974073

before the iowa industrial commissioner
_________________________________________________________________
:
BEVERLY R. RANSOM, :
:
Claimant, :
:
vs. :
: File No. 974073
HARDEE'S, DENISON, IOWA, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
AMERICAN FAMILY INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
_________________________________________________________________
The record, including the transcript of the hearing before the
deputy and all exhibits admitted into the record, has been
reviewed de novo on appeal. The decision of the deputy filed
July 8, 1992 is affirmed and is adopted as the final agency
action in this case.
Claimant shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of December, 1992.

________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Copies To:

Mr. Harry H. Smith
Attorney at Law
P.O. Box 1194
Sioux City, Iowa 51102

Mr. Jeffrey A. Sar
Attorney at Law
P.O. Box 717
Sioux City, Iowa 51102

9998
Filed December 21, 1992
BYRON K. ORTON
DRR
before the iowa industrial commissioner
____________________________________________________________
_____
:
BEVERLY R. RANSOM, :
:
Claimant, :
:
vs. :
: File No. 974073
HARDEE'S, DENISON, IOWA, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
AMERICAN FAMILY INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
_____

9998

Summary affirmance of deputy's decision filed July 8,
1992.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BEVERLY R. RANSOM, :
:
Claimant, :
:
vs. : File No. 974073
:
HARDEE'S, DENISON, IOWA, : A R B I T R A T I O N
:
Employer, : D E C I S I O N
:
and :
:
AMERICAN FAMILY INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________

STATEMENT OF THE CASE

Claimant Beverly Ransom seeks benefits under the Iowa
Workers' Compensation Act upon a petition in arbitration
against employer Hardee's, Denison, Iowa, and its insurance
carrier, American Family Insurance Company. She alleges a
cumulative trauma injury to the hand, arm and shoulder of
April 3, 1989.

This cause came on for hearing in Sioux City, Iowa, on
April 29, 1992. The record consists of joint exhibits 1
through 31 and the testimony of claimant, Steve Ransom,
Sharon Lapel and Kimberly Kohlm.

ISSUES

The parties have stipulated to the existence of an
employment relationship on or about April 3, 1989; to
healing period or temporary total disability entitlement (if
liability is established) from May 31 through July 12, 1989;
to the rate of compensation; and, that certain benefits were
voluntarily paid prior to hearing.

Issues presented for resolution include:

1. Whether claimant sustained an injury arising out of
and in the course of her employment on April 3, 1989;

2. The nature and extent of permanent disability, if
any;

3. The extent of entitlement to medical benefits;

4. Whether the claim is barred as untimely under Iowa
Code section 85.26; and,

Page 2

5. Whether the claim is barred for failure to give
timely notice under Iowa Code section 85.23.

Defendants stipulated that the providers of medical
services would testify, in the absence of contrary evidence,
that fees were reasonable and provided for reasonable and
necessary treatment, but dispute whether those expenses are
causally connected to the work injury or whether they were
authorized. The authorization defense was ruled invalid at
hearing because defendants denied that claimant sustained an
injury arising out of and in the course of employment, both
in their answer and at the time of prehearing conference.
By doing so, they forfeit the right to control the care.
Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner
Report 16 (1981).

FINDINGS OF FACT

The undersigned deputy industrial commissioner finds:

Beverly Ransom, 39 year of age at hearing, is a
right-hand dominant female who left school in the eleventh
grade. Her only further education consists of on-the-job
instruction as a nurse's aide.

Beginning at age 18, claimant worked for less than a
year bagging hamburger in a packing house, then for about
one year as a waitress, and followed this with approximately
one year's employment as a nurse's aide in a residential
facility. Claimant was then out of the labor market for
approximately eight years before accepting work with
defendant Hardee's in December 1983. Defendant is a fast
food restaurant, part of a well-known national chain.

Prior to accepting work with Hardee's, claimant says
she experienced no health problems, particularly to the
right upper extremity. She started as a cashier, but has
also made salads, cooked, made biscuits, acted as a crew
leader, and became a supervisor in approximately 1987. She
was promoted to assistant manager in August 1990 and was so
employed on the date of hearing.

Claimant's recollection as to her history of right
upper extremity problems has been shown to be unreliable.
She has given multiple and conflicting histories to
different doctors and in her testimony by deposition (on
March 5, 1992) and at hearing. She agrees, as well she
should, that contemporaneous medical records are more
reliable.

Claimant was treated by a chiropractor, Ronald Dreyer,
D.C., beginning at least in 1978. An undated health
history, which is assumed to have been taken at the first
visit, notes pain between the shoulder blades, neck and
shoulders for eight years with nightly throbbing pain
between the shoulders. Although Dr. Dreyer's notes are
largely illegible to this eye, treatment specifically to the

Page 3

right shoulder was begun as early as September 5, 1978.

Dr. Dreyer's notes of March 18, 1988, to the extent
legible, show complaints of right shoulder and arm pain
following the unloading of a truck, with loss of sensation
"RUT" (possibly right upper thorax?) to the right shoulder.
Another notation, unreadable here, is referred to as
approximately six months. On March 19, chart notes reflect
improvement, but complaints of right arm numbness appear on
March 29. Additional illegible chart notes appear on April
27, April 29, May 2, May 6, May 25 and August 26, 1988. Dr.
Dreyer billed for services in March, April and May of that
year, and diagnosed a strain of the right upper trapezius
with attending cervicothoracic segmental dysfunction. In
his report of April 22, 1988, Dr. Dreyer reported that he
believed the injury would not result in permanent
impairment. His billings were apparently paid as a workers'
compensation injury by defendant Hardee's, which filed a
first report of injury reflecting a shoulder injury of March
18. Claimant did not miss any time from work.

According to claimant, her right shoulder pain cleared
up after the 1988 incident. However, it is clear that
claimant did not soon find relief from her symptoms. Chart
notes of Dr. John Sinnott dated July 13, 1988, show
complaints of right shoulder pain with the onset "two months
ago" when claimant was lifting and unloading a truck for
Hardee's (no doubt the March 18 incident). The notes
continue:

Since then her right arm tingles and is numbish.
She has seen a physician, had some ultrasound
without success. Her pain is keeping her up at
night, difficulty sleeping, cannot lie down. Has
been sleeping in a chair. She had tenderness with
some soreness in the palm of her right hand.

Dr. Sinnott, apparently a doctor of osteopathic,
further noted a rib lesion and treated claimant with "OMT"
(probably, osteopathic manipulative therapy). On July 19,
Dr. Sinnott reported that the right arm and neck had
improved dramatically after treatment, but that symptoms
recurred on July 18.

Dr. Sinnott saw claimant again on March 13, 1989, with
complaints of numbness and tingling in the right hand.
Claimant reported that she pounded a lot of frozen foods at
Christmas time (claimant professed not to know where this
history came from) which seemed to aggravate her hand. She
also complained of upper rib discomfort and upper shoulder
and neck discomfort. Claimant was treated with manipulation
and seen again on March 28 with pain about the right hand
and arm. At this point, Dr. Sinnott made a referral to
Thorir S. Ragnarsson, M.D. Dr. Ragnarsson's chart notes of
April 10, 1989, show that claimant presented with a
nine-month history of right arm pain and numbness which she
related to an injury at work. True to pattern, Dr.
Ragnarsson found claimant "not very specific" about her

Page 4

injury, although reporting that she believed she had injured
her hand using a cutter at work in June of 1988, noting also
that claimant had been treated with chiropractic treatments.
This is an apparent reference to Dr. Dreyer's treatment
following the March 1988 incident. However, the reference
to a "cutter" seems to relate to the "pounding ice" incident
at Christmas time, 1988. Dr. Ragnarsson thought claimant
might have a rotator cuff tendonitis, with possibly a
cervical radiculopathy superimposed. When he saw claimant
again in 1990, he suggested EMG testing to sort this out,
but it proved normal (apparently, an earlier EMG on May 3,
1989, was ambiguous, although no direct interpretation
appears of record).

Right hand and arm numbness continued to be troublesome
and were treated surgically by Quentin J. Durward, M.D., on
May 31, 1989: a right carpal tunnel release. On July 12,
1989, Dr. Durward reported that claimant had developed a
"terrible pain" in the right arm when cleaning her oven two
days before. He thereupon rated claimant as having
sustained a ten percent impairment of the right upper
extremity, apparently referring to the carpal tunnel
release.

Claimant underwent physical therapy in January 1990.
Chart notes of January 16 reflect complaints that the
shoulder "catches" and reported the existence of palpable
crepitus. On January 23, claimant reported the "clunking"
in her shoulder occurred less often. These notes are more
consistent with a musculoskeletal problem than a
neurological problem.

On February 19, 1990, claimant was seen by Kevin
Liudahl, M.D. Dr. Liudahl was given a history of shoulder
pain developing four months post-surgery. His impression
was of right shoulder subacromial bursitis with impingement,
some symptoms questionable as to radicular type pain. As of
March 12, after claimant was treated with injection, the
problem had nearly resolved.

