BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
OLLIS P. HUNTER, :
:
Claimant, :
:
vs. :
: File Nos. 973506/1013368
JOHN MORRELL & CO., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE, :
:
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 is entitled to
temporary total disability benefits as a result of a low back
injury on December 13, 1990; whether claimant is entitled to
permanent disability benefits as a result of an alleged injury to
his right wrist on October 8, 1990 or as a result of a low back
injury on December 13, 1990; whether defendants are liable for
payment of the full amount of an independent medical examination;
and whether claimant is entitled to certain medical benefits.
FINDINGS OF FACT
The conclusions of law contained in the proposed agency
decision filed February 18, 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.
A review of the pertinent medical evidence of record reveals
that claimant began complaining of right wrist pain in 1989. He
Page 2
presented to D.M. Youngblade, M.D., on August 15, 1989, with
complaints of pain and discomfort in the volar surface of the
right wrist brought on by certain motions, movements, twists, and
turns. He was placed on light duty for a short period of time
and placed in a Futuro splint. Claimant returned to Dr.
Youngblade on September 6, 1989, with the same complaints as
before. He was advised to work at another job rather than his
usual job of collaring hams. (joint exhibit 14)
Claimant's right wrist problems resurfaced on October 8,
1990. At that time, he presented to John D. Kuhnlein, M.D., the
company physician, with pain in his right wrist. On November 30,
1990, claimant underwent nerve conduction studies and EMG studies
of the right upper extremity. The studies were normal with no
evidence of a mononeuropathy or plexopathy or evidence of a
radiculopathy. (jt. ex. 17) On December 3, 1990, Dr. Kuhnlein
released claimant to return to full duty with no work
restrictions. (jt. ex. 16, page 2)
On December 13, 1990, claimant reported that he had fallen
on a greasy floor surface while working on the production line
and hurt his right shoulder, arm and lower back. [He was taken
off work on December 13, 1990. (jt. ex. 18)] He was put in the
back care program by Dr. Kuhnlein and participated in 15
sessions. On April 5, 1991, Dr. Kuhnlein discontinued him from
the program because the therapists and technicians felt that he
had not put forth maximum effort and had been noncompliant in
attendance. A physical examination revealed negative straight
leg raising and negative seated leg raising. An MRI evaluation
which had previously been taken on February 8, 1991, was also
negative. (jt. ex. 23) In any event, Dr. Kuhnlein gave claimant
permanent restrictions of no lifting, pushing or pulling in
excess of 25 pounds on an occasional basis and no work above the
shoulder or below the waist and permanent restrictions from
knife, whizzard and hook work. (jt. ex. 21, p. 4)
Claimant requested a second opinion and Dr. Kuhnlein
referred him to J.T. Strittholt, M.D. On April 25, 1991, Dr.
Strittholt evaluated claimant's right hand and wrist. Dr.
Strittholt observed no soft tissue swelling, full range of motion
in supination pronation, no crepitance and no pain across the
basal thumb joint or dorsum of the wrist to palpitation. Tinel's
was negative and Phalen's normal. X-rays of the hand and wrist
reveled normal osseous structures. Dr. Strittholt felt that
claimant's condition was one of residual flexor tenosynovitis.
(jt. ex. 39)
On May 23, 1991, Dr. Strittholt examined claimant's back.
He noted that his upper extremity pain was markedly improved.
After reviewing x-rays and the MRI study and conducting a
physical examination, Dr. Strittholt concluded that claimant has
Page 3
low back pain with a strong functional overlay component. He had
no specific treatment recommendations. (jt. ex. 39)
On May 28, 1991, Dr. Strittholt indicated that he had not
completed a work restriction form supplied by employer because he
left the assessment of work restrictions up to Dr. Kuhnlein,
claimant's treating physician. Apparently, claimant had returned
to employer a completed work restriction form which he denied
tampering with but which, nevertheless, was submitted as a
reflection of Dr. Strittholt's assessment. Although employer had
suspected that claimant submitted a falsified work restriction
slip, they took no disciplinary measures against him. (jt. exs.
39 & 40)
On June 14, 1991, claimant presented to St. Luke's Regional
Medical Center emergency room with complaints of low back and
right leg pain. He had previously reported there on June 12,
1991, and was told to return for a lumbosacral CT scan. The
results revealed early spinal stenosis at the L4-5 level,
narrowing of the neural foraminal at the L5-S1 level and some
abnormalities at the L4-5 and L5-S1 level which was determined to
require further evaluation. (jt. exs. 27 & 29)
Claimant was then referred by Dr. Kuhnlein to Leonal
Herrera, M.D., for a neurological evaluation. Dr. Herrera saw
claimant on August 28, 1991. After reviewing the claimant's
medical history and noting his complaints, Dr. Herrera conducted
a physical examination. Dr. Herrera found discrepancies in the
claimant's motion abnormalities and therefore concluded that his
test was invalid and could not be used for a disability rating
according to the AMA Guides to the Evaluation of Permanent
Impairment. He therefore concluded that the claimant did not
have a measurable rating when using the abnormal motion in the
spine area and no other neurological impairment. He gave
claimant a 0 percent rating for his lumbar spine. (jt. ex. 26)
Being dissatisfied with this determination, claimant
requested an independent medical examination by Horst Blume, M.D.
After reviewing the claimant's medical history, noting his
complaints and conducting a physical examination, he concluded
that claimant had spinal stenosis at L4-5 with evidence of a
ruptured disc at L4-5 and some evidence of spondylosis and
spondylolisthesis. (jt. ex. 30) However, he concluded that
since claimant has no radicular pain at the present time, surgery
was not warranted. He recommended a thermogram to further
diagnose his problem. (jt. exs. 31 & 42)
On February 20, 1992, claimant presented to Marion Health
Center outpatient service with complaints of back pain. He was
advised to follow-up with Dr. Kuhnlein. (jt. ex. 32)
Page 4
On April 23, 1992, claimant presented to St. Luke's
emergency room with back pain. He was diagnosed with persistent
lumbar strain and advised to take it easy. (jt. ex. 33)
On November 18, 1992, claimant presented to Dr. Kuhnlein and
indicated that he was capable of doing more physical work than
his previous restrictions allowed. At this time, there was no
evidence of lumbosacral strain. Claimant was given a 45-pound
lifting, pushing and pulling restriction with no knife or
whizzard and hook work. (jt. ex. 18, page 10)
Claimant testified that he returned to his former job with
employer on November 19, 1992, after being off work from December
1991 through November 1992. Claimant testified that he received
unemployment benefits during that period of time. He stated that
employer would not take him back to work in his old job collaring
hams until his restrictions were changed. He testified that he
has been working collaring hams since November 19, 1992, but the
work is easier than before because there is now a three-man
rotation on the line and he doesn't have to spend as much time
performing the same repetitive movements as before. He stated
that he earns $9.40 per hour doing this work and in 1990 he
earned $8.65 per hour.
[On April 23, 1992 claimant presented to St. Luke's
emergency room with lumbar back pain. The medical note stated
that claimant was okay to go back to work but he was advised to
take it easy, rest and was given a shot and medication for pain.
(jt. ex. 34)]
On June 24, 1993, claimant presented to St. Luke's emergency
room with complaints of low back pain. He was given pain
medication and instructed to rest for the next 24 to 48 hours and
resume activity as tolerated. [A note in the medical record
indicates that the employer would not authorize treatment.] (jt.
ex. 34)
On July 28, 1993, claimant presented to St. Luke's emergency
room again with complaints of low back pain. He was given a
refill of Naprosyn and referred to the Woodbury County Medical
Society to obtain a physician. (jt. ex. 35)
There are medical records in evidence which pertain to a
June 16, 1993, right wrist injury. Because this injury is not in
issue at this time, that evidence will not be reviewed. (jt.
exs., 36 & 43 [and defendants' exs. 23-25])
Claimant was referred by defendants to Joel T. Cotton, M.D.,
neurologist, for an examination on May 4, 1993. Claimant
presented with increased right wrist pain and low back pain. Dr.
Cotton indicated that claimant's neurological examination was
Page 5
normal. He noted marked variabilities and inconsistencies in
range of motion testing for flexion of the low back as well as
straight leg raising. He found normal strength and sensation in
the extremities with no atrophy or paravertebral spasm present.
He also observed unrestricted movement of the wrist and found no
objective evidence of any physical injury at all. He felt that
the marked inconsistencies and variabilities in range of motion
testing would not be seen in a patient with a bona fide physical
injury to the low back. He felt that all of claimant's
complaints were subjective and he had no physical condition or
physical injury to the low back to account for any of his
complaints of pain. He indicated that claimant had no permanent
partial impairment to his back or wrist and that he was capable
of pursuing all of his usual activity without any restrictions
whatsoever. Dr. Cotton disagreed with Dr. Blume's assessment of
claimant's condition specifically that the spine x-rays showed
spondylosis and spondylolisthesis and ruptured discs at L4-5. He
noted that Dr. Blume was at odds with both Dr. Kuhnlein and Dr.
Herrera regarding these findings. He stated, that in his
opinion, claimant does not require any additional medical
attention, either conservative or surgical. He noted that there
is no medical justification for a thermogram and stated that this
study is not recognized by the Academy of Neurology and is not
covered by Iowa Medicare or Iowa Medicaid as being a medically
reliable test. (def. ex. 21)
*****
Claimant was again referred to Dr. Cotton for examination
and reevaluation on November 17, 1993. The purpose of this
evaluation was to refute the findings made by Jay J. Parsow,
M.D., in an independent medical examination which he conducted on
March 16, 1993, but which he issued a report on November 2, 1993.
Dr. Parsow found a bulging disc at L4-5 which he felt was
preexisting and asymptomatic until aggravated by the December 13,
1990 work injury. Dr. Parsow also indicated that claimant
sustained 1 percent upper extremity permanent impairment and a 7
percent whole person impairment as a result of the December 13,
1990 work injury. He felt that claimant was capable of
performing medium work activity and his restrictions were similar
to the latest ones imposed by Dr. Kuhnlein. (jt. ex. 44) Dr.
Cotton reviewed Dr. Parsow's report and strongly disagreed with
his findings. Dr. Cotton is board certified in electrodiagnostic
studies, specifically EMG and nerve conduction studies, and it
was his opinion that the EMG studies of November 30, 1990, were
correctly performed and the impressions accurate. He reviewed
the EMG findings of February 13, 1991, and noted that that study
was also normal and showed no evidence of a right cervical or
lumbar radiculopathy by delayed responses or needle study.
Therefore, he felt that Dr. Parsow's assessment of claimant's
condition was inconsistent with objective testing. He disputed
Page 6
Dr. Parsow's findings regarding claimant's right upper extremity
symptoms. He stated that in his opinion, claimant has no
involvement of the musculocutaneous nerve in the forearm and no
permanent partial impairment in the upper extremity.
Furthermore, he has no loss of active range of motion of the
wrist and no evidence of any loss of strength. Therefore, he
opined that claimant has no permanent impairment to the right
upper extremity. He also disagreed with Dr. Parsow's low back
impairment rating because he found no evidence of any permanent
loss of range of motion in the lumbar spine. Furthermore, he
stated that there is no evidence of radiculopathy. In his
opinion there is no involvement of the first sacral nerve root
(S1) for which any permanent partial impairment rating would be
justifiable. Dr. Cotton reiterated that although claimant
complains of chronic and persistent pain in the low back, there
continues to be marked discrepancies, variabilities and
inconsistencies in his examination which are not and cannot be
seen in patient's with a true physical injury or physical
condition in the low back. (def. ex. 22)
[Steven Joyce was assistant personnel director in 1990 and
1991 for the employer, John Morrell & Co. He testified that
there was no work with the employer within the 25 pound lifting
restriction that Dr. Kuhnlein placed on claimant. (transcript,
pp. 141-142) Claimant returned to work on November 19, 1992.
(Tr., p. 60)
Dr. Parsow charged $975 for an independent medical
examination which he conducted on March 16, 1993. In response to
defendants' request to breakdown the charges, Dr. Parsow wrote
that the cost of the examination and reviewing previously
obtained imaging studies was $175 and the cost of thoroughly
reviewing previous medical records and preparing the
comprehensive summary and report was $800. (def. ex. 20) Dr.
Parsow then charged interest because the bill had not been paid
by January 8, 1994. (cl. ex. 3) Dr. Parsow provided a statement
that the $975 for an independent medical examination was fair and
reasonable. (cl. ex. 2) Dr. Parson's report dated November 2,
1993 was nine pages long and over half of the report was a
restatement of claimant's medical history involving health care
providers other than Dr. Parsow. (jt. ex. 44)]
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed February 18, 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
Page 7
agency decision.
