwards. The incident was apparently witnessed by others
but none appeared to corroborate claimant's testimony. The
record contained inconsistent statements made to physicians.
Claimant's inconsistent statements make it impossible to
support a recovery in this case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DANIEL G. LEE,
Claimant,
vs.
File No. 972228
TERRA INTERNATIONAL, INC.,
A P P E A L
Employer,
and D E C I S I O N
PACIFIC EMPLOYERS INSURANCE,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record has been reviewed de novo on appeal. The dismissal of the
deputy filed November 4, 1994 is affirmed and is adopted as the final
agency action in this case.
Because neither party filed a brief on appeal this matter will be
considered generally without any specified errors. The issues
considered by the deputy was: Whether claimant has shown cause why his
claim should not be dismissed for failure to comply with the prehearing
process.
Claimant shall pay the costs of the appeal, including the preparation
of the hearing transcript.
Signed and filed this ____ day of April, 1995.
_______________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Ms. Kay E. Dull
Attorney at Law
509 Ninth Street
Sioux City, Iowa 51101
Ms. Judith Ann Higgs
Attorney at Law
P.O. Box 3086
Sioux City, Iowa 51102-3086
2906
Filed April 28, 1995
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
DANIEL G. LEE,
Claimant,
vs.
File No. 972228
TERRA INTERNATIONAL, INC.,
A P P E A L
Employer,
and D E C I S I O N
PACIFIC EMPLOYERS INSURANCE,
Insurance Carrier,
Defendants.
_________________________________________________________________
2906
Claimant's claim was dismissed. Claimant failed to show cause why the
matter should not be dismissed for failure to comply with the
prehearing process. Claimant's counsel failed to appear for prehearing
as ordered. Claimant failed to cooperate with the timely filing of a
prehearing conference report.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MICHAEL HUDSON, :
: File No. 972480
Claimant, :
: A R B I T R A T I O N
vs. :
: D E C I S I O N
GRIFFIN PIPE PRODUCTS, :
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Michael
Hudson, claimant, against Griffin Pipe Products, employer,
hereinafter referred to as Griffin, a self-insured
defendant, for workers' compensation benefits as a result of
an alleged injury on January 17, 1991. On September 29,
1994, a hearing was held on claimant's petition and the
matter was considered fully submitted at the close of this
hearing.
The parties have submitted a hearing report of
contested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the hearing report, the parties have
stipulated to the following matters:
1. On January 17, 1991, claimant received an injury
arising out of and in the course of employment with Griffin.
2. Claimant is seeking temporary total or healing
period benefits only from June 18, 1992 through July 5, 1992
and defendant agrees that he was not working at this time.
3. If the injury is found to have caused permanent
disability, the type of disability is an industrial
disability to the body as a whole.
4. If permanent partial disability benefits are
awarded, they shall begin as of January 24, 1992.
5. At the time of injury claimant's gross rate of
weekly compensation was $562.00; he was married; and, he was
entitled to four exemptions. Therefore, claimant's weekly
rate of compensation is $353.15 according to the Industrial
Commissioner's published rate booklet for this injury.
Page 2
6. It was stipulated that the providers of the
requested medical expenses would testify as to their
reasonableness and defendant is not offering contrary
evidence.
ISSUES
The parties submitted the following issues for
determination in this proceeding:
I. The extent of claimant's entitlement to disability
benefits; and,
II. The extent of claimant's entitlement to medical
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
Claimant has worked for Griffin since September 1990 as
a electrician and continues in this employment at the
present time. His duties require him on occasion to perform
heavy lifting, bending, squatting, climbing and prolonged
sitting, standing and walking.
The injury in January 1991 involved a crush injury to
claimant's pelvis when he became entangled in an overhead
crane that he was repairing. Claimant was hospitalized
after the injury until January 25, 1991. Since his recovery
from the various crush fractures, claimant has complained of
low back, hip and leg pain and he was been under the care of
a number of physicians since that time for these same pain
complaints. Except for epidural injections, claimant's care
has remained conservative with use of medication and
physical therapy. No physician to date has recommended
surgery for what is most often described as lumbar strain.
