BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARTHA HOEVET,
Claimant,
vs.
File No. 973115
STACYVILLE COMMUNITY
NURSING HOME,
A P P E A L
Employer,
D E C I S I O N
and
INA INSURANCE COMPANY,
Insurance Carrier,
Defendants.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal.
ISSUES
The issues on appeal are: Whether claimant sustained an
injury arising out of and in the course of her employment on
January 12, 1991; the nature and extent of claimant's
alleged disability; whether a penalty should be assessed;
and how costs should be assessed.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed November 20, 1992 are adopted as set forth
below. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
Claimant, Martha Hoevet, was born on March 1, 1949. At
the time of the hearing, she was 43 years of age. Claimant
is married and has one dependent child. She is 5 feet 3
inches and weighs approximately 195 pounds.
Claimant completed the tenth grade but did not graduate
from high school. Apparently, she has not received her GED.
For the past fifteen years claimant has been a
certified nurse's aide. Her primary employer during her
career has been the defendant nursing home, although from
September of 1990 through December of 1990, claimant also
held part-time employment with a nursing home facility in
Austin, Minnesota. As a nurse's aide, claimant's duties
have included providing total care for patients/residents at
the Stacyville Community Nursing Home. Specifically, her
Page 2
duties included bathing and feeding patients and assisting
them to the commode. Claimant also helped residents with
hygiene needs.
On Saturday, January 12, 1991, claimant was working
with Millie Fredericks, another nurse's aide. According to
claimant, they were working together and were assigned to
the south wing which housed Barbara Koenigs, a patient who
was bedridden. An exhibit shows that claimant was assigned
to work on the north wing of the nursing home. (Joint
Exhibit 25) Barbara Koenigs was assigned to the south wing.
Testimony provided that workers were to help each other in
wings other than those to which they were assigned. Because
of her physical limitations, Ms. Koenigs was required to use
a portable commode located beside her bed. As claimant and
Ms. Fredericks helped the resident from the commode to the
bed, claimant felt pain in her back and fell forward onto
the bed. She told Ms. Fredericks that she had hurt her
back. Ms. Fredericks' deposition testimony comports with
claimant's testimony given at the hearing. (Jt. Ex. 36,
page 13)
Claimant went to the head nurse on duty, Roberta
Gaffey, and asked for aspirin to relieve the back pain she
felt after helping the resident. She finished her shift and
worked the following day, however, she was not able to
perform all of the required job duties, particularly the
lifting duties and called upon co-employees to help her.
Claimant continued to work her normal shifts, but on January
15, 1991, she sought treatment from Joseph P. Mlinar, M.D.,
a family practice physician with the Austin Medical Clinic
in Austin, Minnesota. He prescribed Parafon Forte and
ibuprofen. The following day, after her husband telephoned
Dr. Mlinar and stated that claimant was getting
progressively worse, she was admitted to the St. Olaf
Hospital in Austin, Minnesota. (Jt. Ex. 31)
While in the hospital, claimant underwent a CT scan of
the back which noted mild bulging at the L4-5 and L5-S1
regions. Degenerative arthritis was present throughout the
lumbar spine. The final diagnoses was that of acute lumbar
sacral strain and obesity. She was discharged to return
home and it was recommended that she lose weight and
increase exercising and activities. She was advised to do
no lifting of more than ten
Page 3
pounds for the next two weeks. While in the hospital,
claimant was treated by John M. Toso, M.D. (Jt. Ex. 2 and
28)
Eventually, claimant was referred to E. A. Crowell,
M.D., an orthopedic specialist at the Mason City Clinic [in
February 1991]. He reviewed her x-rays of the lumbar spine
which showed multiple traction spurs and old limbus avulsion
fractures at two levels. He recommended a bone scan to
provide further diagnostic evaluations. His physical
examination did not reveal positive results on any of the
standard tests, and he was of the opinion that claimant had
sustained a [common] low back strain. [He found nothing to
suggest a ruptured disc or nerve-root irritation and no
evidence of a mass lesion. He predicted that progress would
be slow but claimant would be able to return to normal
activities.] (Jt. Ex. 19)
In February of 1991, approximately three weeks after a
representative from the insurance company took claimant's
statement (Jt. Ex. 13), a rehabilitation specialist, Deanna
Harris, R.N., became involved with the management of
claimant's medical care. Ms. Harris sent claimant to R.
Emerson at the Mason City Clinic. The history taken from
claimant shows that claimant was at work as a nurse's aide
when she began to experience back pain. Specifically, Dr.
Emerson's notes state: "She sent to help a patient into
bed, slipped and twisted her back as [she] fell into bed
with the patient. She felt a ripping sensation in her lower
back, had sharp pain at first." (Jt. Ex. 11) Dr. Emerson's
examination revealed that claimant had decreased range of
motion of the lumbosacral spine on forward flexion but full
right and left bilateral bending. Straight leg tests were
negative. He recommended abdominal strengthening exercises,
weight loss and increased activities such as walking and
using a stationary bicycle. He advised that claimant could
return to light duty work on March 25 and probably full duty
on April 8, 1991. (Jt. Ex. 11)
Claimant returned to work part-time as a nurse's aide
with no restrictions on March 25, 1991. After two weeks,
she was restored to full duty employment and continued to
experience back pain. She returned to Dr. Mlinar in May of
1991, was taken off of work and was referred to Sherwin
Goldman, M.D. The history taken reflects that claimant had
a lifting injury at work on January 15, 1991. Present
symptoms included low back pain in the center of the spine
with radiation to just below the knee on the left side. The
majority of the pain occurred on flexion and extension. Dr.
Goldman made note of claimant's height and weight (5 feet 3
inches and 195 pounds) and observed her difficulty when
walking on her heels and toes as well as pain in the low
back when squatting and hopping. The examination revealed
further that claimant had tenderness in the middle of the
low back, poor muscle contractions and very little voluntary
lumbar motion. Claimant was able to perform straight leg
raising with considerable low back pain. His preliminary
Page 4
impression was that of lumbar myofascial pain. The results
of an EMG were normal and the MRI scan shows no evidence of
a herniation or potential radicular process. Final
recommendations included proper work restrictions, weight
loss, PMNR and trigger point injections. (Jt. Ex. 32)
Throughout some of August 1991, claimant underwent
treatment from the Mayo Pain Clinic. (Jt. Exs. 16 and 32)
The final diagnosis was that of chronic lumbar myofascial
pain with chronic pain syndrome. No permanent impairment
was noted. (Jt. Ex. 15)
In November of 1991, Dr. Toso recommended that claimant
undergo physical therapy from November through December 1991
and January of 1992 to March of 1992. The notes which
document her visits are very terse and do not provide any
final diagnoses or recommendations. (Jt. Ex. 27)
A final note from Dr. Toso dated March 5, 1992,
recommends claimant not lift more than 30 pounds for twelve
months with a reassessment in March of 1993. (Jt. Ex. 3)
[In his assessment when he saw claimant on March 5, 1992 Dr.
Toso noted remarkable interval improvement in the
flexibility and strength of her back and a resultant
decrease in her pain. He increased her lifting restrictions
to 30 pounds and was to reassess in one year. He noted a
very high risk for chronic back problems with increased
workload. He indicated that he was hopeful claimant could
work as a nurse's aide without restrictions if she lost
weight and continued her home exercise program. He agreed
with the Mayo Clinic assessment that there was not any
evidence of permanent physical impairment.]
Dr. Toso was deposed on August 13, 1992. He confirms
his recommendation that claimant lift not more than 30
pounds and recommends that she continue home exercises and
lose weight. He stated that he did not think she was a
malingerer, and at one time suggested she pursue employment
that would not require lifting abilities. He did not have
an opinion as to whether claimant's condition was work
related nor did he state that claimant had a permanent
impairment but reiterated that myofascial pain is permanent.
He indicated that claimant's weight is a factor in her
complaints of back pain. (Jt. Ex. 33)
[Dr. Toso described the diagnosis of chronic lumbar
myofascial pain with chronic pain syndrome in the following
manner:
First, chronic lumbar myofascial pain, myofascial would
state that the pain stems from muscle and fascia. Lumbar
meaning the area of the muscle and fascia involved. So this
is extrinsic or outside of the vertebral column. And
chronic meaning it's been lasting for more than, say, one or
two months, ongoing pain. Chronic pain syndrome diagnosis
would imply that the patient is having ongoing problem with
chronic pain that is resistant to multiple medical
interventions.
(Jt. Ex. 33, p. 11)]
Page 5
Dr. Mlinar was deposed on August 13, 1992. He was of
the opinion that the cause of claimant's back pain was due
to an incident at the nursing home wherein claimant was
lifting a basket of wet clothes. He diagnosed chronic
lumbar myofascial pain with chronic pain syndrome and was
unsure of the restrictions under which claimant was working.
He deferred further comments to the current treating
physicians. (Jt. Ex. 34)
Dr. Goldman was deposed on September 10, 1992. He
reiterated that his examination revealed a great amount of
pain, and his final diagnosis was that of chronic lumbar
myofascial pain with chronic pain syndrome. He was unable
to state what claimant's prognosis might be, but related her
complaints to an injury at the nursing home. (Jt. Ex. 35)
[After seeing claimant for evaluation beginning July 15,
1991 Dr. Goldman wrote that "from a musculoskeletal
standpoint, we did not find any evidence of any permanent
physical impairment." (Jt. Ex. 15) In his deposition Dr.
Goldman described chronic pain syndrome as "a process that
goes on past the normal healing time and where all measures
usually fail." (Jt. Ex. 35, p. 8) He did not place
specific work restrictions on claimant but did say the
injury had caused claimant restriction of activities. (Jt.
Ex. 35, pp. 7 and 15)]
Two coworkers, Mildred Fredericks and Roberta Gaffey,
were also deposed. Ms. Fredericks corroborates claimant's
testimony that they were helping a resident, Barbara
Koenigs, into bed when claimant hurt her back. Roberta
Gaffey, the staff nurse on duty at the time of the incident,
recalls claimant telling her that she had hurt her back.
She, too, corroborates claimant's testimony and elaborated
on the somewhat lax procedures used at the nursing home when
employees injured themselves on the job. She portrayed
claimant as a very good, conscientious worker. (Jt. Exs. 36
and 37)
The administrator of the facility testified at the
hearing. Anita Adams has been the administrator for 13
years, and has been employed by the home for 25 years.
Currently, she supervises the staff and assumes total
management of the facility. The majority of her testimony
is in direct conflict with that of claimant's. She
indicated that Roberta Gaffey was not working on the day
claimant was allegedly injured. Ms. Adams also stated that
claimant and Millie Fredericks were not assigned to work
together, and that Millie was capable of lying. Ms. Adams
admitted she had never spoken to claimant about the
incident. She indicated claimant was a good employee.
Patricia Nigh, claims representative for the insurance
carrier, also testified at the hearing. Ms. Nigh took
claimant's statement in 1991 and remembered that at the time
of the statement, claimant was confused about what month it
was at the time the statement was taken.
Ms. Nigh contacted Millie Fredericks, who confirmed
claimant's version of the incident, but reasoned that the
Page 6
denial of the claim was based on the inconsistencies of the
histories reflected in the medical reports. She also stated
that claimant's weight problem appeared to be the cause of
any resulting back problems and claimant's inability to
work.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed November 20, 1992 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision. Segments designated by
brackets ([ ]) indicate language that is in addition to the
language of the proposed agency decision.
The first issue to be addressed is whether claimant
sustained an injury on January 11 or January 12, 1990, one
which arose out of and in the course of her employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Iowa Code section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on January 11 or
January 12, 1990, which arose out of and in the course of
her employment. McDowell v. Town of Clarksville, 241
N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co.,
261 Iowa 352, 154 N.W.2d 128 (1967).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63.
"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 he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
After carefully considering all of the evidence and
having listened to the testimony, it is clear that claimant
was working her normal shift at the required date and time.
It is also evident that she was performing duties required
by her position as a nurse's aide. Although there is some
discrepancy as to the particular wing to which claimant was
assigned, it should be recognized that coemployees helped
each other regardless of shift assignments. Apparently,
Page 7
this practice was quite regular and accepted by the
employer. Although some of the histories given to the
multitude of physicians involved with this case vary
slightly, the overall impression is that claimant slipped
while helping a resident into bed and hurt her back.
As a result, it is found that claimant sustained an
injury on January 12, 1991, which arose out of and in the
course of her employment.
The next issue to be addressed is whether there is a
causal relationship between the alleged injury and
claimant's disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of January 12,
1991, is causally related to the disability on which she now
bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-American, Inc., 290 N.W.2d
348, 354 (Iowa 1980).
Dr. Mlinar, claimant's original treating physician, was
of the opinion that claimant's clinical problems, chronic
lumbar myofascial pain and chronic pain syndrome, were
related to the incident at the nursing home. And, Dr.