The first issue to be determined is whether claimant's right
wrist injury on October 8, 1990, resulted in a permanent
impairment.
Since claimant has suffered an injury, the next question to
be resolved is whether the injury has caused a permanent
disability. The claimant has the burden of proving by a
preponderance of the evidence that the injury of October 8, 1990,
is causally related to the disability on which he now bases his
claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965);
Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A
possibility is insufficient; a probability is necessary. Burt v.
John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially within
the domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical
evidence must be considered with all other evidence introduced
bearing on the causal connection. Burt, 73 N.W.2d at 738. The
opinion of the experts need not be couched in definite, positive
or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903, 907 (Iowa 1974). Moreover, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of fact.
Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870;
Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128
(1967). The supreme court has also observed that greater
deference is ordinarily accorded expert testimony where the
opinion necessarily rests on medical expertise. Sondag, 220
N.W.2d at 907.
A wrist injury is an injury to the hand, not the upper
extremity. The hand extends to the distal end of the radius and
ulna, including the carpus or wrist. Elam v. Midland Mfg., II
Iowa Industrial Commissioner Report 141 (App. 1981).
Claimant has the burden of proof in this regard. As
previously noted, claimant had initial symptoms in his right
wrist in 1989. He was treated by Dr. Kuhnlein and given some
temporary restrictions. EMG and nerve conduction studies taken
on November 30, 1990, were within normal limits. (jt. ex. 17)
On December 3, 1990, Dr. Kuhnlein released claimant to return to
full duty with no restrictions. (jt. exs. 16 & 19, p. 5)
Accordingly, claimant has not met his burden of proof. He
is not entitled to any permanent partial disability benefits as a
result of the October 8, 1990 injury to his right wrist.
Page 8
*****
The next issue to be determined is whether claimant is
entitled to any permanent partial disability benefits as a result
of his [low] back ***** [injury].
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).
Numerous physicians have been involved in claimant's case.
Dr. Kuhnlein, the company physician and claimant's treating
physician, gave claimant permanent work restrictions but did not
give him an impairment rating. Instead, he relied on Dr. Herrera
to rate claimant's impairment. Dr. Herrera felt that claimant
had no measurable rating in light of normal MRI and CT scans.
Dr. Strittholt did not rate claimant's impairment nor assign any
permanent restrictions, but instead indicated that those imposed
by Dr. Kuhnlein should be followed. Dr. Blume and Dr. Parsow,
two of claimant's independent medical examiners, gave permanent
impairment ratings. Dr. Cotton, defendants' independent medical
examiner, disputed the findings of Dr. Blume and Dr. Parsow and
in essence stated that claimant's subjective complaints are not
supported by the objective medical evidence. Since Dr. Kuhnlein
gave claimant work restrictions in March 1991 and November 1992
based on claimant's subjective complaints, such restrictions are
given minimal weight and consideration especially since claimant
has been performing his usual and customary job since November
1992 without restriction or accommodation by employer. It
appears that the greater weight of the evidence supports the
findings made by Dr. Cotton, a highly qualified neurologist and
board certified in electrodiagnostic studies, specifically EMG
and nerve conduction studies. Dr. Cotton is of the opinion that
claimant's subjective complaints are far out of proportion to the
clinical and laboratory findings in the record. It appears that
claimant is attempting to present himself as more disabled than
Page 9
he really is. Both Dr. Herrera and Dr. Cotton found
inconsistencies in claimant's test results. This suggests that
claimant may have been attempting to manipulate the results in
order to appear significantly disabled.
Pain that is not substantiated by clinical findings is not a
substitute for impairment. Waller v Chamberlain Mfg., II Iowa
Industrial Commissioner Report 419, 425 (1981); Godwin v. Hicklin
GM Power, II Iowa Industrial Commissioner Report 170 (1981).
Pain is not compensable under chapter 85 unless there is an
impact on earning capacity. Benton v. Hyman Freightways, file
numbers 721933 and 754493 review-reopening (January 7, 1991).
The record clearly indicates that claimant returned to work
on November 19, 1992. He now earns $9.40 per hour and in 1990
was earning $8.65 per hour. He has not had a loss of earnings
nor a loss of earning capacity since his pain has not interfered
with his ability to perform his usual and customary occupation.
Accordingly, claimant has not met his burden of proof. He
is not entitled to any permanent partial disability benefits as a
result of his [low] back injury on December 13, 1990, in view of
the fact that claimant's subjective complaints cannot be
substantiated by the objective medical evidence and claimant's
credibility is questionable.
[The next issue to be resolved is whether claimant is
entitled to temporary total disability benefits as a result of
his low back injury and if so the duration of these benefits.
Iowa Code section 85.33(1) governs the payment of temporary total
disability. That section provides:
Except as provided in subsection 2 of this section,
the employer shall pay to an employee for injury
producing temporary total disability weekly
compensation benefits, as provided in section 85.32,
until the employee has returned to work or is
medically capable of returning to employment
substantially similar to the employment in which the
employee was engaged at the time of injury, whichever
occurs first.
Claimant injured his lower back on December 13, 1990 and was
taken off work on that day. He did not return to work until
November 19, 1992. He underwent a variety of treatments. On
April 5, 1991 Dr. Kuhnlein placed a permanent 25 pound lifting
restriction on claimant. According to Steven Joyce there was no
work with the employer within that restriction. Dr. Kuhnlein's
25 pound lifting restriction was changed to a 45 pound lifting
restriction on November 18, 1992, and claimant returned to work
the next day. Prior to Dr. Kuhnlein increasing claimant's
Page 10
lifting restrictions there is no definitive indication from the
medical evidence that claimant was capable of returning to
employment substantially similar to that which claimant was doing
at the time of his injury. For example, on April 23, 1992 the
note from St. Luke's emergency room indicated that claimant could
go back to work but also stated that claimant should take it easy
and rest. This seemingly contradictory note is not a definite
indication that claimant could do substantial similar employment.
Claimant is entitled to temporary total disability benefits
through November 18, 1992, the date his lifting restrictions were
raised and he returned to work.]
The next issue to be determined is whether claimant is
entitled to certain medical benefits under Iowa Code section
85.27.
The employer shall furnish reasonable surgical, medical,
dental, osteopathic, chiropractic, podiatric, physical
rehabilitation, nursing, ambulance and hospital services and
supplies for all conditions compensable under the workers'
compensation law. The employer shall also allow reasonable and
necessary transportation expenses incurred for those services.
The employer has the right to choose the provider of care, except
where the employer has denied liability for the injury. Section
85.27.; Holbert v. Townsend Engineering Co., Thirty-second
Biennial Report of the Industrial Commissioner 78 (Review-reopen
1975). Claimant has the burden of proving that the fees charged
for such services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., File No. 850096 (App. 1990).
Claimant is not entitled to reimbursement for medical bills
unless claimant shows they were paid from claimant's funds. See
Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct.
App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's agent.
Permission for the referral from defendants is not necessary.
Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial
Report of the Industrial Commissioner 164 (Arb. Decn. 1979)
(aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker does not include the right to
determine how an injured worker should be diagnosed, evaluated,
treated or other matters of professional medical judgment.
Assmann v. Blue Star Foods, Inc., File No. 866389 (Declaratory
Ruling, May 18, 1988).
Claimant is requesting reimbursement for treatment received
in the emergency room of St. Luke's Hospital. Since this was
Page 11
emergency treatment for a flare-up of a work-related injury,
claimant is entitled to be reimbursed for the charges. In an
emergency situation, claimant lacks time to seek authorization
for treatment. This treatment minimized his pain and reduced his
industrial disability. Claimant is entitled to be reimbursed for
charges associated with necessary emergency room treatment.
Claimant also submitted a medical bill from Marion Health Center
outpatient center for $451.30 and another bill for $86.60. The
undersigned cannot ascertain from these bills the purpose of the
visit to Marion Health Center and the treatment received. Since
defendants claim that such was not authorized and claimant could
not show any justification for the expenses incurred, the
undersigned cannot order the defendants to pay these bills.
*****
[The next issue to address is whether claimant is entitled
to recover the costs of an independent medical examination from
Dr. Parsow.
Iowa Code section 85.39 provides in pertinent part:
If an evaluation of permanent disability has been
made by a physician retained by the employer and the
employee believes this evaluation to be too low, the
employee shall, upon application to the commissioner
and upon delivery of a copy of the application to the
employer and its insurance carrier, be reimbursed by
the employer the reasonable fee for a subsequent
examination by a physician of the employee's own
choice, and reasonably necessary transportation
expenses incurred for the examination. The physician
chosen by the employee has the right to confer with and
obtain from the employer-retained physician sufficient
history of the injury to make a proper examination.
Section 85.39 permits an employee to be reimbursed for a
subsequent examination by a physician of the employee's where an
employer-retained physician has previously evaluated "permanent
disability" and the employee believes that the initial evaluation
is too low. The section also permits reimbursement for
reasonably necessary transportation expenses incurred and for any
wage loss occasioned by the employee's attending the subsequent
examination.
Defendants are only responsible for reasonable fees
associated with claimant's independent medical examination.
Claimant has the burden of proof with respect to the issue of the
reasonableness of a fee. See Schintgen v. Economy Fire and
Casualty Co., File No. 855298 (Appeal Decision, April 26, 1991).
It is not necessary for claimant to obtain prior approval of
Page 12
defendants or that claimant file an application with the office
of the industrial commissioner prior to seeing a medical
examiner. Vaughn v. Iowa Inc., File No. 925283 (Arbitration
Decision, August 5, 1992). Nor is it necessary for claimant to
apply for reimbursement for an independent medical examination by
a physician who is retained by claimant prior to the examination
or prior to the hearing. Pirozek v. Swift Independent Packing
and Second Injury Fund of Iowa, File Nos. 753643, 753642, 724893
(Appeal Decision 1987).
With respect to the instant case, Dr. Parsow charged
claimant the fee of $975.00. The fee charged included both
$800.00 for a medical report and $175.00 for an independent
medical examination and a record review. Dr. Parsow issued a
nine page report relative to claimant's condition. The report
discussed in detail claimant's history and prior work experience.
Under 343 IAC 4.33, costs for a practitioner's report must
be "reasonable." In other sections of rule 4.33, along with Iowa
Code sections 622.69 and 622.72, the costs of a physician
attending the hearing or a deposition are limited to $150.
Although the portion of rule 4.33 dealing with the cost of
reports is not directly linked to Iowa Code sections 622.69 and
622.72, nevertheless the case of Lytle v. Hormel Corporation,
State of Iowa Industrial Commissioner Decisions, Vol. l, No. 4,
p. 968 (Appeal Dec. 1985), establishes that to be reasonable, the
costs for generating a report should not exceed the cost
limitations available for attending the hearing or a deposition.
Thus, to be reasonable, the cost of the report is limited to
$150.
Therefore, claimant should be reimbursed for the cost of the
independent medical exam ($175) and ($150) for the cost of the
report. However, there is no statutory provision for payment of
interest of a bill for an independent medical exam. See Klein v.
Furnas electric Co., 384 N.W.2d 370 (Iowa 1986)]
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
In file number 1013368:
Claimant takes nothing further from these proceedings.
In file number 973506:
That defendants pay to claimant temporary total disability
Page 13
benefits from November 9, 1991 through November 18, 1992, at the
stipulated rate of two hundred forty-one and 22/100 dollars
($241.22) per week.
That defendants pay the cost of claimant's emergency room
visits at St. Luke's Regional Medical Center.
That defendants shall also pay one hundred fifty and 00/l00
dollars ($150.00) for the medical report of Dr. Parsow and one
hundred seventy-five and 00/100 dollars ($175.00) for an
independent medical examination by Dr. Parsow.
That defendants receive credit for any benefits previously
paid.
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code section
85.30, as amended.
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 file claim activity reports as required by
the agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ____ day of September, 1994.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Dennis M. McElwain
Attorney at Law
PO Box 1194
Sioux City, Iowa 51102-1194
Mr. Thomas M. Plaza
Attorney at Law
701 Pierce St. STE 200
PO Box 3086
Sioux City, Iowa 51102-3086
5-1801; 5-1803; 5-2700; 5-2907
Filed September 26, 1994
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
:
OLLIS P. HUNTER, :
:
Claimant, :
:
vs. :
: File Nos. 973506/1013368
JOHN MORRELL & CO., :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
HOME INSURANCE, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
5-1801
Claimant found entitled to temporary total disability
benefits from November 9, 1991 through November 18, 1992, when he
returned to his usual and customary occupation with employer.