Claimant was seen for evaluation by Anil K. Agarwal,
M.D., on August 30, 1990. Dr. Agarwal also understood that
claimant injured her right upper extremity while using a
cutter at work in June 1988, although no such incident at
that time appears of record. He diagnosed tendonitis of the
right shoulder, minimal cervical strain and post-carpal
tunnel syndrome. He believed all care was directly related
to the workers' compensation claim, apparently referring to
the incident in June 1988, whatever that might be. He rated
claimant as having sustained a two and one-half permanent
"disability and loss of physical function" of the right hand
and five percent permanent "disability and loss of physical
function" to the right upper extremity relating to shoulder
tendonitis.

Claimant was also seen for evaluation by Pat Luse,
D.C., a chiropractor, on February 3, 1992. Claimant gave
Dr. Luse a history of being involved in a work-related

Page 5

accident cutting shrimp on April 3, 1989, resulting in pain
in the wrist, arm and shoulder.

This incident has a curious and inconsistent history as
shown by the evidence. Claimant requested that a first
report of injury be filled out by defendant on April 3,
1989. She made no mention of any specific, traumatic
incident cutting frozen shrimp product (surimi), but advised
Sharon Lapel that the injury was cumulative in nature.
Lapel credibly testified that claimant made no mention of
shoulder problems, complaining of a repetitive injury to the
right wrist only (and, contrary to claimant's testimony,
said that no earlier report had been made). On April 10, it
will be recalled that claimant told Dr. Ragnarsson that she
had been symptomatic for nine months, having injured her
hand using a cutter at work in June 1988. In a statement to
an anonymous representative of defendant American Family
Insurance Company taken June 19, 1989, claimant stated that,
"Not one certain thing that triggered it." No mention of a
cutting incident was made.

In her deposition testimony on March 5, 1992, claimant
clearly specified that the April 3, 1989, injury occurred
while she was cutting through frozen surimi with a knife.
But, in her trial testimony on April 29, she claimed an
onset of symptoms in early 1989, approximately one month
before the first report of injury. She further indicated
that she had made excessive use of the right arm in late
1988 while unloading trucks, washing ceilings and walls,
mopping, making salads and lifting heavy cookers. In her
deposition testimony, claimant denied hurting anything but
the hand (although also, and falsely, claiming that she had
never had shoulder problems prior to April 3, 1989).

It appears, based on the medical records, that the
cutting incident actually occurred around Christmas 1988 as
reported by Dr. Sinnott.

Dr. Luse indicated in his report that he had read the
other histories, but did not discuss the sequence of events
and reported complaints. He found that claimant had
impairment to the right wrist (ten percent of the upper
extremity) and to the right shoulder (12 percent of the
upper extremity) and concluded that claimant's condition was
causally related to the "type of accident that this patient
had described" and repetitive motion work. This reference
is apparently to the surimi cutting incident as the
"accident described."

CONCLUSIONS OF LAW

The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course

Page 6

of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).

She also has the burden of proving by a preponderance
of the evidence that the injury is a proximate cause of the
disability on which the claim is based. A cause is
proximate if it is a substantial factor in bringing about
the result; it need not be the only cause. A preponderance
of the evidence exists when the causal connection is
probable rather than merely possible. Blacksmith v.
All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v.
Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).

The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).

A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries
treatments and continued to complain to Dr. Sinnott some
four months later, when she still had a tingling and numb
right arm and pain such as to keep her up at night sleeping
in a chair. The fact that medical bills were accrued (and
paid) shows that this injury was a compensable event.

But, defendants assert the defense of limitations under
Iowa Code section 85.26(1). The statute provides:

An original proceeding for benefits under this
chapter or chapter 85A, 85B, or 86, shall not be
maintained in any contested case unless the
proceeding is commenced within two years from the
date of the occurrence of the injury for which
benefits are claimed or, if weekly compensation
benefits are paid under section 86.13, within
three years from the date of the last payment of
weekly compensation benefits.

No weekly benefits have been paid with respect to this
injury. More than two years elapsed between the date of
injury (March 18, 1988) and the date claimant filed her
petition: February 26, 1991. Claimant cannot assert that
she only recently "discovered" this injury within the
meaning of the "discovery rule." The two-year statute of
limitations starts running when claimant should know that
her injury is both serious and work connected. Orr v. Lewis
Cent. School Dist., 298 N.W.2d 256 (Iowa 1980). A
reasonable person standard is to be applied, taking into
account the intelligence and education of the worker.
Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980).
As of July, claimant had suffered four months of pain and
numbness and had required substantial medical attention from
two separate practitioners. By that time, she should have
known that her injury was both serious and work connected.
Thus, the affirmative defense of limitations bars relief
with respect to the shoulder injury.

A different result obtains with respect to claimant's
wrist injury. Although there may have been an exacerbation
during the surimi cutting incident at Christmas time 1988,
it seems clear that the development of these symptoms was
gradual in nature. In this case, the injury date occurred
when, due to pain or physical inability, claimant was no
longer able to work. McKeever Custom Cabinets v. Smith, 379
N.W.2d 368 (Iowa 1985). This occurred when claimant
underwent her carpal tunnel release on May 31, 1989. The
parties have stipulated to the extent of healing period and
agree that if claimant sustained an injury arising out of
and in the course of employment, it caused both temporary
and permanent disability. Drs. Luse and Durward (the

Page 8

treating surgeon) agree that the extent of impairment is
equivalent to ten percent of the upper extremity. Under
Iowa Code section 85.34(2)(m), the arm is compensated during
250 weeks. Accordingly, claimant shall be awarded 25 weeks
of permanent partial disability benefits.

Claimant also seeks an award of medical benefits with
respect to her treatment at the hands of Steven G. Oatman,
D.C. The record shows that the treatment is chiropractic
manipulation and relates to the shoulder. As noted, the
shoulder injury is not compensable in this proceeding due to
the bar of limitations.

The parties stipulated to a compensation rate of
$129.40. Based upon claimant's gross weekly earnings
($179.00), marital status (married) and five exemptions, the
proper rate is actually $129.43.

ORDER

THEREFORE, IT IS ORDERED:

Defendants shall pay unto claimant six point one four
three (6.143) weeks of healing period benefits at the rate
of one hundred twenty-nine and 43/100 dollars ($129.43) per
week commencing May 31, 1989.

Defendants shall pay unto claimant twenty-five (25)
weeks of permanent partial disability benefits at the rate
of one hundred twenty-nine and 43/100 dollars ($129.43) per
week commencing July 13, 1989.

Defendants shall have credit for all benefits
voluntarily paid.

As all benefits have accrued, they shall be paid in a
lump sum together with statutory interest pursuant to Iowa
Code section 85.30.

Costs are assessed to defendants pursuant to rule 343
IAC 4.33.

Defendants shall file a claim activity report upon
compliance with this decision pursuant to rule 343 IAC 3.1.

Signed and filed this ______ day of ____________, 1992.

______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER

Page 9

Copies To:

Mr. Harry H. Smith
Attorney at Law
P.O. Box 1194
Sioux City, Iowa 51102

Mr. Jeffrey A. Sar
Attorney at Law
750 Pierce Street
P.O. Box 717
Sioux City, Iowa 51102

1803; 2402
Filed July 8, 1992
DAVID RASEY

1803; 2402
Claimant alleged multiple injuries on same date: shoulder
and carpal tunnel syndrome. However, the shoulder injury
had occurred over one year earlier and was barred by
limitations. The scheduled injury was compensated.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

LAURA SOUDER,

Claimant,

vs.
File No. 974074
NATIONAL COMPUTER SYSTEMS, INC.,
A P P E A L
Employer,
D E C I S I O N
and

THE ST. PAUL FIRE AND MARINE
INSURANCE COMPANY,

Insurance Carrier,
Defendants.
____________________________________________________________

The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed April 15, 1993 is affirmed and is adopted as the final
agency action in this case with the following additional
analysis:
The deputy's extension of the discovery deadline did not
prejudice defendants. The extension was very limited in its
terms, and applied equally to both parties. The thrust of
defendants' objection is that the extension allowed claimant
to utilize a new attorney more effectively. The extension
was properly granted.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.

Signed and filed this ____ day of January, 1994.

________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Page 2

Copies To:

Mr. Paul J. McAndrew, Jr.
Attorney at Law
122 South Linn Street
Iowa City, Iowa 52240

Mr. Douglas Tindal
Attorney at Law
225 West Main
Washington, Iowa 52353

Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport, Iowa 52801

5-1803
Filed January 25, 1994
BYRON K. ORTON

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

LAURA SOUDER,

Claimant,

vs.
File No. 974074
NATIONAL COMPUTER SYSTEMS, INC.,
A P P E A L
Employer,
D E C I S I O N
and

THE ST. PAUL FIRE AND MARINE
INSURANCE COMPANY,

Insurance Carrier,
Defendants.
____________________________________________________________

5-1803 - Non-precedential, extent of disability case.