Goldman, who was unable to find any evidence of a permanent
physical impairment, did state within a reasonable degree of
medical certainty that claimant's injury caused restriction
Page 8
of activities.
[Claimant alleges that she has suffered a permanent
disability. Drs. Mlinar, Toso and Goldman agreed that
claimant has no permanent physical impairment. However, Dr.
Goldman has indicated that claimant has restriction of
activities and Dr. Toso had placed lifting restrictions on
claimant that were in effect at the time of the hearing in
this matter. Both Dr. Toso and Dr. Goldman indicate that
claimant's condition, chronic lumbar myofascial pain with
chronic pain syndrome is a lasting condition. That
condition had improved but was still in effect when claimant
was last seen by Dr. Toso in March 1992. There is
insufficient medical evidence in the record to conclude that
claimant's condition had a finite or temporary longevity.
Based upon the facts of this case claimant had a permanent
disability at the time of the hearing.]
After considering all of the evidence, it is found that
there is a causal connection between claimant's injury and a
permanent disability. As claimant has sustained a permanent
injury, she is entitled to healing period benefits for the
time she was off of work. (See, Iowa Code section 85.34.)
The next issue to be addressed is whether claimant has
sustained a loss of earning capacity. Since claimant has
suffered an injury to the body as a whole, her industrial
disability must be evaluated.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
Page 9
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the injury, claimant was 43 years old.
She has worked almost 15 years as a nurse's aide, and at
time has worked both a full-time and a part-time position as
a nurse's aide. At the time of the injury, her earnings
were $5.70 per hour and claimant worked a 40 hour work week
for the Stacyville Community Nursing Home.
Claimant did not finish high school and has not
obtained her GED. Claimant has few, if any, transferable
skills. The defendant employer has, however, accommodated
her physical limitations and has been able to employ
claimant as a nurse's aide, although claimant now only works
from 7:00 a.m. through 1:00 p.m. five days per week. She
administers therapy sessions to the residents and is able to
work within her restrictions of not lifting more than 30
pounds. She stated that she is unable to work full time,
but it is noted that no physician involved with the case has
restricted claimant to part-time work.
After considering all of the factors, it is found that
claimant has sustained a five percent industrial disability.
The next issue to be addressed is whether claimant is
entitled to medical benefits provided by Iowa Code section
85.27.
Iowa Code section 85.27 provides, in relevant part:
The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation,
nursing, ambulance and hospital services and
supplies therefor and shall allow reasonably
necessary transportation expense incurred for such
services.
Page 10
As claimant has sustained a compensable work injury,
medical expenses shall be paid by the defendants.
*****[The next issue to be resolved is whether claimant
is entitled to penalty benefits.]
If a delay in commencement or termination of
benefits occurs without reasonable or probable
cause or excuse, the industrial commissioner shall
award benefits in addition to those benefits
payable under this chapter, or chapter 85, 85A, or
85B, up to fifty percent of the amount of benefits
that were unreasonably delayed or denied.
The agency has established that if an employer and/or
carrier is unwilling to pay benefits, the compensability of
the claim for benefits must be fairly debatable. See, Boyd
v. Western Home, file number 890207 (Appeal Dec. 1991). [In
Covia v. Robinson, No. 302/92-1769, Iowa Supreme Court
filed October 20, 1993, the Court indicated that the
standard for determining whether a penalty should be
assessed is whether the issue is fairly debatable and the
test is whether there are viable arguments in favor of the
party.]
Defendants' only argument to support their decision not
to make payments is that they did not believe claimant's
version of how the injury happened.
Employers and their insurance companies are free to
question a workers' compensation rendition of events at work
that led to an injury; however, the burden of investigating
the claim and making an informal decision rests solely with
them, and should be performed expeditiously and genuinely.
In the present case, Ms. Nigh explained that the denial
of benefits was based on the inconsistent histories in the
medical records. The records were received by the
defendants as late as May of 1991. Although some
inconsistencies exist, the undersigned believes that the
claimant appears to be of very average intelligence and
lacking the ability to effectively communicate. All of the
medical evidence indicates that claimant hurt her back while
working for the defendant.
[Claimant's entitlement to weekly benefits should have
been known to defendants if the matter had been properly
investigated. Claimant did suffer a work-related injury
that caused her to miss work. The issue of entitlement to
benefits during the time claimant missed work was not fairly
debatable. Claimant is entitled to 50 percent penalty
benefits for healing period benefits.
However, the medical evidence in this case suggests
that there was no permanent impairment and that claimant's
condition might return to normal, although it has not. The
issue of whether claimant had suffered a permanent
disability as a result of her work injury was fairly
debatable. Claimant is not entitled to penalty benefits for
permanent partial disability benefits due.
Page 11
The last issue to be resolved is how costs of this
matter are to be assessed. Costs are assessed at the
discretion of the industrial commissioner. See Iowa Code
section 86.40; and rule 343 IAC 4. The cost of the
transcript is initially borne by both parties when there is
an appeal and a cross-appeal. See rule 343 IAC 4.30.
Claimant's court costs as more specifically detailed in the
record shall be paid by the defendants.]
*****
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant healing period
benefits from January 15, 1991 through March 25, 1991, and
May 16, 1991 through July 1, 1991, at the rate of one
hundred fifty-five and 66/100 dollars ($155.66) per week.
That defendants shall pay claimant an award of fifty
(50) percent of the amount of healing period benefits due
claimant.
That defendants shall pay claimant permanent partial
disability benefits for twenty-five (25) weeks at the rate
of one hundred fifty-five and 66/100 dollars ($155.66) per
week commencing July 2, 1991.
That defendants pay claimant accrued amounts in a lump
sum.
That defendants shall pay interest pursuant to Iowa
Code section 85.30.
That claimant and defendants shall share equally the costs
of the appeal including transcription of the hearing.
Defendants shall pay all other costs.
That defendants shall pay for medical treatment
rendered to treat claimant's work injury as governed by Iowa
Code section 85.27.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of November, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 12
Copies To:
Mr. R. Ronald Pogge
Attorney at Law
2700 Grand Ave., Ste 111
Des Moines, IA 50312
Ms. Janice M. Herfkens
Mr. Charles Cutler
Attorneys at Law
729 Insurance Exch Bldg
Des Moines, IA 50309
5-1100; 1803; 5-2500; 4000.2
Filed November 17, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
MARTHA HOEVET,
Claimant,
vs.
File No. 973115
STACYVILLE COMMUNITY
NURSING HOME,
A P P E A L
Employer,
D E C I S I O N
and
INA INSURANCE COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1100
Claimant proved by a preponderance of evidence that she sustained
a work-related injury while attempting to lift a patient.
1803
Claimant's diagnosis was chronic lumbar myofascial pain with
chronic pain syndrome. Although treating physicians did not find
a permanent impairment, two doctors had placed restrictions on
claimant's activities. Claimant's pain had improved but had not
resolved itself when claimant was last treated. Claimant's
restrictions and pain, which had not resolved, indicated that
claimant had a permanent disability at the time of the hearing.
Claimant was awarded a five percent industrial disability.
5-2500
Claimant suffered a work-related injury and was entitled to
medical care for the injury.
4000.2
The issue of entitlement to benefits for the time claimant missed
work was not fairly debatable and a 50 percent penalty was
assessed for healing period benefits.
Because claimant had no permanent impairment and was improving,
the issue of entitlement to permanent disability benefits was
fairly debatable. Claimant not entitled to penalty benefits for
permanent disability benefits.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARTHA HOEVET, :
:
Claimant, :
:
vs. :
: File No. 973115
STACYVILLE COMMUNITY :
NURSING HOME, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
INA INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Martha
Hoevet, claimant, against her employer, Stacyville Community
Nursing Home, and its insurance carrier, INA Insurance
Company. Ms. Hoevet seeks workers' compensation benefits
due to an alleged injury occurring on January 14, 1991,
which arose out of and in the course of her employment.
The record in this case consists of testimony from the
claimant, Deanna Harris, Patricia Nigh, and Anita Adams;
and, joint exhibits 2 through 11 and 13 through 37. The
case was heard and fully submitted at Mason City, Iowa, on
October 27, 1992.
ISSUES
The parties submit the following issues for resolution:
1. Whether claimant sustained an injury on January 11
or 12, 1991, which arose out of and in the course of her
employment;
2. Whether there is a causal relationship between the
alleged injury and the disability;
3. Whether claimant is entitled to temporary
disability or healing period benefits or permanent partial
or total disability benefits;
4. Whether claimant is entitled to medical benefits
pursuant to Iowa Code section 85.27; and,
5. Whether claimant is entitled to penalty benefits as
governed by Iowa Code section 86.13.
Defendants raised the affirmative defense of whether
Page 2
claimant's medical expenses were authorized. However,
current agency precedence has repeatedly stated that if
liability has been denied on the claim unauthorization of
medical expenses is not a valid defense. Therefore, this
affirmative defense will not be addressed in this decision.
FINDINGS OF FACT
The undersigned deputy having reviewed all the evidence
received, finds the following facts:
Claimant, Martha Hoevet, was born on March 1, 1949. At
the time of the hearing, she was 43 years of age. Claimant
is married and has one dependent child. She is 5 feet 3
inches and weighs approximately 195 pounds.
Claimant completed the tenth grade but did not graduate
from high school. Apparently, she has not received her GED.
For the past fifteen years claimant has been a
certified nurse's aide. Her primary employer during her
career has been the defendant nursing home, although from
September of 1990 through December of 1990, claimant also
held part-time employment with a nursing home facility in
Austin, Minnesota. As a nurse's aide, claimant's duties
have included providing total care for patients/residents at
the Stacyville Community Nursing Home. Specifically, her
duties included bathing and feeding patients and assisting
them to the commode. Claimant also helped residents with
hygiene needs.
On Saturday, January 12, 1991, claimant was working
with Millie Fredericks, another nurse's aide. According to
claimant, they were working together and were assigned to
the south wing which housed Barbara Koenigs, a patient who
was bedridden. An exhibit shows that claimant was assigned
to work on the north wing of the nursing home (Jt. Ex. 25).
Barbara Koenigs was assigned to the south wing. Testimony
provided that workers were to help each other in wings other
than those to which they were assigned. Because of her
physical limitations, Ms. Koenigs was required to use a
portable commode located beside her bed. As claimant and
Ms. Fredericks helped the resident from the commode to the
bed, claimant felt pain in her back and fell forward onto
the bed. She told Ms. Fredericks that she had hurt her
back. Ms. Fredericks' deposition testimony comports with
claimant's testimony given at the hearing (Joint Exhibit 36,
page 13).
Claimant went to the head nurse on duty, Roberta
Gaffey, and asked for aspirin to relieve the back pain she
felt after helping the resident. She finished her shift and
worked the following day, however, she was not able to
perform all of the required job duties, particularly the
lifting duties and called upon co-employees to help her.
Claimant continued to work her normal shifts, but on January
15, 1991, she sought treatment from Joseph P. Mlinar, M.D.,
a family practice physician with the Austin Medical Clinic
in Austin, Minnesota. He prescribed Parafon Forte and
ibuprofen. The following day, after her husband telephoned
Page 3
Dr. Mlinar and stated that claimant was getting
progressively worse, she was admitted to the St. Olaf
Hospital in Austin, Minnesota (Jt. Ex. 31).
While in the hospital, claimant underwent a CT scan of
the back which noted mild bulging at the L4-5 and L5-S1
regions. Degenerative arthritis was present throughout the
lumbar spine. The final diagnoses was that of acute lumbar
sacral strain and obesity. She was discharged to return
home and it was recommended that she lose weight and
increase exercising and activities. She was advised to do
no lifting of more than ten pounds for the next two weeks.
While in the hospital, claimant was treated by John M. Toso,
M.D. (Jt. Ex. 2 and 28).
Eventually, claimant was referred to E. A. Crowell,
M.D., an orthopedic specialist at the Mason City Clinic. He
reviewed her x-rays of the lumbar spine which showed
multiple traction spurs and old limbus avulsion fractures at
two levels. He recommended a bone scan to provide further
diagnostic evaluations. His physical examination did not
reveal positive results on any of the standard tests, and he
was of the opinion that claimant had sustained a low back
strain (Jt. Ex. 19).
In February of 1991, approximately three weeks after a
representative from the insurance company took claimant's
statement (Jt. Ex. 13), a rehabilitation specialist, Deanna
Harris, R.N., became involved with the management of
claimant's medical care. Ms. Harris sent claimant to R.
Emerson at the Mason City Clinic. The history taken from
claimant shows that claimant was at work as a nurse's aide
when she began to experience back pain. Specifically, Dr.