5-1803
Claimant not entitled to permanent partial disability
benefits for a right wrist injury incurred on October 8, 1990, or
for a back injury incurred on December 13, 1990. Greater weight
of the evidence showed that claimant's subjective complaints were
far out of proportion to the clinical and laboratory findings in
the record and credible medical expert opinion found that
claimant exaggerated his symptoms and that he had no measurable
rated impairment.
5-2700
Although not authorized, claimant found entitled to be
reimbursed for emergency room treatment for an exacerbation of
his low back symptoms because there was no time to get
authorization.
5-2907
Claimant's independent medical examination physician filed a
professional statement that his examination charges were fair and
reasonable. Defendants disputed the same but produced no
evidence to the contrary. Claimant was awarded the costs of the
independent medical exam which the doctor indicated was $175.
Defendants were required to reimburse claimant $150 for a medical
report from the same doctor who had billed $800 for a nine page
report.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
OLLIS P HUNTER, :
:
Claimant, : File Nos. 1013368
: 973506
vs. :
:
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, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Ollis P.
Hunter, claimant, against John Morrell and Company,
employer, and Home Insurance Company, insurance carrier,
defendants, to recover benefits under the Iowa Workers'
Compensation Act as a result of injuries sustained on
October 8, 1990 and December 13, 1990. This matter came on
for hearing before the undersigned deputy industrial
commissioner on February 8, 1994, in Sioux City, Iowa. The
record was considered fully submitted at the close of the
hearing. The claimant was present and testified. Also
present and testifying were defendants' witnesses Elizabeth
Mapes and Steven C. Joyce. The documentary evidence
identified in the record consists of joint exhibits 1
through 27 and 29 through 45; claimant's exhibits 1 through
11 and defendants' exhibits 1 through 26.
ISSUES
Pursuant to the hearing report and order approving same
dated February 8, 1994, the parties have presented the
following issues for resolution:
In file number 1013368 the issue to be determined is
whether claimant is entitled to permanent partial disability
benefits for an injury to his right wrist and if so, the
extent thereof.
In file number 973506 the parties have presented the
following issues for resolution:
. The extent of healing period benefits as a result of
a work injury to claimant's lower back on December 13, 1990;
. Whether claimant is entitled to permanent partial
Page 2
disability benefits and if so, the extent thereof;
. Whether claimant is entitled to payment of certain
medical benefits pursuant to Iowa Code section 85.27;
. Whether claimant is entitled to payment of the full
cost of an independent medical examination conducted by Jay
J. Parsow, M.D.; and
. Whether the fee charged by Dr. Parsow for the
independent medical examination is fair and reasonable.
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:
A review of the pertinent medical evidence of record
reveals that claimant began complaining of right wrist pain
in 1989. He presented to D.M. Youngblade, M.D., on August
15, 1989, with complaints of pain and discomfort in the
volar surface of the right wrist brought on by certain
motions, movements, twists, and turns. He was placed on
light duty for a short period of time and placed in a Futuro
splint. Claimant returned to Dr. Youngblade on September 6,
1989, with the same complaints as before. He was advised to
work at another job rather than his usual job of collaring
hams. (joint exhibit 14).
Claimant's right wrist problems resurfaced on October
8, 1990. At that time, he presented to John D. Kuhnlein,
M.D., the company physician, with pain in his right wrist.
On November 30, 1990, claimant underwent nerve conduction
studies and EMG studies of the right upper extremity. The
studies were normal with no evidence of a mononeuropathy or
plexopathy or evidence of a radiculopathy. (jt. ex. 17).
On December 3, 1990, Dr. Kuhnlein released claimant to
return to full duty with no work restrictions. (jt. ex. 16,
page 2).
On December 13, 1990, claimant reported that he had
fallen on a greasy floor surface while working on the
production line and hurt his right shoulder, arm and lower
back. He was put in the back care program by Dr. Kuhnlein
and participated in 15 sessions. On April 5, 1991, Dr.
Kuhnlein discontinued him from the program because the
therapists and technicians felt that he had not put forth
maximum effort and had been noncompliant in attendance. A
physical examination revealed negative straight leg raising
and negative seated leg raising. An MRI evaluation which
had previously been taken on February 8, 1991, was also
negative. (jt. ex. 23). In any event, Dr. Kuhnlein gave
claimant permanent restrictions of no lifting, pushing or
pulling in excess of 25 pounds on an occasional basis and no
work above the shoulder or below the waist and permanent
restrictions from knife, whizzard and hook work. (jt. ex.
21, p. 4).
Page 3
Claimant requested a second opinion and Dr. Kuhnlein
referred him to J.T. Strittholt, M.D. On April 25, 1991,
Dr. Strittholt evaluated claimant's right hand and wrist.
Dr. Strittholt observed no soft tissue swelling, full range
of motion in supination pronation, no crepitance and no pain
across the basal thumb joint or dorsum of the wrist to
palpitation. Tinel's was negative and Phalen's normal.
X-rays of the hand and wrist reveled normal osseous
structures. Dr. Strittholt felt that claimant's condition
was one of residual flexor tenosynovitis. (jt. ex. 39).
On May 23, 1991, Dr. Strittholt examined claimant's
back. He noted that his upper extremity pain was markedly
improved. After reviewing x-rays and the MRI study and
conducting a physical examination, Dr. Strittholt concluded
that claimant has low back pain with a strong functional
overlay component. He had no specific treatment
recommendations. (jt. ex. 39).
On May 28, 1991, Dr. Strittholt indicated that he had
not completed a work restriction form supplied by employer
because he left the assessment of work restrictions up to
Dr. Kuhnlein, claimant's treating physician. Apparently,
claimant had returned to employer a completed work
restriction form which he denied tampering with but which,
nevertheless, was submitted as a reflection of Dr.
Strittholt's assessment. Although employer had suspected
that claimant submitted a falsified work restriction slip,
they took no disciplinary measures against him. (jt. exs.
39 & 40).
On June 14, 1991, claimant presented to St. Luke's
Regional Medical Center emergency room with complaints of
low back and right leg pain. He had previously reported
there on June 12, 1991, and was told to return for a
lumbosacral CT scan. The results revealed early spinal
stenosis at the L4-5 level, narrowing of the neural
foraminal at the L5-S1 level and some abnormalities at the
L4-5 and L5-S1 level which was determined to require further
evaluation. (jt. exs. 27 & 29).
Claimant was then referred by Dr. Kuhnlein to Leonal
Herrera, M.D., for a neurological evaluation. Dr. Herrera
saw claimant on August 28, 1991. After reviewing the
claimant's medical history and noting his complaints, Dr.
Herrera conducted a physical examination. Dr. Herrera found
discrepancies in the claimant's motion abnormalities and
therefore concluded that his test was invalid and could not
be used for a disability rating according to the AMA Guides
to the Evaluation of Permanent Impairment. He therefore
concluded that the claimant did not have a measurable rating
when using the abnormal motion in the spine area and no
other neurological impairment. He gave claimant a 0 percent
rating for his lumbar spine. (jt. ex. 26).
Being dissatisfied with this determination, claimant
requested an independent medical examination by Horst Blume,
M.D. After reviewing the claimant's medical history, noting
his complaints and conducting a physical examination, he
concluded that claimant had spinal stenosis at L4-5 with
Page 4
evidence of a ruptured disc at L4-5 and some evidence of
spondylosis and spondylolisthesis. (jt. ex. 30). However,
he concluded that since claimant has no radicular pain at
the present time, surgery was not warranted. He recommended
a thermogram to further diagnose his problem. (jt. exs. 31
& 42).
On February 20, 1992, claimant presented to Marion
Health Center outpatient service with complaints of back
pain. He was advised to follow-up with Dr. Kuhnlein. (jt.
ex. 32).
On April 23, 1992, claimant presented to St. Luke's
emergency room with back pain. He was diagnosed with
persistent lumbar strain and advised to take it easy. (jt.
ex. 33).
On November 18, 1992, claimant presented to Dr.
Kuhnlein and indicated that he was capable of doing more
physical work than his previous restrictions allowed. At
this time, there was no evidence of lumbosacral strain.
Claimant was given a 45-pound lifting, pushing and pulling
restriction with no knife or whizzard and hook work. (jt.
ex. 18, page 10).
Claimant testified that he returned to his former job
with employer on November 19, 1992, after being off work
from December 1991 through November 1992. Claimant
testified that he received unemployment benefits during that
period of time. He stated that employer would not take him
back to work in his old job collaring hams until his
restrictions were changed. He testified that he has been
working collaring hams since November 19, 1992, but the work
is easier than before because there is now a three-man
rotation on the line and he doesn't have to spend as much
time performing the same repetitive movements as before. He
stated that he earns $9.40 per hour doing this work and in
1990 he earned $8.65 per hour.
On June 24, 1993, claimant presented to St. Luke's
emergency room with complaints of low back pain. He was
given pain medication and instructed to rest for the next 24
to 48 hours and resume activity as tolerated. (jt. ex. 34).
On July 28, 1993, claimant presented to St. Luke's
emergency room again with complaints of low back pain. He
was given a refill of Naprosyn and referred to the Woodbury
County Medical Society to obtain a physician. (jt. ex. 35).
There are medical records in evidence which pertain to
a June 16, 1993, right wrist injury. Because this injury is
not in issue at this time, that evidence will not be
reviewed. (jt. exs., 36 & 43).
Claimant was referred by defendants to Joel T. Cotton,
M.D., neurologist, for an examination on May 4, 1993.
Claimant presented with increased right wrist pain and low
back pain. Dr. Cotton indicated that claimant's
neurological examination was normal. He noted marked
variabilities and inconsistencies in range of motion testing
Page 5
for flexion of the low back as well as straight leg raising.
He found normal strength and sensation in the extremities
with no atrophy or paravertebral spasm present. He also
observed unrestricted movement of the wrist and found no
objective evidence of any physical injury at all. He felt
that the marked inconsistencies and variabilities in range
of motion testing would not be seen in a patient with a bona
fide physical injury to the low back. He felt that all of
claimant's complaints were subjective and he had no physical
condition or physical injury to the low back to account for
any of his complaints of pain. He indicated that claimant
had no permanent partial impairment to his back or wrist and
that he was capable of pursuing all of his usual activity
without any restrictions whatsoever. Dr. Cotton disagreed
with Dr. Blume's assessment of claimant's condition
specifically that the spine x-rays showed spondylosis and
spondylolisthesis and ruptured discs at L4-5. He noted that
Dr. Blume was at odds with both Dr. Kuhnlein and Dr. Herrera
regarding these findings. He stated, that in his opinion,
claimant does not require any additional medical attention,
either conservative or surgical. He noted that there is no
medical justification for a thermogram and stated that this
study is not recognized by the Academy of Neurology and is
not covered by Iowa Medicare or Iowa Medicaid as being a
medically reliable test. (defendants' ex. 21).
Defendants' exhibits also contain medical records
referable to left wrist pain. Because this injury is not an
issue at this hearing, the evidence in that regard will not
be reviewed. (def. exs. 23-25). In the future, the parties
are urged not to clutter the file with irrelevant and
immaterial evidence.
Claimant was again referred to Dr. Cotton for
examination and reevaluation on November 17, 1993. The
purpose of this evaluation was to refute the findings made
by Jay J. Parsow, M.D., in an independent medical
examination which he conducted on March 16, 1993, but which
he issued a report on November 2, 1993. Dr. Parsow found a
bulging disc at L4-5 which he felt was preexisting and
asymptomatic until aggravated by the December 13, 1990 work
injury. Dr. Parsow also indicated that claimant sustained 1
percent upper extremity permanent impairment and a 7 percent
whole person impairment as a result of the December 13, 1990
work injury. He felt that claimant was capable of
performing medium work activity and his restrictions were
similar to the latest ones imposed by Dr. Kuhnlein. (jt.
ex. 44). Dr. Cotton reviewed Dr. Parsow's report and
strongly disagreed with his findings. Dr. Cotton is board
certified in electrodiagnostic studies, specifically EMG and
nerve conduction studies, and it was his opinion that the
EMG studies of November 30, 1990, were correctly performed
and the impressions accurate. He reviewed the EMG findings
of February 13, 1991, and noted that that study was also
normal and showed no evidence of a right cervical or lumbar
radiculopathy by delayed responses or needle study.
Therefore, he felt that Dr. Parsow's assessment of
claimant's condition was inconsistent with objective
testing. He disputed Dr. Parsow's findings regarding
claimant's right upper extremity symptoms. He stated that
Page 6
in his opinion, claimant has no involvement of the
musculocutaneous nerve in the forearm and no permanent
partial impairment in the upper extremity. Furthermore, he
has no loss of active range of motion of the wrist and no
evidence of any loss of strength. Therefore, he opined that
claimant has no permanent impairment to the right upper
extremity. He also disagreed with Dr. Parsow's low back
impairment rating because he found no evidence of any
permanent loss of range of motion in the lumbar spine.