Page 1

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LAURA SOUDER, :
:
Claimant, :
:
vs. :
: File No. 974074
NATIONAL COMPUTER SYSTEMS, INC.,:
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
THE ST. PAUL FIRE AND MARINE :
INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration brought by Laura
Souder, claimant, against National Computer Systems,
employer, hereinafter referred to as NCS, and St. Paul Fire
and Marine Insurance Company, insurance carrier, defendants,
for workers' compensation benefits as a result of an alleged
injury on May 7, 1990. On March 9, 1993, a hearing was held
on claimant's petition and the matter was considered fully
submitted at the close of this hearing.

The parties have submitted a hearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.

According to the hearing report, the parties have stip
ulated to the following matters:

1. An employee-employer relationship existed between
claimant and NCS at the time of the alleged injury.

2. Claimant is seeking temporary total or healing
period benefits from May 5, 1990 thru May 13, 1990 and from
May 15, 1990 through September 16, 1990 and defendants agree
that she was not working through July 5, 1990.

3. If the injury is found to have caused permanent
disability, the type of disability is an industrial disabil
ity to the body as a whole.

4. At the time of injury claimant's gross rate of
weekly compensation was $216.00 and she was single.

5. It was stipulated that the medical bills submitted

Page 2

by claimant at the hearing are fair and reasonable and
causally connected to the medical condition upon which the
claim herein is based but that the issue of their causal
connection to any work injury remains an issue to be decided
herein.

ISSUES

The parties submitted the following issues for determi
nation in this proceeding:

I. Whether claimant received an injury arising out of
and in the course of employment;

II. The extent of claimant's entitlement to disability
benefits, including rate of weekly compensation; and,

III. The extent of claimant's entitlement to medical
benefits.

FINDINGS OF FACT

Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:

A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during
cross-examination as to the nature and extent of the injury
and disability. From her demeanor while testifying,
claimant is found credible.

Claimant worked for NCS from April 23, 1990 until May
3, 1990 as a data entry operator, at which time she left
work to receive treatment for hand complaints. Claimant
returned briefly on May 14, 1990 but again left work due to
pain. After May 14, 1990, she never returned to employment
with NCS. On August 16, 1990, claimant was terminated by
NCS. Claimant's duties at NCS consisted of entering data
into a computer using a keyboard. This involved continuous
and repetitive use of both hands.

On or about May 14, 1990, claimant injured both of her
hands and arms over substantially the same time period dur
ing her employment with NCS. The injury consisted of carpal
tunnel syndrome and ulnar nerve compressions which affected
the right extremity more than the left. This finding is
based upon the diagnoses of the two primary treating physi
cians, Richard Neiman, M.D., and Marc Hines, M.D., both of
whom are board certified neurologists. Also, both of these
neurologists causally connect these conditions to claimant's
work at NCS.

Defendants denied liability for the condition due to
the short span of time she worked for NCS and the fact that
she performed keyboard computer data entry work for a couple
of months prior to and after NCS employment. Also, there
was a claim she extensively used her hands in volunteer work
for a religious institution called "Shilo." However,
claimant credibly testified that she had no symptoms prior

Page 3

to NCS employment or after any other activity before her
first symptoms in May 1990. She credibly denied extensive
use of her hands at Shilo which was supported by credible
testimony of Shilo management at hearing. The medical
records support the claim of lack of prior symptoms. The
view that prior or subsequent activity was a significant
causative factor was rejected by the two treating
physicians.

The injury date for this cumulative trauma injury was
chosen because it was the date of the fist manifestation of
the disability or the date claimant was finally compelled by
her symptoms to leave NCS employment permanently.

Claimant was initially treated by Dr. Neiman but this
care was changed to Dr. Hines after Neiman expressed dissat
isfaction with defendant insurance carrier's denial of
responsibility for the injury. Hines later supported the
prior treatment and views of Dr. Neiman. Dr. Hines released
claimant from his care and back to work on September 17,
1990. Consequently, claimant is found to have reached maxi
mum healing on September 16, 1990. She was not working
until after September 16, 1990.

The work injury of May 14, 1990 is found to be a cause
of an 18 percent permanent impairment to the body as a
whole. Dr. Hines' views as to the extent of permanent
impairment was used to arrive at this finding. He was the
only treating physician to rate claimant's impairment.
Using the AMA guidelines, Dr. Hines opined that claimant
suffered a 15.5 percent permanent partial impairment to each
extremity from the injury. He stated that this could be
converted to a single body as a whole rating under the
guidelines but he did not do so. Using agency expertise and
the revised third edition of the AMA guidelines readily
available to the undersigned and specifically Table 3 on
page 6, a 15.5 percent extremity impairment converts to a
9.5 percent rating to the body as a whole. Using the com
bined value chart on page 246 of the revised third edition
to the guidelines, and interpolating to account for the
fractions, two 9.5 percent ratings converted to a total of
18 percent combined body as a whole rating.

It is also found that claimant is not permanently and
totally disabled as she now is working full time as an
advertising salesman for a magazine and according to her
superiors, this employment is suitable and satisfactory for
her.

For purposes of rate determination, it is found that at
the time of injury claimant was entitled to three exemptions
for tax purposes as she was eligible to take all of her
children as exemptions pursuant to agreement with her
ex-husband upon default in child support.

CONCLUSIONS OF LAW

I. Claimant has the burden of proving by a prepon
derance of the evidence that claimant received an injury
arising out of and in the course of employment. The words

Page 4

"out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time and place and
circumstances of the injury. See generally, Cedar Rapids
Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v.
DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63
(1955). An employer takes an employee subject to any
active or dormant health impairments. A work connected
injury which more than slightly aggravates the condition is
considered to be a personal injury. Ziegler v. U.S. Gypsum,
252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited
therein.

It is not necessary that claimant prove his disability
results from a sudden unexpected traumatic event. It is
sufficient to show that the disability developed gradually
or progressively from work activity over a period of time.
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985). The McKeever Court also held that the date of injury
in gradual injury cases is the time when pain prevents the
employee from continuing to work. In McKeever the injury
date coincided with the time claimant was finally compelled
to give up his job. This date was then used by the Court to
determine rate and the timeliness of claimant's claim under
Iowa Code section 85.26 and notice under Iowa Code section
85.23.

In the case sub judice, like in McKeever, the date when
claimant was finally compelled to leave work was chosen as
the injury date.

II. It was found that this was a loss to both extrem
ities at the same time. It was also found that claimant was
less than totally disabled from the injury. Section
85.34(2)(s) of the Iowa Code states as follows:
The loss of both arms, or both hands, or both feet, or both
legs, or both eyes, or any two thereof, caused by a single
accident, shall equal five hundred weeks and shall be
compensated as such, however, if said employee is
permanently and totally disabled the employee may be
entitled to benefits under subsection 3.

The Iowa Supreme Court concluded in reference to a 1974
amendment to the above subsection that the plain and unam
biguous language in the amendment of paragraph (s) which set
out a definite schedule of benefits shows a clear intent by
the legislature to make the loss of two specified members a
scheduled loss. A partial loss under paragraph (s) must be
determined by evidence of the functional loss rather than
the industrial loss. Simbro v. DeLong's Sportswear, 332
N.W.2d 886 (1983). Under Simbro the scheduled loss is
determined by converting each scheduled loss to a single
body as a whole and then make an award as a percentage of
500 weeks. As the conversation process required under
Simbro was not done by any physician in this case, agency
expertise recognized by Iowa Code section 17A.14(5) and
resort to actual examination of the AMA Guides was necessary
to make the combined body as a whole finding so an award
could be rendered.

In the case sub judice, it was found that claimant suf

Page 5

fered an 18 percent body as a whole loss as a result of the
work injury. Such a finding entitles claimant to 90 weeks
of permanent partial disability benefits as a matter of law
under Iowa Code section 85.34(2)(s) which is 18 percent of
500 weeks, the maximum allowable number of weeks for a par
tial loss injury in that subsection.

Claimant's entitlement to permanent partial disability
also entitles her to weekly benefits for healing period
under Iowa Code section 85.34 from the date of injury until
claimant returns to work; until claimant is medically
capable of returning to substantially similar work to the
work she was performing at the time of injury; or, until it
is indicated that significant improvement from the injury is
not anticipated, whichever occurs first. As it was found
that claimant was off work until she reached maximum healing
on September 16, 1990, benefits will be awarded accordingly.

The parties stipulated that if three exemptions were
found, claimant's weekly rate should be $147.10. This rate
is consistent with the commissioner's published rate booklet
for this injury.

III. Under Iowa Code section 85.27, claimant is enti
tled to causally connected medical expenses to treat the
injury. The only dispute as to the requested expenses were
their causal connection to a work injury. The causal con
nection to the claimed work-related condition was not dis
puted. Therefore, in light of the above stipulations and
findings, the medical expenses requested will be awarded.