Emerson's notes state: "She sent to help a patient into
bed, slipped and twisted her back as [she] fell into bed
with the patient. She felt a ripping sensation in her lower
back, had sharp pain at first." (Jt. Ex. 11). Dr. Emerson's
examination revealed that claimant had decreased range of
motion of the lumbosacral spine on forward flexion but full
right and left bilateral bending. Straight leg tests were
negative. He recommended abdominal strengthening exercises,
weight loss and increased activities such as walking and
using a stationary bicycle. He advised that claimant could
return to light duty work on March 25 and probably full duty
on April 8, 1991 (Jt. Ex. 11).
Claimant returned to work part-time as a nurse's aide
with no restrictions on March 25, 1991. After two weeks,
she was restored to full duty employment and continued to
experience back pain. She returned to Dr. Mlinar in May of
1991, was taken off of work and was referred to Sherwin
Goldman, M.D. The history taken reflects that claimant had
a lifting injury at work on January 15, 1991. Present
symptoms included low back pain in the center of the spine
with radiation to just below the knee on the left side. The
majority of the pain occurred on flexion and extension. Dr.
Goldman made note of claimant's height and weight (5 feet 3
inches and 195 pounds) and observed her difficulty when
walking on her heels and toes as well as pain in the low
back when squatting and hopping. The examination revealed
Page 4
further that claimant had tenderness in the middle of the
low back, poor muscle contractions and very little voluntary
lumbar motion. Claimant was able to perform straight leg
raising with considerable low back pain. His preliminary
impression was that of lumbar myofascial pain. The results
of an EMG were normal and the MRI scan shows no evidence of
a herniation or potential radicular process. Final
recommendations included proper work restrictions, weight
loss, PMNR and trigger point injections (Jt. Ex. 32).
Throughout some of August 1991, claimant underwent
treatment from the Mayo Pain Clinic (Jt. Exs. 16 and 32).
The final diagnosis was that of chronic lumbar myofascial
pain with chronic pain syndrome. No permanent impairment
was noted (Jt. Ex. 15).
In November of 1991, Dr. Toso recommended that claimant
undergo physical therapy from November through December 1991
and January of 1992 to March of 1992. The notes which
document her visits are very terse and do not provide any
final diagnoses or recommendations (Jt. Ex. 27).
A final note from Dr. Toso dated March 5, 1992,
recommends claimant not lift more than 30 pounds for twelve
months with a reassessment in March of 1993 (Jt. Ex. 3).
Dr. Toso was deposed on August 13, 1992. He confirms
his recommendation that claimant lift not more than 30
pounds and recommends that she continue home exercises and
lose weight. He stated that he did not think she was a
malingerer, and at one time suggested she pursue employment
that would not require lifting abilities. He did not have
an opinion as to whether claimant's condition was work
related nor did he state that claimant had a permanent
impairment but reiterated that myofascial pain is permanent.
He indicated that claimant's weight is a factor in her
complaints of back pain (Jt. Ex. 33).
Dr. Mlinar was deposed on August 13, 1992. He was of
the opinion that the cause of claimant's back pain was due
to an incident at the nursing home wherein claimant was
lifting a basket of wet clothes. He diagnosed chronic
lumbar myofascial pain with chronic pain syndrome and was
unsure of the restrictions under which claimant was working.
He deferred further comments to the current treating
physicians (Jt. Ex. 34).
Dr. Goldman was deposed on September 10, 1992. He
reiterated that his examination revealed a great amount of
pain, and his final diagnosis was that of chronic lumbar
myofascial pain with chronic pain syndrome. He was unable
to state what claimant's prognosis might be, but related her
complaints to an injury at the nursing home (Jt. Ex. 35).
Two coworkers, Mildred Fredericks and Roberta Gaffey,
were also deposed. Ms. Fredericks corroborates claimant's
testimony that they were helping a resident, Barbara
Koenigs, into bed when claimant hurt her back. Roberta
Gaffey, the staff nurse on duty at the time of the incident,
recalls claimant telling her that she had hurt her back.
Page 5
She, too, corroborates claimant's testimony and elaborated
on the somewhat lax procedures used at the nursing home when
employees injured themselves on the job. She portrayed
claimant as a very good, conscientious worker (Jt. Exs. 36
and 37).
The administrator of the facility testified at the
hearing. Anita Adams has been the administrator for 13
years, and has been employed by the home for 25 years.
Currently, she supervises the staff and assumes total
management of the facility. The majority of her testimony
is in direct conflict with that of claimant's. She
indicated that Roberta Gaffey was not working on the day
claimant was allegedly injured. Ms. Adams also stated that
claimant and Millie Fredericks were not assigned to work
together, and that Millie was capable of lying. Ms. Adams
admitted she had never spoken to claimant about the
incident. She indicated claimant was a good employee.
Patricia Nigh, claims representative for the insurance
carrier, also testified at the hearing. Ms. Nigh took
claimant's statement in 1991 and remembered that at the time
of the statement, claimant was confused about what month it
was at the time the statement was taken.
Ms. Nigh contacted Millie Fredericks, who confirmed
claimant's version of the incident, but reasoned that the
denial of the claim was based on the inconsistencies of the
histories reflected in the medical reports. She also stated
that claimant's weight problem appeared to be the cause of
any resulting back problems and claimant's inability to
work.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether claimant
sustained an injury on January 11 or January 12, 1990, one
which arose out of and in the course of her employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on January 11 or
January 12, 1990, which arose out of and in the course of
her employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Central Telephone Co., 261
Iowa 352, 154 N.W.2d 128 (1967).
The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.
Page 6
The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63.
"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 he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.
After carefully considering all of the evidence and
having listened to the testimony, it is clear that claimant
was working her normal shift at the required date and time.
It is also evident that she was performing duties required
by her position as a nurse's aide. Although there is some
discrepancy as to the particular wing to which claimant was
assigned, it should be recognized that coemployees helped
each other regardless of shift assignments. Apparently,
this practice was quite regular and accepted by the
employer. Although some of the histories given to the
multitude of physicians involved with this case vary
slightly, the overall impression is that claimant slipped
while helping a resident into bed and hurt her back.
As a result, it is found that claimant sustained an
injury on January 12, 1991, which arose out of and in the
course of her employment.
The next issue to be addressed is whether there is a
causal relationship between the alleged injury and
claimant's disability.
The claimant has the burden of proving by a
preponderance of the evidence that the injury of January 12,
1991, is causally related to the disability on which she now
bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
Page 7
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d
348, 354 (Iowa 1980).
Dr. Mlinar, claimant's original treating physician, was
of the opinion that claimant's clinical problems, chronic
lumbar myofascial pain and chronic pain syndrome, were
related to the incident at the nursing home. And, Dr.
Goldman, who was unable to find any evidence of a permanent
physical impairment, did state within a reasonable degree of
medical certainty that claimant's injury caused restriction
of activities.
After considering all of the evidence, it is found that
there is a causal connection between claimant's injury and a
permanent disability. As claimant has sustained a permanent
injury, she is entitled to healing period benefits for the
time she was off of work. (See, Iowa Code section 85.34.)
The next issue to be addressed is whether claimant has
sustained a loss of earning capacity. Since claimant has
suffered an injury to the body as a whole, her industrial
disability must be evaluated.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which he is
fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa
285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial disabil
ity. This is so as impairment and disability are not syn
onymous. Degree of industrial disability can in fact be
much different than the degree of impairment because in the
first instance reference is to loss of earning capacity and
in the latter to anatomical or functional abnormality or
loss. Although loss of function is to be considered and
disability can rarely be found without it, it is not so that
a degree of industrial disability is proportionally related
to a degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of healing
period; the work experience of the employee prior to the
injury, after the injury and potential for rehabilitation;
Page 8
the employee's qualifications intellectually, emotionally
and physically; earnings prior and subsequent to the injury;
age; education; motivation; functional impairment as a
result of the injury; and inability because of the injury to
engage in employment for which the employee is fitted. Loss
of earnings caused by a job transfer for reasons related to
the injury is also relevant. These are matters which the
finder of fact considers collectively in arriving at the
determination of the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. There are no
guidelines which give, for example, age a weighted value of
ten percent of the total value, education a value of fifteen
percent of total, motivation - five percent; work experience
- thirty percent, etc. Neither does a rating of functional
impairment directly correlate to a degree of industrial
disability to the body as a whole. In other words, there
are no formulae which can be applied and then added up to
determine the degree of industrial disability. It therefore
becomes necessary for the deputy or commissioner to draw
upon prior experience, general and specialized knowledge to
make the finding with regard to degree of industrial dis
ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985); Christensen v. Hagen, Inc.,
(Appeal Decision, March 26, l985).
At the time of the injury, claimant was 43 years old.
She has worked almost 15 years as a nurse's aide, and at
time has worked both a full-time and a part-time position as
a nurse's aide. At the time of the injury, her earnings
were $5.70 per hour and claimant worked a 40 hour work week
for the Stacyville Community Nursing Home.
Claimant did not finish high school and has not
obtained her GED. Claimant has few, if any, transferable
skills. The defendant employer has, however, accommodated
her physical limitations and has been able to employ
claimant as a nurse's aide, although claimant now only works
from 7:00 a.m. through 1:00 p.m. five days per week. She
administers therapy sessions to the residents and is able to
work within her restrictions of not lifting more than 30
pounds. She stated that she is unable to work full time,
but it is noted that no physician involved with the case has
restricted claimant to part-time work.
After considering all of the factors, it is found that
claimant has sustained a 5 percent industrial disability.
The next issue to be addressed is whether claimant is
entitled to medical benefits provided by Iowa Code section
85.27.
Iowa Code section 85.27 provides, in relevant part:
The employer, for all injuries compensable
under this chapter or chapter 85A, shall furnish
reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation,
nursing, ambulance and hospital services and
Page 9
supplies therefor and shall allow reasonably
necessary transportation expense incurred for such
services.
As claimant has sustained a compensable work injury,
medical expenses shall be paid by the defendants.
Finally, claimant has asked for penalty benefits under
Iowa Code section 86.13
If a delay in commencement or termination of
benefits occurs without reasonable or probable
cause or excuse, the industrial commissioner shall
award benefits in addition to those benefits
payable under this chapter, or chapter 85, 85A, or
85B, up to fifty percent of the amount of benefits
that were unreasonably delayed or denied.
The agency has established that if an employer and/or
carrier is unwilling to pay benefits, the compensability of
the claim for benefits must be fairly debatable. See, Boyd
v. Western Home, file number 890207 (Appeal Dec. 1991).
Defendants' only argument to support their decision not
to make payments is that they did not believe claimant's
version of how the injury happened.
Employers and their insurance companies are free to
question a workers' compensation rendition of events at work
that led to an injury; however, the burden of investigating
the claim and making an informal decision rests solely with
them, and should be performed expeditiously and genuinely.
In the present case, Ms. Nigh explained that the denial
of benefits was based on the inconsistent histories in the
medical records. The records were received by the
defendants as late as May of 1991. Although some
inconsistences exist, the undersigned believes that the
claimant appears to be of very average intelligence and
lacking the ability to effectively communicate. All of the
medical evidence indicates that claimant hurt her back while
working for the defendant.
As a result, claimant is entitled to 50 percent penalty
benefits for healing period benefits and permanency benefits
due. Defendants have presented no persuasive evidence that
claimant did not sustain a work-related injury.
ORDER
THEREFORE, it is ordered:
That defendants shall pay claimant healing period
benefits from January 15, 1991 through March 25, 1991, and
May 16, 1991 through July 1, 1991, at the rate of one
hundred fifty-five and 66/100 dollars ($155.66) per week.
That defendants shall pay claimant an award of fifty
(50) percent of the amount of healing period benefits due
claimant.
Page 10
That defendants shall pay claimant permanent partial
disability benefits for twenty-five (25) weeks at the rate
of one hundred fifty-five and 66/100 dollars ($155.66) per
week commencing July 2, 1991.
That defendants pay claimant an award of fifty (50)
percent of the permanent partial disability benefits due
claimant commencing July 2, 1991.
That defendants pay claimant accrued amounts in a lump
sum.
That defendants shall pay interest pursuant to Iowa
Code section 85.30.
That due to the condition of the exhibits, each party
shall pay their respective costs of this proceeding pursuant
to rule 343 IAC 4.33.
That defendants shall pay for medical treatment
rendered to treat claimant's work injury as governed by Iowa
Code section 85.27.
That defendants shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Page 11
Signed and filed this ____ day of November, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr R Ronald Pogge
Attorney at Law
2700 Grand Ave Ste 111
Des Moines IA 50312
Ms Janice M Herfkens
Mr Charles Cutler
Attorneys at Law
729 Insurance Exch Bldg
Des Moines IA 50309
5-1100; 5-4000.2
Filed November 20, 1992
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARTHA HOEVET, :
:
Claimant, :
:
vs. :
: File No. 973115
STACYVILLE COMMUNITY :
NURSING HOME, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
INA INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100
Claimant proved by a preponderance of the evidence that she
sustained a work-related injury.