Furthermore, he stated that there is no evidence of
radiculopathy. In his opinion there is no involvement of
the first sacral nerve root (S1) for which any permanent
partial impairment rating would be justifiable. Dr. Cotton
reiterated that although claimant complains of chronic and
persistent pain in the low back, there continues to be
marked discrepancies, variabilities and inconsistencies in
his examination which are not and cannot be seen in
patient's with a true physical injury or physical condition
in the low back. (def. ex. 22).
CONCLUSIONS OF LAW
The first issue to be determined is whether claimant's
right wrist injury on October 8, 1990, resulted in a
permanent impairment.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of October 8, 1990, is causally related to the disability on
which he now bases his claim. Bodish v. Fischer, Inc., 133
N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility is
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, 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
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman v. Central Telephone Co., 261 Iowa 352, 154
N.W.2d 128 (1967). The supreme court has also observed that
greater deference is ordinarily accorded expert testimony
where the opinion necessarily rests on medical expertise.
Sondag, 220 N.W.2d at 907.
A wrist injury is an injury to the hand, not the upper
extremity. The hand extends to the distal end of the radius
and ulna, including the carpus or wrist. Elam v. Midland
Page 7
Mfg., II Iowa Industrial Commissioner Report 141 (App.
1981).
Claimant has the burden of proof in this regard. As
previously noted, claimant had initial symptoms in his right
wrist in 1989. He was treated by Dr. Kuhnlein and given
some temporary restrictions. EMG and nerve conduction
studies taken on November 30, 1990, were within normal
limits. (jt. ex. 17). On December 3, 1990, Dr. Kuhnlein
released claimant to return to full duty with no
restrictions. (jt. exs. 16 & 19, p. 5).
Accordingly, claimant has not met his burden of proof.
He is not entitled to any permanent partial disability
benefits as a result of the October 8, 1990 injury to his
right wrist.
The next issue to be determined is whether claimant is
entitled to healing period benefits as a result of the
injury to his low back on December 13, 1990.
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).
A review of the pertinent medical evidence of record is
ambivalent as to when claimant either achieved maximum
medical improvement or when claimant was medically
determined to be capable of returning to substantially
similar employment. Therefore, one must look at the record
to determine when claimant actually returned to work in
order to end the healing period. Claimant testified that he
returned to work on November 19, 1992. Therefore, claimant
is entitled to healing period benefits from November 9, 1991
through November 18, 1992.
The next issue to be determined is whether claimant is
entitled to any permanent partial disability benefits as a
result of his back impairment.
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,
Page 8
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).
Numerous physicians have been involved in claimant's
case. Dr. Kuhnlein, the company physician and claimant's
treating physician, gave claimant permanent work
restrictions but did not give him an impairment rating.
Instead, he relied on Dr. Herrera to rate claimant's
impairment. Dr. Herrera felt that claimant had no
measurable rating in light of normal MRI and CT scans. Dr.
Strittholt did not rate claimant's impairment nor assign any
permanent restrictions, but instead indicated that those
imposed by Dr. Kuhnlein should be followed. Dr. Blume and
Dr. Parsow, two of claimant's independent medical examiners,
gave permanent impairment ratings. Dr. Cotton, defendants'
independent medical examiner, disputed the findings of Dr.
Blume and Dr. Parsow and in essence stated that claimant's
subjective complaints are not supported by the objective
medical evidence. Since Dr. Kuhnlein gave claimant work
restrictions in March 1991 and November 1992 based on
claimant's subjective complaints, such restrictions are
given minimal weight and consideration especially since
claimant has been performing his usual and customary job
since November 1992 without restriction or accommodation by
employer. It appears that the greater weight of the
evidence supports the findings made by Dr. Cotton, a highly
qualified neurologist and board certified in
electrodiagnostic studies, specifically EMG and nerve
conduction studies. Dr. Cotton is of the opinion that
claimant's subjective complaints are far out of proportion
to the clinical and laboratory findings in the record. It
appears that claimant is attempting to present himself as
more disabled than he really is. Both Dr. Herrera and Dr.
Cotton found inconsistencies in claimant's test results.
This suggests that claimant may have been attempting to
manipulate the results in order to appear significantly
disabled.
Pain that is not substantiated by clinical findings is
not a substitute for impairment. Waller v Chamberlain Mfg.,
II Iowa Industrial Commissioner Report 419, 425 (1981);
Godwin v. Hicklin GM Power, II Iowa Industrial Commissioner
Report 170 (1981). Pain is not compensable under chapter 85
unless there is an impact on earning capacity. Benton v.
Hyman Freightways, file numbers 721933 and 754493
review-reopening (January 7, 1991).
The record clearly indicates that claimant returned to
work on November 19, 1992. He now earns $9.40 per hour and
in 1990 was earning $8.65 per hour. He has not had a loss
of earnings nor a loss of earning capacity since his pain
has not interfered with his ability to perform his usual and
Page 9
customary occupation.
Accordingly, claimant has not met his burden of proof.
He is not entitled to any permanent partial disability
benefits as a result of his back injury on December 13,
1990, in view of the fact that claimant's subjective
complaints cannot be substantiated by the objective medical
evidence and claimant's credibility is questionable.
The next issue to be determined is whether claimant is
entitled to certain medical benefits under Iowa Code section
85.27.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27.; Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise Constr.
Specialists, Inc., File No. 850096 (App. 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for the referral from defendants is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker does not include the right to
determine how an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgment. Assmann v. Blue Star Foods, Inc., File No. 866389
(Declaratory Ruling, May 18, 1988).
Claimant is requesting reimbursement for treatment
received in the emergency room of St. Luke's Hospital.
Since this was emergency treatment for a flare-up of a
work-related injury, claimant is entitled to be reimbursed
for the charges. In an emergency situation, claimant lacks
time to seek authorization for treatment. This treatment
minimized his pain and reduced his industrial disability.
Claimant is entitled to be reimbursed for charges associated
with necessary emergency room treatment. Claimant also
submitted a medical bill from Marion Health Center
outpatient center for $451.30 and another bill for $86.60.
The undersigned cannot ascertain from these bills the
purpose of the visit to Marion Health Center and the
Page 10
treatment received. Since defendants claim that such was
not authorized and claimant could not show any justification
for the expenses incurred, the undersigned cannot order the
defendants to pay these bills.
The final issue to be determined is whether claimant is
entitled to payment of an independent medical examination
conducted by Dr. Parsow. Dr. Parsow charged $975 for an
independent medical examination which he conducted on March
16, 1993. Dr. Parsow then charged interest because the bill
had not been paid by December 9, 1993 or January 9, 1994.
To date, his bill totals $999.38. (claimant's exs. 2-3).
Defendants wrote to Dr. Parsow and asked him for a breakdown
of his charges. Dr. Parsow stated that the cost of the
examination and reviewing previously obtained imagining
studies was $175. The cost of thoroughly reviewing previous
medical records and preparing the comprehensive summary and
report was $800. (def. ex. 20). Dr. Parsow stated that
these charges are fair and reasonable in light of community
standards for such examinations. Defendants disputed the
same but produced no evidence to the contrary. (claimant's
ex. 2).
Section 85.39, subsection 2, states in pertinent part
that, "The physician chosen by the employee has the right to
confer with and obtain from the employer-retained physician
sufficient history of the injury to make a proper
examination." Furthermore, agency expertise is not
sufficient evidence to support a finding that the medical
charges were reasonable or unreasonable. McClellon v. Iowa
Southern Utilities, file number 894090 (App. Dec. January
31, 1992). Since defendants produced no contrary evidence
indicating that Dr. Parsow's fees were unreasonable,
claimant has met his burden of proof. Schneider v. Prairie
Contractors, Inc., file number 869747 (App. Dec. April 20,
1992).
ORDER
THEREFORE, IT IS ORDERED:
In file number 1013368:
Claimant takes nothing further from these proceedings.
In file number 973506:
That defendants pay to claimant temporary total
disability benefits from November 9, 1991 through November
18, 1992, at the stipulated rate of two hundred forty-one
and 22/100 dollars ($241.22) per week.
That defendants pay the cost of claimant's emergency
room visits at St. Luke's Regional Medical Center.
That defendants reimburse claimant for an independent
medical examination conducted by Dr. Parsow.
That defendants receive credit for any benefits
previously paid.
Page 11
That defendants pay accrued amounts in a lump sum.
That defendants pay interest pursuant to Iowa Code
section 85.30, as amended.
That defendants pay all other costs pursuant to rule
343 IAC 4.33.
That defendants file claim activity reports as required
by the agency pursuant to rule 343 IAC 3.1(2).
Signed and filed this ________ day of February, 1994.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Page 12
Copies to:
Mr. Dennis McElwain
Attorney at Law
PO Box 1194
Sioux City, Iowa 51102-1194
Mr. Thomas Plaza
Attorney at Law
701 Pierce St. STE 200
PO Box 3086
Sioux City, Iowa 51102-3086
51801 51803 52700 52907
Filed February 18, 1994
Jean M. Ingrassia
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
OLLIS P HUNTER,
Claimant, File Nos. 1013368
973506
vs.
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,
Insurance Carrier,
Defendants.
------------------------------------------------------------
51801
Claimant found entitled to temporary total disability
benefits from November 9, 1991 through November 18, 1992,
when he returned to his usual and customary occupation with
employer.
51803
Claimant not entitled to permanent partial disability
benefits for a right wrist injury incurred on October 8,
1990, or for a back injury incurred on December 13, 1990.
Greater weight of the evidence showed that claimant's
subjective complaints were far out of proportion to the
clinical and laboratory findings in the record and credible
medical expert opinion found that claimant exaggerated his
symptoms and that he had no measurable rated impairment.
52700
Although not authorized, claimant found entitled to be
reimbursed for emergency room treatment for an exacerbation
of his low back symptoms because there was no time to get
authorization.
52907
Claimant's independent medical examination physician filed a
professional statement that his examination charges were
fair and reasonable. Defendants disputed the same but
Page 2
produced no evidence to the contrary. Claimant prevailed.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CHRISTINE SLAIGHT,
Claimant,
vs.
File No. 973529
FIRST FEDERAL SAVINGS AND
LOAN,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CHUBB/FEDERAL INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Christine Slaight, against her employer, First
Federal Savings and Loan Association, and its insurance
carrier, Chubb Federal Insurance Co., defendants. The case
was heard on 7-14-92, at the Woodbury County Courthouse in
Sioux City, Iowa. The record consists of the testimony of
claimant. The record also consists of the testimony of
Peggy Smith, a personnel director for defendant-employer.
Additionally, the record consists of joint exhibits 1-58.
It is noted that because of very poor duplication, it
has been difficult to read some of the exhibits, especially
some of the hospital records.
Prior to claimant's testimony, defendants' had agreed
to compensate claimant for 39 miles of travel at 21 cents
per mile for a total of $8.19.
ISSUES
The issues to be determined are:
1) Whether there is a causal relationship between the
alleged injury and any permanent disability; and 2) Whether
claimant is entitled to any healing period or permanent
partial disability benefits.
Page 2
FINDINGS OF FACT
The deputy, having heard the testimony and considered
all the evidence, finds:
Claimant is a 36-year-old married woman who is the
mother of two children. She had attended school in Sioux
Falls, South Dakota but dropped out when she was in the
ninth grade. Claimant had obtained her GED in 1991.
In November of 1989 claimant commenced her employment
with defendant-employer. She was hired to perform
janitorial duties during the evening hours. Her duties
routinely included vacuuming, dusting, and general cleaning
of the building. She worked up until the date of her work
injury on 1-10-91.
Claimant sustained a work injury on 1-10-91 when she
lifted a very heavy wastebasket. She testified she
experienced a jerk in her right arm, neck, a burning
sensation in her low back, and buttock as well as pain in
her left hip and down her left leg.
Claimant testified she was unable to complete her shift
that night because of the intense pain she was experiencing.
She left a note for her supervisor, and went home.
On 1-11-91, Peggy Smith, the personnel director for
defendant-employer telephoned claimant. The director
authorized claimant to obtain medical treatment. Claimant
sought treatment from her family physician, John Roberts
M.D. The physician recommended rest, no work and he
prescribed pain medication. Dr. Roberts also restricted
claimant from lifting greater than five pounds and from
minimal stooping or bending (Joint Exhibit 24). X-rays were
taken. The results showed that:
Some mild disc space narrowing is suspected at
L5-S1 and there is mild spurring of the opposing
bones, findings consistent with degenerative disc
disease. The other discs appear intact. The
alignment is normal. There is no evidence of
fracture or bone destruction.