ORDER

1. Defendants shall pay to claimant ninety (90) weeks
of permanent partial disability benefits at a rate of one
hundred forty-seven and 10/l00 dollars ($147.10) per week
from September 17, 1990.

2. Defendants shall pay to claimant healing period
benefits from May 5, 1990 through May 13, 1990 and from May
15, 1990 through September 16, 1990, at the rate of one hun
dred forty-seven and 10/l00 dollars ($147.10) per week.

3. Defendants shall pay the medical expenses listed in
the prehearing report and exhibit 2. Claimant shall be
reimbursed for any of these expenses paid by him. Other
wise, defendants shall pay the provider directly along with
any lawful late payment penalties imposed upon the account
by the provider.

4. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for all
benefits previously paid.

5. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.

6. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.

Page 6

7. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.

Signed and filed this ____ day of April, 1993.

______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER

Page 7

Copies To:

Mr. Paul J. McAndrew, Jr.
Attorney at Law
122 South Linn Street
Iowa City, Iowa 52240

Mr. Douglas Tindal
Attorney at Law
225 West Main
Washington, Iowa 52353

Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Building
111 East Third Street
Davenport, Iowa 52801

5-1803
Filed April 15, 1993
LARRY P. WALSHIRE

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

LAURA SOUDER,

Claimant,

vs.
File No. 974074
NATIONAL COMPUTER SYSTEMS, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and

THE ST. PAUL FIRE AND MARINE
INSURANCE COMPANY,

Insurance Carrier,
Defendants.
___________________________________________________________

5-1803 - Non-precedential, extent of disability case.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

SHERI NORMAN,

Claimant,

vs.
File No. 974077
HEAT TECH,
A R B I T R A T I O N
Employer,
D E C I S I O N
and

LIBERTY MUTUTL INSURANCE
COMPANY,

Insurance Carrier,
Defendants.
___________________________________________________________
STATEMENT OF THE CASE

This is a proceeding in arbitration brought by the
claimant, Sheri Norman, against her employer, Heat Tech, and
its insurance carrier, Liberty Mutual Insurance Company, to
recover benefits under the Iowa Workers' Compensation Act as
a result of an injury allegedly sustained on January 31,
1991. This matter came on for hearing before the
undersigned deputy industrial commissioner at Des Moines,
Iowa, on September 14, 1992. The first report of injury has
been filed.

The record consists of the testimony of claimant as
well as of the testimony of Cory Colman, Cindy Driscoll,
Marvin Rychnovski, Joni Jones Stonehacker, Monte McIntryre,
Theresa Swope, Bruce Jones, Vern Lane, Linda Platt, Mary
Jane Miller, Barbara Jennings Davidson, and Roxanne
Huntington. The record also consists of joint exhibits A
through C and claimant's exhibits I through V.

ISSUES

Pursuant to the hearing assignment order, the
pre-hearing report and the oral stipulation of the parties,
the parties have stipulated to the following: 1) that
claimant is married and entitled to five exemptions; 2) that
medical costs accrued were fair and reasonable costs for
treatment of claimant's condition; 3) that claimant was off
work on account of the alleged injury from February 1, 1991,
through March 3, 1991; and 4) that commencement date for any
permanent benefits due claimant would be March 4, 1991.
Issues remaining to be decided are:

(1) Whether claimant received an injury which arose out
of the course of her employment on the alleged injury date;

(2) Whether a causal relationship exists between

Page 2

claimant's work injury and claimed permanent disability;

(3) The nature and extent of any benefit entitlement;

(4) Whether claimant is entitled to payment of certain
medical costs pursuant to section 85.27;

(5) Whether claimant is entitled to a penalty for
unreasonable delay in commencement of the benefits or for
unreasonable denial of benefit payment; and

(6) The applicable rate of weekly compensation.

FINDINGS OF FACT

The deputy, having heard the testimony and considered
the evidence finds:

Claimant is a high school graduate who is currently
enrolled in her second year at Southwestern Community
College. She intends to pursue a course of training as a
legal assistant. Claimant appears quite capable of reaching
that educational and employment objective. Claimant is
married and has three minor children. Claimant worked
briefly as a waitress in 1976 and 1977 and subsequently
provided day care in her home until becoming employed as a
Heat Tech production worker in December 1988. Claimant was
one of eight people initially employed as start-up workers
in Heat Tech's new operation. Cory Colman was then
designated plant manager. His title has changed since
December 1988; yet, Colman has remained the overall manager
of operations at the Heat Tech operation from November 1988
onward.

Claimant was initially hired as a machine operator in
the flexible and foil department. She progressed rapidly
and received favorable job reviews overall and pay raises as
expected. She proved to be a conscientious and technically
competent worker. On May 4, 1989, claimant became a
leadworker who supplied workers with materials, checked
workers' work quality and overall supervised 20 people. In
September 1989 claimant was made supervisor in the flex and
foil department. She had those responsibilities she had had
as the leadworker plus paper work, material supply
responsibility and the capacity to do worker performance
reviews and promote or demote workers under her supervision.
She supervised three flex and foil shifts working daily from
about 6:00 a.m. to past 3:00 p.m. and averaging 50 to 60
hours per week at work. As claimant's job duties increased,
her work evaluations overall remained quite positive. The
evaluations did suggest goals for claimant, which goals were
indicative of her having problems dealing with persons under
her supervision and following the proper chain of command
relative to reporting to her own supervisors. A variety of
claimant's co-workers, both managerial personnel and
production workers, testified at hearing. The overall
testimony was that claimant was technically proficient in
her job duties but highly controlling and lacking in tact in
her relationships with her subordinate production workers.

Page 3

Claimant, with the consent of her own immediate
supervisor and Cory Colman, demoted another worker from the
leadworker position in the flex and foil operation and then
promoted claimant's sister to the leadworker position.
Production in flex and foil declined. Managerial personnel,
especially Mr. Colman, assessed the situation. Colman held
a series of meetings with flex and foil production workers.
Workers' comments in those meetings led Colman to conclude
that claimant's sister and claimant's and her sister's
relationship as supervisor and leadworker played a
substantial role in the worker dissatisfaction and poor
productivity in flex and foil.

Colman, Bruce Jones, plant manger in flex and foil and
then claimant's immediate supervisor, and claimant met to
discuss the situation on the fourth Monday of January 1991.
As Colman had pledged confidentially to those workers from
the flex and foil department who had confided regarding
their perception of the problems claimant's sister created,
those problems were discussed generally and not
specifically. Claimant was advised that management was
considering demoting her sister from leadworker in that
management perceived that was in the best overall interest
of the plant. Final decision as regards claimant's sister's
demotion from leadworker had not been made. Claimant was
asked not to speak with her sister regarding the potential
demotion until a decision was finalized. On Friday on the
fourth week of January of 1991, claimant was informed that
her sister would be demoted. Claimant was also informed
that her own job duties would change in that she would
retain her salary and her title as a supervisor but would
supervise only the foil section of the flex and foil
division and not the overall flex and foil operation.
Claimant requested that she inform her sister of the
demotion. Colman agreed that claimant could do so and
advised claimant and her sister that they could leave work
for the balance of the day without lost pay. Claimant and
her sister did so.

Apparently the plant was in production on Saturday and
claimant did not report to work. Claimant also did not
report to work on Monday and Tuesday of the following week.
She did speak to Cory Colman on Tuesday, however. In a
meeting at his office, she indicated that while she had been
considering returning to production work only that she would
report to work in her foil department supervisor position as
of Wednesday morning. Claimant did report on Wednesday.
Claimant held a meeting with production workers in foil on
Wednesday morning. Claimant expressly indicated that the
rearrangement of work duties was not a demotion for her and
that she would be supervising in the foil department in an
attempt to enhance its production. Colman characterized
claimant as cold and perhaps as somewhat distant on
Wednesday but as not appearing unduly upset. Claimant
reported that she did not have the same duties on reporting
to work on Wednesday as she had had previously and that both
Colman and Bruce Jones were on the floor performing
responsibilities she perceived as her own. Colman reported
that he and Jones had had to setup and plan production in

Page 4

claimant's absence and that claimant was advised of the
plans they had made on Wednesday.

Claimant reported to work on Thursday morning. She
reported that she had cried on Wednesday evening after
leaving work and on Thursday morning had vomited before
coming into work. She felt excluded from managerial
decisionmaking in which she had previously been included.
Three presses in the foil department were broken. Claimant
asked Monty McIntryre, supervisor in maintenance, to fix the
presses. He told claimant he was busy. She then asked two
other maintenance workers. She reported that they said they
would help her yet never did. Apparently, the maintenance
personnel informed claimant that a major breakdown had
occurred in another plant division and that they could only
fix the presses in the foil department after dealing with
that breakdown.

In the course of the morning claimant had an
altercation with Monty McIntryre regarding a disagreement
as to whether another press machine needed maintenance. On
walking away from that interaction, McIntryre referred to
claimant as a dumb (expletive an obscenity related to the
female pudenda, deleted). McIntryre reported the
altercation and the incident regarding the obscenity to
Colman within an hour of its occurrence. Colman gave
McIntryre an oral reprimand and placed a notice regarding
the incident in McIntryre's personnel file. Claimant did
not report the incident.