5-4000.2
Claimant awarded 50% penalty benefits when defendants denied
claim but performed no investigation until months later.
All medical evidence indicated that claimant's injury
happened while at work.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
JANICE HYLER, Surviving :
Spouse of EUGENE J. HYLER, :
Deceased, :
:
Claimant, :
:
vs. :
: File No. 973135
IOWA STATE EDUCATION :
ASSOCIATION, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CIGNA, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal.
ISSUES
Claimant states the following issues on appeal:
1. Whether the deputy erred in denying medical
benefits incurred for treatment of the personal injury
between January 18, 1991, and March 7, 1991.
2. Whether the deputy erred in failing to find a
causal relationship between Eugene J. Hyler's personal
injury on January 18, 1991, and the pulmonary embolism
which resulted in his death on March 18, 1991.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed May 2, 1994 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
There is no dispute that the decedent slipped and fell on
Page 2
the ice in the parking lot of a motel in Cherokee, Iowa, on
January 18, 1991, while on a special assignment with the Iowa
State Education Association (ISEA). Jack Hyler, decedent herein,
was employed by the Iowa State Education Association as a
Uniserve Director from July 1970 until his death on March 18,
1991. The Uniserve Director assists the local membership of the
Association during collective bargaining. The director also
educates the members concerning services and benefits available
through ISEA and assists members in obtaining those benefits when
they are wanted or needed. The director also assists individual
members with various problems including discharge hearings,
mediation, etc.
During his career with ISEA, decedent employee served in the
Red Oak office which covered a 14-county region in southwest
Iowa. The region includes 47 school districts, area educational
agencies and community colleges. Assigned to this Red Oak office
was John Phillips, another Uniserve Director, and Marilyn Paul,
the office secretary.
Jack Hyler was on special assignment with the ISEA at the
time of his injury on January 18, 1991. This project commenced
in November 1990 and was scheduled to end on March 31, 1991. The
special assignment involved working with Uniserve Directors
throughout Iowa. Mr. Hyler rented an apartment in Des Moines for
occasional use during the week because the project required that
he spend more time at the ISEA central office which was located
in Des Moines, Iowa. However, Mr. Hyler also spent some of his
time at the Red Oak office. He spent the weekends either at home
in Red Oak or at his mother-in-law's house in Ames, Iowa.
The employer and insurance carrier admit that Jack Hyler was
an employee of the ISEA. They also admit that he sustained a
fractured left ankle on January 18, 1991, in Cherokee, Iowa, and
that the injury arose out of and in the course of his employment.
They also agree that he suffered a nondisplaced fracture which
did not require surgery, pins, needles, or cutting of the skin.
They agree that a fiberglass walking cast was placed on his left
leg on January 21, 1991, and the cast was removed and reapplied
on January 30, 1991. The cast was removed on March 7, 1991, and
an ankle air splint was applied. There is agreement that
decedent suffered a pulmonary embolism and died on March 18,
1991. He was survived by his wife, Janice Hyler, and two adult
children.
The pertinent medical evidence of record indicates that
decedent had a long history of atherosclerotic disease. He had
bilateral carotid endarterectomies and femoral endarterectomy.
(exhibit 50-2) He had a history of being over-weight and a heavy
smoker. (ex. 51-2) When evaluated at the Mayo Clinic in
November of 1988, repeat arterial Doppler studies revealed some
worsening of the arterial circulation to both legs when compared
to an earlier study of August 9, 1988. A translumbar aortography
showed occlusion of the arterial flow to the right leg. It was
Page 3
felt that a re-do of the aortal femoral bypass would be helpful,
however, decedent was first advised to lose 20-25 pounds. (ex.
54-3) Decedent's medical history also includes a history of
hypertension since 1976 secondary to renal artery stenosis, which
was repaired in 1976. (ex. 59-2)
Claimant saw Kevin P. Reagan, M.D., on January 21, 1991, for
treatment of pain and swelling in his left ankle as a result of a
fall on January 18, 1991, in Cherokee, Iowa. X-rays were taken
and revealed a fracture of the distal left fibula. J. Richard
Trinity, M.D., treated claimant in the emergency room at
Montgomery County Memorial Hospital. He applied a short-leg
fiberglass walking cast along with a casted shoe. On January 30,
1991, Dr. Trinity removed and reapplied the cast because the
original one was very loose. On March 7, 1991, the cast was
removed and an ankle air splint was applied. (ex. 1-4)
Janice Hyler testified that her husband returned to work on
January 23, 1991. She stated that during the next two months he
was less physically active than before and was unable to perform
many of his usual household chores. Nevertheless, he met her at
her mother's home in Ames, Iowa, on March 17, 1991, to help her
sort out some of her mother's belongings which had to be disposed
of by the end of March 1991. That evening, he got up to go to
the bathroom and complained of back pain. She stated that she
rubbed his back and returned to bed. He moved to another bedroom
where the bed had a firmer mattress. Shortly thereafter, she
heard him moaning and found him sitting on the edge of the bed.
He told her that he was having a heart attack. She immediately
called 911 and he was taken by Mobile Intensive Care Services to
Mary Greeley Medical Center in Ames, Iowa.
The medical evidence indicates that when the emergency
ambulance crew arrived, they found decedent basically asystolic,
or at least with no palpable pulses. In the emergency room,
claimant was attended by James Gohman, M.D. His notes indicate
that they were unable to obtain any type of rhythm and had
extreme difficulty ventilating him. Shortly thereafter, Mr.
Hyler died. (ex. 5-6)
The cause of death could not be determined by Dr. Gohman.
Therefore, he got permission from decedent's wife to [have
performed] ***** an autopsy. Mrs. Hyler consented to the autopsy
which was performed at 9:00 a.m. on March 18, 1991. The
pathologist incorrectly reported that Mr. Hyler had recently
underwent surgery for an ankle fracture. After autopsy, he
stated that the cause of death was a pulmonary embolism likely
originating from the deep veins of the leg. (ex. 6-8)
[Decedent sustained a nondisplaced fracture to his left
ankle on January 18, 1991. Decedent first sought medical
treatment for this injury on January 21, 1991 and last sought
treatment on March 7, 1991.
Page 4
The parties have previously stipulated that Cigna has paid
$475.55 in medical expenses. Claimant has submitted medical
bills totaling $960.10 for treatment of decedent's ankle between
January 18, 1991 and March 7, 1991.]
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed May 2, 1994 are adopted as set forth below.
Segments designated by asterisks (*****) indicate portions of the
language from the proposed agency decision that have been
intentionally deleted and do not form a part of this final agency
decision. Segments designated by brackets ([ ]) indicate
language that is in addition to the language of the proposed
agency decision.
The first issue to be determined is whether decedent's ankle
injury and subsequent treatment caused or materially aggravated
his preexisting condition resulting in a massive and fatal
pulmonary embolism.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a preponderance of
the evidence that the alleged injury actually occurred and that
it arose out of and in the course of employment. McDowell v.
Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words
"arising out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time, place and
circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d
415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa
1971).
The claimant has the burden of proving by a preponderance of
the evidence that the injury is a proximate cause of the
disability on which the claim is based. A cause is proximate if
it is a substantial factor in bringing about the result; it need
not be the only cause. A preponderance of the evidence exists
when the causal connection is probable rather than merely
possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa
1974).
The question of causal connection is essentially within the
domain of expert testimony. The expert medical evidence must be
considered with all other evidence introduced bearing on the
causal connection between the injury and the disability. The
weight to be given to any expert opinion is determined by the
finder of fact and may be affected by the accuracy of the facts
relied upon by the expert as well as other surrounding
circumstances. The expert opinion may be accepted or rejected,
Page 5
in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903
(Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965).
A personal injury contemplated by the workers' compensation
law means an injury, the impairment of health or a disease
resulting from an injury which comes about, not through the
natural building up and tearing down of the human body, but
because of trauma. The injury must be something which acts
extraneously to the natural processes of nature and thereby
impairs the health, interrupts or otherwise destroys or damages a
part or all of the body. Although many injuries have a traumatic
onset, there is no requirement for a special incident or an
unusual occurrence. Injuries which result from cumulative trauma
are compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa 1112,
125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219, 38 N.W.2d
158 (1949); Almquist v. Shenandoah Nurseries, Inc., 218 Iowa 724,
254 N.W. 35 (1934). An occupational disease covered by chapter
85A is specifically excluded from the definition of personal
injury. Iowa Code section 85.61(5); Iowa Code section 85A.8.
Preponderance of the evidence means greater weight of
evidence; that is, the evidence of superior influence or
efficacy. Bauer v. Reavell, 219 Iowa 1212, 216 N.W. 39 (1935).
A party's burden as to proof is not discharged by creating
an equipoise. Volk v. International Harvester Co., 252 Iowa
298, 106 N.W.2d 649 (1960).
A factor is substantial when reasonable persons considering
that factor would regard it as a cause, that is, as being in some
pertinent part responsible for the result produced. See,
Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa 1972).
A factor is substantial when it is material in producing a
result. A factor may be substantial without being either
exclusively or even predominantly the determinant of the result,
however. See Jones v. City of Des Moines, 355 N.W.2d 49 (Iowa
1984); Montgomery Properties v. Economy Forms, 305 N.W.2d 470
(Iowa 1981).
Additionally consider the following:
We are cognizant of the fact that the compensation
law is for the benefit of workers and is to be
liberally administered to that end. But it must be
administered by the application of logical and
consistent rules or formulas notwithstanding its
benevolent purpose. It cannot be made to depend on the
whim or sympathetic sentiment of the current
administrator or presiding judge. We apprehend every
member of this court is sympathetic to claimant in the
Page 6
instant case. But the compensation statute is not a
charity. It is a humanitarian law to be administered,
not by sympathy, but by logical rules, evolved from the
determination of many cases under literally countless
factual variations. Compensation is to be paid by the
employer (or [the] insurer) as a matter of contract,
not as a gratuity. It is payable only when the facts
show the injury is within the contract--that it 'arose
out of and in the course of the contracted employment.'
Bulman v. Sanitary Farm Dairies, 247 Iowa 488, 494,
495, 73 N.W.2d (1955).
Mrs. Hyler contends that decedent's death from a pulmonary
embolism is the direct and natural result of decedent's
compensable primary injury to his left ankle.
***** In Oldham v. Scofield and Welch, 222 Iowa 764, 767,
266 N.W. 480, 482 (Iowa 1936), [the Iowa Supreme Court stated:]
The question of whether the disability sustained by
the employee shall be attributed to the first accident
or to the later accidents depends on whether or not the
disability sustained was caused by a change in the
original condition, or by a recurrence of the original
injury, or by an independent and subsequent cause. If
the employee suffers a compensable injury and
thereafter suffers further disability which is the
proximate result of the original injury, such further
disability is compensable. Where an employee suffers a
compensable injury and thereafter returns to work and,
as a result thereof, his first injury is aggravated and
accelerated so that he is greater disabled than before,
the entire disability may be compensated for.
More recently the court in DeShaw v. Energy Manufacturing
Co., 192 N.W.2d 777, 780 (Iowa 1971) established this rule:
When a workman sustains an injury, later sustains
another injury, and subsequently seeks to reopen an
award predicated on the first injury, he must prove one
of two things: (a) that the disability for which he
seeks additional compensation was proximately caused by
the first injury, or (b) that the second injury (and
ensuring disability) was proximately caused by the
first injury.
***** The parties have presented [evidence from] six medical
experts. ***** All of this evidence has been carefully read and
considered and a careful analysis made of the conflicting
opinions presented.
An expert's opinion based on an incomplete history is not
necessarily binding on the commissioner. The opinion must be
weighed with other facts and circumstances presented. Musselman
Page 7
v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
A treating physician's testimony is not entitled to greater
weight as a matter of law than that of a physician who later
examines claimant in anticipation of litigation. Weight to be
given testimony of physician is a fact issue to be decided by the
industrial commissioner in light of the record the parties
develop. In this regard, both parties may develop facts as to
the physician's employment in connection with litigation; the
physician's examination at a later date and not when the injuries
were fresh; his arrangement as to compensation; the extent and
nature of the physician's examination; the physician's education,
experience, training, and practice; and all other factors which
bear upon the weight and value of the physician's testimony.
Both parties may bring all this information to the attention of
the fact finder as either supporting or weakening the physician's
testimony and opinion. All factors go to the value of the
physician's testimony as a matter of fact not as a matter of law.
Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 176, 192
(Iowa 1985).