IMP: Degenerative disc disease is suspected at L5-S1
with mild narrowing of the disc space (Jt. Ex. 25).
Dr. Roberts continued with conservative treatment
including physical therapy. Eventually claimant requested a
referral to the University of Nebraska where she was
examined by Angelo Patil, M.D. an orthopedic surgeon. By
this point in time, claimant was experiencing difficulties
because of a right carpal tunnel syndrome.
Page 3
Dr. Patil opined the following in his report of 3-1-91.
On examination, she is a pleasant lady who's mentition is
normal. Speech and memory is intact. Pupils are equal and
reactive. The face is symmetrical. Motor examination,
tone, power and nutrition are normal. Sensory examination
was normal to pinprick. Deep tendon reflexes were equal and
symmetrically present. Plantars were both downgoing.
Coordination was normal. Gait was normal. She had a full
range of back movement. Straight leg raising was
bilaterally 90 degrees. She had some limitation of neck
movement due to pain but on insistence, she was able to get
the full range.
Her plain x-rays show evidence of degenerative changes
between L5 and S1 with narrowing of the disk space and
osteophytic spurring. CT scan shows perhaps some diffuse
bulging of the disks between 4-5 but no surgical lesions
were obviously visible.
The clinical impression is that her present problem is
from musculoskeletal strain and perhaps some pain could be
originating from the left sacro-iliac joint and the facet
joint.
I have showed her some back exercises and proper
posture and feel that she should continue with this type of
exercise for awhile. If her problem continues, it may be
worthwhile getting an EMG to rule out any radiculopathy. In
the absence of evidence of radiculopathy, I would feel that
her pain is musculoskeletal in origin and if this continues
and if the EMG studies are negative at that time, than
perhaps she may need some type of rehab. program. . . .
Claimant continued with physical therapy. She returned
to Dr. Roberts. Claimant also continued treating with Dr.
Patil. As of 6-7-91, Dr. Patil opined:
1. Ms. Slaight may return to work in two to three
weeks.
2. Ms. Slaight is restricted to lifting weights no
greater than 40 pounds.
3. Ms. Slaight must avoid prolonged standing (Jt. Ex.
41).
Dr. Patil also prescribed a chair back brace for her
back and a wrist splint (Jt. Ex. 42).
Claimant became dissatisfied with the treatment she
received from Dr. Patil. She requested a referral to
another orthopedist. Dr. Roberts referred claimant to Earl
M. Mumford, M.D. who noted that:
7-22-91 patient is C/O more pain rather than less pain
after the epidural. She has neck and low back pain ill
defined. I cannot really detect much of anything else going
on; in fact actually the straight leg raising is less tight
than before. Certainly she is complaining quite a bit and I
am a little at a loss to explain what is going on. I do
Page 4
think I would recommend her to some type of pain clinic.
7-17-91 OV - New complaint - note dictated.
. . .
LOW BACK
7-18-91 - Epidural steroid injection by hospital.
7-22-91 OV - Patient is c/o more pain rather than less
pain after the epidural. She has neck and low back pain ill
defined. I cannot really detect much of anything else going
on; in fact actually the straight leg raising is less tight
than before. Certainly she is complaining quite a bit and I
am at a loss to explain what is going on. I do think I
would recommend her to some type of chronic pain clinic. .
. .
An associate of Dr. Mumford, Mark E. Wheeler, M.D.
rated claimant as having a zero percent functional
impairment (Jt. Ex. 47).
Claimant sought an evaluation from another orthopedic
surgeon, Timothy C. Fitzgibbons, M.D. Dr. Fitzgibbons
opined in his report of 4-28-92 that:
Prior to this incident of the 10 January 1991, the patient
stated that she had never had any trouble with her neck or
back or with any numbness problem in her hands.
PHYSICAL EXAMINATION:
The patient is able to stand and walk reasonably well,
although she complains of some discomfort in her neck and
low back. She walks on her heels and toes satisfactorily.
She has a negative Trendelenburg. The range of motion of
the limbar spine is limited due to discomfort in the
lumbosacral and buttock area.
The examination of the neck reveals some discomfort in the
posterior cervical area, with some radiation into the
interscapular area and also into the occipital attachment of
the muscles. The neck range of motion is also limited due
to discomfort. The shoulder shrug test is negative. The
shoulder range of motion is negative.
The neurologic examinations of both the upper and lower
extremities show no definite motor or reflex changes. There
is a positive Phalen's test on the right side, consistent
with carpal tunnel syndrome, but a negative Tinel's sign.
The rest of the examination, I feel, is satisfactory. No
other definite abnormalities, of any significance, were
noted.
X-RAYS:
X-rays-- which include cervical spine views with oblique
views, and lumbar spine views with oblique views--were
obtained. The patient has definite degenerative disc
disease at L-5 S-1, with disc space narrowing. The rest of
the x-rays, in terms of both cervical spine and lumbar
spinc, are within normal limits.
We did look at some old films, that the patient had from a
year ago, and it was an open-mouth odotoid view of the neck,
which was okay. The rest of the films, I thought, were
okay.
Page 5
I do note that the films, of the 14 January 1991, were read
as showing degenerative disc disease at L-5 S-1. This was
taken at the Outpatient Imaging Center in Sioux City.
IMPRESSIONS:
1. Post-traumatic cervical and lumbar strain.
2. L-5 S-1 degenerative disc disease.
3. Probable right carpal tunnel syndrome.
REMARKS:
We did get a chance to review some old records. There were
a multitude of records, but of importance was an EMG--from
the 17 May 1991--which showed a right carpal tunnel
syndrome.
We also saw a CT Scan--from the 31 January 1991--which
showed some mild flattening and generalized bulging of the
disc at L-4, but no other significant abnormalities. There
are no imaging studies of the patient's neck.
He also opined that:
I would absolutely not restrict the patient. I would let
her do whatever her pain would allow. I would encourage her
to be normal. If, however, we were asked exactly what she
can and can't do, then I would recommend that a formal
Functional Capacity Assessment be done. This could be done
by our therapy department here or at any number of different
therapy departments.
In terms of the cause of the patient's symptoms, they appear
to have been caused by the accident of the 10 January 1991.
In terms of the patient's degenerative disc disease at L-5
S-1, the accident did not cause this. This was present
prior to the accident.
However, the patient clearly indicated to me that she had
not had any low back or neck or right hand symptoms prior to
the accident and, therefore, given this history, the
accident was the cause of the symptoms of her neck and back
and right hand.
In terms of prognosis, the patient has had symptoms now for
more than a year and I would feel that she has been left
with some permanent impairment.
In terms of a percentage of impairment, for the patient's
neck and back problems, I would feel that a 5 percent
impairment of the body as a whole would be justified for her
neck and back problems.
In terms of the patient's right hand symptoms, I would feel
that a 5 percent impairment of the right upper extremity
would be justified for these hand symptoms.
I would be glad to see her at any time in the future, but
will not see her again unless she so desires.
Claimant was paid weekly benefits from 1-11-91 through
7-18-91. Defendant-employer terminated claimant's
employment effective 5-1-91 (Jt. Ex. 56, p. 10). In August
of 1991, claimant enrolled in college at Wayne State. She
completed two semesters of college, however, she did not
carry a full time academic schedule. Currently, claimant is
unemployed.
CONCLUSIONS OF LAW
The first issue to address is whether claimant can
establish a causal relationship between her work injury on
Page 6
1-10-91 and any permanent disability. 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 words "out of" refer to the cause or source of the
injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402,
68 N.W.2d 63 (1955).
Our supreme court has stated many times that a claimant
may recover for a work connected aggravation of a
preexisting condition. Almquist v. Shenandoah Nurseries,
218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v.
Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek
v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz
v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v.
Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251
(1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369,
112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co.,
252 Iowa 613, 106 N.W.2d 591 (1960).
There is no question that claimant had a pre-existing
back condition which pre-dated her employment with
defendant-employer. As early as September of 1978, claimant
had experienced difficulties with "neuritis, myosits of the
lumbar area." (Jt. Ex. 2, p. 2). She had sought treatment
from chiropractor, Pat Luse, D.C. as early as April of 1981.
Her diagnosis had been lumbar strain or sprain (Jt. Ex. 7).
Claimant's present back condition was also diagnosed as
"musculoskeletal strain" by Dr. Fitzgibbons (Jt. Ex. 31, p.
1). Dr. Roberts diagnosed claimant's condition as "Back
strain with possible intervertebral disc disease." (Jt. Ex.
26, p. 5). The diagnosis was basically the same diagnosis
as those in prior years. It does appear, however, the work
injury temporarily aggravated claimant's existing back
condition. It does not appear that the condition has
resulted in any permanent back condition.
Claimant has not proven that she has a permanent back
condition from her work injury. Dr. Wheller has found a
zero percent functional impairment. Dr. Fitzgibbons has
rated claimant as having a five percent functional
impairment to the back. However, Dr. Fitzgibbon's opinion
is based on a grossly erroneous history. Claimant has
related to her orthopedic surgeon that "she had never had
any trouble with her neck or back or with any numbness
problem in her hands." (Jt. Ex. 48, p. 2). Since Dr.
Fitzgibbon's opinion is based upon false or mistaken
information, his opinion is not accorded much weight.
There is very little objective evidence to support
claimant's allegation that she has a permanent back
condition resulting from her work injury. Dr. Patil has
found a normal sensory examination. Claimant's reflexes are
Page 7
equal and symmetrical. Her gait is normal. She has full
range of motion. She has straight leg raising bilaterally
to 90 degrees. There is no evidence of redicylopathy (Jt.
Ex. 32). X-rays show only slight reversal of the curve but
with the vertebral height and space otherwise well
maintained (Jt. Ex. 4, Sp 3). L-5 spine films and an MIR
only show degenuative changes at L5-S1 (Jt. Ex. 45, p. 3).
The MRI results show nothing especially remarkable.
Dr. Patil has never provided a functional impairment
rating. Claimant's subjective complaints of pain far
surpass any observable evidence of a permanent low back
problem. Moreover, during the cause of her physical therapy
treatment, claimant had voluntarily suspended her therapy.
The undersigned is not persuaded by claimant's medical
evidence.
Claimant is also alleging a causal connection between
her work injury and claimant's right carpal tunnel syndrome.
Claimant, sometime after she had commenced her low back
treatment, also experienced difficulties with her right
wrist and arm. She had voiced her complaints to three
physicians, Dr. Roberts, Dr. Patil and Dr. Fitzgibbons.
Claimant's rendition of the work injury is consistent with
respect to jerking her right arm when she had lifted the
trash can. Her testimony is consistent. Dr. Patil had
ordered nerve conduction tests. The results show:
The conduction and F-wave latency studies of both median and
right ulnar (segmental) nerves showed evidence of a right
carpal tunnel syndrome. Please correlate clinically (Jt.
Ex. 39). The objective evidence established a right carpal
tunnel syndrome.
Dr. Patil had ordered a wrist brace, once he had
obtained objective evidence of the right carpal tunnel
syndrome. Dr. Fitzgibbons has related the wrist condition
to claimant's work injury on 1-10-91. No medical expert
disputes his opinion. Dr. Fitzgibbons has rated claimant as
having a five percent functional impairment. The objective
evidence supports a permanent impairment.
The permanent impairment involves an injury to the
hand. A wrist injury is an injury to the hand, not the
upper extremity. The hand extends to the distal end of the
radius and ulna, including the carpus or wrist. Elam v.
Midland Mfg., II Iowa Industrial Commissioner Report 141
(App. 1981).
Claimant is entitled to benefits pursuant to section
85.34(1). She is entitled to 9.5 weeks of benefits at the
stipulated rate of $119.98 per week.
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
Page 8
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 is entitled to healing period benefits from
the date of her injury on 1-10-91 until the date she had
commenced her college education at Wayne State which was on
or about 8-23-91. This period consists of 32.143 weeks at
the stipulated rate of $119.98 per week.
ORDER
THEREFORE, IT IS ORDERED:
Defendants shall pay unto claimant healing period
benefits at the stipulated rate of one hundred nineteen and
98/100 dollars ($119.98) per week commencing on January 1,
1991 and payable through August 22, 1991, which is a period
of thirty-two point one four three (32.143) weeks.
Defendants shall also pay unto claimant permanent
partial disability benefits commencing on August 23, 1991
and continuing for nine point five (9.5) weeks at the
stipulated rate of one hundred nineteen and 98/100 dollars
($119.98) per week.
Defendants shall also pay eight and 19/100 dollars
($8.19) as mileage and pursuant to section 85.27.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year pursuant to section 85.20, Iowa Code, as amended.