Sometime thereafter, claimant asked Bruce Jones to help
with the presses. Apparently, she and Jones had difficulty
getting the press started. At that point claimant got very
emotionally upset and began verbalizing loudly and crying on
the plant floor. Jones got Colman to attempt to calm
claimant down. Both Jones and Colman indicated that the
situation developed so quickly that they did not consider
removing claimant from the plant floor to the office. In
the course of the incident, claimant advised Colman she
wanted her old job back and expressed her belief that Colman
had made a mistake in rearranging plant duties. Colman
advised that the job of overall supervisor in flex and foil
no longer existed. Jones offered to drive claimant to her
home and did so. Neither Colman nor Jones offered to take
claimant to a physician. Jones and Colman did not believe
that claimant was upset sufficiently for medical care to be
necessary.

Claimant's spouse suggested claimant see a physician
and claimant did see Yogesh Gandhi M.D., her family
physician. Dr. Gandhi prescribed medications and took
claimant off work. On February 14, 1991, Dr. Gandhi
indicated that claimant was undergoing treatment for stress
which was probably due to work. Gandhi referred claimant
to Ashwini Pradhan, M.D., a psychiatrist and to William
Smith, a licensed social worker. Dr. Pradhan saw claimant
on February 15, 1991, and March 1, 1991. She diagnosed
claimant's condition as an adjustment disorder with mixed

Page 5

emotional features and by history in the diagnostic
interview related claimant's very distraught mood, anger and
crying to claimant's work situation. She released claimant
to return to work as of March 4, 1991. Mr. Smith saw
claimant for supportive therapy and agreed with Dr.
Pradhan's diagnosis of an adjustment disorder with mixed
features.

Claimant attempted to return to work on March 4, 1991.
Mr. Colman had earlier informed claimant that she would be
demoted from her supervisor's position. On March 4, he
informed her no production work was available. She was
placed on lay-off, subsequently terminated; and has not been
rehired.

Claimant appears to have fully recovered from her
emotional distress related to her perception of unfair
treatment in her work situation. Her demeanor at hearing
demonstrated no evidence of residual emotional problems.
The record contains no medical evidence of permanent
residuals.

Hearing testimony and the practitioner's records of
Pradhan and Smith reflect that claimant believed that she
was considered for the plant manager position but that Bruce
Jones was chosen for that position as he is male and she is
female. Colman, in his deposition, denied that Jones was
chosen on account of his sex and indicated that Jones was
chosen on account of his past work experience as a store
owner and manager. The record overall supports the finding
that reasons other than claimant's sex, including the lack
of productivity in the flex and foil division under her
supervision and her apparent interpersonal problems with
both supervisory and production workers, made it unlikely
that claimant would have been appointed plant manager.

Claimant, at hearing, expressed embarrassment over an
incident at a overall plant meeting wherein she was
presented a poster size photograph of the back of a male
dancer sitting on her lap. Evidently claimant and some
other female plant workers had gone to a bar where "male
dancers were performing" in nonwork hours. Photos were
taken; the particular photo was passed on to Colman who then
had it enlarged and presented it to claimant with a note
stating the following:

Find enclosed a small token expressing my
gratitude for the wonderful evening we spent
together. My mind still remembers fondly the
tenderness of your loving touch. I can honestly
say your "love grip" is one of a kind. The
bruises are finally fading. Until we are together
again, yours forever "Malibu"

P.S. Bring this picture in at our next
performance, and it will entitle you to free
admission and another 'freebie'. M.

Colman read the note to all persons at the meeting.
Colman testified that claimant did not appear embarrassed

Page 6

although other workers indicated she then may have been
uncomfortable. Apparently, claimant's spouse indicated to
Colman that the spouse would have liked to have been present
to observe claimant's reaction. Colman testified that the
presentation of the photo was part of routine "humorous"
presentations made to workers at overall plant production
meetings and that the intent had not been to embarrass
claimant. Colman also reported that at one point, although
he was uncertain as to whether prior to or subsequent to
this photo incident, Claimant had presented Colman with a
cane to assist Colman in "reaching the urinal" in that
Colman's "male organ" was of itself inadequate for the task.
It is expressly found that the overall atmosphere in the
plant was pubescent and puerile as regards matters related
to human sexuality. Claimant apparently actively
contributed to that atmosphere and was not unduly
distressed by the atmosphere while participating in it.

It is expressly found that the situation claimant
encountered in her work at Heat Tech was not a situation
producing stress of greater dimensions than the day to day
mental stresses and tensions which all employees must
experience. Claimant's actual stress resulted from the
discrepancy between her own perception of her work
performance and her perceived loss of status when her job
duties were reorganized and when her sister was demoted from
the leadworker position to which claimant had promoted the
sister. All workers are to a greater or lesser degree
subject to different perceptions of their performance by
co-workers and supervisors. Furthermore, claimant's
evaluations reflect an attempt on management's part to
advise claimant of her need to improve her interpersonal
relationships. Hence, while the evaluations were overall
favorable to claimant, it cannot be said that claimant was
wholly surprised that her performance and personal
relationship building at work were perceived as inadequate.

Likewise, claimant had earlier been advised of
potential problems resulting from promoting her sister to
leadworker. Hence, while that situation was unusual, it
remained a situation of claimant's creation, and the adverse
consequences following from claimant's initial decision to
promote her sister cannot be said to have resulted from a
situation of greater dimensions overall than the day to day
mental stresses and tensions which all employees experience.
All supervisory workers must at some point face demoting a
co-worker. Also, claimant voluntary chose to inform her
sister of the sister's demotion. The employer did not
request that claimant perform that task and the employer
quite consciously attempted to give claimant and her sister
an opportunity to deal with their feelings regarding the
demotion and the change of responsibilities outside of the
work environment. Likewise, all employees at some point
face reorganizations of their job responsibilities and
actual demotions. Claimant's reorganization of
responsibilities, which claimant perceived as a demotion,
was not an egregious act of the employer but rather a

Page 7

responsible business decision handled appropriately. Hence,
neither the situation nor the employer's actions within the
situation can be said to have created a situation of greater
dimensions of stress than the day to day mental stresses and
tensions to which all employees are subject. In this regard
also, Jones and Colman's behavior when claimant reacted on
the plant floor on January 31, 1991, does not appear to have
produced for claimant a situation of greater dimensions than
the day to day mental stresses and tensions to which all
employees are subject. While Jones and Colman did not
remove claimant from the floor, the incident arose so
quickly that Jones and Colman felt compelled to resolve it
immediately; and did so without the opportunity for
forethought as to the most comfortable situation for
claimant. The need to deal with an emotionally distraught
employee immediately and without overall consideration of
the embarrassment that the emotional display might produce
for the employee if allowed to continue in public is a
situation that is often encountered in the work place. It
cannot be said to be a situation of greater dimensions than
the day to day mental stresses and tensions to which all
employees are subject.

CONCLUSIONS OF LAW

Our first consideration is whether claimant has
established a mental injury arising out of and in the course
of her employment which meets the standards for liability
under Iowa law.

The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).

Page 8

other surrounding circumstances. As noted above, the limited medical evidence produced
indicates that claimant's adjustment disorder with mixed
emotional features was precipitated by both the actual
happenings in claimant's work environment and by claimant's
perception of those happenings and by her beliefs as to what
should have happened. Given such, claimant has established
medical causation between her work environment and her
adjustment disorder. Claimant has not established legal
causation, however. When viewed objectively and not as
claimant perceived them, claimant's work stresses were not
out of the ordinary from the countless emotional strains and
differences that employees encounter daily without serious
mental injury. Given such claimant is not entitled to a
recovery under our workers' compensation law. In that
claimant has not met the threshold requirement of
establishing employer liability for injury, other issues
presented need not be considered.

ORDER

THEREFORE, IT IS ORDERED:

Claimant take nothing from this proceeding.

Claimant pay costs of this proceeding.

Signed and filed this ____ day of October, 1992.