On June 12 and July 25, 1991, Jay Richard Trinity, M.D.,
reported that at no time while in the walking cast or ankle
splint did decedent have any pain or swelling in his calf or leg,
except as locally related to the fracture. He doubted whether
the pulmonary embolus arose from the leg as a consequence of the
fracture. Instead, it was his opinion that the pulmonary embolus
most likely came from the pelvis and not the leg. This opinion
is supported by the fact that decedent was ambulatory the entire
time and had no symptoms suggestive of thrombophlebitis. He
noted that decedent had other risk factors such as obesity and a
sedentary lifestyle. However, Dr. Trinity was unable to
determine the source of the clot. (ex. 9, pages 1-2)
Dr. Trinity also testified in a deposition taken on January
12, 1994. Dr. Trinity is board certified in general surgery. A
regular part of his practice involves the diagnosis and treatment
of ankle fractures and leg injuries. Dr. Trinity treated
claimant's nondisplaced fractured fibula with a fiberglass cast
which was designed as a walking cast and enabled decedent to
ambulate. He stated that decedent's cast needed to be refitted
on January 30, 1991, after becoming loose because the swelling
from the fracture diminished. At that time, Dr. Trinity stated
that he did not notice any swelling, discoloration or hardness
that would indicate the presence of thrombophlebitis or thrombi
in the lower extremity. He saw decedent for the last time on
March 7, 1991. An x-ray was taken and did not show any unstable
findings. Dr. Trinity stated that the origin point for most
thrombi is somewhere between the groin and the midcalf. Dr.
Trinity reiterated his opinion that decedent's pulmonary embolism
was not caused by his ankle fracture nor was his preexisting
condition materially or substantially aggravated by it. (ex. 47)
James D. Gohman, M.D., reported in a letter to decedent's
Page 8
attorney that the autopsy demonstrated the presence of a very
large pulmonary embolus with complete occlusion of the pulmonary
trunk and main pulmonary arteries. He concluded that this caused
Mr. Hyler's death. He opined that, "It would appear to me that
the fracture and subsequent casting would be the event initiating
the thromboembolic phenomenon." (ex. 11-1) Dr. Gohman's
deposition was taken on December 16, 1993. Dr. Gohman is a
specialtist in internal medicine. He treated decedent in the
emergency room at Mary Greeley Medical Center the morning of
March 18, 1991. He recommended that an autopsy be performed in
order to ascertain the cause of death. He did not perform the
autopsy but received a copy of the report. The autopsy indicated
pulmonary embolism, enlarged heart and a history of pulmonary
hemorrhages. He defined a pulmonary embolism as the passage of
venous clot material into the right side of the heart and into
the lungs, pulmonary vessels. He testified that the clots
embolize into the pulmonary vessels and can block the circulation
through the lungs. Embolization reduces the flow of blood
through the venous system and in decedent's case, the blood clot
stopped in the lung and produced a major obstruction to the flow
of blood through the lungs so that the blood could no longer pick
up oxygen to supply the body and death occurred. Dr. Gohman
reiterated his opinion that decedent's fracture treated with
immobilization and casting caused the embolus. (ex. 44)
Ronald K. Miller, an orthopedic surgeon, reported on August
12, 1991, that the fracture, lack of normal motion, because of
the cast, and inactivity was a substantial contributing factor to
development of DVT (deep vein thrombosis) in the ilio-inguinal
area. It was his opinion that the fatal pulmonary emboli
developed in decedent's calf and that the fracture and subsequent
soft tissue swelling was the initial cause of his fatal pulmonary
emboli. (ex. 12) Dr. Miller testified in a deposition taken on
March 17, 1993. After considering other factors offered by
defendants' attorney, Dr. Miller testified that there is a
reduced likelihood that the ankle fracture caused decedent's
death. (ex. 43-30)
On October 1, 1991, at the request of Attorney John M.
French, David W. Kable, M.D., reviewed decedent's medical
records. Dr. Kable stated that the only precipitating factor in
decedent's acute pulmonary embolism was a history of a fractured
ankle with a casted leg for six weeks. He stated, "This is a
well known predisposing factor to the development of deep vein
thrombosis in the legs. At the time of Mr. Hyler's death, a
large amount of clot broke off from the veins in the legs and
traveled to his lungs, causing almost instant death." (ex. 13-2)
Dr. Kable testified in a deposition on December 18, 1993. Dr.
Kable is board certified in internal medicine and cardiology. He
reiterated his opinion that decedent's ankle fracture and
subsequent casting and immobilization was in all likelihood the
major cause of the development of deep venous thrombosis which
subsequently led to pulmonary embolism. (ex. 45-15)
Page 9
On March 6, 1992, Timothy C. Fitzgibbons, M.D., reviewed
decedent's medical records. He rendered an opinion as to the
cause of Mr. Hyler's death. He attributed the pulmonary embolism
to the natural progression of preexisting problems. He stated
that the ankle injury did not materially aggravate or accelerate
decedent's fatal pulmonary embolism. He offered the opinion that
most pulmonary emboli do not occur from the deep veins in the leg
but rather in the pelvic veins and there would be no reason to
expect decedent to develop clots in his deep pelvic veins from
his ankle injury. He stated that the evidence does not support
any finding that decedent had complaints of swelling or
discomfort in his leg which would be consistent with a deep vein
thrombosis. (ex. 10-2)
Dr. Fitzgibbons also testified in a deposition taken on
September 23, 1993. Dr. Fitzgibbons testified that in his
opinion, the fracture of the lateral malleolus and subsequent
treatment with casting did not have a significant effect and was
not the cause of decedent's fatal pulmonary embolism. (ex. 41,
pp. 23-24) He agreed with Dr. Miller's statement that most deep
vein thromboses in the calf generally stay in the calf. However,
he disagreed with his opinion that the fracture caused decedent's
pulmonary embolism. (ex. 41-25) Dr. Fitzgibbons felt that
decedent had many risk factors which existed independent of any
trauma to his ankle and which would have made him susceptible to
development of a pulmonary embolism. (ex. 41-59)
At the request of defendants' attorney, Michael H. Sketch,
Sr., M.D., professor of medicine and chief, division of
cardiology at Creighton University, reviewed decedent's medical
records. After his review of the record, he stated that within a
reasonable degree of medical certainty decedent's death was the
result of a pulmonary embolus which was in no way related to his
ankle injury of January 13, 1991, nor was it materially
aggravated or accelerated by that injury. (ex. 14, pp. 1-2) Dr.
Sketch testified in depositions taken on January 13, 1994 and
February 10, 1994. Dr. Sketch testified that decedent's autopsy
was incomplete because it did not discern the origin of the
massive clot that resulted in his death. In other words, the
autopsy did not locate the cause of or the origin of the
pulmonary embolism. Dr. Sketch reiterated that, in his opinion,
decedent's ankle injury did not cause or materially aggravate or
accelerate the pulmonary embolism which resulted in his death.
(ex. 46-11) He stated that the type of massive pulmonary emboli
which resulted in decedent's death originates in the large veins
of the thigh or in the pelvis. The region is located above the
knee. Dr. Sketch testified that decedent had predisposing risk
factors for development of pulmonary emboli including obesity, an
enlarged heart and severe peripheral vascular disease. In
addition, he had abnormal veins in his left leg and the valves in
the legs were incompetent. In addition, he had a history of deep
vein thrombosis. He stated that it is extremely rare to see
massive pulmonary embolus in patient's who have walking casts.
Rather, it is seen with immobilization such as full leg casts and
Page 10
complete bed rest. (exs. 46 and 48)
The weight to be given any expert opinion is determined by
the finder of fact and may be effected 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, at 903 (Iowa 1974); Anderson, at
531 (Iowa 1974); Bodish, at 867 (Iowa 1965). The greater weight
of expert opinion does not support claimant's contention that
decedent's compensable left ankle injury and subsequent medical
treatment was the proximate cause of a fatal pulmonary embolism
which resulted in his death. In making this determination, the
undersigned has given considerable weight to claimant's treating
surgeon, Dr. Trinity and to the independent medical opinions of
Dr. Fitzgibbons and Dr. Sketch.
Dr. Gohman testified that in forming his medical opinion he
relied entirely on the autopsy report. (ex. 44-22) He also
admitted that he had no knowledge of claimant's activities during
the two-month period his leg was in a cast and he was not totally
cognizant of decedent's past medical history. (ex. 44, pp.
26-29) Finally, Dr. Gohman admitted that a more complete autopsy
could have more closely determined the source of the clot in
question, specifically if the dissection of the veins was
performed a better determination could have been made. (ex.
44-44) Therefore, Dr. Gohman's opinion is rejected.
Dr. Trinity and Dr. Sketch formed their medical opinion
based on the totality of the evidence, including claimant's past
medical history and predisposing risk factors.
Dr. Sketch agreed with Dr. Gohman that the autopsy was
incomplete and did not demonstrate the origin of the clot. (ex.
46-7) He testified that Mr. Hyler died from a massive pulmonary
embolus. He explained that these originate in the large veins of
the thigh or in the pelvis or the area above the knee. He
emphatically stated that decedent's minor left ankle fracture and
subsequent treatment with casting did not create a significant
risk factor for development of pulmonary emboli. Instead, he
felt that the massive pulmonary embolism was the natural
progression of decedent's preexisting disease process and other
significant risk factors. (ex. 46, pp. 11-22)
[It is concluded] ***** that the greater weight of the
evidence supports the findings and medical opinion of Dr. Michael
Sketch. A doctor's experience, expertise and board certification
may accord his testimony greater weight. Reiland v. Palco, Inc.,
Thirty-second Biennial Report of the Industrial Commissioner 56
(1975); Dickey v. ITT Continental Baking Co., Thirty-fourth
Biennial Report of the Industrial Commissioner 89 (1979).
Accordingly, the undersigned concludes that decedent's left ankle
injury did not hasten or cause his death. Therefore, survivor's
benefits cannot be awarded to decedent's widow.*****
Page 11
[Claimant should not bear the expense of any unpaid medical
bills for treatment of decedent's ankle. Defendants are to
satisfy any unpaid medical bills for treatment of decedent's
ankle between January 18, 1991 and March 7, 1991.]
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That defendants satisfy any unpaid medical bills for
treatment of decedent's ankle between January 18, 1991 and March
7, 1991.
That claimant shall take nothing further from these
proceedings.
That claimant shall pay the costs of the appeal including
the transcription of the hearing. Defendants shall pay all other
costs.
Signed and filed this ____ day of October, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. James E. Thorn
Attorney at Law
P.O. Box 398
Council Bluffs, Iowa 51502
Mr. M. James Daley
Attorney at Law
P.O. Box 1828
Sioux City, Iowa 51102
1805
Filed October 17, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
JANICE HYLER, Surviving :
Spouse of EUGENE J. HYLER, :
Deceased, :
:
Claimant, :
:
vs. :
: File No. 973135
IOWA STATE EDUCATION :
ASSOCIATION, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
CIGNA, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
1805
In a proceeding for death benefits decedent's spouse did not
prove by a preponderance of the evidence that decedent's left
ankle injury and subsequent treatment caused or materially
aggravated his preexisting condition so as to result in a massive
and fatal pulmonary embolism.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JANICE HYLER, Surviving :
Spouse of EUGENE J HYLER, :
Deceased, :
:
Claimant, :
:
vs. :
: File No. 973135
IOWA STATE EDUCATION ASSOC.:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Janice
Hyler, surviving spouse of Eugene J. Hyler, deceased,
claimant, against Iowa State Education Association,
employer, and Cigna Insurance, insurance carrier,
defendants, to recover benefits under the Iowa Workers'
Compensation Act as a result of an injury sustained on
January 18, 1991. This matter came on for hearing before
the undersigned deputy industrial commissioner on April 4,
1994, in Council Bluffs, Iowa. The record was considered
fully submitted at the close of the hearing. The claimant
was present and testified. The documentary evidence
identified in the record consists of joint exhibits 1
through 74.
ISSUES
Pursuant to the hearing report and order approving same
dated April 4, 1994, the parties have presented the
following issues for resolution:
Whether claimant's January 18, 1991, left ankle
injury and treatment caused a pulmonary embolism which
resulted in his death;
Whether claimant is entitled to medical benefits
pursuant to Iowa Code section 85.27; and
Whether claimant is entitled to penalty benefits
pursuant to Iowa Code section 86.13.
Page 2
FINDINGS OF FACT
The undersigned has carefully considered all the
testimony given at the hearing, arguments made, evidence
contained in the exhibits herein, and makes the following
findings:
There is no dispute that the decedent slipped and fell
on the ice in the parking lot of a motel in Cherokee, Iowa,
on January 18, 1991, while on a special assignment with the
Iowa State Education Association (ISEA). Jack Hyler,
decedent herein, was employed by the Iowa State Education
Association as a Uniserve Director from July 1970 until his
death on March 18, 1991. The Uniserve Director assists the
local membership of the Association during collective
bargaining. The director also educates the members
concerning services and benefits available through ISEA and
assists members in obtaining those benefits when they are
wanted or needed. The director also assists individual
members with various problems including discharge hearings,
mediation, etc.