Costs are taxed to defendant pursuant to rule 343 IAC
4.33.
Defendants shall file a claim activity report as
requested by this division pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of October, 1992.
______________________________
MICHELLE A. MCGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Stephen Jensen
Daryl L. Hecht
Attorneys at Law
614 Pierce Street
P.O. Box 27
Sioux City, IA 51102
Page 9
Ms. Judith Ann Higgs
Attorney at Law
701 Pierce Street, Ste. 200
P.O. Box 3086
Sioux City, IA 51102
5-1800, 5-1803.1
Filed October 19, 1992
Michelle A. McGovern
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
CHRISTINE SLAIGHT,
Claimant,
vs.
File No. 973529
FIRST FEDERAL SAVINGS AND
LOAN,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CHUBB/FEDERAL INSURANCE
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1800, 5-1803.1
Claimant was awarded a five percent permanent partial
disability to the right hand.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
TITO OLGUIN,
Claimant, File No. 974008
vs. A P P E A L
IBP, INC., D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed October 26, 1992 is affirmed and is adopted as the
final agency action in this case.
Defendant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of September, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Tito Trevino
Attorney at Law
P.O. Box 1680
Fort Dodge, Iowa 50501
Mr. John M. Comer
Attorney at Law
P.O. Box 515, Dept. #41
Dakota City, NE 68731
2800; 2700; 1802; 5-1100
Filed September 21, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
TITO OLGUIN, :
:
Claimant, : File No. 974008
:
vs. : A P P E A L
:
IBP, INC., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
2800
Defendant asserts a notice defense under Iowa Code section
85.23. Defendant contends that claimant did not notify them
within 90 days of the alleged injury on May 1, 1989.
However, on the first report of injury, employer indicated
that they knew of claimant's condition in May 1989. Iowa
Code section 86.11 provides in pertinent part that:
The report to the industrial commissioner of
injury shall be without prejudice to the employer
or insurance carrier and shall not be admitted in
evidence or used in any trial or hearing before
any court, the industrial commissioner or a deputy
industrial commissioner except as to the notice
under section 85.23.
Defendant failed to prove by a preponderance of the evidence
that it lacked actual notice of claimant's injury.
5-1100
The greater weight of the uncontroverted medical evidence is
that claimant was asymptomatic as to neck and back pain
prior to May 1, 1989. Claimant's testimony regarding the
work incident on May 1, 1989, is credible. Defendant
produced no evidence to the contrary.
1802
Claimant entitled to a running healing period award
commencing September 20, 1990, the last time he was
employed, until the requirements of section 85.34(1) are
met.
2700
Defendant was ordered to pay for surgical treatment as
recommended by claimant's treating physician.
Since defendant denied liability, they do not have the right
to choose the provider of care. Claimant's pursuit of
medical care has not been unreasonable. All treatment
modalities are causally related to his injury and,
therefore, are compensable. Defendant is responsible for
payment of claimant's medical bills as summarized in his
exhibit 10.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
TITO OLGUIN, :
:
Claimant, : File No. 974008
:
vs. :
: A R B I T R A T I O N
IBP, inc., :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Tito
Olguin, claimant, against IBP, inc., self-insured employer,
defendant, to recover benefits under the Iowa Workers'
Compensation Act as a result of an injury sustained on May
1, 1989. This matter came on for hearing before the
undersigned deputy industrial commissioner on October 14,
1992, in Des Moines, Iowa. The record was considered fully
submitted at the close of the hearing. The claimant was
present and testified. Guadalupe McCarney, a Spanish
speaking interpreter, was present at the hearing and
translated for claimant. Also present and testifying were
Reyna Olguin, Terry Zimmerman, Cheryl Schmitt, and Randy
Fehlberg. The documentary evidence in the record consists
of joint exhibits 1 through 27 and A through F.
ISSUES
Pursuant to the prehearing report and order dated
October 14, 1992 the parties have presented the following
issues for resolution:
1. Whether claimant sustained an injury on May 1,
1989, which arose out of and in the course of employment
with employer;
2. Whether the alleged injury is a cause of temporary
and permanent disability;
3. The extent of entitlement to weekly compensation
for temporary total or healing period benefits;
4. The extent of entitlement to weekly compensation
for permanent disability, if defendant is liable for the
injury;
5. The commencement date for permanent partial
disability benefits; and
6. Whether claimant's medical expenses are causally
related to the disability on which he now bases his claim.
Page 2
Defendant raises the defense of lack of notice under
Iowa Code section 85.23.
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:
Claimant was born on February 6, 1954, and did not
attend school as a child. Although claimant was born in the
state of Colorado, he cannot read or write English or
Spanish. Claimant's primary spoken language is Spanish. He
is unable to speak or understand English. Claimant attended
adult education classes in an attempt to receive his GED
certificate, but was unable to complete the course work
required. Claimant did attend a truck driving school from
May 30, 1987 to July 30, 1987, and received a certificate
upon completion of this program.
Claimant testified that he worked as a truck driver for
Lofland Company in Fort Worth, Texas, from April 24, 1987
through March 3, 1989. He became aware of employment
opportunities with IBP through radio advertisements in
Texas. He met with representatives from employer's company
in Irvin, Texas, and negotiated for a job with the plant in
Columbus Junction, Iowa, for himself and his wife. It was
his understanding that he would be working as a truck driver
for IBP. When he arrived in Iowa in March 1989, he was told
that there were no truck driving jobs available, but that he
could work on the kill floor sticking pigs. His wife was
also offered a job at that same time.
Claimant started employment with employer on March 8,
1989. His starting pay was $6 per hour. Claimant worked
the 4 p.m. to 1:30 a.m. shift. On May 1, 1989, at 10 p.m.,
while working on the kill line, a pig fell off the rack. In
an attempt to avoid having the pig fall on him, he jumped
back and while off balance, twisted his back and neck. He
testified that he reported the incident to his supervisor,
Dan Griffin, and was told that an incident report would be
completed at the end of the work shift. He was also told to
report to the infirmary for back massages. Despite
complaints of back and neck pain and ineffective massages,
the company refused to allow him to see a doctor for
assessment of his pain. Claimant testified that during the
three weeks following the incident, his back pain became
worse and he decided to quit his job and return to Texas.
While in Texas, he reported to Lofland Trucking in an
attempt to secure a truck driving position. He was told
that his physical examination revealed back problems and he
could not be rehired. Claimant testified that in mid-July
1989, he went to Michigan, where he had worked before, and
applied for a truck driving job with Chase Farms. He was
not required to take a physical examination or undergo
x-rays. He worked three round trips for Chase Farms between
July 17 and October 17, 1989.
Claimant testified that he was off work between October
Page 3
17, 1989 and May of 1990. On November 13, 1989, he moved to
Juarez, Mexico. He returned to Fort Worth, Texas, in May of
1990. On May 21, 1990, he was hired by a friend to work as
a waiter. He worked part-time between May 21 and September
16, 1990. He quit because he was unable to carry boxes of
beer and pop. He stated he was advised by his doctors to
apply for social security benefits because of his back
problems. He did so on September 20, 1990.
A review of the pertinent medical evidence of record
reveals that claimant was examined on June 5, 1989, pursuant
to his application for employment at Lofland Company.
Lumbar spine x-rays were taken and according to Charles
Bailei, M.D., revealed moderate narrowing of the L5-S1 disc
space. This was considered a Class III back condition and
disqualified claimant from performing work as a truck driver
(exhibit B).
Claimant testified that he was so depressed by this
rejection that he went to Juarez, Mexico, on June 12, 1989,
and remained there until mid-July when he went to Michigan
to work for Chase Farms. While in Mexico, he received
medical treatment in the nature of acupuncture and physical
therapy. There are no medical records regarding treatment.
As previously noted, claimant was in Mexico from
November 13, 1989 through May of 1990. Upon his return to
the United States, he procured a job as a part-time waiter
at Poncho's Restaurant. On August 10, 1990, claimant
presented to Matthew Jernigan, D.C., at Chiro-Tech
Chiropractic Rehabilitation Center in Fort Worth, Texas.
His complaints were referable to left arm pain, pain in his
fingers, bilateral shoulder pain, headaches, and neck pain.
Claimant became involved in an active chiropractic treatment
program, but his symptomology persisted. Dr. Jernigan then
referred claimant to Russell Zepeda, M.D., for further
evaluation. The claimant's complaints were referable to
bilateral posterior cervical pain and bilateral lumbar pain.
Dr. Zepeda recommended continued chiropractic and physical
therapy.
On October 26, 1990, claimant underwent a CT scan of
the lumbar spine. There were no positive CT findings at
L3-4 (ex. 7).
Despite a regimen of chiropractic treatments and
physical therapy, claimant's symptomatology persisted.
Therefore, Dr. Jernigan referred him for an MRI on November
7, 1990. The results were consistent with an early
degenerative disc disease at L5-S1 with slight annular bulge
(ex. 8). Due to the positive findings on MRI, Dr. Jernigan
referred claimant to Bruce Hinkley, M.D., board certified
orthopedic surgeon (ex. 1-2).
Claimant saw Dr. Hinkley on December 19, 1990. On
examination, he demonstrated left L5 and S1 weakness as well
as a left L5 and left S1 hypesthesia. A review of his films
showed rather definitive disc pathology at L5-6 with signal
change and protrusion. It was Dr. Hinkley's opinion that
with his neurologic findings and the length of time since
Page 4
his injury, operative intervention is warranted. He
suggested an epidural steroid and L5-6 facet injections in
order to document the level of damage followed by a
discography and myelography (ex. 3).
On February 27, 1991, claimant underwent a lumbar
myelogram and CT scan of the lumbar spine. On March 13,
1991, he underwent a lumbar discogram and postdiscogram CT
scan (ex. 4). On March 26, 1991, Dr. Hinkley concluded that
claimant had a disc disruption of the L5-L6, L6-S1 levels
(ex. 3, p. 4). Dr. Hinkley proposed a spinal fusion with
decompression to the defected disc levels (ex. 3, p. 5).
The record contains a letter dated June 28, 1991, from
Kathy Lantz, workers' compensation examiner, to John
Stasikowski, M.D. Ms. Lantz referred claimant to Dr.
Stasikowski for examination on July 24, 1991 (ex. 6).
Dr. Stasikowski saw claimant on July 24, 1991. He
reviewed Dr. Hinkley's records and previously taken
diagnostic studies. He obtained x-rays of the cervical,
thoracic and lumbosacral spine. A diagnosis of lumbosacral
spine degenerative disc disease was made (ex. A, pp. 8-13).
Dr. Stasikowski saw claimant again on August 26, 1992.
After reviewing claimant's medical history, noting his
complaints and conducting a physical examination, Dr.
Stasikowski's diagnosis remained the same as per his July
25, 1991, report. He stated that claimant's partial
permanent medical impairment ranged from 0 to 5 percent. He
then stated that his permanent impairment rating with regard
to the degenerative disc disease is 2 1/2 percent. He
opined, without explanation, that none of claimant's
impairment relates to a work-related injury in May of 1989
(ex. A, pp. 1-5).
CONCLUSIONS OF LAW
Defendant asserts a notice defense under Iowa Code
section 85.23, which provides:
Unless the employer or the employer's
representative shall have actual knowledge of the
occurrence of an injury received within ninety
days from the date of the occurrence of the
injury, or unless the employee or someone on the
employee's behalf or a dependent or someone on the
dependent's behalf shall give notice thereof to
the employer within ninety days from the date of
the occurrence of the injury, no compensation
shall be allowed.
Failure to give timely notice is an affirmative defense
which defendant must prove by a preponderance of the
evidence. DeLong v. Highway Commissioner, 229 Iowa 700, 295
N.W. 91 (1940); Reddick v. Grand Union Tea Co., 230 Iowa
108, 296 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc.,
Thirty-third Biennial Report of the Industrial Commissioner
191 (Appeal Decision 1977).
Page 5
The purpose of the 90-day notice requirement or the
actual knowledge requirement is to give the employer an
opportunity to timely investigate the circumstances of the
alleged injury. Knipe v. Skelgas Company, 229 Iowa 740,
759, 294 N.W. 880, 884 (1941); Hobbs v. Sioux City, 231 Iowa
860, 2 N.W.2d 275 (Iowa 1942); Robinson v. Department of
Transportation, 296 N.W.2d 809 (Iowa 1980); Dillinger v.
City of Sioux City, 368 N.W.2d 176 (Iowa 1985).
Claimant contends that he notified his supervisor, Dan
Griffin, immediately after the incident on May 1, 1989.
Claimant testified that Mr. Griffin told him that he would
file a first report of injury. Claimant testified that he
received periodic back massages by the company nurse.
