Page 1 before the iowa industrial commissioner ____________________________________________________________ : GLEN A. CULP, : : Claimant, : : vs. : : File No. 972536 RUBBERMAID COMMERCIAL PROD., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AMERICAN MANUFACTURING MUTUAL : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Glen A. Culp, claimant, against Rubbermaid Commercial Products, employer and American Manufacturing Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury sustained on November 24, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner on February 25, 1992, in Ottumwa, Iowa. The record was considered fully submitted at the close of the hearing. Claimant was present and testified at the hearing. Also present and testifying was Debbie Mitchell. The documentary evidence in this case consists of joint exhibits 1 through 9 and claimant's exhibits A through H. issues Pursuant to the prehearing report and statements made by the parties at the hearing in this matter, the following issues have been presented for resolution: (). Whether claimant sustained an injury to his left hand and wrist on November 24, 1990, arising out of and in the course of his employment with employer; (). Whether claimant's alleged injury is a cause of temporary disability during a period of recovery; (). Whether there is a causal relationship between claimant's employment and his disability; and (). Whether claimant is entitled to medical benefits under Iowa Code section 85.27. findings of fact The undersigned has carefully considered all the Page 2 testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant is 40 years old and a high school graduate. He commenced working for employer on October 12, 1990, and worked approximately 21 days before allegedly sustaining an injury on November 24, 1990. Claimant testified that he was asymptomatic prior to his employment with Rubbermaid. He stated he had no prior pain or numbness in his left hand and his symptoms developed during his tenure with employer. He sought medical treatment with his family physician, Stephen E. Sparks, M.D., who took him off work and put his wrist in a splint. When his problems continued, he was referred by Dr. Sparks to the company doctor who sent him back to Dr. Sparks. Dr. Sparks then referred claimant to Brent L. Dixon, D.O., who diagnosed left carpal tunnel syndrome. Dr. Dixon referred claimant to Michael L. Pogel, M.D., for neurological testing. Dr. Pogel referred claimant to John J. Finneran, M.D., for surgery. Claimant testified that he was released to return to work on February 24, 1991, and has no permanent impairment to his left hand as a result of his November 1990 injury. A review of the pertinent medical evidence of record reveals that claimant reported to Dr. Sparks on November 27, 1990, complaining of numbness in his left fingertips. He was given a cortisone injection and released for light duty with limitations (exhibit 6, page 2). His complaints persisted and Dr. Sparks referred him to Dr. Dixon, an orthopedist, for further evaluation. Dr. Dixon diagnosed carpal tunnel syndrome which was confirmed with an EMG/nerve conduction test performed on December 14, 1990. Because of Dr. Dixon's service in Desert Storm, he was unable to perform surgery. He referred claimant to Dr. Finneran. He performed out-patient left carpal tunnel release on January 2, 1991 (ex. 2, pp. 1-7). conclusions of law The first issue to be determined by the undersigned is whether claimant sustained an injury on November 24, 1990, which arose out of and in the course of his employment with Rubbermaid. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 24, 1990, which arose out of and in the course of his 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. Page 3 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 though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. The Supreme Court has also recognized that a cumulative injury may occur over a period of time. The injury in such cases occurs when, because of pain or physical disability, the claimant is compelled to leave work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985). Moreover, claimant's last employer becomes liable for the cumulative injury, even if the incidents that lead to the ultimate injury do not occur while a claimant is employed with the last employer. McKeever, 379 N.W.2d at 376; See also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 434-35 (Iowa 1984). The uncontroverted evidence in this case clearly demonstrates that claimant suffered a cumulative injury that came on gradually. This gradual injury developed over the course of time and finally resulted in claimant having to leave work and procure medical treatment, including surgical intervention, to cure his medical problem. Claimant testified that during his employment with Rubbermaid, he worked 12 hours a day, repeatedly lifting objects weighing between 25 and 30 pounds. During the Page 4 course of the 12-hour work day, claimant handled several hundred objects that required gripping, prying and lifting activities on a fairly constant and repetitive basis. Dr. Sparks testified in a deposition on February 19, 1992, that those types of work activities could certainly cause or aggravate a carpal tunnel syndrome (ex. 9). Dr. Dixon reported on November 7, 1991, that while he could not say whether Mr. Culp's condition existed prior to his employment with Rubbermaid, he could say that the repetitive motion tasks of his employment exacerbated his condition (ex. 3, p. 5). Dr. Finneran stated, without explanation, that "[I]t would require long (months or years) repeated motion to cause carpal tunnel." (ex. 7). After carefully considering the total evidence in this case, the undersigned concludes that the greater weight of the evidence supports the finding that claimant's left carpal tunnel syndrome arose out of and in the course of his employment with employer and the disability on which he bases his claim is causally connected to such employment. While expert medical evidence must be considered with all other evidence introduced bearing on causal connection, expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. The weight to be given to expert opinion is for the finder of fact and that may be affected by the completeness of the premise given the expert and other material circumstances. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); and Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). Based on this finding, claimant is entitled to weekly compensation for temporary total disability benefits for the period from November 27, 1990 through February 24, 1991, at the stipulated rate of $142.77 per week. The final issue to be determined is whether claimant is entitled to medical benefits under Iowa Code section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27.; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Constr. Specialists, Inc., File No. 850096 (App. 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's funds. See Caylor v. Employers Mut. Casualty Co., 337 Page 5 N.W.2d 890 (Iowa Ct. App. 1983). When a designated physician refers a patient to another physician, that physician acts as the defendant employer's agent. Permission for the referral from defendants is not necessary. Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (Arb. Decn. 1979) (aff'd by indus. comm'r). An employer's right to select the provider of medical treatment to an injured worker does not include the right to determine how an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgment. Assmann v. Blue Star Foods, Inc., File No. 866389 (Declaratory Ruling, May 18, 1988). This agency has consistently held that defendants cannot deny that an injury arose out of and in the course of employment on one hand and seek to guide medical treatment on the other. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). Since claimant's injury has been found to be compensable, defendants are liable for the medical expenses incurred for treating that injury. Those expenses are set out in claimant's exhibit number one, A through H. order THEREFORE, IT IS ORDERED: That defendants shall pay to claimant twelve point eight five seven (12.857) weeks of temporary total disability benefits at the rate of one hundred forty-two and 77/100 dollars ($142.77) per week for the period from November 27, 1990 through February 24, 1991. That defendants shall pay for all medical expenses incurred for treatment of claimant's November 24, 1990, injury as set out in claimant's exhibit number one, A through H. That defendants shall pay accrued amounts in a lump sum. That defendants shall pay interest pursuant to Iowa Code section 85.30. That defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33. That defendants shall file claim activity reports as required by this agency. Signed and filed this ____ day of March, 1992. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies to: Mr. Vern M. Ball Attorney at Law 207 S. Washington Box 129 Bloomfield, Iowa 52537 Mr. Craig Levien Attorney at Law 600 Union Arcade Bldg. 111 E. 3rd St. Davenport, IA 52801-1550 Page 1 51801 52500 Filed March 3, 1992 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : GLEN A. CULP, : : Claimant, : : vs. : : File No. 972536 RUBBERMAID COMMERCIAL PROD., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AMERICAN MANUFACTURING MUTUAL : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51801 Defendants deny that claimant's carpal tunnel syndrome arose out of and in the course of employment with employer. Although claimant only worked for employer 21-work days, his work activity consisted of repetitive and frequent lifting, prying, pushing, and gripping heavy objects on a sustained basis during a 12-hour work day. Physicians who treated and/examined claimant testified that these activities could have caused or contributed to claimant's medical problem. Defendants produced no evidence to the contrary. Therefore, claimant was found entitled to temporary total disability benefits from November 27, 1990, through February 24, 1991. 52500 Under Iowa Code section 85.27, the employer has the right to chose the provider of care, except where the employer has denied liability for the injury. Furthermore, defendants cannot deny that an injury arose out of and in the course of employment on the one hand and seek to guide medical treatment on the other. Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). Defendants found liable for all of claimant's medical bills incurred during the course of treatment for his work-related injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RONNIE HANEN, Claimant, vs. File No. 972610 STEVER'S CITY SANITATION, A R B I T R A T I O N Employer, D E C I S I O N and UNITED FIRE & CASUALTY CO., Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Ronnie Hanen, claimant, against Stever's City Sanitation, Inc., employer and United Fire & Casualty Co., insurance carrier, defendants, for benefits as the result of an injury which occurred on December 10, 1990. A hearing was held on May 18, 1993 in Des Moines, Iowa and the case was fully submitted at the time of the hearing. The hearing was scheduled to last for three hours, but due to a lack of preparation on the part of both parties the hearing actually lasted a period of eight hours from 1:00 p.m. in the afternoon until 9:00 p.m. in the evening. The first two hours of the hearing, which covered 60 pages of the 268 page transcript, were consumed resolving matters the parties should have resolved prior to hearing or which the parties should have been better prepared to present to the deputy for resolution at the time of the hearing (Tran. pp. 1-60 & Tran. pp. 50 & 60). The record consists of the testimony of Ronnie Hanen, claimant, R. Dallas Jones, Ph.D. a clinical neuropsychologist, Harry Stever, defendant-employer, LuRie Fairlie, insurance carrier's claim representative, William Catalona, M.D., defendants' evaluating orthopedic surgeon, claimant's exhibits 1 through 10 with the exception of exhibit 8 which was excluded because it was not timely served (Tran. pp. 32, 35 & 42) and defendants' exhibits A through J. Some of these exhibits are duplicated because the parties failed to get together prior to hearing and agree upon a joint exhibit and otherwise prepare the case pursuant to the instructions in the hearing assignment order. The testimony of Melvin Luke, Michael Simons and LuRie Page 2 Fairlie were excluded at the objection of claimant for the reason that defendants failed to serve a timely witness list on claimant and claimant alleged unfair surprise which was prejudicial. LuRie Fairlie was subsequently permitted to give limited rebuttal testimony. Michael Simons was allowed to make an offer of proof out of the presence of the deputy. The testimony of Irma Hanen, claimant's mother, was excluded at the objection of defendants for the reason that claimant did not serve a timely witness list on defendants and defendants indicated they were unfairly surprised. Ronnie Hanen was allowed to testify as claimant's representative and Harry Stever was allowed to testify as employer's representative (Tran. pp. 19-23). At the time of the prehearing conference report dated January 11, 1993, the issue of injury arising out of and in the course of employment was not identified as an issue to be determined in this case. Seven days prior to hearing (May 11, 1993) defendants asserted to claimant that injury arising out of and in the course of employment was to be an issue in this case. Defendants were not allowed to assert injury arising out of and in the course of employment as an issue to be decided at this hearing for the reason that the assertion was not timely made. Claimant justifiably asserted surprise and prejudice. The hearing assignment order states "unless otherwise agreed in writing, the issues to be heard are those identified in the prehearing conference report." Paragraph 10. Hearing Issues, Hearing Assignment Order dated February 1, 1993 (Transcript page 49). The deputy ruled that injury arising out of and in the course of employment would not be one of the issues to be determined by this decision (Tran, pp. 14 & 23) but rather it was excluded as an issue to be determined by this hearing (Tran, pp. 14 & 25). Actually, defendants did not dispute injury but rather the extent of injury caused by this injury (Tran. p. 14). ISSUES The parties presented the following issues for determination at the time of the hearing. Whether claimant is entitled to temporary disability benefits for the period from December 10, 1990, the date of the injury, until February 6, 1991 when defendants began paying temporary disability benefits. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which claimant is entitled, to include whether claimant is entitled to permanent disability benefits for a scheduled member injury or whether claimant is entitled to permanent disability benefits for an injury to the body as a whole because the knee injury aggravated a preexisting peptic ulcer condition and a preexisting mental depression condition. Page 3 What is the proper rate of compensation. Whether claimant is entitled to penalty benefits. Whether claimant is entitled to an independent medical examination. PRELIMINARY MATTER Medical benefits were asserted as a hearing issue. However, the parties agreed that all medical benefits had been paid at the time of the hearing, except some recent bills which are contained in exhibit 8 which defendants had never seen before. Exhibit 8 was excluded from evidence for the reason that it was not timely served pursuant to the hearing assignment order and constituted unfair surprise. Nevertheless, if claimant can demonstrate to defendants that these bills were reasonable treatment for this injury defendants would be obligated to pay them pursuant to Iowa Code section 85.27. FINDINGS OF FACT entitlement to temporary disability benefits It is determined that claimant is not entitled to temporary disability benefits for the period from December 10, 1990 to February 6, 1991. It is true that claimant was injured on December 10, 1990, when he jumped from the garbage truck on which he was riding and injured his left knee. However, it cannot be established from any source that claimant was unable to work because of this injury during the period of time from December 10, 1990 to February 6, 1991. Claimant did not testify that he was unable to work during this period of time. No other lay witness testified that claimant was unable to work during this period of time. Claimant testified that his mother and wife called employer to report that he would not be at work, but claimant did not testify that it was because he was unable to work because of this injury. Employer testified that claimant picked up his check, for Monday, December 10, 1990 on Friday December 14, 1990 and said that he would be reporting in to work on Monday, December 17, 1990. Employer observed no signs of injury at that time (Tran. pp. 181 & 182). When claimant did not show up on Monday employer terminated claimant. Employer testified that he saw claimant a few days after the injury and drank a beer with him on the hood of a car and claimant did not mention that he was injured nor did he appear to be injured (Tran. p. 184). When claimant was checked into and out of jail on December 12 and 13 of 1990, the form completed by the arresting officer, Michael S. Simons, does not indicate that Page 4 the claimant was or was not suffering from a left knee injury or that he required any special treatment for any kind of unusual health condition (Res. Ex. J). Claimant testified he had no recollection of being booked into the jail at that time (Tran. pp. 111 -113). No physician has stated that claimant was unable to work during this period of time (1) even though there is a deposition in evidence from Donald D. Berg, M.D., the treating orthopedic surgeon, and (2) even though William Catalona, M.D., an evaluating orthopedic surgeon testified in person at the hearing and also gave a medical report, and (3) even though there is a lengthy independent medical evaluation and report from William J. Minks, M.D., J.D. In spite of all of this medical evidence, none of these physicians gave a professional medical opinion that claimant was unable to work during this period of time from December 10, 1990 to February 6, 1991 (Exs. A, B, D, and 1). Defendants voluntarily paid claimant for the period from February 6, 1993, when he first saw a physician for this injury, until August 12, 1991, when this same physician provided information to the satisfaction of defendants that claimant was no longer entitled to temporary disability benefits. There is evidence that Dr. Berg released claimant to full activity and full work as of August 12, 1991, however, Dr. Berg qualified this statement by saying that claimant was not to jump on the left knee for about six months to a year following the surgery (Ex. A, p. 17). Claimant requested a determination of the proper rate of compensation for this period of time and this will be done under the rate determination section of this decision. Wherefore, it is determined, as a matter of fact, that claimant is not entitled to temporary disability benefits for the period from December 10, 1990 to February 6, 1991. causal connection/entitlement/permanent disability With respect to causation of disability, Dr. Berg stated several times in his records and reports (Ex. B-2, B-3, B-4-1, B-7-1, B-10-1, and B-12) and in his deposition testimony (Ex. A, p. 25) that this injury was caused by claimant's work. It is determined that the resulting treatment and disability therefore was also caused by this injury. Dr. Berg did not suspect or suggest any other cause for claimant's injury and disability. Dr. Berg stated that claimant had no prior history any locking episodes with his knees or problems along that line prior to December 10, 1990 (Tran. p. 195; Ex. B-2). Employer was not aware of any problem claimant was having with his knees prior to the injury of December 10, 1990 and that he was able to jump on and off of trucks before that (Tran. p. 185). Claimant denied any subsequent injuries to his knee (Tran. p. 81). Dr. Catalona and Dr. Minks also proceeded to make their impairment evaluations on the basis of the facts of this injury and the resulting surgeries that were performed to Page 5 treat this injury. Likewise, they did not dispute that claimant's disability, if any, occurred from anything other than this injury (Ex. A & Ex. 1). Claimant did injure his left knee in a motorcycle accident six months to a year prior to this injury. He said it swelled up but within a week he was back to work lifting, running, and jumping on and off of the garbage truck without difficulty. Claimant did not see a doctor or receive any medical attention for this motorcycle injury (Tran. pp. 76, 95 & 96). Claimant was able to work on the garbage truck after the motorcycle accident (Tran. p. 128). There is no evidence to suggest that the motorcycle accident in anyway contributed to claimant's current disability other than pure speculation. In summary, all of the doctors, Dr. Berg, Dr. Catalona, and Dr. Minks all proceeded on the basis that this injury was the cause of any existing permanent disability or continuing problems that claimant may or may not have with respect to his left knee. None of the doctors determined that there was any other cause for this current left knee disability. The fact that this injury was the cause of any existing impairment was not disputed by any of the doctors, however, Dr. Berg did not think that there was any impairment. Wherefore, it is determined that the injury of December 10, 1990, was the cause of claimant's permanent impairment in his left knee. With respect to nature and extent of disability, claimant received an arthoscopic surgery from Dr. Berg on February 20, 1991. His preoperative diagnosis was torn medial meniscus, however, his postoperative diagnosis was a tear of the anterior cruciate ligament. During the arthoscopic examination Dr. Berg removed a portion of the torn cruciate ligament (Ex. B-7-1). Quadracep and hamstring exercises did not restore the stability to claimant's left knee, but rather it continued to give out. Therefore, on April 10, 1991, Dr. Berg performed an arthrotomy of the left knee with a replacement of the torn anterior cruciate ligament with the central third of the patellar tendon (Ex. B-11-1). About a year later Dr. Berg made an evaluation on March 4, 1991, which he worded as follows: Consultation 3-4-92 This is a 25 y/o who is postop anterior cruciate ligament repair on his left knee. He is doing very well. His knee is stable and has not gone out on him. He feels like his strength has returned. He has full ROM, good quad and hamstring function and he is released from further follow up. He appears to have full functional return and has no longterm permanent physical Page 6 impairment. Donald D. Berg, M.D. (Ex. B-15) In his deposition on May 11, 1993, seven days prior to hearing, Dr. Berg admitted that he had not seen claimant since March 4, 1992. There is no evidence that Dr. Berg used a goniometer or used the AMA Guides or any other established criteria to arrive at this determination. Apparently defendants attempted to obtain a current specific numerical impairment rating from Dr. Berg subsequent to March 4, 1992 but they were unable to do so. Dr. Berg wrote to defendants' counsel on March 22, 1993 as follows. I have reviewed his record and it appears now he has some limitation of motion and some weakness since I have seen him. I requested that he come in for an evaluation so I can give you the current status on this