During his career with ISEA, decedent employee served
in the Red Oak office which covered a 14-county region in
southwest Iowa. The region includes 47 school districts,
area educational agencies and community colleges. Assigned
to this Red Oak office was John Phillips, another Uniserve
Director, and Marilyn Paul, the office secretary.
Jack Hyler was on special assignment with the ISEA at
the time of his injury on January 18, 1991. This project
commenced in November 1990 and was scheduled to end on March
31, 1991. The special assignment involved working with
Uniserve Directors throughout Iowa. Mr. Hyler rented an
apartment in Des Moines for occasional use during the week
because the project required that he spend more time at the
ISEA central office which was located in Des Moines, Iowa.
However, Mr. Hyler also spent some of his time at the Red
Oak office. He spent the weekends either at home in Red Oak
or at his mother-in-law's house in Ames, Iowa.
The employer and insurance carrier admit that Jack
Hyler was an employee of the ISEA. They also admit that he
sustained a fractured left ankle on January 18, 1991, in
Cherokee, Iowa, and that the injury arose out of and in the
course of his employment. They also agree that he suffered
a nondisplaced fracture which did not require surgery, pins,
needles, or cutting of the skin. They agree that a
fiberglass walking cast was placed on his left leg on
January 21, 1991, and the cast was removed and reapplied on
January 30, 1991. The cast was removed on March 7, 1991,
and an ankle air splint was applied. There is agreement
that decedent suffered a pulmonary embolism and died on
March 18, 1991. He was survived by his wife, Janice Hyler,
and two adult children.
The pertinent medical evidence of record indicates that
decedent had a long history of atherosclerotic disease. He
had bilateral carotid endarterectomies and femoral
endarterectomy. (exhibit 50-2). He had a history of being
Page 3
over-weight and a heavy smoker. (ex. 51-2). When evaluated
at the Mayo Clinic in November of 1988, repeat arterial
Doppler studies revealed some worsening of the arterial
circulation to both legs when compared to an earlier study
of August 9, 1988. A translumbar aortography showed
occlusion of the arterial flow to the right leg. It was
felt that a re-do of the aortal femoral bypass would be
helpful, however, decedent was first advised to lose 20-25
pounds. (ex. 54-3). Decedent's medical history also
includes a history of hypertension since 1976 secondary to
renal artery stenosis, which was repaired in 1976. (ex.
59-2).
Claimant saw Kevin P. Reagan, M.D., on January 21,
1991, for treatment of pain and swelling in his left ankle
as a result of a fall on January 18, 1991, in Cherokee,
Iowa. X-rays were taken and revealed a fracture of the
distal left fibula. J. Richard Trinity, M.D., treated
claimant in the emergency room at Montgomery County Memorial
Hospital. He applied a short-leg fiberglass walking cast
along with a casted shoe. On January 30, 1991, Dr. Trinity
removed and reapplied the cast because the original one was
very loose. On March 7, 1991, the cast was removed and an
ankle air splint was applied. (ex. 1-4).
Janice Hyler testified that her husband returned to
work on January 23, 1991. She stated that during the next
two months he was less physically active than before and was
unable to perform many of his usual household chores.
Nevertheless, he met her at her mother's home in Ames, Iowa,
on March 17, 1991, to help her sort out some of her mother's
belongings which had to be disposed of by the end of March
1991. That evening, he got up to go to the bathroom and
complained of back pain. She stated that she rubbed his
back and returned to bed. He moved to another bedroom where
the bed had a firmer mattress. Shortly thereafter, she
heard him moaning and found him sitting on the edge of the
bed. He told her that he was having a heart attack. She
immediately called 911 and he was taken by Mobile Intensive
Care Services to Mary Greeley Medical Center in Ames, Iowa.
The medical evidence indicates that when the emergency
ambulance crew arrived, they found decedent basically
asystolic, or at least with no palpable pulses. In the
emergency room, claimant was attended by James Gohman, M.D.
His notes indicate that they were unable to obtain any type
of rhythm and had extreme difficulty ventilating him.
Shortly thereafter, Mr. Hyler died. (ex. 5-6).
The cause of death could not be determined by Dr.
Gohman. Therefore, he got permission from decedent's wife
to perform an autopsy. Mrs. Hyler consented to the autopsy
which was performed at 9:00 a.m. on March 18, 1991. The
pathologist incorrectly reported that Mr. Hyler had recently
underwent surgery for an ankle fracture. After autopsy, he
stated that the cause of death was a pulmonary embolism
likely originating from the deep veins of the leg. (ex.
6-8).
Page 4
CONCLUSIONS OF LAW
The first issue to be determined is whether decedent's
ankle injury and subsequent treatment caused or materially
aggravated his preexisting condition resulting in a massive
and fatal pulmonary embolism.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v. Goodyear Serv. Stores, 255 Iowa
Page 5
1112, 125 N.W.2d 251 (1963); Ford v. Goode, 240 Iowa 1219,
38 N.W.2d 158 (1949); Almquist v. Shenandoah Nurseries,
Inc., 218 Iowa 724, 254 N.W. 35 (1934). An occupational
disease covered by chapter 85A is specifically excluded from
the definition of personal injury. Iowa Code section
85.61(5); Iowa Code section 85A.8.
Preponderance of the evidence means greater weight of
evidence; that is, the evidence of superior influence or
efficacy. Bauer v. Reavell, 219 Iowa 1212, 216 N.W. 39
(1935).
A party's burden as to proof is not discharged by
creating an equipoise. Volk v. International Harvester Co.,
252 Iowa 298, 106 N.W.2d 649 (1960).
A factor is substantial when reasonable persons
considering that factor would regard it as a cause, that is,
as being in some pertinent part responsible for the result
produced. See, Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa
1972).
A factor is substantial when it is material in
producing a result. A factor may be substantial without
being either exclusively or even predominantly the
determinant of the result, however. See Jones v. City of
Des Moines, 355 N.W.2d 49 (Iowa 1984); Montgomery Properties
v. Economy Forms, 305 N.W.2d 470 (Iowa 1981).
Additionally consider the following:
We are cognizant of the fact that the
compensation law is for the benefit of workers and
is to be liberally administered to that end. But
it must be administered by the application of
logical and consistent rules or formulas
notwithstanding its benevolent purpose. It cannot
be made to depend on the whim or sympathetic
sentiment of the current administrator or
presiding judge. We apprehend every member of
this court is sympathetic to claimant in the
instant case. But the compensation statute is not
a charity. It is a humanitarian law to be
administered, not by sympathy, but by logical
rules, evolved from the determination of many
cases under literally countless factual
variations. Compensation is to be paid by the
employer (or [the] insurer) as a matter of
contract, not as a gratuity. It is payable only
when the facts show the injury is within the
contract--that it 'arose out of and in the course
of the contracted employment.' Bulman v. Sanitary
Farm Dairies, 247 Iowa 488, 494, 495, 73 N.W.2d
(1955).
Mrs. Hyler contends that decedent's death from a
pulmonary embolism is the direct and natural result of
decedent's compensable primary injury to his left ankle.
In 1936, the Iowa Supreme Court attempted to supply
Page 6
some guidance for sorting through this type of case in
Oldham v. Scofield and Welch, 222 Iowa 764, 767, 266 N.W.
480, 482 (Iowa 1936).
The question of whether the disability sustained
by the employee shall be attributed to the first
accident or to the later accidents depends on
whether or not the disability sustained was caused
by a change in the original condition, or by a
recurrence of the original injury, or by an
independent and subsequent cause. If the employee
suffers a compensable injury and thereafter
suffers further disability which is the proximate
result of the original injury, such further
disability is compensable. Where an employee
suffers a compensable injury and thereafter
returns to work and, as a result thereof, his
first injury is aggravated and accelerated so that
he is greater disabled than before, the entire
disability may be compensated for.
More recently the court in DeShaw v. Energy
Manufacturing Co., 192 N.W.2d 777, 780 (Iowa 1971)
established this rule:
When a workman sustains an injury, later sustained
another injury, and subsequently seeks to reopen
an award predicted on the first injury, he must
prove one or two things: (a) that the disability
for which he seeks additional compensation was
proximately caused by the first injury, or (b)
that the second injury (and ensuring disability)
was proximately caused by the first injury.
The undersigned seeks guidance from the medical experts
to resolve this complicated issue. The parties have
presented six medical experts to assist the undersigned in
making this determination. All of this evidence has been
carefully read and considered and a careful analysis made of
the conflicting opinions presented.
An expert's opinion based on an incomplete history is
not necessarily binding on the commissioner. The opinion
must be weighed with other facts and circumstances
presented. Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
A treating physician's testimony is not entitled to
greater weight as a matter of law than that of a physician
who later examines claimant in anticipation of litigation.
Weight to be given testimony of physician is a fact issue to
be decided by the industrial commissioner in light of the
record the parties develop. In this regard, both parties
may develop facts as to the physician's employment in
connection with litigation; the physician's examination at a
later date and not when the injuries were fresh; his
arrangement as to compensation; the extent and nature of the
physician's examination; the physician's education,
experience, training, and practice; and all other factors
which bear upon the weight and value of the physician's
Page 7
testimony. Both parties may bring all this information to
the attention of the fact finder as either supporting or
weakening the physician's testimony and opinion. All
factors go to the value of the physician's testimony as a
matter of fact not as a matter of law. Rockwell Graphic
Systems, Inc. v. Prince, 366 N.W.2d 176, 192 (Iowa 1985).
On June 12 and July 25, 1991, Jay Richard Trinity,
M.D., reported that at no time while in the walking cast or
ankle splint did decedent have any pain or swelling in his
calf or leg, except as locally related to the fracture. He
doubted whether the pulmonary embolus arose from the leg as
a consequence of the fracture. Instead, it was his opinion
that the pulmonary embolus most likely came from the pelvis
and not the leg. This opinion is supported by the fact that
decedent was ambulatory the entire time and had no symptoms
suggestive of thrombophlebitis. He noted that decedent had
other risk factors such as obesity and a sedentary
lifestyle. However, Dr. Trinity was unable to determine the
source of the clot. (ex. 9, pages 1-2).
Dr. Trinity also testified in a deposition taken on
January 12, 1994. Dr. Trinity is board certified in general
surgery. A regular part of his practice involves the
diagnosis and treatment of ankle fractures and leg injuries.
Dr. Trinity treated claimant's nondisplaced fractured fibula
with a fiberglass cast which was designed as a walking cast
and enabled decedent to ambulate. He stated that decedent's
cast needed to be refitted on January 30, 1991, after
becoming loose because the swelling from the fracture
diminished. At that time, Dr. Trinity stated that he did
not notice any swelling, discoloration or hardness that
would indicate the presence of thrombophlebitis or thrombi
in the lower extremity. He saw decedent for the last time
on March 7, 1991. An x-ray was taken and did not show any
unstable findings. Dr. Trinity stated that the origin point
for most thrombi is somewhere between the groin and the
midcalf. Dr. Trinity reiterated his opinion that decedent's
pulmonary embolism was not caused by his ankle fracture nor
was his preexisting condition materially or substantially
aggravated by it. (ex. 47).
James D. Gohman, M.D., reported in a letter to
decedent's attorney that the autopsy demonstrated the
presence of a very large pulmonary embolus with complete
occlusion of the pulmonary trunk and main pulmonary
arteries. He concluded that this caused Mr. Hyler's death.
He opined that, "It would appear to me that the fracture and
subsequent casting would be the event initiating the
thromboembolic phenomenon." (ex. 11-1). Dr. Gohman's
deposition was taken on December 16, 1993. Dr. Gohman is a
specialtist in internal medicine. He treated decedent in
the emergency room at Mary Greeley Medical Center the
morning of March 18, 1991. He recommended that an autopsy
be performed in order to ascertain the cause of death. He
did not perform the autopsy but received a copy of the
report. The autopsy indicated pulmonary embolism, enlarged
heart and a history of pulmonary hemorrhages. He defined a
pulmonary embolism as the passage of venous clot material
into the right side of the heart and into the lungs,
Page 8
pulmonary vessels. He testified that the clots embolize
into the pulmonary vessels and can block the circulation
through the lungs. Embolization reduces the flow of blood
through the venous system and in decedent's case, the blood
clot stopped in the lung and produced a major obstruction to
the flow of blood through the lungs so that the blood could
no longer pick up oxygen to supply the body and death
occurred. Dr. Gohman reiterated his opinion that decedent's
fracture treated with immobilization and casting caused the
embolus. (ex. 44).
Ronald K. Miller, an orthopedic surgeon, reported on
August 12, 1991, that the fracture, lack of normal motion,
because of the cast, and inactivity was a substantial
contributing factor to development of DVT (deep vein
thrombosis) in the ilio-inguinal area. It was his opinion
that the fatal pulmonary emboli developed in decedent's calf
and that the fracture and subsequent soft tissue swelling
was the initial cause of his fatal pulmonary emboli. (ex.
