BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAVID STARN,
Claimant,
vs.
File No. 976100
ROBINSON SERVICE, INC.,
A P P E A L
Employer,
D E C I S I O N
and
AETNA,
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 May 10, 1993 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 August, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert F. Wilson
Attorney at Law
810 Dows Bldg.
Cedar Rapids, Iowa 52401
Ms. Carole J. Anderson
Attorney at Law
600 Davenport Bank Bldg.
Davenport, Iowa 52801
5-1402.30
Filed August 27, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAVID STARN,
Claimant,
vs.
File No. 976100
ROBINSON SERVICE, INC.,
A P P E A L
Employer,
D E C I S I O N
and
AETNA,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1402.30
Claimant, who lacked credibility, was the only witness to
the alleged injury. Much evidence was inconsistent with his
story. Claimant failed to prove an injury arising out of
and in the course of employment.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
DAVID STARN, :
:
Claimant, :
:
vs. :
: File No. 976100
ROBINSON SERVICE, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
Claimant David Starn seeks benefits under the Iowa
Workers' Compensation Act upon his petition ins arbitration
against his employer, Robinson Service, Inc., and its
insurance carrier, the Aetna. Mr. Starn alleges that he
sustained injury arising out of and in the course of his
employment as a heavy machine operator on January 18, 1991.
A hearing was thereupon held in Cedar Rapids, Iowa on
April 5, 1993. Claimant's exhibits 1-8 and defendants'
exhibits A-D were received into evidence. Testimony was
received from claimant, Carlotta Starn, Fred Iben, James
Rolfes, Duane Robinson and Jerald Smithey.
ISSUES
The parties have stipulated to the existence of an
employment relationship and agree, in the event of an award,
that defendants are entitled to certain credits under Iowa
Code section 85.38(2).
Issues presented for resolution include:
1. Whether claimant sustained injury arising out of
and in the course of employment;
2. Whether the injury caused either temporary or
permanent disability;
3. The extent of permanent disability (it being
stipulated that if defendants are liable for the injury,
claimant is entitled to temporary total or healing periods
benefits from January 18 through March 25, 1991);
4. The rate of compensation; and,
5. Entitlement to medical benefits.
Page 2
The parties agree that fees charged by medical
providers are reasonable and necessary, but dispute whether
that treatment was reasonable and necessary. However, it is
stipulated that medical providers would testify as to the
reasonableness of treatment and defendants offer no contrary
evidence. Causal connection to the work injury is disputed,
as is whether those expenses were authorized by defendants.
However, the authorization defense was ruled invalid at
hearing because defendants have denied liability on the
claim, thereby forfeiting the right to control the course of
medical care.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
David Starn, 43 years of age at hearing, has spent
basically all of his working life as a heavy machine
operator, both for wages and in self-employment. Mr. Starn
has operated bulldozers, endloaders, cranes, tiling
machines, backhoes, dump trucks and other like equipment.
He also has experience in the repair of heavy machinery.
Of significance here, claimant was employed by Fred
Iben for approximately four or five years from 1980, then in
self-employment until 1989. Claimant took work with
Robinson Service, Inc., in approximately September or
October, 1989. Robinson Service is engaged in the earth
moving business, including excavating basements, excavating
for field tiles and similar work.
According to claimant's testimony, he had suffered no
back injuries prior to taking work with defendant. He also
testified that he had not suffered substantial lower back
problems during his career. However, there is substantial
contrary evidence in this record. Fred Iben, claimant's
former employer, testified that claimant wore a back support
during the first spring of that employment and reported that
his back "occasionally" acted up. During that employment,
claimant made occasional but not frequent complaints of back
ache. Later, while claimant was self-employed, he on at
least one occasion subcontracted on a job for Mr. Iben.
Although claimant owned only a single bulldozer, he had also
hired an employee of his own. Iben, curious as to why
claimant did not operate the dozer himself since he had only
a single machine, asked why. Claimant answered that "with
my back problems, I'm not going to do this any more than I
have to."
According to claimant, he suffered injury on January
18, 1991 while cleaning up at the end of the work day. A
standard calendar shows that January 18, 1991 fell on a
Friday. Official notice is hereby taken of that fact
pursuant to Iowa Code section 17A.14(4). It is determined
that fairness to the parties does not require an opportunity
to contest that fact.
Claimant went on to testify that while picking up a 100
pound LP gas tank he felt something pull in his back and
Page 3
experienced sharp pain. He suffered pain on the way home
low on the right side and had to lie down upon arrival. Mr.
Starn further testified that he sought medical treatment at
Mercy Hospital the very next day, presumably January 19.
However, Mercy Hospital chart notes dated January 21,
1991 reflect that claimant presented with complaints of
acute pain and spasm in the left lumbar-sacral spine after
lifting a tool chest. Claimant's condition was so severe
that no evaluation could be done ("since the PT was very
acute & in spasm").