patient, however, he is now in the alcoholic ward in Burglington [sic] and apparently will be there for five to six months and cannot leave for any appointments. At this point, I cannot give you any impairment rating or any current status report on this individual. ... As referencing Dr. Mink's report, I cannot state, at the present time, a response to this report as far as the physical impairment of his leg is concerned as I have not seen the patient since back on March 4, 1992. However, I would state, at that time, I did not feel he would have any impairment with regard to his leg. As far as the other impairments [ulcers and depression] that Dr. Mink's found, I do not feel these are related to his two knee surgeries. (Ex. A, Dep Ex. 4) The bracketed material was added by the deputy. Thus, even though Dr. Berg was unable to give a final impairment rating, based on the physical condition that Dr. Minks and Dr. Catalona examined, nevertheless, Dr. Berg indicated that there was no permanent impairment based upon his last observation of claimant. At the same time, since Dr. Berg did not perform a comparable examination, it must be said that his testimony on permanent impairment of the left knee is somewhat inconclusive and incomplete. Dr. Berg acknowledged that he did not know, one way or the other, whether or not claimant was currently having symptomatology including intermittent knee pain, numbness, or a sensation that his knee is going to pop out of place when he exerts pressure on his knee (Ex. A, p. 26). Dr. Berg further acknowledged that after this kind of surgery it is possible for a patient to lose quad strength and hamstrength if they do not exercise the knee "as time goes on through life" to keep your leg strengthened up (Ex. A, p. 29). With respect to claimant's alleged ulcer and mental depression complaints, Dr. Berg did testify in his deposition on May 11, 1993 and in his letter to defendants' Page 7 counsel on March 22, 1993, that he did not believe that claimant's alleged depression and alleged peptic ulcer disease were related to the two knee surgeries (Ex. A, p. 27, Dep. Ex. 4). Dr. Berg said that claimant made no complaints about an ulcer or mental depression at the time he was treating claimant's left knee (Tran. p. 32 & 33). Claimant was examined by Dr. Minks on January 14, 1993, as an independent medical examiner for claimant and he submitted a 19 page report including attachments (Ex. 1). Dr. Minks has several qualifications, one of which is a Fellow American Academy and Disability Evaluating Physicians (Ex. 10). With respect to the left knee Dr. Minks made a detailed application of the Guides to the Evaluation of Permanent Impairment, Third Edition, Revised, and using goniometer measurements he explained in detail how he applied Table 40 on page 68, item number 6, to arrive at a 10 percent permanent impairment based on the anterior cruciate ligament repair and continuing symptomatology. He explained also how he applied Table 39, page 68 to claimant's range of motion on three separate tests and arrived at an 11 percent permanent impairment of the lower extremity. Combining these two values as he was instructed to do by the AMA Guides he found that claimant sustained a 20 percent impairment to the left lower extremity (Ex. 1, p. 13). Dr. Minks said that the continuing symptomatology was related to be intermittent knee pain precipitated by anything that exerts pressure on the knee, a numb sensation in his left knee caused by prolonged standing and a feeling that the knee will pop out again when he exerts pressure on the knee. Dr. Minks indicated that claimant should not engage in prolonged standing in one position for more than 15 minutes without being able to move around. He should limit climbing ladders and squatting and kneeling to occasionally. He should be prohibited from crawling (Ex. A, pp. 5, 12, 15 & 16). Dr. Minks also awarded a 9 percent body as a whole impairment based on a deterioration of claimant's peptic ulcer disease caused by the injury to his left knee due to the anti-inflammatory medications required to treat the inflammation in the knee (Ex. 1, p. 14). In addition, Dr. Minks assessed a 10 percent impairment to the body as a whole based on an aggravation of claimant's chronic mental depression caused by increased guilt, lowered self-esteem and "dipair" [sic] of his depression (Ex. 1, pp. 14 & 15). Dr. Catalona examined claimant as an independent evaluator for defendants shortly before the hearing and made a report on March 30, 1993 (Ex. D). Dr. Catalona also testified at the hearing (Tran. pp. 202-249). Dr. Catalona had the advantage of the reports of both Dr. Berg and Dr. Minks as well as the opportunity to physically examine claimant (Tran. p. 206). The doctor said he found a practically normal left knee except for the fact that claimant had surgery on two different occasions (Tran. pp. Page 8 206 & 207). In the opinion of the deputy, a knee with two surgeries would be significantly different from a practically normal left knee which had never been injured and never had received any surgeries. Dr. Catalona said there was no loss of range of motion in claimant's left knee (Tran. p. 116; Ex. D p. 2). Claimant testified that he has had continuing problems with his left knee and that he has seen a doctor shortly before the hearing who ordered an x-ray to diagnose his continuing complaints (Tran. p. 83). With respect to peptic ulcers, Dr. Catalona stated, "I see absolutely no correlation." (Tran. p. 224). Dr. Catalona further stated that it would be very unusual that the knee injury in this case would cause a mental depression (Tran. p. 225). In his written report dated March 30, 1993, Dr. Catalona stated, I find no indication that the injury of this knee is related to his peptic ulcer disease nor to his intermittent episodes of depression. If the knee injury could have been a cause of these problems, the knee is now so well healed that it would not be a medical cause of his complaints. (Ex. D, p. 2). Dr. Catalona found that claimant sustained a 5 percent impairment of the left leg (Tran. p. 215; Ex. D, p. 3). Dr. Catalona did not say how he measured this degree of loss, if in fact, it is based upon any physical measurement. Nor did Dr. Catalona say whether his rating was based on the AMA Guides, the Orthopedic Surgeons' Guide, or any other generally accepted rating criteria. Dr. Catalona is a long time practitioner and a board certified orthopedic surgeon and apparently his rating is based upon his many years of experience in his profession. With respect to claimant's ulcers, claimant testified, Q. Okay. Now, have you had a previous problem with a peptic ulcer? A. Yes. It's always been a problem. I mean, I had surgery on it, what, at the beginning of '90 or end of '89, somewhere like that. Q. Okay. so what kind of a problem is it? I mean, what happens to you? A. I just worry all the time about everything (Tran. p. 85). With respect to his mental depression claimant testified as follows, Q. Okay. All right. Now, is it -- would it be correct to say that you've had depression in Page 9 the past? A. Yeah. I mean, I've had it for years. Q. Okay. When your knee got hurt, did that have an effect on your depression? A. I don't know. It pissed me off; but I mean, it didn't really. I didn't notice no changes besides my knee. Q. Okay. Did it help your depression? A. Well, I can't say that it helped it, and I can't say it actually hurt it (Tran. p. 86) Claimant was examined by R. Dallas Jones, Ph.D., a psychologist at the University of Iowa on March 24, 1993. Dr. Jones reported as follows, Responses to the Minnesota Multiphasic Personality Inventory (MMPI) were suggestive of an unusually "defensive" response style. Individuals with this response style deny even common human faults, and usually portray themselves in an Page 10 unusually positive light. As a result of this finding, we asked Mr. Hanen to repeat the MMPI, but he refused. With this response bias in mind, the clinical scales of the MMPI were suggestive of substantial somatic concern and distress. The profile is associated with numerous physical complaints that may be disproportionate to objective findings. In sum, the results of our assessment were tempered by a probable "defensive" response bias. However, the data suggest that Mr. Hanen is likely to have numerous physical complaints that may be difficult to isolate medically. We see no evidence of significant depression or anxiety (Ex. C, pp. 1 & 2). Wherefore, based upon the foregoing evidence it is determined that the injury to claimant's left knee which occurred on December 10, 1990, was the cause of permanent disability to claimant's left leg and that he has sustained a 10 percent permanent impairment to the left leg and is entitled to 22 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(o). Claimant sustained a traumatic injury to his left knee. It was witnessed by a co-worker. He eventually sought medical treatment. The left knee injury caused an arthoscopic surgery and arthrotomy with a significant reconstruction of the left knee anterior cruciate ligament. Claimant testified that his left knee becomes numb if he stands for a prolonged period of time (Tran. p. 82). He further stated that if walks for a long period of time he gets a shooting pain down the left side of his knee (Tan. pp. 82 & 83). Claimant further testified that if he tries to run it feels like his knee is going to pop out (Tran. p. 84). Claimant added that if he would put a sudden pressure on his knee like jumping, it would feel like it was coming to a breaking point (Tran. p. 84). Claimant related he has to watch what he is doing if he tries to jog up or down stairs (Tran. pp. 84 & 85). Claimant maintained that he could not stand in one place for a long period of time (Tran. p. 87). Claimant testified that he was never offered to be rehired by employer after the injury (Tran. p. 81). It is further determined that the injury of December 10, 1990 to the left knee was not the cause of any significant aggravation of claimant's peptic ulcers or his mental depression. Dr. Minks' testimony was rebutted by Dr. Berg, Dr. Catalona, Dr. Jones and claimant himself. Claimant did not relate any problems concerning his ulcers or depression to Dr. Berg during the course of his treatment for his left knee. Dr. Berg wrote in his letter of March 22, 1993, that these other impairments that Dr. Minks found (peptic ulcer and mental depression) were not related to his two knee surgeries in Dr. Berg's opinion (Ex. A, Dep. Ex. 4). Dr. Catalona unequivocally stated that he found no indication that the injury to his knee was related Page 11 to his peptic ulcer disease nor to his intermittent episodes of depression (Ex. D., p. 2). Claimant was not examined or treated for peptic ulcer disease or depression by any medical practitioner subsequent to this injury which occurred on December 10, 1990 (Tran. pp. 93-95). It is the determination of this deputy that claimant's peptic ulcers and mental depression are related to his lifestyle prior to this injury and general state of health prior to this injury rather than to the injury to his left knee which occurred on December 10, 1990. It is further determined that claimant sustained a scheduled member injury to this left leg and he did not sustain an injury to the body as a whole. Iowa Code section 85.34(2)(o) and (u). RATE It is determined that claimant's rate of compensation is to be determined pursuant to the introductory paragraph of Iowa Code section 85.36 and subparagraph 1 of Iowa Code section 85.36. Those paragraphs read as follows, 85.36 Basis of computation. The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: 1. In the case of an employee who is paid on a weekly pay period basis, the weekly gross earnings. Claimant testified that he was told that he would be paid $280 per week. He