12). Dr. Miller testified in a deposition taken on March
17, 1993. After considering other factors offered by
defendants' attorney, Dr. Miller testified that there is a
reduced likelihood that the ankle fracture caused decedent's
death. (ex. 43-30).
On October 1, 1991, at the request of Attorney John M.
French, David W. Kable, M.D., reviewed decedent's medical
records. Dr. Kable stated that the only precipitating
factor in decedent's acute pulmonary embolism was a history
of a fractured ankle with a casted leg for six weeks. He
stated, "This is a well known predisposing factor to the
development of deep vein thrombosis in the legs. At the
time of Mr. Hyler's death, a large amount of clot broke off
from the veins in the legs and traveled to his lungs,
causing almost instant death." (ex. 13-2). Dr. Kable
testified in a deposition on December 18, 1993. Dr. Kable
is board certified in internal medicine and cardiology. He
reiterated his opinion that decedent's ankle fracture and
subsequent casting and immobilization was in all likelihood
the major cause of the development of deep venous thrombosis
which subsequently led to pulmonary embolism. (ex. 45-15).
On March 6, 1992, Timothy C. Fitzgibbons, M.D.,
reviewed decedent's medical records. He rendered an opinion
as to the cause of Mr. Hyler's death. He attributed the
pulmonary embolism to the natural progression of preexisting
problems. He stated that the ankle injury did not
materially aggravate or accelerate decedent's fatal
pulmonary embolism. He offered the opinion that most
pulmonary emboli do not occur from the deep veins in the leg
but rather in the pelvic veins and there would be no reason
to expect decedent to develop clots in his deep pelvic veins
from his ankle injury. He stated that the evidence does not
support any finding that decedent had complaints of swelling
or discomfort in his leg which would be consistent with a
deep vein thrombosis. (ex. 10-2).
Dr. Fitzgibbons also testified in a deposition taken on
Page 9
September 23, 1993. Dr. Fitzgibbons testified that in his
opinion, the fracture of the lateral malleolus and
subsequent treatment with casting did not have a significant
effect and was not the cause of decedent's fatal pulmonary
embolism. (ex. 41, pp. 23-24). He agreed with Dr. Miller's
statement that most deep vein thromboses in the calf
generally stay in the calf. However, he disagreed with his
opinion that the fracture caused decedent's pulmonary
embolism. (ex. 41-25). Dr. Fitzgibbons felt that decedent
had many risk factors which existed independent of any
trauma to his ankle and which would have made him
susceptible to development of a pulmonary embolism. (ex.
41-59).
At the request of defendants' attorney, Michael H.
Sketch, Sr., M.D., professor of medicine and chief, division
of cardiology at Creighton University, reviewed decedent's
medical records. After his review of the record, he stated
that within a reasonable degree of medical certainty
decedent's death was the result of a pulmonary embolus which
was in no way related to his ankle injury of January 13,
1991, nor was it materially aggravated or accelerated by
that injury. (ex. 14, pp. 1-2). Dr. Sketch testified in
depositions taken on January 13, 1994 and February 10, 1994.
Dr. Sketch testified that decedent's autopsy was incomplete
because it did not discern the origin of the massive clot
that resulted in his death. In other words, the autopsy did
not locate the cause of or the origin of the pulmonary
embolism. Dr. Sketch reiterated that, in his opinion,
decedent's ankle injury did not cause or materially
aggravate or accelerate the pulmonary embolism which
resulted in his death. (ex. 46-11). He stated that the
type of massive pulmonary emboli which resulted in
decedent's death originates in the large veins of the thigh
or in the pelvis. The region is located above the knee.
Dr. Sketch testified that decedent had predisposing risk
factors for development of pulmonary emboli including
obesity, an enlarged heart and severe peripheral vascular
disease. In addition, he had abnormal veins in his left leg
and the valves in the legs were incompetent. In addition,
he had a history of deep vein thrombosis. He stated that it
is extremely rare to see massive pulmonary embolus in
patient's who have walking casts. Rather, it is seen with
immobilization such as full leg casts and complete bed rest.
(exs. 46 and 48).
The weight to be given any expert opinion is determined
by the finder of fact and may be effected 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, at 903
(Iowa 1974); Anderson, at 531 (Iowa 1974); Bodish, at 867
(Iowa 1965). The greater weight of expert opinion does not
support claimant's contention that decedent's compensable
left ankle injury and subsequent medical treatment was the
proximate cause of a fatal pulmonary embolism which resulted
Page 10
in his death. In making this determination, the undersigned
has given considerable weight to claimant's treating
surgeon, Dr. Trinity and to the independent medical opinions
of Dr. Fitzgibbons and Dr. Sketch.
Dr. Gohman testified that in forming his medical
opinion he relied entirely on the autopsy report. (ex.
44-22). He also admitted that he had no knowledge of
claimant's activities during the two-month period his leg
was in a cast and he was not totally cognizant of decedent's
past medical history. (ex. 44, pp. 26-29). Finally, Dr.
Gohman admitted that a more complete autopsy could have more
closely determined the source of the clot in question,
specifically if the dissection of the veins was performed a
better determination could have been made. (ex. 44-44).
Therefore, Dr. Gohman's opinion is rejected.
Dr. Trinity and Dr. Sketch formed their medical opinion
based on the totality of the evidence, including claimant's
past medical history and predisposing risk factors.
Dr. Sketch agreed with Dr. Gohman that the autopsy was
incomplete and did not demonstrate the origin of the clot.
(ex. 46-7). He testified that Mr. Hyler died from a massive
pulmonary embolus. He explained that these originate in the
large veins of the thigh or in the pelvis or the area above
the knee. He emphatically stated that decedent's minor left
ankle fracture and subsequent treatment with casting did not
create a significant risk factor for development of
pulmonary emboli. Instead, he felt that the massive
pulmonary embolism was the natural progression of decedent's
preexisting disease process and other significant risk
factors. (ex. 46, pp. 11-22).
The undersigned concludes that the greater weight of
the evidence supports the findings and medical opinion of
Dr. Michael Sketch. A doctor's experience, expertise and
board certification may accord his testimony greater weight.
Reiland v. Palco, Inc., Thirty-second Biennial Report of
the Industrial Commissioner 56 (1975); Dickey v. ITT
Continental Baking Co., Thirty-fourth Biennial Report of the
Industrial Commissioner 89 (1979). Accordingly, the
undersigned concludes that decedent's left ankle injury did
not hasten or cause his death. Therefore, survivor's
benefits cannot be awarded to decedent's widow. This
determination is dispositive of the entire case and further
analysis is unnecessary.
ORDER
THEREFORE IT IS ORDERED:
That claimant shall take nothing from these
proceedings.
The costs of this action are assessed to defendants
pursuant to rule 343 IAC 4.33.
Page 11
Signed and filed this ________ day of May, 1994.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. James E. Thorn
Attorney at Law
2nd Flr - Northwestern Bell Bldg
310 Kanesville Blvd
PO Box 398
Council Bluffs, Iowa 51502
Mr. M James Daly
Attorney at Law
PO Box 1828
Sioux City, Iowa 51102
1805
Filed May 2, 1994
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
JANICE HYLER, Surviving
Spouse of EUGENE J HYLER,
Deceased,
Claimant,
vs.
File No. 973135
IOWA STATE EDUCATION ASSOC.
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CIGNA,
Insurance Carrier,
Defendants.
------------------------------------------------------------
1805
In a proceeding for death benefits decedent's spouse did not
prove by a preponderance of the evidence that decedent's
left ankle injury and subsequent treatment caused or
materially aggravated his preexisting condition so as to
result in a massive and fatal pulmonary embolism.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
LARRY R PLAIN, :
:
Claimant, :
:
vs. :
: File No. 973431
JOHN MORRELL AND COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Larry R.
Plain based upon a stipulated injury of December 19, 1990.
Claimant seeks additional compensation for healing period.
He contends that he is entitled to a running award. In the
event that a running award is not awarded, he seeks a
determination of permanent partial disability. Claimant
also seeks payment of medical expenses shown in exhibits B,
C and D and transportation expenses. The rate of
compensation is in dispute based upon the number of
exemptions. Claimant also seeks a penalty under the fourth
unnumbered paragraph of section 86.13.
The case was heard at Sioux City, Iowa, on November 18,
1993. The record consists of testimony from Larry R. Plain
and Eugene Huls. The record contains joint exhibits 1
through 62 and claimant's exhibits A through D.
FINDINGS OF FACT
Larry Plain injured his back on or about December 19,
1990, while rolling carcasses as they came out of the
dehairing machine. He received conservative care and on
December 27, 1990, was released to light duty. (exhibits 4,
5 and 11). Larry was off work again from January 11, 1991
until February 28, 1991. (exs. 12-17). Effective February
28, 1991, he resumed work with restrictions which consisted
of a ten-pound weight restriction, prohibition against
bending and stooping and a four-hour work day for one week
followed by a six-hour work day the second week. On March
8, 1991, the six-hour work week was continued. (exs.
17-18). Larry continued to work with restrictions while
obtaining medical care until August 22, 1991, at which time
Page 2
permanent restrictions were imposed. (exs. 19-30). Those
permanent restrictions were that he observe a 20-pound
weight restriction when lifting, pushing and pulling. He
was to avoid repetitive twisting and stooping. (ex. 31,
page 1).
Throughout the course of the care Larry had received
physical therapy, prescription medications and an epidural
flood. None of the treatment was particularly successful.
An MRI conducted on July 2, 1991, showed central and left
posterior extrusion of his L4-5 intervertebral disc.
Surgery was not, however, recommended. (exs. 31, p. 3 and
37). Earlier tests had shown a compression fracture of the
L4 vertebral body. It cannot be determined whether or not
that fracture occurred on December 1990, but such an
occurrence on that date appears unlikely. (exs. 7, p. 6; 8,
p. 6 and 31 p. 22).
John Kuhnlein, D.O., one of claimant's predominant
treating physicians, rated his permanent impairment at 6
percent. (ex. 32). Ralph F. Reeder, M.D., a neurosurgeon
to whom claimant was referred, also rated claimant as having
a 6 percent permanent impairment. Dr. Reeder went on to
say, "I would state that I feel that this work-related
injury has predisposed this patient for future possibilities
of frank disc herniation and sciatica and this must be kept
in mind over his working lifetime." (ex. 44).
In October 1991 claimant left Sioux City and went to
Terry, Mississippi. According to claimant the work at John
Morrell was too stressful for his back. He has also given
contradictory statements regarding why he chose to move to
Mississippi.
Claimant lived in Mississippi for several months and
held at least two different jobs before entering into a
course of medical care with William C. Warner, M.D., in
October 1992. (ex. 47). According to claimant he was
referred to Dr. Warner by the insurance carrier in this
case. Claimant's testimony in that regard is accepted as
being correct since Dr. Warner's reports indicate that a
copy was sent to G.A.B. in Des Moines, Iowa. (exs. 47 and
48). In accordance with Dr. Warner's recommendation
claimant was then referred to Bernard S. Patrick, M.D., a
neurosurgeon. According to Dr. Patrick he obtained
permission to treat claimant from Katie Eiler at G.A.B. in
Des Moines. (ex. 52). Dr. Patrick's reports indicate that
a copy was sent to G.A.B. and those reports which are in
evidence contain a stamp showing that they were received by
G.A.B. on March 15, 1993. (exs. 49, 50, 51 and 56). It is
found that Drs. Warner and Patrick are physicians who were
selected and designated to provide care by the defendants
and the care was expressly authorized by defendants.
Claimant underwent diskectomy surgery on March 19,
1993. (ex. 57). He was released from active medical care
on October 19, 1993, at which time it was noted that he was
doing well, generally. (ex. 55). Dr. Patrick went on to
state that claimant was capable of performing light to
Page 3
moderate work but that his recuperation was not complete and
was not anticipated to be complete until late spring or
early summer 1994. Dr. Patrick also indicated that claimant
had a 25 percent impairment but that he expected it to
diminish to 10 percent by approximately April 1994 which was
when he anticipated claimant would reach full recovery.
(ex. 55).
In evaluating this case is it noted the Larry R. Plain
has made a number of inconsistent statements on a number of
occasions. His credibility is quite suspect, despite the
fact that Eugene Huls, the kill floor supervisor, indicated
that claimant was not a whiner or complainer and that if
claimant said his back was hurting that he would believe the
claimant. Huls also established that rolling hogs is very
heavy work. He characterized it as work for a young man.
Huls agreed that a person with back trouble would have
difficulty performing one of the jobs claimant was assigned
to perform when he was working on restricted duty.