Page 9

______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER

Copies to:

Mr. Dennis L. Hanssen
Attorney at Law
2700 Grand Avenue, Suite 111
Des Moines, IA 50312

Mr. James C. Huber
Attorney at Law
500 Liberty Building
Des Moines, IA 50309-2421

1108.20, 2204
Filed October 5, 1992
Helenjean M. Walleser
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

SHERI NORMAN,

Claimant,

vs.
File No. 974077
HEAT TECH,
A R B I T R A T I O N
Employer,
D E C I S I O N
and

LIBERTY MUTUTL INSURANCE
COMPANY,

Insurance Carrier,
Defendants.
___________________________________________________________
1108.20, 2204
Claimant who perceived plant demotion of claimant's sister
and reorganization of claimant's job duties without a
reduction in pay or a change in claimant's title as
unmerited demotions did not establish that the work
situation resulted from a situation of greater dimensions
than the day to day mental stresses and tensions which all
employees must experience. All employees face a discrepancy
between their own perception of job performance and
perceptions of other in the work environment. All employees
are subject to demotions and job reorganizations. Where
those demotions and job reorganizations are objectively
justifiable and do not result from reasons personal to the
worker they cannot be said to be out of the ordinary and
different from the countless emotional strains and
differences that employees encounter daily without serious
mental injury.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________

WILLIAM COE,

Claimant,

vs.
File No. 974094
PST, INC.,
A P P E A L
Employer,
D E C I S I O N
and

LIBERTY MUTUAL INSURANCE
COMPANY,

Insurance Carrier,
Defendants.
____________________________________________________________

Defendants argue that claimant violated a work rule, and
that this violation took him out of the course of his
employment. Specifically, defendants argue that claimant
violated a memorandum not to park his truck/trailer at the
truck stop in West Memphis where claimant met the man who
presumably later stole his truck. Although defendants
allege that claimant received a memo with these
instructions, neither the memo nor the person who allegedly
communicated the memo to claimant were produced at the
hearing. Claimant denies receiving the memo. In addition,
claimant's limited ability to read and write and his level
of intelligence cast further doubt on whether the
restriction was in fact effectively communicated to him. It
is axiomatic that before an employee can be held to have
violated a work rule or restriction, the rule or restriction
must be communicated to the employee. Defendants have
failed to show that the work rule they allege claimant
violated was adequately communicated to claimant.

Page 2

Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of March, 1994.

________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER

Copies To:

Mr. James M. Hood
Attorney at Law
302 Union Arcade Bldg.
Davenport, Iowa 52801

Mr. Greg A. Egbers
Attorney at Law
600 Union Arcade Bldg.
111 East Third St.
Davenport, Iowa 52801-1596

5-1100; 5-1404.30; 5-1600; 1111
Filed March 29, 1994
Byron K. Orton

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________

WILLIAM COE,

Claimant,

vs.
File No. 974094
PST, INC.,
A P P E A L
Employer,
D E C I S I O N
and

LIBERTY MUTUAL INSURANCE
COMPANY,

Insurance Carrier,
Defendants.
_________________________________________________________________

5-1100; 5-1404.30; 5-1600
Claimant was employed as an over-the-road truck driver. He was
severely beaten one evening. Defendants denied liability, and
asserted that claimant was intoxicated at the time of the
hearing, and argued further that the assault was a willful act of
a third party directed against the employee for reasons personal
to such employee, pursuant to Iowa Code section 85.16.
Both of defendants' affirmative defenses failed. It was
determined that while claimant was intoxicated at the time of the
assault, his intoxication was not a substantial factor in causing
the injury.
Likewise, it was found that claimant was selected at random for
purposes of the attack.
Claimant lost the use of his left eye due to the severe injuries
he sustained, and was awarded 140 weeks of compensation.

1111
It was also held on appeal that before defendants could rely on
violation of a work rule as a defense, it must be shown that the
work rule was effectively communicated to claimant.

BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
WILLIAM COE, :
:
Claimant, :
:
vs. :
: File No. 974094
PST, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL INSURANCE :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration brought by William
Coe, claimant, against his former employer, Pacific States
Transport and its insurance carrier, Liberty Mutual
Insurance Company. Mr. Coe seeks workers' compensation
benefits due to an alleged work-related injury occurring on
November 2, 1990.

The matter came on for hearing before the undersigned
deputy industrial commissioner on June 2, 1993, in
Davenport, Iowa. The case was considered fully submitted at
the close of the hearing. The record consists of the
claimant's testimony, testimony from Thomas Proctor, Vice
President of Safety for the defendant employer; and, joint
exhibits A-V.

ISSUES

Pursuant to the hearing report and order, the parties
submit the following issues for resolution:

1. Whether claimant sustained an injury on November 2,
1990 which arose out of and in the course of his employment;

2. Whether there is a causal relationship between the
injury and claimant's disability;

3. Whether claimant is entitled to temporary total
disability benefits, healing period benefits, or permanent
partial disability benefits; and,

4. Whether claimant is entitled to medical benefits.

Defendants raise intoxication and the willful act of a
third party as an affirmative defense.

Page 2

FINDINGS OF FACT

The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:

Claimant was born on January 28, 1948, and at the time
of the hearing was 45 years of age. Claimant grew up in
Alabama, and did not finish the 8th grade in school. His
scores on I.Q. tests hovered between 69-72. He has
difficulty reading and spelling, and finds it difficult to
concentrate when trying to better these skills.

Claimant was in the Navy from 1967-1969. He was
assigned to the engine room which involved working on
machinery temperatures, steam pipes and monitoring valves.
He received an honorable discharge.

Prior to joining the Navy, and once discharged,
claimant worked for Calvin Long Plumbing. His primary job
duties included loading and unloading trucks, hauling
materials to job sites and pipe fitting. Claimant earned
between $4.50 and $5.50 per hour, and worked 40 to 60 hours
per week.

From 1972 to 1978 and from 1982-1990, claimant worked
as an over-the-road truck driver.

From 1978 to 1979, claimant worked for the DeKalb
Foundry, where he performed heavy labor, and from 1979 to
1981, claimant worked for Armalie Electrical Plating
Company, cleaning and electroplating various machine parts.
Some of his job duties required the use of a crane.

In January of 1990, claimant began working as an
over-the-road truck driver for the defendant employer. As
such, he pulled flat bed trailers loaded with tractors,
steel, various machine parts and junk freight throughout the
continental United States. His terminal was based in
Davenport, but claimant received his work orders from a
station in Oregon. He was not paid for meals or lodging
unless his truck was in the shop. There were no
restrictions on where claimant could eat or sleep, and
claimant usually slept in the bed located in the truck cab.

On the morning of November 1, 1990, claimant unloaded
cargo in West Haven, Mississippi and traveled to West
Memphis, Arkansas. The following morning, November 2, 1990,
claimant awoke at 7:00 a.m. and went to a truck stop to wash
up. He called the terminal for further instructions, and
was told to wait in West Memphis for a load which was to be
loaded at 12:00 noon and delivered in Fitzgerald, Georgia (a
distance of approximately 500 miles, or a ten-hour drive) on
November 4, 1990. The company did not place any
restrictions on where claimant could spend his time during
layovers.

According to claimant, his truck was loaded from 1:00
p.m. to 6:30 p.m. He was going to begin the drive to
Fitzgerald that evening.

Page 3

Once claimant's truck had been loaded, he returned to
the truck stop to shower and eat dinner. Claimant testified
that while at the truck stop, he was approached by a
gentleman named Dave who was wearing a tan jacket sporting
the defendant employer's logo or emblem. Dave told claimant
that his truck had broken down and would be in the shop
until Monday, and invited claimant out to dinner at a
restaurant located in downtown West Memphis. Claimant
unhooked the truck from the trailer, and both gentlemen rode
in claimant's truck. They arrived at the restaurant at
approximately 8:00 p.m. When claimant got out of the truck,
he left the keys in the ignition, but locked the doors
because he had an extra set in his pocket. He noticed that
Dave leaned over towards the driver's side before he got out
the truck.

Claimant felt he had been misguided, and believed that
the restaurant that Dave had suggested was more of a
nightclub ("Club Unity"), but he proceeded to go in with
Dave, who found a table. Claimant made his way to the bar,
and ordered a hot dog, chips and a Coke. When he returned
to the table, Dave had ordered beer. Although claimant
initially declined to imbibe, Dave "kept after" him and he
started to drink. Upon reflection, claimant felt Dave was
trying to get him drunk.

Around 11:00 p.m., claimant had had enough, felt a
little drunk, and wanted to leave the club. He did not want
to leave alone, as he felt that the club was located in a
rough part of town, so he asked Dave to leave with him.
Dave acquiesced, but first excused himself to use the rest
room. He never returned.

Once outside, claimant realized that his truck had been
stolen. Then, he was jumped by four men, severely beaten
and robbed of approximately $60.00. Claimant believes he
was "set up" by Dave.

The police were called, and an incident report was
filled out. The report notes that the occurrence happened
on
November 3, 1990 at 1:44 a.m., and the police arrived on the
scene on November 3, 1990 at 1:47 a.m. (Joint Exhibit C)

Claimant sustained serious injuries as a result of the
beating, including a broken nose, broken bones above and
under the left eye, retinal loss in the left eye and a blood
clot in the right temple lobe. Once found on the pavement
in a state of unconsciousness, claimant was taken by
ambulance to the emergency room at Crittenden Memorial
Hospital in West Memphis, Arkansas. X-rays of the cervical
spine, facial bones and skull showed opacification of both
maxillary sinuses, small cortical infractions of the
anterior wall of the maxillary sinuses, and small fractures
at the zygomatical orbital rim on the left. Clouding of the
frontal sinuses were present. Claimant also sustained a
giant retinal tear which required surgical repair by a
vitrectomy (Jt. Ex. P). It was recommended that claimant
undergo a CT scan (Jt. Ex. L). Claimant was transferred to
the Baptist Memorial Hospital in Memphis, Tennessee, where

Page 4

various CT scans were taken and confirmed bruising and
swelling in the right anterior temporal lobe and near the
temporo-occipital junction, broken bones in the nasal
cavities and other abnormalities (Jt. Ex. G, pp.13-18).
Other notations from the physicians at the hospital
indicated that claimant was unable to remember what had
happened, and that he was intoxicated (Jt. Ex. G, pp. 4(a);
5(b); and 12(a)). Other records indicate that claimant's
blood alcohol level was twice the legal limit at the time he
was admitted to the emergency room (Jt. Ex. V).