further testified that he would be taking home $240 per week after withholding (Tran. p. 75). Employer did not deny that he might have told claimant that he would be earning $280 a week but the pay records show that claimant was earning $260 a week (Tran. p. 202; Ex. G). Employer testified that in his opinion claimant was earning $260 per week and after a FICA deduction he was paid $240 per week (Tran. p. 188 & 189). Employer testified that at the time claimant was hired again on or about November 28, 1990, prior to this injury on December 10, 1990, and that employer grossed up claimant's compensation to $260 per week so that claimant would continue to receive $240 per week after the FICA deduction. Claimant's pay records for the year 1990 show that claimant normally earned $240 per week prior to this last period of employment, when he was hired to replace an individual who was called to active duty in the military service for Page 12 Operation Desert Storm. Claimant's testimony that he was earning $280 per week at the time of the injury is not supported by any other evidence, whereas, employer's pay records support employer's testimony that claimant was earning $260 per week and received $240 per week in take home pay (Ex. F & G). Therefore, it is determined that claimant was earning and was paid on the basis of a gross weekly wage of $260 per week and that he was paid on a "weekly pay period basis." Iowa Code section 85.36(1) (Ex. F & G). Claimant testified that his normal work week was four days a week. He also testified that some employees worked Friday until noon or so (Tran. p. 74). This testimony of claimant was corroborated by employer who also testified that claimant worked four days a week but that most employees worked five days a week. Employer also testified that there were employees who worked four days a week (Tran. pp. 187 & 188). Thus, a four day work week was a normal work week for claimant and a number of other employees of employer. Claimant testified that he worked off-and-on for employer for approximately three or four years (Tran. p. 73). How much claimant worked for employer in 1989 and how much he earned could not be determined from the evidence (Tran. p. 95; Ex. G). In 1990 claimant worked for employer for four weeks in January and earned $240 per week. Claimant worked three weeks for employer in April of 1990 and earned $75, $ $300, and $280 per week respectively. Claimant worked every week in May, June and July of 1990 and earned $240 per week (Ex. G). Both claimant and employer agreed that claimant worked for employer on a full-time basis in May, June and July of 1990 (Tran. pp. 96, 173, & 174). Claimant only worked two weeks in August of 1990 earning weekly amounts of $147 and $60 respectively. He worked two weeks in September of 1990 earning $240 and $60 respectively. Claimant worked two weeks in November of 1990 earning $78 and $240 respectively (Ex. G). A new contract of employment was agreed to by claimant and employer on or about November 28, 1990. On or before that date both claimant and employer agreed that claimant would replace an employee who had been called to active duty for military service for Operation Desert Storm. Claimant testified, Q. Okay. Well, what did you understand? Did you understand you were part-time? Full-time? What did you understand? A. Well, when he put me in Van Buren County, he told me someone in Bloomfield had got called off to Desert Storm, and he said it could be six months, it could be a year. He didn't know for Page 13 sure how long I would be in Van Buren County (Tran. p. 74). There appears to be a meeting of the minds on this new employment contract. Employer testified, And the next time that he worked for us, I guess, was when I told him that we had a guy going to -- that had been called into active duty and that while he was gone if he wanted to he could work for him down in Van Buren County (Tran. p. 79). After claimant agreed to work indefinitely to replace the person who was called to active duty he was paid $260 per week on November 28, 1990, $260 a week on December 5, 1990 and $60 for the one day of work that he performed on Monday, December 10, 1990, when he was injured (Ex. G). Employer acknowledged that he did not know when the employee called to active duty would be coming back (Tran. p. 189). Employer admitted that claimant worked as a full-time employee in May, June and July of 1990 and that employer elected to show these earnings as W-2 earnings. Employer also admitted that when claimant went to work on November 28, 1990, to replace the employee called to active duty that employer again designated these earnings as W-2 earnings which is the same method he used to handle the full-time employee earnings of claimant in the months of May, June and July of 1990 (Ex. E, F & G). Thus, there seems to be no question that employer considered claimant to be a full-time employee at the time of this injury based upon the way employer chose to report his earnings at the time of this injury. Employer actually admitted that claimant was a full-time employee at the time of this injury. Q. Well, again you understood that he would work indefinitely for this gentleman that was out of the country? A. Until he returned. Q. Until he returned. And you didn't know when he was going to return? A. That's right. Q. And he remained a full-time employee until he hurt his knee on December the 10th; is that correct? A. For two weeks. (Tran. pp. 192-193). The contention of the insurance carrier that, "Mr. Hanen was not a full-time employee, he worked when work was available and if he elected to ... When Mr. Hanen worked a full week it was to replace another employee while that employee was on vacation or sick" (Ex. 5-1) is not correct. At the time of the injury claimant was not replacing an employee who was on vacation or sick. He was replacing an Page 14 employee who had been called to active duty indefinitely for the duration of the military action or longer. Furthermore, employer's pay records demonstrate that claimant normally worked a full week most of the time and was paid on a weekly pay period basis (Ex. G) Employer's testimony that he paid claimant $60 a day is immaterial for the reason that claimant was paid on a weekly pay period basis (Tran. p. 196 & 210; Ex. G). Furthermore, this is in conflict with his earlier testimony that claimant was to be paid $260 a week (Tran. p. 188). Moreover, employer's testimony that he normally paid $60 a day irrespective of whether an employee worked two hours or ten hours is refuted by claimant's pay record for the week of April 4, 1990, when claimant was paid $75 for that week and the week of November 2, 1990, when claimant was paid $78 for that week (Ex. G). Employer testified that it was he himself who prepared exhibit G (Tran. p. 172). He added that this exhibit is the determining factor as to whether claimant was working full-time or not (Tran. p. 173: Ex. G) Exhibit G shows claimant was receiving W-2 wages which was employer's criteria of whether claimant was working full-time or not. For reasons of his own choosing, at all other times employer designated and reported claimant's earnings as 1099 earnings. Further evidence of weekly pay is this testimony. Q. So is it your testimony then, that his gross wages was $260? A. Yes. (Tran. p. 189. Further evidence of weekly pay is that employer agreed to gross up claimant's wages to $260 so that claimant would receive $240 a week, he did the grossing up on a weekly basis and not a daily basis (Tran. p. 201). Thus it can been seen that sometimes claimant worked a full week as a temporary employee, other times he worked only part-time, and other times he worked full-time as a regular employee. Wherefore, from the foregoing evidence it is determined that the weekly gross earnings to which the employee was entitled on December 10, 1990 and "to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed," are $260 per week. Iowa Code section 85.36 introductory paragraph and subsection 1. The rate of compensation cannot be computed under Iowa Code section 85.36(6) or (7) for the reason that claimant was not paid on a daily, hourly or output basis. The evidence established that claimant was paid on a weekly basis (Exs. F & G). Page 15 The rate of compensation in this case cannot be computed under Iowa Code section 85.36(10) because it was not established that claimant earned, "... either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, ..." Iowa Code section 85.36(10). There was no evidence that claimant earned less than a regular full-time employee. The evidence established that full-time employees worked four or five days a week. The evidence established that claimant worked four days a week and therefore he was a full-time employee. The evidence further established that claimant was paid a gross wage of $260 per week (Ex. F & G). He was on a "weekly pay period basis." Iowa Code section 85.36(1). The evidence established that irrespective of claimant's earlier employment status, whether full-time or part-time, whether he earned W-2 earnings or whether he earned 1099 earnings, that claimant was nevertheless working as a full-time employee, indefinitely, at the time of this injury on December 10, 1990, to replace a person who had been called to active duty in the military service for Operation Desert Storm. There was no evidence to show when the person called to active duty would return to work, if at all. Sometimes persons called to active duty for military action are killed or found to be missing in action and never return to their former employment. Sometimes they are wounded and are unable to return to their former employment. Sometimes they remain in the military service and make a career of the military service. Sometimes, such persons choose to follow other employment endeavors at the conclusion of military service. Therefore, the employment of claimant to indefinitely replace a person called to active duty for military service in Operation Desert Storm, which was an actual combat operation, is determined to be indefinite full-time employment and that claimant was a full-time employee at the time of this injury on December 10, 1990. Following employer's own criteria that full-time employees receive W-2 wages confirms that employer considered claimant to be a full-time employee because he was paying claimant W-2 wages at the time of the injury (Ex. G). Wherefore, it is determined that claimant was a full-time employee of employer at the time of this injury earning a gross weekly wage of $260 per week who was married and was entitled to four exemptions. The parties stipulated that claimant was married and was entitled to four exemptions. According to the Guide to Iowa Workers' Compensation Claims Handling for the injury date of December 10, 1990, the proper rate of compensation found on page 25 is $182.18 per week. Page 16 PENALTY BENEFITS Although in the past claimant may have occasionally earned "less than the usual weekly earnings of the regular full-time adult laborer in this line of industry in which the employee is injured in that locality" Iowa Code section 85.36(10), normally claimant earned $240 per week whether employer decided to designate him as a 1099 employee or a W-2 employee (Ex. G). The few notable exceptions are the week of April 4, 1990, when claimant earned $75 per week; two weeks in August of 1990 when claimant earned $147 and $60 per week respectively; one week in September of 1990 when claimant earned $60 per week and one week in November of 1990 when claimant earned $78 per week. The overriding consideration in this case is that at the time of the injury on December 10, 1990, claimant was working under a new agreement as a full-time employee to replace another full-time employee who had been called into the military service, and that claimant was