Claimant did not like his first physician and his care
was transferred to Michael O'Neil, M.D., an orthopedic
surgeon. In June 1991 Dr. O'Neil refused to further treat
claimant and his care was transferred to Michael McGuire,
M.D., another orthopedic surgeon. Dr. McGuire eventually
refused to treat claimant in June 1992. Both of these
physicians ended treatment when claimant admitted to them
that he was forging their prescriptions to obtain pain
medications. The last episode with Dr. McGuire resulted in
claimant's prosecution and felony conviction for which he
received a suspended sentence with probation.
Upon being told by Dr. McGuire that he would prosecute,
claimant on the same day reported to the hospital with
complaints of suicidal thoughts and depression. He then was
hospitalized and evaluated by Michael Egger, M.D., a
psychiatrist who states that claimant suffered at the time
from a major depressive disorder "related to chronic pain
Page 3
residual to his industrial accident." Upon previous
referral by Dr. McGuire, claimant had been evaluated by a
pain control center. Richard Belatti, Jr., M.D., from that
center, in February 1992 diagnosed three conditions:
substance abuse with drug seeking behavior, manipulative
personality and chronic lumbar strain, hip pain and shoulder
pain. He recommended a comprehensive pain management
treatment program but this was not authorized by defendant.
Claimant returned to work in March 1992 with
restrictions against heavy work and prolonged walking. In
October 1993 claimant was sent by defendant to Anil Agarwal,
M.D., who removed all restrictions. Claimant now performs
regular duty with some accommodations for his complaints.
All physicians involved in this case indicate that claimant
has reached maximum healing for the physical components of
the 1991 work injury. Dr. Eggers continues to treat
claimant's mental problems.
Claimant now admits to heavy use of alcohol. He has
been recently convicted of drunk driving and has lost his
license to drive as a result. Claimant again received a
suspended sentence with probation. Despite his pain
complaints and legal difficulties, claimant remains employed
at Griffin in his same electrician job. However, fellow
employees have begun to harass him and claimant is worried
he may lose his job.
At hearing, claimant blames the work injury for all of
his current pain and legal problems stemming from drug and
alcohol abuse. He states that he lead a Christian life with
his wife and kids prior to the injury and was heavily
involved in his own "street" ministry. Claimant attended
two bible schools following graduation from high school. He
denied any prior use of drugs or alcohol.
However, the full extent of claimant's on-going pain
complaints cannot be believed. His forgery activity and
drug abuse behavior is wholly inconsistent with his claimed
Christian values. The denial of prior use of drugs or
alcohol likewise is questionable. At hearing, claimant
admitted to having the drug "phenobarbital" in his system at
the time of drug testing in conjunction with his
pre-employment physical at Griffin, but claims this occurred
due to use of an over-the-counter drug "Primatine" for his
bronchitis. In this agency's experience and expertise,
barbiturate drugs are not available in his country without a
prescription.
However, despite his credibility problems, claimant has
a documented serious work injury causing extensive lost time
and permanent disability. Almost every physician who has
rendered an opinion in this case opines that claimant has
suffered a permanent partial impairment of from 5 percent to
19 percent to the body as a whole due to his crush fracture
injury. Therefore, it is found that the work injury of
January 17, 1991 is a cause of some extent of significant
permanent disability to the body as a whole.
Page 4
What cannot be found is that his pain is so severe that
he is unable to continue at Griffin without heavy use of
alcohol or drugs. Since the time of injury, claimant has
been manipulative and constantly demanding that his
physicians provide him with potent pain killing drugs or he
would resort to alcohol abuse. Also, since the time of
injury, most physicians found this pain complaints to be far
beyond what they would expect.
With reference to the June 1992 hospitalization and the
major depressive disorder. It is found that such a
condition or its treatment by Dr. Egger is casually related
to the 1991 injury. Admittedly, this hospitalization
occurred shortly after his confrontation with Dr. McGuire
over his forgery of prescriptions but this was known by Dr.