Defendant attempted to refute claimant's testimony through
Cheryl Schmitt, one of employer's nurses. Ms. Schmitt
produced claimant's medical card (exhibit E) and stated that
such card indicates that claimant received no medical
treatment in the infirmary. However, she also admitted that
she worked the morning shift (9 a.m. to 5 p.m.) and that
back rubs are not recorded on the medical card.
Iowa Code section 86.11 provides in pertinent part
that:
The report to the industrial commissioner of
injury shall be without prejudice to the employer
or insurance carrier and shall not be admitted in
evidence or used in any trial or hearing before
any court, the industrial commissioner or a deputy
industrial commissioner except as to the notice
under section 85.23.
The employer's work injury report in this case is dated
September 28, 1990. On this report, employer indicated that
they first knew of claimant's condition in May 1989.
Defendant alleges that this is in error. However, they
failed to produce testimony from the preparer of the report
or Mr. Griffin and instead relied on a letter written by
Kathy Lantz to Dr. Stasikowski dated June 28, 1991, which
stated, "On September 28, 1990, Mr. Olquin [sic] contacted
us alleging that he was having back problems arising out of
an injury with us. This was our first knowledge of any
claim,... (ex. A, p. 14).
The undersigned concludes that claimant's testimony
regarding verbal notice of the incident to his supervisor is
credible. Defendant did not produce any evidence to support
the burden of proof of its affirmative defense that it did
not have knowledge regarding claimant's work-related injury.
Defendant did not produce Dan Griffin or the preparer of the
first report of injury. Claimant's recitation of the events
surrounding notice to his supervisor is accepted as what
actually occurred. Therefore, defendant fails to prove by a
preponderance of the evidence that it did not have actual
notice of an injury arising out of and in the course of
employment.
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on May 1, 1989,
Page 6
which arose out of and in the course of his employment.
McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa
1976); Musselman v. Central Telephone Co., 154 N.W.2d 128,
130 (Iowa 1967). The words "arising out of" have been
interpreted to refer to the cause and origin of the injury.
McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971);
Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63,
65 (Iowa 1955). The words "in the course of" refer to the
time, place and circumstances of the injury. McClure, 188
N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury occurs in
the course of the employment when it is within the period of
employment at a place the employee may reasonably be, and
while the employee is doing work assigned by the employer or
something incidental to it. Cedar Rapids Community School
District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure,
188 N.W.2d at 287; Musselman, 154 N.W.2d at 130.
The supreme court has defined a personal injury for the
purposes of workers' compensation cases. Almquist v.
Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this
case the court found that a personal injury, is an injury to
the body, the impairment of health, or a disease, not
excluded by the Workers Compensation Act, which comes about,
not through the natural building up and tearing down of the
human body, but because of a traumatic or other hurt or
damage to the health or body of an employee. The injury to
the human body must be something, whether an accident or
not, that acts extraneously to the natural processes of
nature, and thereby impairs the health, overcomes, injures,
interrupts, or destroys some function of the body, or
otherwise damages or injures a part or all of the body.
The Almquist court further observed that while a
personal injury does not include an occupational disease
under the Workmen's Compensation Act, yet an injury to the
health may be a personal injury. A personal injury includes
a disease resulting from an injury. However, the result of
changes in the human body incident to the general processes
of nature do not amount to a personal injury. This is true,
even though natural change may come about because the life
has been devoted to labor and hard work. Results of those
natural changes do not constitute a personal injury even
though the same brings about impairment of health or the
total or partial incapacity of the functions of the human
body.
The supreme court has also recognized that a cumulative
injury may occur over a period of time. The injury in such
cases occurs when, because of pain or physical disability,
the claimant is compelled to leave work. McKeever Custom
Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).
Moreover, claimant's last employer becomes liable for the
cumulative injury, even if the incidents that lead to the
ultimate injury do not occur while a claimant is employed
with the last employer. McKeever, 379 N.W.2d at 376; See
also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428,
434-35 (Iowa 1984).
The greater weight of the uncontroverted medical
evidence is that claimant was asymptomatic as to neck and
Page 7
back pain prior to May 1, 1989. Claimant's testimony
regarding the work incident on May 1, 1989, is found
credible. Defendant produced no evidence to the contrary.
Accordingly, claimant has met his burden of proof in
this regard and has shown by a preponderance of the evidence
that he sustained a neck and back injury arising out of and
in the course of employment with employer.
Since claimant has suffered an injury, the next
question to be resolved is whether the injury has caused a
permanent disability. The claimant has the burden of
proving by a preponderance of the evidence that the injury
of May 1, 1989, is causally related to the disability on
which he now bases his claim. Bodish v. Fischer, Inc., 133
N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18
N.W.2d 607, 613-14 (Iowa 1945). A possibility is
insufficient; a probability is necessary. Burt v. John
Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa
1955). The question of causal connection is essentially
within the domain of expert testimony. Bradshaw v. Iowa
Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert
medical evidence must be considered with all other evidence
introduced bearing on the causal connection. Burt, 73
N.W.2d at 738. The opinion of the experts need not be
couched in definite, positive or unequivocal language.
Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
Moreover, the expert opinion may be accepted or rejected, in
whole or in part, by the trier of fact. Sondag, 220 N.W.2d
at 907. Finally, 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
material circumstances. Bodish, 133 N.W.2d at 870;
Musselman, 154 N.W.2d at 133. The supreme court has also
observed that greater deference is ordinarily accorded
expert testimony where the opinion necessarily rests on
medical expertise. Sondag, 220 N.W.2d at 907.
The medical evidence in this case supports the finding
that claimant has a back impairment as a result of a work
injury on May 1, 1989. X-rays on June 5, 1989, reveal
moderate narrowing of L5-S1 disc space. Subsequent
diagnostic testing reveal disrupted discs at L5-6 and L6-S1.
Claimant's treating orthopedic surgeon, Dr. Hinkley,
recommended surgical intervention after a regimen of
conservative therapy proved unsuccessful. Claimant has
worked sporadically since his injury and has not worked at
all since September 20, 1990. At the present time, claimant
is not medically capable of returning to his prior work or
substantially similar employment and he has not achieved
maximum medical recovery. Therefore, a finding of
permanency is premature.
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
Page 8
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).
Defendant shall pay claimant a running healing period
award commencing September 20, 1990, at the rate of $226.08
per week until the requirements of section 85.34(1) are met.
Claimant shall promptly undergo the appropriate
surgical procedure as outlined by Dr. Hinkley and agreed to
by claimant. The costs of such treatment shall be borne by
defendant under the terms of Iowa Code section 85.27.
The final issue to be determined is claimant'
entitlement to medical benefits under Iowa Code section
85.27.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27; Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
Claimant has the burden of proving that the fees charged for
such services are reasonable. Anderson v. High Rise
Construction Specialists, Inc., file number 850096 (Appeal
Decision July 31, 1990).
Claimant is not entitled to reimbursement for medical
bills unless claimant shows they were paid from claimant's
funds. See Caylor v. Employers Mut. Casualty Co., 337
N.W.2d 890 (Iowa Ct. App. 1983).
When a designated physician refers a patient to another
physician, that physician acts as the defendant employer's
agent. Permission for referral from defendant is not
necessary. Kittrell v. Allen Memorial Hospital,
Thirty-fourth Biennial Report of the Industrial Commissioner
164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
An employer's right to select the provider of medical
treatment to an injured worker should be diagnosed,
evaluated, treated or other matters of professional medical
judgement. Assman v. Blue Star Foods, Inc., file no. 866389
(declaratory Ruling, May 18, 1988).
Defendant has denied liability in this case. Claimant
pursued medical treatment in the nature of chiropractic
manipulations and conservative physical therapy. Such
treatment was not effective and did not improve claimant's
condition. He sought treatment and assessment from an
orthopedic surgeon who has recommended surgery. Defendant's
physician states, without explanation, that claimant's
Page 9
condition does not warrant surgery. In view of claimant's
medical history and his persistent symptomatology, the
undersigned agrees with his treating orthopedic surgeon that
surgery may be the most effective means of treatment.
Claimant's pursuit of medical care has not been
unreasonable. All treatment modalities are causally related
to his injury and, therefore, are compensable. Defendant is
responsible for payment of claimant's medical bills as
summarized in claimant's exhibit 10.
ORDER
THEREFORE, IT IS ORDERED:
That defendant pay to claimant healing period benefits
from September 20, 1990, until such time as claimant meets
the requirements found in Iowa Code section 85.34(1) for the
termination of healing period, at a rate of two hundred
twenty-six and 08/100 dollars ($226.08) per week.
That defendant pay to claimant medical expenses
incurred for treatment of his work-related injury as set out
in exhibit ten.
That defendant pay the costs of surgery as recommended
by Dr. Hinkley.
That defendant pay accrued weekly benefits in a lump
sum.
That defendant pay interest pursuant to Iowa Code
section 85.30.
That defendant pay all costs pursuant to rule 343 IAC
4.33.
That defendant file claim activity reports as required
by the agency pursuant to rule 343 IAC 3.1.
Signed and filed this ____ day of October, 1992.
______________________________
JEAN M. INGRASSIA
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Tito Trevino
Attorney at Law
PO Box 1680
Fort Dodge, Iowa 50501
Mr. John Comer
Attorney at Law
PO Box 515 Department 41
Dakota City, Nebraska 68731
Page 1
2800 51100 1802 2700
Filed October 26, 1992
Jean M. Ingrassia
before the iowa industrial commissioner
____________________________________________________________
:
TITO OLGUIN, :
:
Claimant, : File No. 974008
:
vs. :
: A R B I T R A T I O N
IBP, inc., :
: D E C I S I O N
Employer, :
Self-Insured, :
Defendant. :
___________________________________________________________
2800
Defendant asserts a notice defense under Iowa Code section
85.23. Defendant contends that claimant did not notify them
within 90 days of the alleged injury on May 1, 1989.
However, on the first report of injury, employer indicated
that they knew of claimant's condition in May 1989. Iowa
Code section 86.11 provides in pertinent part that:
The report to the industrial commissioner of
injury shall be without prejudice to the employer
or insurance carrier and shall not be admitted in
evidence or used in any trial or hearing before
any court, the industrial commissioner or a deputy
industrial commissioner except as to the notice
under section 85.23.
Defendant failed to prove by a preponderance of the evidence
that it lacked actual notice of claimant's injury.
51100
The greater weight of the uncontroverted medical evidence is
that claimant was asymptomatic as to neck and back pain
prior to May 1, 1989. Claimant's testimony regarding the
work incident on May 1, 1989, is credible. Defendant
produced no evidence to the contrary.
1802
Claimant entitled to a running healing period award
commencing September 20, 1990, the last time he was
employed, until the requirements of section 85.34(1) are
met.
2700
Defendant was orderd to pay for surgical treatment as
recommended by claimant's treating physician.
Page 2
Since defendant denied liability, they do not have the right
to choose the provider of care. Claimant's persuit of
medical care has not been unreasonable. All treatment
modalities are causally related to his injury and,
therefore, are compensible. Defendant is responsible for
payment of claimant's medical bills as summarized in his
exhibit 10.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAMES STANDFIELD,
Claimant, File No. 974012
vs. A P P E A L
THE DIAL CORPORATION, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
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
Defendant states the following issues on appeal:
I. Did the deputy err in admitting exhibits 31,32 and
33 into evidence?
II. Did the deputy err in determining claimant's disability
is causally connected to his injury of May 20, 1989?
III. Did the deputy err in awarding permanent partial
disability benefits equal to five percent of the body as a
whole?
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed November 30, 1993 are adopted as final agency
action.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed November 30, 1993 are adopted as set forth
below. Segments designated by asterisks (*****) indicate
portions of the language from the proposed agency decision
that have been intentionally deleted and do not form a part
of this final agency decision. Segments designated by
brackets ([ ]) indicate language that is in addition to the
language of the proposed agency decision.
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).
Page 2
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).
Expert testimony that condition could be causally
related to claimant's employment together with non-expert
testimony tending to show causation may be sufficient to
sustain an award but does not compel an award. Anderson v.
Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974).
*****
[Claimant bears the burden of proof to show that his
condition is causally connected to the work injury. In this
case, claimant has offered only medical evidence that a
co-worker who was working under the same conditions suffered
adverse results, and that the co-worker's condition was
found by his doctors to be causally connected to the work
exposure. That evidence deals with the co-worker only.
None of that evidence indicates that any of the doctors ever
examined claimant or offered an opinion in claimant's case.
In addition, even the medical evidence pertaining to the
co-worker is divided as to causal connection. Claimant has
offered no explanation why medical evidence pertaining to
his condition was not presented.