Prior to his discharge on November 14, 1990, claimant
underwent a tracheostomy; intramaxillary fixation by plating
and wiring; open reduction and internal fixation by plating
and wiring of the left trimalleolar fracture and inferior
orbital rim fracture; closed reduction of the nasal
fracture; open reduction and internal fixation of the left
lateral maxillary buttress; exploration of the piriform
ampliture and left antrostomy; plans Plana lensectomy;
vitrectomy and silicone oil fill of the left eye. In all,
claimant underwent six operations to repair the damage
sustained from the attack. Claimant was eventually released
to return to Alabama, and his plane fare was paid for by the
defendant employer (Jt. Ex. G, pp. 1-6; Jt. Ex. H; Jt. Ex.
L; and, Jt. Ex. N).

William McCarty performed intermaxillary fixation on
claimant. His office was mostly concerned about payment of
the procedure (Jt. Ex. J).

On November 28, 1990, claimant visited Michael Massey,
M.D., apparently at the request of David Meyer, M.D. Dr.
Massey is a physician located in Montgomery, Alabama. After
a complete examination, Dr. Massey believed claimant was
making an excellent recovery, and that the retina was
completely attached. In January of 1991, Dr. Massey was of
the opinion that claimant would be legally blind in the left
eye for the rest of his life. The blindness was due to the
injuries sustained in November of 1990 (Jt. Ex. K, pp. 1-6;
p. 7; Jt. Ex. P).

In February of 1991, claimant sought follow-up
treatment on three occasions from Jack Griffin, M.D., a
neurologist located in Columbus, Georgia. Complaints from
claimant included headaches, dizziness, discomfort about the
shoulders and neck, and, loss of central vision in the left
eye. Dr. Griffin ordered a repeat CT scan of claimant's
head, and the results of the test were normal. Dr. Griffin
declined other studies at that time, but claimant was to
confer with his eye doctor in March about the safety of an
MRI on the cervical spine (Jt. Ex. M). Other than a medical
report filed with the Georgia State Board of Workers'
Compensation, there are no other records from Dr. Griffin
(Jt. Ex. I).

Claimant also sought treatment from the Hurst
Chiropractic Clinic from February through July of 1991. A
progress report from the clinic indicates that claimant was
suffering from multiple cervical sublimation; thoracic
subluxations and lordosis; lumbar subluxations; lumbar disc

Page 5

degeneration; and, lumbar lordosis. No final diagnosis or
prognosis is found. The notes from the clinic are difficult
to read, due to the poor quality of both the record-keeping
of the chiropractor and the photocopies provided to the
undersigned (Jt. Ex. O).

On May 14, 1991, Joseph Keller, M.D., who had treated
claimant's left eye shortly after the assault and resulting
hospitalization informed the defendant insurance company
that "[b]ecause of the presence of vitreous hemorrhage in
the left eye, immediately after the trauma, and because of
the nature of the retinal tear and the timing of it, it is a
virtual certainty that [claimant's] eye problems in the left
eye all resulted from the beating [claimant] received." (Jt.
Ex. P)

Also in May of 1991, claimant was referred by Leonardo
Antaris, M.D., to the University of Iowa Hospitals and
Clinics, where he was evaluated by Christopher Blodi, M.D.,
assistant professor of the vitreoretinal service for the
left eye condition, and possible removal of the silicone oil
from the left eye. Claimant was complaining of pain and
redness of the left eye, and after a discussion of the pros
and cons of removal of the silicone oil from the eye,
decided to undergo surgery to have the oil removed. Surgery
was performed on June 13, 1991. Dr. Blodi referred claimant
to Michael Laws, M.D., a neurologist located in Davenport,
Iowa, for further follow-up care with respect to claimant's
head trauma and resulting physical problems. Claimant was
released from Dr. Blodi's care on
August 12, 1991 (Jt. Ex. Q).

Claimant met with Dr. Laws on several occasions from
July 8, 1991 through January of 1992. According to the
records, claimant saw Dr. Laws for a total of three
appointments, although he had been scheduled for a total of
eight appointments. Dr. Laws diagnosed post traumatic
syndrome, and claimant began taking amitriptyline, elavil
and fiorinal, to treat depression and headaches present
since the incident in November of 1990. An EEG was
performed, the results of which were normal (Jt. Ex. R). A
final report from Dr. Laws was not provided, but the only
final progress notes which are legible are dated January 23,
1992, indicate that claimant continued to complain of
headaches and a decrease of sensation around the left eye.
A neurological examination showed normal range of motion of
the eyes, with the left pupil still "fixed." There was
tenderness to palpation of the scalp. Dr. Laws felt
claimant continued to have post traumatic headaches and
prescribed additional medications, including amitriptyline
for the headaches. Claimant also underwent an
electroencephalography, which was normal
(Jt. Ex. R).

In March of 1992, claimant was evaluated by Paul Hauck,
Ph.D. Dr. Hauck paints a bleak picture of claimant's
physical, intellectual and emotional condition and
capabilities. His testing concentrated on claimant's
inability to reason and comprehend, stating that claimant is
in the borderline mentally retarded range of intellect.

Page 6

Additionally, Dr. Hauck opined that claimant would be unable
to adapt physically or psychologically in a work
environment. Claimant's vision hampered his motor skills
(Jt. Ex. S).

In July of 1992, claimant underwent additional
vocational assessment testing. Most, if not all, of
claimant's medical records were reviewed by Judy Stengel,
the vocational evaluator. Claimant was complaining of
problems with depth perception, which limited his capacity
to read, drive, cook and thread a fish hook. Headaches
increased in proportion to stress, and claimant was still
taking anti-depressant medications, as well as non-narcotic
analgesics to relieve the headaches. Claimant also reported
pain in his right arm, shoulder and back, present since his
release from the hospital in November of 1990. He stated
that back pain had prevented him from lifting a 30 pound box
during a recent move (Jt. Ex. T, pp.1-4).

After a review of claimant's past education and
employment, Ms. Stengel developed a guideline to determine
claimant's aptitude in a variety of areas, including
intelligence; verbal, numerical and spatial aptitudes; form
and clerical perception; motor coordination; finger and
manual dexterity; eye-hand-foot coordination; and color
discrimination. She also outlined overall training
preparation, job adaptabilities, work activities and working
conditions (Jt. Ex. T, pp. 4-8).

In her final analysis, based on work restrictions given
by Dr. Laws, claimant's intellect, age, work experience and
physical capabilities, Ms. Stengel believed claimant was
unable to return to any of his previous occupations. She
determined that he was "marginally employable in other
occupations." (Jt. Ex. T, p. 10) She did not provide any
assistance in securing suitable employment for claimant, but
did collect job descriptions tailored to claimant's previous
jobs (Jt. Ex. T, pp. 14-18).

Mr. Proctor testified on behalf of defendants. A
former Idaho State police officer and currently the Director
of the Utah Department of Medicaid Fraud, Mr. Proctor, at
the time of the incident, was the Vice President of Safety
for the defendant employer. His duties included
investigation of traffic accidents, workers' compensation
claims, driver background checks and thefts.

Mr. Proctor knew of the assault on November 14, 1990,
when claimant contact him by telephone. Mr. Proctor
testified that claimant told him during the telephone
conversation that Dave had followed claimant to the
restaurant; that claimant was aware that it was against
company policy to unhook his load from his truck and to keep
one key in the ignition even while the truck was locked;
and, that it was against both company and Department of
Transportation policy to drink while on the road.

ANALYSIS AND CONCLUSIONS OF LAW

The first issue to address is whether claimant

Page 7

sustained an injury on November 2, 1990 which arose out of
and in the course of his employment. Defendants argue that
claimant was intoxicated at the time of the beating, and
that the beating was a willful act of a third party, thereby
relieving them of liability.

Both of defendants' arguments are affirmative defenses
which must be established by the employer by a preponderance
of the evidence.

An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).

Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on November 2,
1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).

The injury must both arise out of and be in the course
of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246
Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406
of the Iowa Report. See also Sister Mary Benedict v. St.
Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen
v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).

The words "out of" refer to the cause or source of the
injury. Crowe, 246 Iowa 402, 68 N.W.2d 63.