Eggers who rendered an uncontroverted opinion causally
relating the mental condition he diagnosed to the industrial
accident. Also, given his past involvement with claimant,
Dr. Eggers appears to be the best physician to render
continuing care of claimant's mental problems in the future.
Given the circumstances of the injury and the views of
treating physicians, it must be found that claimant suffers
from some ongoing pain. Even after claimant's first
prescription problems with Dr. O'Neal, Dr. McGuire
recommended a pain clinic to help claimant deal with these
problems but this was not offered by defendant. Treatment
of claimant's mental depression and treatment and evaluation
by a pain clinic would appear appropriate in this case to
determine the full extent of his pain.
With reference to claimant's industrial disability,
without completion of treatment for his mental and pain
problems, there can be no final assessment of industrial
disability or permanent impairment caused by the injury.
Such assessment must await such time as maximum improvement
is reached for all work-related conditions.
CONCLUSIONS OF LAW
I. The question of causal connection is essentially
within the domain of expert medical opinion. Bradshaw v.
Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167
(1960). The opinion of experts need not be couched in
definite, positive or unequivocal language and the expert
opinion may be accepted or rejected, in whole or in part, by
the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). The weight to be given to such an opinion
is for the finder of fact to determine from the completeness
of the premise given the expert or other surrounding
circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with non-expert
testimony to show causation and be sufficient to sustain an
Page 5
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-American, Inc., 290 N.W.2d
348, 354 (1980). In the case of a preexisting condition an
employee is not entitled to recover for the results of a
preexisting injury or disease but can recover for an
aggravation thereof which resulted in the disability found
to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963).
A finding of the extent of permanent disability was not
possible at this time given claimant's need for further
evaluation and treatment for mental and pain complaints.
However, claimant is entitled to weekly benefits for
temporary total or healing period benefits under Iowa Code
section 85.33 or 85.34(1) from the date of injury until
claimant returns to work; until claimant is medically
capable of returning to substantially similar work to the
work he was performing at the time of injury; or, until it
is indicated that significant improvement from the injury is
not anticipated, whichever occurs first.
In this case, claimant has not reached maximum healing
but has returned to work. However, he was off again in June
1992 for treatment of a work-related mental condition and is
entitled to weekly benefits for that period of time. A
temporary return of work following a work injury does not
preclude the reinstitution of temporary total disability
benefits when an employee is compelled to leave work a
second time as a result of the same injury. See Junge v.
Century Engineering Corp, II IA Industrial Commissioner
Reports 219 (Appeal Decision 1981). As claimant returned to
work again and remains at work, he is not entitled to
further weekly benefits until the extent of permanency can
be determined.
II. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. In the case at bar, the
only medical dispute involved the treatment of claimant's
depression by Dr. Eggers and others and referral of claimant
to a pain center. These conditions were found work related
and medical benefits will be awarded.
ORDER
1. Defendant shall pay to claimant additional temporary
total disability or healing period benefits from June 18,
1992 through July 5, 1992 at the rate of three hundred
fifty-three and 15/l00 dollars ($353.15) per week.
2. Defendant shall provide at its expense treatment of
claimant's depression and mental problems by Dr. Eggers and
shall provide claimant reasonable treatment at any reputable
Page 6
pain management center chosen by defendant.
3. Defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.
4. Defendant shall pay interest on unpaid weekly
benefits awarded herein as set forth in Iowa Code section
85.30.
5. Defendant 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.
Signed and filed this ____ day of October, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Sheldon M. Gallner
Attorney at Law
803 Third Ave
PO Box 1588
Council Bluffs IA 51502
Mr. W. Curtis Hewett
Attorney at Law
35 Main Place
PO Box 249
Council Bluffs IA 51502
5-1803
Filed October 25, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MICHAEL HUDSON,
File No. 972480
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
GRIFFIN PIPE PRODUCTS,
Employer,
Self-Insured,
Defendant.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.