It is noted that the point of surgery was the same area
of the claimant's spine as that which Dr. Reeder had
previously found to be impaired. Dr. Reeder's statements in
his August 22, 1991, report clearly indicate that there is a
causal connection between those continued problems and the
original work injury.
CONCLUSIONS OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Page 4
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).
There is every reason in the record of this case to
doubt the claimant's credibility in view of his inconsistent
statements. His activities are not consistent with those of
a person who has a strong work ethic. Nevertheless, his
complaints of continued pain while he remained working at
John Morrell and Company are corroborated by an objectively
identifiable physiological abnormality and by the testimony
from Eugene Huls. It is found that Larry Plain did continue
to have symptoms which were a result of the injury in this
case while he remained working at John Morrell and Company.
Claimant has not, however, convinced the undersigned that
those symptoms were so severe as to cause him to need to
leave the employment.
Claimant was employed while in Mississippi. He
undoubtedly engaged in other activities which do not appear
in the record in this case. There was certainly ample
opportunity for him to sustain additional injury and there
is no practical way in which defendants could ever disprove
claimant's statement that denied any intervening injury.
The record shows that claimant is not reluctant to fabricate
when it serves his purposes. The nontestimonial evidence in
this case is quite strong, however, in support of his claim.
Namely, the evidence shown on the MRI scans and the evidence
provided by Drs. Reeder and Patrick. It is important that
the identical area of claimant's spine was treated on both
occasions. That evidence is sufficiently strong to prove,
by a preponderance of the evidence, that the December 19,
1990 injury was a substantial factor in producing the need
for the surgery that claimant underwent on March 19, 1993.
Accordingly, claimant has carried his burden of proving
proximate cause for that surgery and the related period of
recuperation.
Further, as discussed in detail later in this decision,
defendants are equitably estopped from denying payment for
care they expressly authorized and directed.
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).
Claimant was working in Sioux City, Iowa, and also
worked in the state of Mississippi. It was not until March
15, 1993, that he entered into aggressive care which led to
the surgery of March 19, 1993. It is therefore concluded
Page 5
that the healing period resumes effective March 15, 1993.
At the time of hearing none of the three events
provided by the healing period statute had occurred to
terminate the healing period entitlement. Claimant was in a
recuperative status. He had not returned to work. This
employer had not offered to rehire him. He was not
medically capable of returning to work substantially similar
to that in which he was engaged at the time of injury. He
had not achieved maximum medical improvement. Accordingly,
claimant is entitled to a running award of healing period.
As indicated by Dr. Patrick, it is expected that the healing
period will end by attainment of maximum medical improvement
on or about April 1, 1994. This is only, however, a
projection.
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).
With regard to the medical expenses incurred by
claimant as shown at exhibits B, C and D, defendants dispute
causal connection and the reasonableness of the charges. It
is well established that when an employer exercises the
right to control the care, that the employer is liable to
pay for the costs of the care it authorized. Blankenship v.
Smithway Motor Express, file number 798884 (App. Dec. May
20, 1989); Butcher v. Valley Sheet Metal, IV Industrial
Commissioner Report 49 (App. Dec. 1983); Munden v. Bil Mar
Foods of Iowa, Inc., file number 800797 (Arb. Dec. June 22,
1989); Pote v. Mickow Corp., file number 694639
(review-reopening decision June 17, 1986); Schofield v. W.
A. Klinger, Inc., file number 531753 (review-reopening
decision December 28, 1984). Simply stated, when an
employer chooses the physician, the employer cannot then
hold the employee accountable for ascertaining that the
charges from that physician are reasonable or that the care
provided by that physician is reasonable. Defendants have a
statutory duty to provide prompt, reasonable care.
Defendants are in control under those circumstances and
cannot, after the fact, seek to escape liability for the
results of their action.
Equitable estoppel applies in workers' compensation
proceedings. Paviglio v. Firestone Tire and Rubber Co., 167
N.W.2d 636 (Iowa 1969); Mousel v. Bituminous Material and
Supply Co., 169 N.W.2d 763 (Iowa 1969); Secrest v. Galloway,
239 Iowa 168 (1948). A false representation is anything
which produces upon the mind a false impression conducive to
action. Dierking v. Bellas Hess Super Store, 258 N.W.2d 312
Page 6
(Iowa 1977). In accordance with past dealings and the Iowa
workers' compensation law when the employer directed
claimant to obtain care from Drs. Warner and Patrick the
employer impliedly represented to claimant that they would
pay the costs incurred in that care. It was certainly
reasonable for claimant to rely upon that representation and
cooperate with the care which had been provided by
defendants. Accordingly, where an employer or its insurance
carrier exercises its right to control the care and direct
the employee to a particular physician, those defendants are
then responsible for payment of the charges incurred by the
employee with that physician. They cannot choose the care
and then later argue that the care they chose was
unreasonable or that the charges from the provider they
selected are unreasonable.
Defendants could have simply denied claimant's request
to seek other care and denied liability for further care.
If they had done so, claimant would certainly have the
burden of proving the reasonableness of the care, proximate
cause and reasonableness of the charges. Claimant could
have then obtained care from any source which was available
to him. The right to chose care which the Iowa law provides
to employers carries with it responsibilities. Those
responsibilities include providing reasonable and prompt
care. It also includes responsibility to pay for the care
that the employer directs. Accordingly, claimant is
entitled to recover his medical expenses as set forth in
exhibits B, C and D. Claimant is also entitled to recover
his mileage expenses as set forth in claimant's exhibit A.
At $.21 per mile, the amount is $102.90.
Industrial disability or loss of earning capacity is a
concept that is quite similar to impairment of earning
capacity, an element of damage in a tort case. Impairment
of physical capacity creates an inference of lessened
earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning
capacity of the person, rather than the loss of wages or
earnings in a specific occupation. Post-injury earnings
create a presumption of earning capacity. The earnings are
not synonymous with earning capacity and the presumption may
be rebutted by evidence showing the earnings to be an
unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531
(Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa
1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973);
Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516
(Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County,
Thirty-fourth Biennial Report of the Industrial Commissioner
218 (1979); 2 Larson Workmen's Compensation Law, sections
57.21 and 57.31.
Permanent partial disability compensation is payable at
the end of the healing period. Healing period can be
intermittent and when that situation occurs the permanent
partial disability compensation is payable at times when
healing period is not being paid. Teel, 394 N.W.2d 405
Page 7
(Iowa 1986). From the record it is not absolutely clear
when claimant's initial period of recuperation ended. It
appears that claimant had worked reduced hours until May 17,
1991, at which time Dr. Kuhnlein allowed claimant to work
eight hours per day, albeit with activity restrictions.
When claimant was working reduced hours he as in a temporary
partial disability status. Accordingly, the permanent
partial disability compensation is payable commencing May
18, 1991. (ex. 31, p. 12).
Claimant had physical restrictions when he last worked
at John Morrell & Company. It is expected that he will
continue to have physical restrictions when his recuperation
from surgery is completed. According to Dr. Patrick, those
restrictions should be no more restrictive than those that
were in effect at the time claimant left John Morrell and
Company. In fact, his condition will likely be better than
it was when he left employment with John Morrell and
Company. It is sometimes difficult to differentiate
speculation and a valid medical prognosis. In this case,
claimant's recovery was sufficiently far along when he was
last seen by Dr. Patrick to render Dr. Patrick's expectation
of ultimate recovery a medical prognosis based upon
probability rather than mere speculation. Accordingly, it
is appropriate to assess the degree of permanent disability
at this time rather than to conduct another proceeding.
It is determined that when all material factors of
industrial disability are considered, that Larry R. Plain
has a 25 percent permanent partial disability as a result of
the injury in this case. This entitles him to recover 125
weeks of permanent partial disability compensation from May
18, 1991 through March 14, 1993, a span of 95 2/7 weeks.
Accordingly, claimant will be entitled to recovery an
additional 29 5/7 weeks of permanent partial disability
compensation when the current healing period ends.
The only remaining issue in this case is the claimant's
marital status and number of exemptions to be used in
computing his rate of compensation. From the testimony
given at hearing it is clear that claimant was single.
There is no indication that he was married in December 1990.
Claimant's 1989 income tax returns show three children being
claimed as income tax dependents. It should be noted that
it is income tax exemption status which section 85.61(6)
uses to determine the rate. Keeling v. Cedar Rapids Comm.
School, file number 891809 (App. Dec. February 26, 1993).
According to claimant's testimony at hearing, claimant was
living with his fianc,e, Charlene Deal, at the time of his
injury together with her five children, three of which are
his children. The three identified by claimant as being his
children were Larry Plain, Jr., born July 24, 1990; Takitya
Plain, born October 5, 1989 and Charletta Plain, born
November 30, 1988. Accordingly to claimant he also has
another son, Demarius Plain, who lives at Waterloo, Iowa,
and for whom claimant has been adjudicated as father and
ordered to pay support. It is noted that claimant did claim
Page 8
Demarius as an exemption on his 1988 income tax return.
Dependency leading to an exemption for purposes of
withholding taxes under Iowa Code section 85.61(6) and (9)
is determined by the rules and regulations of the Internal
Revenue Service. In the absence of any evidence to the
contrary, it is presumed that a parent supports his children
in accordance with applicable support orders. It is
likewise presumed that a parent is entitled to claim those
children that he supports as exemptions on tax returns, in
the absence of evidence to the contrary. Biggs v. Charles
Donner, d/b/a Donner Trucking, Fort Dodge, II Iowa
Industrial Commissioner Report 34 (App. Dec. 1982).
Accordingly, under the record made in this case, Larry Plain
is entitled to himself and four children as exemptions. His
rate should therefore be computed with him being single with
five exemptions. With stipulated earnings of $405.73 per
week, his rate of compensation is $265.16 per week.
Claimant's 1990 income tax return would be of the greatest
significance but it was not entered into evidence.
It is determined that defendants' position in this case
was not unreasonable. Accordingly a penalty will not be
assessed.
ORDER
IT IS THEREFORE ORDERED that defendants pay Larry Plain
thirty-five and four-sevenths (35 4/7) weeks of compensation
for healing period at the rate of two hundred sixty-five and
16/100 dollars ($265.16) per week payable commencing March
15, 1993. Defendants shall continue to pay healing period
until the healing period is terminated by one of the three
events provided by law.
It is further ordered that defendants pay Larry Plain
one hundred twenty-five (125) weeks of compensation for
permanent partial disability at the rate of two hundred
sixty-five and 16/100 dollars ($265.16) per week with
ninety-five and two-sevenths (95 2/7) weeks thereof
commencing May 18, 1991, and with the remaining twenty-nine
and five-sevenths (29 5/7) weeks thereof to be paid
commencing at the end of the currently ongoing healing
period.
It is further ordered that defendants recompute
claimant's previous workers' compensation entitlements and
adjust the same to provide for payment at the rate of two
hundred sixty-five and 16/100 dollars ($265.16) per week.
It is further ordered that defendants pay interest on
all past due and accrued amounts at the rate provided in
section 85.30 of the Code.
It is further ordered that defendants pay the following
medical expenses:
St. Dominique Hospital $4,983.75
Bernard S. Patrick, M.D. 4,015.00
Curtis W. Kaine, M.D. 650.00
It is further ordered that defendants pay Larry R. Plain
travel expenses in the amount of one hundred two and 90/100
Page 9
dollars ($102.90).
It is further ordered that defendants pay the costs of
this action pursuant to rule 343 IAC 4.33.
It is further ordered that defendants file claim
activity reports as requested by this agency pursuant to
rule 343 IAC 3.1.
Page 10
Signed and filed this __________ day of February, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Joe Cosgrove
Attorney at Law
505 5th St, STE 400
Sioux City, Iowa 51101
Ms. Judith Ann Higgs
Attorney at Law
701 Pierce St, STE 200
PO Box 3086
Sioux City, Iowa 51102
1803 3700 1402.40 2101 2501
1802 3002 1108.50
Filed February 14, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
LARRY R PLAIN, :
:
Claimant, :
:
vs. :
: File No. 973431
JOHN MORRELL AND COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
2101 2501
Defendants held to be estopped from contesting
reasonableness of care, reasonableness of charges and
causation with regard to care provided by the expressly
authorized physician to whom they directed claimant.
1802
Healing period not terminated by restricted release to
return to work where claimant did not return to work, was
not capable of performing similar work, was still improving
medically, and employer did not offer restricted work.
3002
Rate exemptions. All biological children are presumed to be
exemptions unless evidence shows the parent to not be
entitled to the child as an income tax exemption.
1108.50
MRI showing same lesion at time of subsequent surgery as had
been found earlier when conservative care was rendered
relied upon to establish causation.
1803 3700 1402.40
Claimant was sufficiently close to end of healing period
that the physician's prognosis was a probability rather than
Page 2
speculation. Twenty-five percent permanent partial
disability awarded.