The words "in the course of" refer to the time and
place and circumstances of the injury. McClure v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa
402, 68 N.W.2d 63.

"An injury occurs in the course of the employment when
it is within the period of employment at a place the
employee may reasonably be, and while he is doing his work
or something incidental to it." Cedar Rapids Comm. Sch.
Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188
N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128.

Iowa Code section 85.16(2) states, in relevant part:

No compensation under this chapter shall be
allowed for an injury caused:

....

2. By the employee's intoxication, which did
not arise out of and in the course of employment
but which was due to the effects of alcohol or
another narcotic, depressant, stimulation,
hallucinogenic, or hypnotic drug not prescribed by
an authorized medical practitioner, if the
intoxication was a substantial factor in causing
the injury.

The defense of claimant's intoxication can be easily

Page 8

disposed. The statute states that the employee's
intoxication must be a substantial factor in bringing about
the injury. In the case at bar, there is no evidence that
claimant's intoxication had anything to do with the assault.
He did not invite the assault due to his state, and it is
just as possible that the assault would have occurred even
if claimant had been drinking non-alcoholic beverages all
night. The evidence does not exclude other reasonable
causes for the accident which are totally unrelated to
claimant and his libations during the evening of November 1
and the morning hours of November 2, 1990.

As a result, defendants' affirmative defense of
intoxication on the part of claimant fails.

The second component of defendants' affirmative
defenses involves Iowa Code Section 85.16(3):

No compensation under this chapter shall be
allowed for an injury caused:

By the willful act of a third party directed
against the employee for reasons personal to such
employee.

The record contains no evidence which suggests that
claimant had any type of a relationship with the men who
attacked him. While that attack is certainly considered a
willful act of a third party, with no relationship with the
attackers, it would be difficult, if not impossible, to find
that claimant's attack stemmed from "reasons personal to
such employee" as required by the statute. The assault,
battery and robbery were random. Claimant was in the wrong
place at the wrong time.

As a result, defendants' affirmative defense of a
willful act of a third party direct against the employee for
reasons personal to such employee also fails.

As a traveling employee, claimant was required to sleep
over in certain cities depending on when and where he could
pick up or drop off his loads.

All of defendants' arguments are without merit. 1A
Larson Workmen's Compensation Law at section 25 states the
law with respect to a traveling employee:

Employees whose work entails travel away from
the employer's premises are held in the majority
of jurisdictions to be within the course of their
employment continuously during the trip, except
when a distinct department on a personal errand is
shown. Thus, injuries arising out of the
necessity of sleeping in hotels or eating in
restaurants away from home are usually held
compensable.

At section 25.21 (a), Larson further states that:

[T]raveling employees, whether or not on call,

Page 9

usually do receive protection when the injury has
its origin in a risk created by the necessity of
sleeping and eating away from home.

Furthermore, Larson states at section 25.23(c):

[W]hen an employee is required to travel to a
distant place on the business of his employer and
is directed to remain at that place for a
specified length of time, is status as an employee
continues during the entire trip, and any injury
occurring during such period is combinable, so
long as the employee at the time of the injury was
engaged in a reasonable activity.

Reasonable activities have included a claimant seeking
nourishment in order to fortify himself for his pending
trip. See, Walker V. Speeder Mach. Corp., 213 Iowa 1134,
140 N.W. 725 (1932).

Claimant was performing his job duties in a manner
consistent with his position as an over-the-road truck
driver. He was attacked, and sustained serious injuries due
to the attack. Claimant has shown by a preponderance of the
evidence that he sustained an injury on November 2, 1990
which arose out of and in the course of his employment.

The next issue to address is whether there is a causal
relationship between claimant's work injury and any
permanent disability he may have.

The claimant has the burden of proving by a
preponderance of the evidence that the injury of November 2,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).

However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.

Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert

Page 10

testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-American, Inc., 290 N.W.2d
348, 354 (Iowa 1980).

At least one treating physician supplied the requisite
opinion that claimant's problems in his left eye resulted
from the assault. Dr. Keller clearly states that the
beating caused vitreous hemorrhage in the left eye and
caused continued eye problems. Dr. Massey, who subsequently
provided treatment to claimant for his left eye problems,
opined that claimant would be legally blind in the left eye
for the rest of his life, obviously a permanent condition.

The eye problem is the only physical condition in the
record that has merited opinions from some of the physicians
involved in claimant's medical care. Although claimant
alleged a brain injury, and there is evidence in the record
that he did sustain a contusion in the brain, there is no
evidence that it resulted in a permanent condition.
Claimant still suffers from headaches, but he has not sought
treatment for the same since January of 1992. While
claimant testified that he continues to suffer from
headaches, memory loss and lack of concentration, there is
no objective evidence as to any loss of brain function to
account for these ailments. The record reflects that
claimant has always suffered from an inability to
concentrate. Additionally, claimant received a broken jaw
and a broken nose in the fight, but there is no evidence
that either condition caused a permanent disability.

As a result, it is found that claimant has sustained
permanent disability to his left eye due to the work injury.

The next issue to address is claimant's entitlement to
healing period benefits.

Having found that claimant has sustained a permanent
disability due to the work injury, he is entitled to healing
period benefits. Iowa Code 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.

Claimant's healing period benefits will begin on
November 2, 1990 and end on August 12, 1991, the day he was
released from Dr. Blodi's care. While the undersigned
recognizes that claimant received further care and treatment
for his injuries from Dr. Laws after August 12, 1991, there
is no evidence in the record that he could not have worked
during the time he was actively treated by Dr. Laws.

The next issue to be addressed is whether claimant

Page 11

sustained a scheduled member injury, or an injury to the
body as a whole.

The right of an employee to receive compensation for
injuries sustained is statutory. The statute conferring this
right can also fix the amount of compensation payable for
different specific injuries. The employee is not entitled
to compensation except as the statute provides. Soukup v.
Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).

Compensation for permanent partial disability begins at
termination of the healing period. Section 85.34(2).
Permanent partial disabilities are classified as either
scheduled or unscheduled. A specific scheduled disability
is evaluated by the functional method; the industrial method
is used to evaluate an unscheduled disability. Simbro v.
Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v.
Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v.
Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960).

An injury to a scheduled member may, because of after
effects or compensatory change, result in permanent
impairment of the body as a whole. Such impairment may in
turn be the basis for a rating of industrial disability. It
is the anatomical situs of the permanent injury or
impairment which determines whether the schedules in section
85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh,
395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American,
Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber
Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores
Co., 222 Iowa 272, 268 N.W. 598 (1936).

If claimant has sustained an injury to the body as a
whole, he has sustained an industrial disability, and his
loss of earning capacity is analyzed.

Claimant has sustained a permanent injury to the left
eye. There is no evidence that he has a permanent injury to
any other portion of his body, including his brain or back.
As a result, he is to be compensated by the schedule

The next issue to address is whether claimant is
entitled to medical benefits pursuant to Iowa Code Section
85.27:
The employer, for all injuries compensable under this
chapter or chapter 85A, shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies therefor and shall allow reasonably
necessary transportation expense incurred for such services.

It has been found that claimant sustained an injury
which arose out of and in the course of his employment. As
a result, he is entitled to medical benefits under the
applicable statute. These benefits include payment of all
bills submitted at the hearing by claimant.

The evidence is clear that claimant's left eye is
non-functional. He has sustained a complete loss of use of
the eye, and is awarded 140 weeks of benefits to be paid at

Page 12

the rate of $216.17 per week.

ORDER

THEREFORE, IT IS ORDERED

That defendants shall pay claimant healing period
benefits from November 2, 1990 through August 12, 1991,
totaling forty point five seven one (40.571) weeks at the
rate of two hundred sixteen and 17/100 dollars ($216.17) per
week;

That defendants shall pay claimant permanent partial
disability benefits totaling one hundred forty (140) weeks
at the rate of two hundred sixteen and 17/100 ($216.17) per
week commencing August 13, 1991;

That defendants shall pay medical benefits pursuant to
Iowa Code section 85.27;

That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid;

That defendants shall pay interest on benefits awarded
herein as wet forth in Iowa Code section 85.30;

That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33;

Page 13

That defendants shall file an activity report upon
payment of this award as required by the agency pursuant to
rule 343 IAC 3.1.

Signed and filed this ____ day of August, 1993.

________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER

Copies To:

Mr James M Hood
Attorney at Law
302 Union Arcade Bldg
Davenport IA 52801

Mr Greg A Egbers
Attorney at Law
600 Union Arcade Bldg
111 E 3rd St
Davenport IA 52801

5-1100; 5-1404.30
5-1000
Filed August 23, 1993
Patricia J. Lantz

Both of defendants' affirmative defenses failed. It was
determined that while claimant was intoxicated at the time
of the assault, his intoxication was not a substantial
factor in causing the injury.

Likewise, it was found that claimant was selected at random
for purposes of the attack.

Claimant lost the use of his left eye due to the severe
injuries he sustained, and was awarded 140 weeks of
compensation.