It is axiomatic that human bodies vary in their reactions to
outside factors, including exposure to Freon. Medical
evidence is unique to each claimant. Claimant has wholly
failed to offer evidence that his present loss of smell is
causally connected to his exposure to Freon. Claimant
cannot "piggyback" another claimant's medical evidence to
satisfy his own burden of proof.
This is not to say that the evidence of a co-worker's
diagnosis and other medical evidence was irrelevant to
claimant's case. Such evidence might well be relevant as
corroborative of claimant's other evidence pertaining to his
condition. But, standing alone and in the absence of any
evidence whatsoever on the relationship between claimant's
condition and his work exposure, it must be concluded that
claimant has failed to carry his burden of proof.]
WHEREFORE, the decision of the deputy is reversed.
ORDER
THEREFORE, it is ordered:
That claimant shall take nothing from these proceedings.
Signed and filed this ____ day of April, 1994.
Page 3
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. James P. Hoffman
Attorney at Law
Middle Road
P.O. Box 1087
Keokuk, Iowa 52632
Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Bldg.
111 East Third St.
Davenport, Iowa 52801-1596
2602
Filed April 29, 1994
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAMES STANDFIELD,
Claimant, File No. 974012
vs. A P P E A L
THE DIAL CORPORATION, D E C I S I O N
Employer,
Self-Insured,
Defendant.
____________________________________________________________
2602
Claimant who suffered from exposure to freon did not offer
any medical evidence causally connecting his condition to
the work exposure. Rather, claimant relied wholly on
medical evidence pertaining to a co-worker who suffered the
same exposure. Held that although such evidence might be
relevant to corroborate medical evidence pertaining to
claimant, it did not satisfy claimant's burden of proof
standing alone and in the complete absence of medical
evidence relating to claimant.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAMES STANDFIELD,
Claimant,
vs.
File No. 974012
THE DIAL CORPORATION,
A R B I T R A T I O N
Employer,
Self-Insured D E C I S I O N
Defendant.
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the
claimant, James Standfield, against his self-insured
employer, The Dial Corporation, to recover benefits under
the Iowa Workers' Compensation Act, as a result of an injury
sustained on May 20, 1989. This matter came on for hearing
before the undersigned deputy industrial commissioner in
Burlington, Iowa, on October 25, 1993. A first report of
injury has been filed. The record consists of the testimony
of claimant, of claimant's exhibits 1 through 22, 26 through
29, 30 through 33 as well as defendant's exhibit E.
Defendant's objections to exhibits 31, 32, and 33 are
expressly overruled. While those exhibits do relate to an
individual other than claimant, the exhibits are relevant to
the issues the parties present here.
ISSUES
Pursuant to the hearing report and the oral
stipulations of the parties at hearing, the parties have
agreed to the following:
1. An employer-employer relationship existed between
claimant and the defendant on May 20, 1989;
2. Claimant did receive an injury arising out of and
in the course of his employment on May 20, 1989; and
3. Claimant had gross weekly earnings of $580 and was
single and entitled to two exemptions on May 20, 1989
resulting in a weekly rate of $335.64.
Issues remaining to be decided are:
1. Whether a causal relationship exists between
claimant's injury and claimed disability;
2. The nature and extent of any disability
entitlement; and
3. Whether claimant is entitled to alternate medical
care pursuant to section 85.27.
Page 2
FINDINGS OF FACT
The deputy, having heard the testimony and considered
the evidence, finds:
Claimant is a 48-year-old gentleman who is certified in
refrigeration. He has had several years of college and has
also taken community college courses and on-the-job training
with the employer in Freon use. Claimant continues to work
for the employer. He does not now work in any Freon
exposure areas.
In May 1989, claimant and several other employees
including Timothy Leazer were attempting to resolve a
problem with the plant's Freon based cold area cooling
system. Claimant reported that the Freon in the atmosphere
was so high that it was not measurable on the Freon
monitors. He indicated that throughout approximately a
three week period he worked up to 21 hours per day in this
setting. Claimant reported that he lost his senses of taste
and smell after this exposure. Claimant also reports that
he now loses his wind in stressful work situations and,
therefore, has to slow down.
Claimant has not lost time on account of the May 20,
1989 injury. The employer has moved claimant into the
warehouse where he is not exposed to Freon, asbestos, or
gases on a regular basis. Claimant's number of work hours
per day and number of work days per week now are the same as
his hours and days before the injury. Claimant was earning
between $8 and $9 per hour on May 20, 1989. Claimant earns
$14.83 per hour now. Claimant stated that Dial is likely to
switch to an ammonia based air-conditioning system in 1995,
given that federal [environmental] regulations will prohibit
use of Freon systems after that date. Claimant stated he
could not work with an ammonia based system given his
inability to smell, in that undetected ammonia exposure can
be fatal.
J. Kannenberg, M.D., a family physician and the company
physician, has seen claimant. Claimant acknowledged that
Dr. Kannenberg has not referred claimant to a specialist.
Claimant did state that Dr. Kannenberg has indicated he can
do no more for claimant, however.
Claimant expressed his belief that employer supervisory
personnel had assured him that Mr. Leazer would be evaluated
at University of Iowa Hospitals and Clinics and were Mr.
Leazer to have positive results from that experience,
claimant would be referred to the Hospitals and Clinics for
an examination.
Freon health hazard information contained in the
Material Safety Data Sheets in the record do not list loss
of the senses of taste and smell as potential hazards of
Freon exposure.
Claimant had a chest x-ray on June 20, 1989. The x-ray
showed shallow inspiration and thickened pleura or subpleura
fatty deposits along both chest walls but was otherwise
Page 3
negative.
A medical record of Rodrigo O. Kuljis, M.D., of the
University of Iowa Department of Neurology, regarding
Timothy Leazer and dated September 7, 1989, noted that Mr.
Leazer had anosmia and dysgeusia. Taber's Encyclopedic
Medical Dictionary defines these as the absence of the sense
of smell and the perversion or impairment of the sense of
taste, respectively. Dr. Kuljis stated that Mr. Leazer's
symptoms were of obscure cause and that the evidence was
insufficient to either rule out or rule in Freon as an agent
in their etiology.
On October 5, 1989, Jeff Kaplan, M.D., of The
University of Iowa Department of Neurology, reported that on
Otolaryngology referral, the impression was that Mr. Leazer
had true anosmia, most likely secondary to Freon-12
exposure.
David Tsen, M.D., was a second year resident in The
University of Iowa Department of Otolaryngology when deposed
in the matter of "Timothy Leazer v. Dial Corporation" on May
15, 1990. Dr. Tsen opined that Mr. Leazer's anosmia was
permanent and that given Mr. Leazer's history and the ruling
out of other causes, his Freon-12 exposure likely produced
his anosmia. Dr. Tsen admitted that at the time of his
deposition he had personally seen less than ten patients
with total losses of smell.
CONCLUSIONS OF LAW
We first consider the issue of causation.
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).
Expert testimony that condition could be causally
related to claimant's employment together with non-expert
testimony tending to show causation may be sufficient to
Page 4
sustain an award but does not compel an award. Anderson v.
Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974).
This case presents a unique situation in that the only
expert medical evidence bearing on the question of causation
does not relate expressly to claimant but instead to a
co-worker of claimant. The record overall demonstrates that
the co-worker was subject to the same stresses and the same
Freon exposure as claimant, however. The record does not
reflect any factors relative to the co-worker's overall
physical condition or relative to claimant's overall
physical condition which would suggest that different
etiologies as to each individual's impaired sense of taste
and loss of sense of smell are likely. Given that, the
opinions as to causation or lack of causation as regards
claimant's co-worker can be relied upon in assessing the
causation issue relative to claimant. The University of
Iowa Department of Neurology experts believe the evidence
was insufficient to either rule in or rule out Freon as the
cause of the co-worker's problems. The University of Iowa
Department of Otolaryngology felt that on the basis of the
co-worker's history, the Freon-12 exposure was the probable
cause of the individual's loss of his sense of smell. The
record demonstrates that following the period of Freon
exposure claimant and at least another co-worker of Mr.
Leazer's had similar symptoms. The opinion expressed by the
department of otolaryngology and the lay evidence are
sufficient to establish a probable causal relationship
between the symptoms Mr. Leazer, claimant and another
co-worker manifested and the Freon exposure. Claimant,
therefore, prevails as regard the causation issue.
We consider the nature and extent of benefit
entitlement issue.
Claimant acknowledges that claimant has lost no work
time on account of his injury. Hence, claimant is not
entitled to any award of healing period or temporary total
disability. The question then is whether claimant is
entitled to any permanent disability. Claimant's Iowa City
physicians opine that claimant's co-worker's loss of his
sense of smell is likely permanent. The evidence presented
suggests that this is the case for claimant as well. Any
permanent disability must be evaluated under section
85.34(2)(u) in that neither the loss of the sense of smell
nor the impairment of the sense of taste are included as
scheduled member disabilities.
Since claimant has an impairment to the body as a
whole, an industrial disability has been sustained.
Industrial disability was defined in Diederich v. Tri-City
Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It
is therefore plain that the legislature intended the term
`disability' to mean `industrial disability' or loss of
earning capacity and not a mere `functional disability' to
be computed in the terms of percentages of the total
physical and mental ability of a normal man."
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
Page 5
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications,
experience, motivation, loss of earnings, severity and situs
of the injury, work restrictions, inability to engage in
employment for which the employee is fitted and the
employer's offer of work or failure to so offer. Olson v.
Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963);
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980);
Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660
(1961).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Claimant's age, education, qualifications, experience,
current earnings and secure employment with his long-term
employer all mitigate against a substantial industrial
disability award. Nevertheless, claimant's loss of his
sense of smell precludes claimant working in areas where for
reasons of health or safety, perception and recognition of
possible emissions through one's sense of smell would be
necessary. That inability to seek employment for which he
would otherwise be suited on account of his work-related
loss of sense of smell results in a current loss of job
mobility for claimant. Current loss of job mobility is a
factor that may be assessed in considering industrial
disability. At present, this does not represent a serious
detriment to claimant, however, in that the employer has
offered claimant work that does not require an ability to
smell potentially hazardous materials. In balance, claimant
has demonstrated a 5 percent industrial disability on
account of his work injury.
Claimant seeks further medical care as regards his
condition.
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).
On this record, claimant has not established that
further care is either reasonable or necessary. The
University of Iowa medical records indicate that claimant's
co-worker's loss of smell is permanent and not amenable to
treatment. In that claimant's condition has been found to
have the same source and origin in a work-related Freon
exposure, of necessity, claimant's condition as well is
likely permanent and not amenable to further treatment.
Given that, further care and evaluation as regards the
treatment cannot be considered reasonable and necessary care
Page 6
which defendants are obligated to provide.
ORDER
THEREFORE, IT IS ORDERED:
Defendant pay claimant permanent partial disability
benefits for twenty-five (25) weeks at the rate of three
hundred thirty-five and 64/100 dollars ($335.64) with those
benefits to commence on May 20, 1989.
Defendant pay accrued amounts in a lump sum.
Defendant pay interest pursuant to section 85.30 as
amended.
Defendant pay costs pursuant to rule 343 IAC 4.33.
Defendant file claim activity reports as the agency
orders.
Signed and filed this ____ day of November, 1993.
______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. James P. Hoffman
Attorney at Law
P.O. Box 1087
Keokuk, IA 52632
Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Bldg.
111 East Third Street
Davenport, IA 52801-1596
1402.40, 1803
Filed November 30, 1993
Helenjean M. Walleser
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
JAMES STANDFIELD,
Claimant,
vs.
File No. 974012
THE DIAL CORPORATION,
A R B I T R A T I O N
Employer,
Self-Insured D E C I S I O N
Defendant.
__________________________________________________________
1402.40
In unique fact situation, medical records relative to
claimant's co-worker and not to claimant were found
sufficient together with supporting lay testimony establish
that claimant's loss of his sense of smell and impairment of
his sense of taste resulted from Freon exposure in the
course of his employment. Claimant and several co-workers
were all exposed to the Freon simultaneously. The employer
chose to send only one of the workers for examination and
evaluation. All the workers described similar symptoms.
For that reason, the medical records as regards the only
worker sent for examination and evaluation were considered
with the evidence of similar exposure and the lack of
evidence of unique situations as regards the co-worker and
claimant which might have impacted on causation, such that
evidence in total was sufficient to establish causation in
claimant's case.
1803
Claimant who was certified in refrigeration and whom
the employer had accommodated awarded 5 percent permanent
partial industrial disability where claimant's loss of sense
of smell precluded claimant from working in environments
where he would need to distinguish potentially life
threating odors.