paid weekly, and that he was to continue to work and be paid on a full-time basis into the indefinite future, for perhaps six months or a year at least, or even longer. In the opinion of this deputy there is no question that claimant was a full-time employee on the date of the injury, December 10, 1990. See the forgoing section on rate where it is determined that employer clearly knew and designated claimant as a full-time employee. In the opinion of this deputy it was not fairly debatable that claimant was a part-time employee at the time of this injury, nor was it fairly debatable that claimant was not earning as much as "the regular full-time adult laborer" in this industry in this locality at the time of this injury. Iowa Code section 85.36(10). In May, June and July of 1990 employer considered claimant to be a full-time employee and designated his earnings as W-2 earnings claimant was paid $240 per week. On November 28, 1990 and thereafter employer admitted that he grossed up claimant's earnings so that he would continue to receive $240 per week and employer again designated that these earning were W-2 earnings which, according to the employer's testimony was his criteria that claimant was working as a full-time employee. Claimant's attorney contends: "As such, the determination of his weekly benefit amount was intentionally calculated in such a way to provide him with the lowest possible payment, and was based upon a known untruth. This is precisely the situation in which the penalty provision was intended to remedy and therefore should be imposed." (Clm's. Trial Brief, p. 4). This contention is not without merit. Wherefore, it is determined that employer and insurance carrier delayed the commencement of weekly workers' compensation benefits at the proper rate of compensation without reasonable or probable cause or excuse and that claimant is entitled to penalty benefits in the amount of 50 percent of the amount of benefits that were unreasonably denied. Iowa Code section 86.13(4). Page 17 It is further determined (1) that it was not fairly debatable that claimant was not a full-time employee and (2) it was not fairly debatable that claimant was a part-time employee under the evidence summarized above and following the standard or criteria that employer used to pay part-time and full-time employees. Both employer and employee essentially testified that claimant was employed to work full-time to replace a full-time employee who had been called to active duty in the military service indefinitely. Employer's wage records show that he considered claimant to be a full-time employee with a weekly wage of $260 per week which he designated as W-2 wages. Claimant was unjustly deprived of the workers' compensation benefits at the proper rate of compensation and therefor claimant is entitled to penalty benefits pursuant to Iowa Code section 86.13(4). Defendant paid claimant 26.714 weeks of workers' compensation weekly benefits at the rate of $90.74 per week for the period from February 6, 1991 to August 12, 1991. Claimant should have been paid benefits at the rate of $182.18 per week. Thus, claimant was delayed in the commencement of $91.44 per week worth of weekly compensation benefits for temporary disability without reasonable or probable cause or excuse for a period of 26.714 weeks in the total amount of $2,442.73. Claimant is entitled to a penalty benefit of 50 percent of $2,442.73 in the amount of $1,221.36. Iowa Code section 86.13(4); Dolan v. Aid Insurance Co., 431 N.W.2d 790 (Iowa 1989); Dodd v. Oscar Mayer Foods Corp., File No. 724378 (1989); Collins v. K Mart Corp., File No. 921081 filed March 11, 1993. Claimant is not entitled to penalty benefits for defendants failure to pay permanent partial disability benefits for the reason that there was a legitimate dispute on the extent of impairment to claimant's left knee. Juste v. HyGrade Food Products Corp., IV Iowa Industrial Commissioner Reports, 190 (App. Dec. 1984). Even though claimant's independent evaluator determined that claimant had a 20 percent impairment of the left lower extremity, the treating physician, Dr. Berg had found that claimant had sustained no permanent impairment to his left knee or leg. The opinion of Dr. Catalona, an independent evaluator for defendants, that claimant had sustained a 5 percent permanent impairment to his left leg did not occur until shortly before the hearing and it was at odds with the treating physician, Dr. Berg, who found no impairment. Wherefore, it is determined that claimant is not entitled to penalty benefits for defendants failure to commence payment of permanent partial disability benefits. INDEPENDENT MEDICAL EXAMINATION The issue of whether claimant is entitled to an independent medical examination was determined prior to this hearing by another deputy industrial commissioner on February 12, 1993. Defendants filed a motion to reconsider this ruling on February 23, 1993 and requested time to Page 18 prepare and file a resistance. A motion for reconsideration of this nature is considered to be an application for rehearing pursuant to Iowa Administrative Act 17A.16(2) and rule 343 IAC 4.24. Defendants timely filed their motion within the 20 days required by the statute and the rule. Counsel correctly noticed the opposing party as required by the statute and the rule. At the time of hearing defendants' counsel complained that he had not received a response to his motion. Iowa Administrative Act 17A.16(2) provides, "Such an application for rehearing shall be deemed to have been denied unless the agency grants the application within twenty days after its filing." Rule 343 IAC 4.24 provides, An application for rehearing shall be deemed denied unless the deputy commissioner rendering the decision grants the application within 20 days after its filing. For purposes of this rule, motions or requests for reconsideration or new trial or retrial or any reexamination of any decision, ruling, or order shall be treated the same as an application for rehearing. Therefore, counsel either knew or should have known that his motion for reconsideration was deemed denied when he received no response within 20 days of the motion and defendants should have immediately paid the reasonable expenses of the requested examination, including travel expenses, as ordered by the previous deputy. The statement of defendants' counsel in his brief, "Respondent's Motion to Reconsider has not been ruled on and is pending." is a misunderstanding of the law on the part of defendants' counsel (Respondent's Brief Phase II, p. 19). This deputy has no power or authority to overrule the determination of another deputy. Rather than pay for the examination as required by law defendants continued to dispute that Dr. Berg was a physician retained by the employer. Iowa Code section 85.39 unnumbered paragraph 2. However, Fairlie, admitted that the insurance carrier paid for all of Dr. Berg's charges (Tran. pp. 31 & 253). It has been settled agency law and precedent for many years that with respect to Iowa Code section 85.39, a physician chosen by the employee but adopted by employer's insurance carrier, is considered to be an employer-retained physician. Coble v. Metro Media, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner, 71 (1979). Likewise, with respect to Iowa Code section 85.27, even though the employer has the right to choose the care, when the employer and insurance carrier acquiese in the care of the physician chosen by claimant, then this physician is considered to be an employer-retained physician. Munden v. Iowa Steel & Wire, Thirty-third Biennial Report of the Industrial Commissioner 99 (1977). Page 19 Therefore, irrespective of whether claimant or defendants chose Dr. Berg initially, he became the employer-retained physician when defendants acquiesced in his care by paying his charges. Defendants either knew or should have known that they were in violation of the order of the previous deputy to immediately pay the reasonable expenses of the requested examination including travel expenses after 20 days elapsed subsequent to the filing of their motion. The motion was filed February 23, 1993, the Motion was deemed denied 20 days later on March 15, 1993. Claimant's counsel contended that he was unable to get Dr. Minks to testify live at the hearing because he had not been paid $800 for his independent medical examination and claimant was unable to advance Dr. Minks $200 in cash prior to hearing (Tran. pp. 37 & 38). Wherefore, it is determined, as a matter of fact, that claimant was entitled to an independent medical examination by Dr. Minks and was entitled to be reimbursed for it including the reasonable travel expenses to and from the examination as of March 15, 1993. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant did not sustain the burden of proof by a preponderance of the evidence that he is entitled to additional temporary disability benefits for the period from December 10, 1990, the date of the injury, until February 6, 1991, when defendants commenced temporary disability benefits. Iowa Code section 85.33(1). That claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury to the body as a whole or that the injury of December 10, 1990, was the cause or aggravation or any increase or worsening of his chronic preexisting peptic ulcer disease or his preexisting chronic mental depression. Iowa Code section 85.34(2)(u). Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant did sustain the burden of proof by a preponderance of the evidence that the injury to his left knee of December 10, 1990, was the cause of permanent disability and that he sustained a 10 percent permanent impairment of the left leg and is entitled to 22 weeks of permanent partial disability benefits. Iowa Code section 85.34(s)(o); Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl, 236 Iowa 296 18 N.W.2d 607 (1945) That the proper rate of compensation is $182.18 per week. Iowa Code section 85.36, introductory paragraph and subsection 1; Guide to Iowa Workers' Compensation Claim Handling, for the injury date of December 10, 1990, for a Page 20 gross weekly wage of $260 per week for a married person with four exemptions found on page 25. That claimant is entitled to an additional $91.44 per week of temporary disability healing period benefits for 26.714 weeks from February 6, 1991 to August 12, 1991, in the amount of $2,442.73. Iowa Code section 85.36, introductory paragraph and subsection paragraph 1; Iowa Code section 85.33(1). That claimant is entitled to penalty benefits of 50 percent of $2,442.73 in the total amount of $1,221.36. Iowa Code section 85.13(4). That the order of the previous industrial commissioner to reimburse claimant for an independent medical examination including travel expenses became effective on February 15, 1993, that defendants are delinquent in the payment of these expenses. Iowa Administrative Procedure Act 17A.16(2) and rule 343 IAC 4.24. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant twenty-six point seven one four (26.714) weeks of additional temporary disability healing period benefits in the amount of ninety-one and 44/100 dollars ($91.44) per week in the total amount of two thousand four hundred forty-two and 73/100 dollars ($2,442.73) commencing on February 6, 1991. That defendants pay to claimant twenty-two (22) weeks of permanent partial disability benefits at the rate of one hundred eighty-two and 18/100 dollars ($182.18) per week in the total amount of four thousand seven and 96/100 dollars ($4,007.96) commencing at the end of healing period on August 12, 1991. Iowa Code section 85.34(2)(s); Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). That these benefits are to be paid in a lump sum. That interest will accrue on the foregoing benefits pursuant to Iowa Code section 85.30. That defendants pay to claimant penalty benefits in the amount of fifty percent (50%) of two thousand four hundred forty-two and 73/100 dollars ($2,442.73) in the total amount of one thousand two hundred twenty-one and 36/100 dollars ($1,221.36) in a lump sum. Interest on penalty benefits will commence on the date of this decision. Iowa Code section 86.13(4). That defendants immediately obey the order of the previous deputy and reimburse claimant $800 for the expense of the independent medical examination and also pay the travel expenses to and from the examination that became due on February 15, 1993. That the costs of this action, including the cost of Page 21 the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. Claimant is not entitled to the cost for copies of medical records in the amount of fifteen dollars ($15) charged by Dr. Berg for the reason that medical records are not one of the specified items of allowable costs enumerated in rule 343 IAC 4.33. Furthermore, claimant has not demonstrated that these costs have actually been paid. Rule 4.33 states, "Proof of payment of any cost shall be filed with the industrial commissioner before it is taxed." The deputy gave this caveat at the hearing (Tran. pp. 44 & 45). The charge of Medical Records Copying in the amount of fifty-seven and 07/100 dollars ($57.07) is also excluded for the reason that medical records are not one of the items enumerated in rule 4.33 and in addition the document submitted by claimant shows that the balance is still due. The cost of the service by the sheriff of Jefferson County dated January 16, 1991, in the amount of twelve and 60/100 dollars ($12.60) cannot be related to this case in which the original notice and petition was filed on May 13, 1992 (Ex. 9-4). It should be added that there is no evidence as to what legal document was served or who that document was served upon that incurred the twelve and 60/100 dollars ($12.60) expense. There is no proof of payment of Page 22 this cost. The cost in the amount of two and 29/100 ($2.29) for the certified mail receipt dated January 12, 1993 to serve the application for an independent medical examination on defendants' counsel is allowed (Ex. 9-5). It is considered an original notice and petition pursuant to subsection 3 of rule 343 IAC 4.33 and it is an established fact that the United States Postal Service requires a cash payment at the time the document is mailed. The other receipt for certified mail dated December 29, 1992, in the amount of two and 29/100 dollars ($2.29) is not allowed for the reason that it was an ineffective mailing because claimant's attorney used the incorrect form to make an application for the independent medical examination at that time (Ex. 9-5). Defendants are ordered to file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of January, 1994. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Edward F. Noyes Attorney at Law 104 1/2 N. Main St. Fairfield, IA 52566 Mr. John C. Stevens Attorney at Law 122 East Second St. P.O. Box 748 Muscatine, IA 52761 1802, 1803, 2502, 2901, 2903, 2906 3001, 3002, 3003, 4000.2 Filed January 28, 1994 Walter R. McManus BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ RONNIE HANEN, Claimant, vs. File No. 972610 STEVER'S CITY SANITATION, A R B I T R A T I O N Employer, D E C I S I O N and UNITED FIRE & CASUALTY CO., Insurance Carrier, Defendants. ___________________________________________________________ 2901, 2903, 2906 Both attorneys failed to file timely witness and exhibits lists. Late incurred medical expenses were not allowed in evidence on an unfair surprise, prejudice standard but it was commented that if claimant could show that the medical treatment expenses were caused by this injury then defendants would be obligated to pay them. One of claimant's witnesses and three of defendants' witnesses were not allowed to testify based on an unfair surprise, prejudice standard. One of defendants' excluded witnesses was allowed to give limited rebuttal evidence. One of defendants' witnesses was allowed to make an offer of proof out of the presence of the deputy. Defendants were not allowed to assert the issue of injury arising out of and in the course of employment after defendants failed to designate injury as a hearing issue on the prehearing conference report. This ruling was based on the wording of the hearing assignment order and prejudicial surprise. Defendants elected to assert injury seven days prior to hearing. 1802 Claimant did not prove he was entitled healing period benefits from the date of the injury until the date defendants started paying healing period benefits because he did not prove by any evidence (medical or nonmedical) that he was unable to work during that period of time. Page 2 1803 The injury was determined to be a scheduled member injury to the knee. Impairment ratings were (1) zero, (2) 5 percent and (3) 20 percent. Claimant was determined to have a 10 percent permanent impairment to the left knee and was awarded 22 weeks of permanent partial disability benefits. Claimant's independent evaluator indicated that the injury was the cause of an aggravation of claimant's preexisting peptic ulcer condition and mental depression condition. Treating physician and defendants' independent medical examiner said there was no evidence that either one of these two conditions was caused by or aggravated by this injury to the knee. Defendants' independent examining psychologist said claimant did not suffer from mental depression. 3001, 3002, 3003 In the past claimant had worked as a full-time regular employee, as a temporary employee and a part-time employee. When he was a full-time regular employee, employer designated his earnings as W-2 earnings and deducted FICA. When claimant was only working temporary or part-time, employer designated claimant's earnings as 1099 earnings and made no deductions of any kind. Employer and insurance carrier contended claimant was a part-time employee and that his rate should be calculated under Iowa Code section 85.36(10) which resulted in a rate of $90.74 per week. Claimant contended he was a full-time employee and that his rate should be calculated under Iowa Code section 85.36, introductory paragraph and subparagraph 1, which resulted in a rate of $182.18. Employer's contention that claimant was paid on a daily basis was not supported by any other evidence. On the contrary, all of the evidence supported the fact that claimant was paid on a weekly pay period basis. Two weeks prior to this injury claimant and employer agreed that claimant was rehired to take the place of a full-time employee who had been called to active duty for military duty in Operation Desert Storm for an indefinite period of time. He was not replacing someone who was sick or on vacation. Employer admitted that claimant was full-time for two weeks and that employer designated his earnings as W-2 earnings. It was determined that claimant was a full-time employee and that his rate should be determined under Iowa Code section 85.36 introductory paragraph and subparagraph 1. Claimant had been paid at the rate of $90.74 per week using subsection 10. The rate he should have been paid was Page 3 $182.18. Defendants were ordered to pay claimant an additional $91.44 per week for the healing period of 26.714 weeks. 4000.2 It was determined that it was not fairly debatable (1) that claimant was a full-time employee at the time of the injury and (2) that it was not fairly debatable that claimant was not a part-time employee at the time of the injury. Claimant was awarded penalty benefits of 50 percent of the $91.44 per week that was not commenced without reasonable or probable cause or excuse. 2502 It was determined that the ruling of another deputy prior to hearing granting an independent medical examination pursuant to Iowa Code section 85.39 was controlling and that the hearing deputy had no authority to rehear the issue. Defendants contended that they had asked for a rehearing of the previous ruling and did not have a response to their application for a rehearing. The hearing deputy determined that defendants' counsel either knew or should have known that if defendants' application was not granted after twenty (20) days then the ruling of the previous deputy became final. Claimant's attorney contended that their evaluator who they had planned would testify at the hearing refused to testify for the reason he had not been paid for the independent medical examination and claimant could not come up with the cash advance he required prior to appearing at the hearing to testify. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARY BUTRICK, Claimant, vs. File No. 973009 FALLS LODGING d/b/a WOODS MOTOR HOTEL and PAUL BERTELSON A R B I T R A T I O N Employer, Non-Insured, D E C I S I O N Defendant. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, Mary Butrick, against her employer, Falls Lodging d/b/a Woods Motor Hotel and Paul Bertelson, personally, to recover benefits under the Iowa Workers' Compensation Act, as a result of an injury sustained on January 8, 1991. This matter came on for hearing before the undersigned deputy industrial commissioner in Fort Dodge, Iowa, on December 16, 1993. A first report of injury has not been filed. The record consists of the testimony of claimant and of claimant's exhibits 1 through 7. ISSUES Pursuant to the hearing report and the oral stipulations of the parties at hearing, the parties agree that claimant did receive an injury which arose out of and in the course of her employment on January 1, 1991. Issues remaining to be decided are: (1) Claimant's appropriate weekly rate of compensation; (2) Whether claimant is entitled to healing period benefits for the period from January 30, 1991 through April 30, 1991; (3) Whether claimant is entitled to payment of medical expenses; and (4) Whether an employer-employee relationship existed between claimant and Paul Bertelson, individually, at the time of claimant's work injury. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence, finds: Claimant is a 52-year-old single woman who was entitled to one exemption on January 8, 1991. Claimant was working Page 2 as manager of the Woods Motor Hotel on January 8, 1991, when she fell down approximately five or six stairs and landed on her right side, hit a wall, and injured her right arm, right shoulder and face. Claimant initially sought treatment at Ellsworth Hospital. Physical therapy and muscle relaxers were prescribed. Claimant saw J. A. Brunhorst, M.D., for conservative care through January 19, 1991. Dr. Brunhorst subsequently referred claimant to David W. Beck, M.D., a neurosurgeon, who opined on January 30, 1991, that claimant's symptoms were consistent with a C7-T1 herniated disc as well as ulnar nerve neuritis. Dr. Beck apparently referred claimant to S. M. S. Hayreh, M.D., who admitted claimant to St. Joseph Mercy Hospital on January 30, 1991 for treating and diagnostic testing. While hospitalized, claimant underwent radiographic studies. A chest x-ray was interpreted as normal; an MRI of the cervical spine was interpreted as negative. Dr. Hayreh's discharge diagnoses of February 2, 1991, were: Musculoskeletal cervical pain with right extremity pain secondary to a muscle sprain; possible right carpal tunnel syndrome; and depressive neurosis. Claimant last saw Dr. Hayreh on March 10, 1991. She has seen no physician for her continuing complaints of headaches, numbness in the right arm and difficulties with grasping with the right hand since that date as claimant has no health insurance and claimant's employer had no workers' compensation insurance coverage on January 8, 1991. Claimant had conversation with Paul Bertelson subsequent to her injury. Mr. Bertelson instructed that he be sent claimant's medical bills relative to the January 8, 1991 injury. Claimant has outstanding medical bills equalling $5,516.45 related to her work-injury. Between claimant's injury and the end of January 1993, the ownership of Woods Motor Hotel changed. The new hotel owners terminated claimant on or about February 1, 1991. Claimant has never been released to return to work subsequent to her St. Joseph Mercy hospitalization. On approximately May 1, 1991, claimant began to look for other work. Claimant stated that she did so because, while she had not obtained a medical release to return to work, it was financially impossible for her to continue without finding work. Claimant did find work in July 1991. Claimant currently works as a cook at the Fort Dodge Law Enforcement Center. Claimant's gross weekly wage, paid on a biweekly pay period basis, was $900 per pay period or $450 per week. Additionally, as hotel manager, claimant was required to reside at the hotel. Claimant's motel room would have rented to a guest for $28 per night or $196 per week. The employer furnished the room to claimant without charge. The value of the employer-provided room is appropriately included in determining claimant's gross weekly wage. Hoth v. Eilors, I Iowa Industrial Commissioner Report 156 (Appeal Decn. 1980). On cross-examination, claimant acknowledged Page 3 that the hotel was full every night only from April through November. That fact is not relevant in determining the overall value of provision of a room for claimant. What is relevant is that claimant received lodging at her employer's expense throughout her employment. Likewise, that withholding taxes were not made on the value of the lodging is insufficient to obviate inclusion of the value of the lodging in claimant's gross weekly wage. Claimant's overall gross weekly wage equals $646 ($450 + $196). Claimant, as a single woman entitled to one exemption/has a weekly compensation rate of $359.62. Paul Bertelson signed claimant's paychecks although the checks themselves were drawn on accounts for Falls Lodging or other Bertelson corporations. Claimant's W2 tax statement was issued from Falls Lodging Corporation and not from Paul Bertelson individually. Paul Bertelson acted as president of Falls Lodging. Mr. Bertelson performed in the capacity of claimant's employer and can properly be considered to have been the alter ego of Falls Lodging Corporation. As president of Falls Lodging Corporation, Mr. Bertelson had statutory duty to see to it that the corporation had workers' compensation insurance for its employees. See section 87.1. A corporate officer cannot intentionally or negligently fail to provide the corporation's employees with statutorily mandated workers' compensation insurance coverage while in the corporation's employ and then hide behind the corporate veil as a means of avoiding personal liability for injuries the corporation's employees sustain which injuries arose out of and in the course of the employees employment by the corporation. See Smith v. CRST Inc. and Lincoln Sales and Service, Arb. Decn. 976632, filed November 15, 1993. It is expressly found that the corporate veil between Paul Bertelson as an officer of Falls Lodging Corporation and Paul Bertelson individually is pierced. Mr. Bertelson is expressly found to have been claimant's employer at the time of her injury and is expressly found to be personally liable as her non-insured employer at the time of the work-injury. CONCLUSIONS OF LAW We first consider the weekly rate issue. The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: ... In the case of an employee who is paid on a biweekly pay period basis, one-half of the biweekly gross earnings. Section 85.36. The value of an employer-provided room is appropriately Page 4 considered in determining gross weekly earnings. Hoth, supra. Claimant has established a weekly rate of $359.62 for compensation purposes. We consider the questions related to claimant's claimed entitlement to healing period from January 30, 1991 through April 30, 1991. That question of necessity requires consideration of the issue of whether claimant's incapacity through that period related to her work injury. 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). Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Section 85.33(1) provides that the employer pay an employee for injury producing temporary total disability weekly compensation benefits until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of the injury, whichever occurs first. All doctors who treated claimant for her neck, right shoulder and right upper extremity complaints after January 8, 1991 and through March 1991 by history related claimant's Page 5 complaints and conditions to her fall at work on January 8, 1991. Defendants presented no evidence demonstrating that this was an inappropriate inference on the doctors' parts. Claimant has established a causal relation between her condition and her period of disability from January 30, 1991 through April 30, 1991. Although no doctor released claimant to work on or before April 30, 1991, claimant, in her testimony, related that she began to seek employment on or about May 1, 1991. Claimant's resumption of active attempts to find work may appropriately be construed as evidence of the claimant's being physically capable of returning to work. Claimant is entitled to an award of weekly workers' compensation benefits from January 30, 1991 through April 30, 1991. Whether this payment of benefits is properly characterized as temporary total disability benefits or healing period benefits cannot be ascertained at this time. No medical evidence in this record indicates that claimant's condition has resolved to the point where whether claimant will be entitled to permanent partial disability benefits in the future can be ascertained. We next consider claimant's entitlement to medical benefits under section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). The medical care which claimant received from January 8, 1991 through March 1991 clearly related to claimant's January 8, 1991 work injury. Claimant is entitled to payment of $5,516.45 for medical services provided as set forth in exhibit 1. Additionally, claimant is found to have continuing symptoms relative to her work-related conditions. Claimant is entitled to appropriate medical care at her non-insured employer's expense for treatment of work-related conditions and symptoms. We reach the question of whether an employer-employee relationship existed between claimant and Paul Bertelson, individually, on January 1, 1991. For reasons set forth in the above findings of fact, it is expressly concluded that claimant has established that claimant was an employee of Paul Bertelson, individually, on January 8, 1991. ORDER THEREFORE, IT IS ORDERED: Page 6 Defendants pay claimant benefits for a period of temporary total disability from January 30, 1991 through April 30, 1991 at the rate of three hundred fifty-nine and 62/100 dollars ($359.62). Defendants pay claimant for costs of medical treatment in the amount of five thousand five hundred sixteen and 45/100 dollars ($5,516.45). Defendants provide claimant with appropriate medical care for her continuing symptoms relative to her work-related condition. Defendants pay costs of this action. Defendants file claim activity reports as the agency orders. Signed and filed this ____ day of January, 1994. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. William G. Enke Attorney at Law Suite 340, Norwest Center P.O. Box 1826 Fort Dodge, IA 50501 Mr. Mark S. Brownlee Attorney at Law P.O. Box 957 Fort Dodge, IA 50501 2003; 3100 Filed January 13, 1994 Helenjean M. Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARY BUTRICK, Claimant, vs. File No. 973009 FALLS LODGING d/b/a WOODS MOTOR HOTEL and PAUL BERTELSON A R B I T R A T I O N Employer, Non-Insured, D E C I S I O N Defendant. ___________________________________________________________ 2003 Corporate veil pierced to find president and chief officer to be the alter ego of the corporation and therefore personally liable as claimant's employer. Held it would be inconsistent to permit an individual, in the individual's corporate officer capacity, to fail to provide statutorily required workers' compensation coverage then be able to hide behind the corporate veil and maintain an absence of personal liability as regards payment of appropriate workers' compensation benefits to corporate employees who received work-related injuries. 3100 Hotel manager was required to live in motel as part of job duties. Rental value of room included in calculation of gross weekly earnings. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DAN R. SKIPTON, Claimant, vs. File No. 973054 HON INDUSTRIES - GENEVA, A P P E A L Employer, D E C I S I O N and THE TRAVELERS, 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 November 25, 1992 is affirmed and is adopted as the final agency action in this case. That claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. Defendants shall pay all other costs. Signed and filed this ____ day of November, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Motto Attorney at Law 1000 Firstar Center 201 W. Second St. Davenport, Iowa 52801 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Bldg. 111 E. Third St. Davenport, Iowa 52801 5-1803 Filed November 17, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAN R. SKIPTON, Claimant, vs. File No. 973054 HON INDUSTRIES - GENEVA, A P P E A L Employer, D E C I S I O N and THE TRAVELERS, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DAN R. SKIPTON, : : Claimant, : : vs. : : File No. 973054 HON INDUSTRIES - GENEVA, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dan R. Skipton, claimant, against Hon Industries-Geneva, employer, hereinafter referred to as Hon, and The Travelers, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on March 1, 1989. On September 17, 1992 a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. On March 1, 1989, claimant received an injury arising out of and in the course of his employment with Hon. 2. Claimant is seeking temporary total or healing period benefits only from March 26, 1990 through June 24, 1990 and defendants agree 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 disabil ity to the body as a whole. 4. If permanent partial disability benefits are awarded, they shall begin as of June 25, 1990. 5. At the time of injury claimant's gross rate of weekly compensation was $539.60; he was married; and he was Page 2 entitled to five exemptions. Therefore, claimant's weekly rate of compensation is $344.00 according to the Industrial Commissioner's published rate booklet for this injury. The parties incorrectly believed at hearing that the correct rate was $344.55 6. All requested medical benefits have been or will be paid by defendants. ISSUES The only issue submitted by the parties for determina tion in this proceeding is the extent of claimant's entitle ment to disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From his demeanor while testifying, claimant is found credible. Claimant has worked for Hon since the spring of 1972 and continues to do so at this time. Hon is a manufacturer of office furniture. His duties over the years varied from time to time but all involved the operation of machines in the assembly of chairs, mostly in the wood fabrication department. In January 1986, claimant received a promotion from his position as assembler to the position of utility at a higher rate of pay. At the time of the injury, claimant was assigned primarily to operating a punch press machine but as a utility he was occasionally moved to other machines as needed such as the RF machine, band saw, shaper and T- nutter. It is found that the punch press job at the time of the alleged injury subjected claimant to repetitious physical and continuous stress to his left shoulder, upper back, mid-back, lower back and left hip and leg. This job required claimant to repetitively bend over and pick up a stack of pre-cut wood seats from a pallet, flip over the wood, and place the wood seats individually into the press using his hands, arms, shoulders, back and legs to overcome the force of very tight springs in the press used as a guide. After the holes were made in the press, claimant removed the wooden seat and placed it on a stack. He then bent over and placed the stacks on an adjacent pallet. Claimant processed 700-1300 pieces of wood over 8-10 hours each work day, five days per week with frequent overtime on Saturdays. Stacks of wooden seats weighed up to 60 pounds each. Claimant had the reputation at Hon prior to the injury as a hard worker and routinely exceeded production standards. On or about March 1, 1989, claimant's hard work injured Page 3 his left shoulder, his upper, mid and lower back, and his left hip and leg while working on the punch press machine at Hon. The injury date is the one chosen by the parties for this injury. This was a cumulative trauma injury and an overuse syndrome from the continuous repetitive use of hands, arms, left shoulder, back, left hip and leg. Claimant began to experience serious difficulties with chronic pain in the shoulder and upper back in March 1989. Claimant's supervisor was aware of these problems at the time they occurred. The findings as to the nature and extent of the injury herein is based upon the findings of two specialists: Robert J. Chesser, M.D., a specialist in physical medicine, and W. J. Robb, M.D., an orthopedic surgeon. Dr. Chesser was a treating physician. Also, the views of a treating chiropractor, M. R. Mally, D.C., was given weight as he was very familiar with claimant's complaints from a clinical perspective. All of these physicians were much more con vincing than the other physicians such as: J. R. Lee, M.D., specialty unknown; D. V. Gierlus, D.O., the company doctor; Charles T. Cassel, M.D., an orthopedic surgeon; Jeffrey A. Shay, D.C., an evaluating chiropractor; and various staff members of the Industrial Injury Clinic in Neenah, Wisconsin. Dr. Lee was a one time evaluator possessing unknown qualifications who offered little to explain claimant's problems and whose only suggestion was to discon tinue chiropractic care. Dr. Gierlus only briefly treated claimant and his opinions on causation and extent of injury are not clearly expressed in the record other than that claimant should not be taken off work as a treatment modal ity. Dr. Chesser felt that claimant had muscle strain of unknown etiology but failed to explain why he ignored a clear history of a gradual onset while performing work duties. It was unknown whether Dr. Chesser was confused about contributory causation or the physiological processes involved. Dr. Shay was a one-time evaluator who appeared to be unfamiliar with claimant's condition to render a credible opinion. The report from the staff at the Neenah Clinic was not in the least bit persuasive. According to the report, the staff found that claimant suffered from no medical problem or physical impairment whatsoever. Who exactly was the "staff" was not set forth. The only reported examinations were by a physician of unknown background, a psychiatrist, a psychologist and a vocational consultant. The reporting of these examinations only reiterated claimant's history. There was no attempted explanation why the views of almost every physician in this case was rejected or why a psychia trist or psychologist is more qualified than an specialist in physical medicine or orthopedics in the diagnosis and treatment of musculoskeletal conditions. The credibility of such report was highly suspect. As a result of the injury of March 1, 1989, claimant was absent from his job at Hon for the period of time stipu lated in the prehearing report upon the advice of his treat ing chiropractor. The company physician disagreed with claimant's absence from work but Hon authorized this chiro Page 4 practic care. It is found that claimant was temporarily totally disabled during this period of treatment based upon the views of the treating medical provider who is apparently duly licensed to practice in this state. As a result of the injury of March 1, 1989, claimant has suffered a significant permanent partial physical impairment to the body as a whole. The exact percentage is unimportant to this decision as this is an industrial case. The finding of permanency is made with reference only to claimant's low back problems. According to the recent medi cal reports, claimant's upper back and shoulder problems responded to treatment and he has not suffered permanent shoulder or upper back problems. The impairment ratings from the most credible physicians in the record are based upon the low back, hip and leg problems. What is most important to this decision is that claimant is now perma nently restricted from work involving repetitive bending or twisting and lifting over 30 pounds. These work limitation findings are based upon the views of the physiatrist, Dr. Chesser, whose specialty is the most appropriate for measur ing physical capacities. Again, the views of Dr. Chesser and Dr. Robb were given the most weight as they were the most credible for the reasons given above and for the addi tional reason that they are consistent with claimant's ver sion of his medical history and current condition which is found credible. With reference to loss of earning capacity, it is found that claimant's medical condition before the work injury was excellent. Although he had chiropractic treatments prior to March 1989, he had no ascertainable impairments or disabili ties prior to March 1989. Claimant was able to fully per form physical tasks involving heavy lifting; repetitive lifting, bending, twisting and stooping and now is unable to do so. Although claimant today has physical limitations, he is still performing the job of punch press at Hon. However, this is only due to ergonomic modifications of the job to reduce the repetitive stressors. Despite these modifica tions, claimant continues on occasion to suffer symptoms. Clearly, the record shows that claimant's work has been affected. Prior to the work injury, claimant routinely received "above standard" performance appraisals from his supervisor. Since the injury, claimant has primarily been rated as "standard" because he is processing fewer seats per hour than before. It is found that claimant has suffered an actual loss of earnings due to the work injury. After his return to work in June 1989, claimant asked for and received a down grade to assembly from his higher paying utility job. This resulted in a reduction in pay of $1.24 per hour. Claimant stated that he asked for this downgrade due to his back problems. Apparently, even though the punch press job was changed to allow him to continue on the job with his restrictions, he was worried about being assigned to another machine as a utility that he may not be able to physicallly handle. Hon management contends that they did not know why claimant asked for the downgrade and that they did not Page 5 require him to do so in order to continue working. Whether or not Hon knew why he asked for a downgrade, it was reason able for claimant to conclude that he may not be able to handle the other utility jobs. Also, it is clear from claimant's testimony that he was concerned about his future at Hon when his productivity decreased. Although Hon man agers testified at hearing that claimant's fears were unfounded, they did little or nothing to inquire into claimant's motives for the downgrade or to alleviate his job security fears. Claimant is 40 years of age. He dropped out of high school in his senior year but he has completed his GED. Claimant's past employment consists solely of work in a packing house for a short time and work at Hon. Claimant has very limited potential for vocational rehabilitation. Claimant has considerable motivation to remain employed. From examination of all of the factors of industrial disability, it is found that the work injury of March 1, 1989 was a cause of a 10 percent loss of earning capacity. This finding is based largely on claimant's continuation of employment at Hon. CONCLUSIONS OF LAW I. It is not necessary that claimant prove his dis ability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed grad ually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever Court also held that the date of injury in gradual injury cases is the time when pain pre vents the employee from continuing to work. In McKeever the injury date coincided with the time claimant was finally compelled to give up his job. This date was then used by the Court to determine rate and the timeliness of claimant's claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Black smith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, pos itive 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). Page 6 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). As the claimant has shown that the work injury was a cause a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of perma nent disability must be measured pursuant to Iowa Code sec tion 85.34(2)(u). However, unlike scheduled member disabil ities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. Examination of several factors determines the extent to which a work injury and a resulting medical condition caused an industrial disability. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). A showing that claimant had no loss or only a small loss of actual earnings does not preclude a find of indus trial disability. See Michael v. Harrison County, 34 Bien Rep., Ia Ind. Comm'r 218, 220 (App. Dec. 1979). Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991) only held that contin ued employment with no loss of earnings is significant evi dence that should not be overlooked in measuring loss of earning capacity. In the case sub judice, it was found that claimant suf fered a 10 percent loss of his earning capacity as a result of the work injury. Such a finding entitles claimant to 50 weeks of permanent partial disability benefits as a matter of law under Iowa Code section 85.34(2)(u) which is 10 per cent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. Claimant's entitlement to permanent partial disability also entitles him to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capa ble of returning to substantially similar work to the work he was performing at the time of injury; or, until it is Page 7 indicated that significant improvement from the injury is not anticipated, whichever occurs first. In the case at bar, it was found that claimant was totally disabled during treatment for the time stipulated in the prehearing report. Healing period benefits will be awarded accordingly. ORDER 1. Defendants shall pay to claimant fifty (50) weeks of permanent partial disability benefits at a rate of three hundred forty-four and no/l00 dollars ($344.00) per week from June 25, 1990. 2. Defendants shall pay to claimant healing period benefits from March 26, 1990 through June 24, 1990, at the rate of three hundred forty-four and no/l00 dollars ($344.00) per week. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 4. Defendants shall pay interest on unpaid weekly ben efits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 6. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of November, 1992. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Motto Attorney at Law 1000 First Bank Center Davenport, Iowa 52801 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 5-1803 Filed November 25, 1992 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAN R. SKIPTON, Claimant, vs. File No. 973054 HON INDUSTRIES - GENEVA, A R B I T R A T I O N Employer, D E C I S I O N and THE TRAVELERS, Insurance Carrier, Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case.