January 21, 1991, fell on a Monday. Given the severity
of claimant's symptoms, it seems strange that he would have
waited over the entire weekend before seeking care (not to
mention the inconsistency with his testimony of seeking care
the next morning). Also, the discrepancy in history is
noted: was claimant lifting a heavy propane tank or tool
box?
During direct examination, claimant denied having been
injured one year earlier. He further indicated that he
sustained an additional injury approximately three weeks
later during a half-day attempted return to work, and
further testified that he did return to work approximately
March 25, 1991, following which he continued to work with
lower back pain for several weeks, until finally quitting
the job due to physical inability to continue. Since then
(and beginning almost immediately), claimant has worked as a
heavy machine operator for other concerns. As of hearing,
claimant was receiving job insurance benefits, certifying
weekly that he is able and available to work (although he
testified that he knows of no work he has been trained in
that he can actually do). Mr. Starn indicated that he is
troubled by extended sitting, standing, driving or riding
over rough ground.
The sequence of events became murky on
cross-examination. Claimant conceded that he had been seen
by a physician for lower back strain in 1982. Indeed,
medical records of Dr. Phil First reflect complaints of
lumbo-sacral and thoracic spasm on November 2, 1982. More
significantly, claimant was questioned in some detail as to
whether he had been off work for a back injury in January
1990. Claimant repeatedly denied that he had missed work on
account of an LP tank incident in 1990, even going so far as
to state that Dr. MacMenamin (his treating orthopedic
specialist) was in error when he reported a year-old LP tank
injury and, that all 1990 records "can't be right" because
the LP tank incident was in 1991.
On re-direct examination, claimant (in response to
leading questions) agreed it was possible that the LP tank
incident occurred in 1990, and that a tool chest incident
(also work-related, of course) occurred in 1991. On
questioning by this deputy, claimant asserted that he did
not claim workers' compensation benefits for a back injury
in 1990, even though such an injury would have occurred at
work and records show that he missed three weeks (the pay
periods ending January 13, 20 and 27 show no hours worked).
Page 4
Asked why he failed to file a claim for so much lost time,
claimant responded that he considered three weeks to be "no
big deal." In each of the nine subsequent weeks, claimant
grossed $320.
As it happens, claimant was paid three weeks of
workers' compensation benefits following a claimed injury
lifting an LP gas tank in January 1990. Following his
return to work, Duane Robinson indicated that claimant
performed his normal work without further complaint of back
problems until January 1991. Then, he claimed to have
injured his back lifting his own toolbox out of the back of
his truck. Robinson expressed ignorance as to why claimant
would have done this, since the employer provided all tools.
Recalled to the stand, claimant then averred that he had
been taking his toolbox into the shop to work on a machine.
On cross-examination, it was brought out that he had
specifically denied a toolbox incident of this type during
his deposition despite detailed questioning on the issue.
Claimant then asserted he had no recollection of the toolbox
incident until the day of hearing.
Physical therapy chart notes from Mercy Hospital dated
January 11, 1990 show that claimant reported with back pain
and inability to move after feeling immediate pain when
lifting a gas cylinder in excess of 100 pounds. Claimant
had been to a chiropractor two times without relief.
Observation was made of a man in "very obvious acute pain"
who had a great deal of difficulty rising from his chair and
walking into the department. Posture was deviated from
normal with knees and hips flexed, the spine very flat and
rigid and slightly bent forward. Claimant was able to bend
forward, but could not return without "climbing up" his legs
and deviating to the left. Physical therapy continued
through January 26, 1990. A radiology report dated March
29, 1990, notes that claimant had suffered back pain with
numbness in the left leg and testicle since January. It is
this incident that neither Mr. Starn nor his wife claim to
remember.
Dr. MacMenamin, a board certified orthopedic specialist
who testified by deposition on March 15, 1993, reported
seeing claimant for the first time on February 4, 1991.
Claimant gave a history of symptoms on and off for a year
after lifting a 100 pound LP tank in his house, with the
pain becoming worse in the last two weeks as he was using a
bulldozer and tearing down buildings. A history
questionnaire of that date from Iowa Medical Clinic reports
pain developing on January 18 "lifting toolboxes out of the
truck."
These records, despite claimant's denial of accuracy,
establish that any gas tank lifting accident occurred in
1990, although claimant at least once reported that the
incident actually occurred at home. As noted, claimant was
paid three weeks of workers' compensation benefits in
January 1990 based on this incident. It now appears that
this was probably a fraudulent claim. James Rolfes, also a
former employee of Robinson Service (in the two weeks before
trial, he again began working part time for defendant)
Page 5
testified that claimant was off work for approximately three
weeks and reported hurting his back when he "twisted wrong"
while plowing out his own driveway. According to Rolfes,
claimant said nothing about either a toolbox or an LP tank.
Although Rolfes believed that this conversation occurred in
January 1991, it seems clear that he has the year wrong,
since he left work with Robinson Service near the end of
1990, and certainty before March 1991 when claimant returned
to work. Therefore, this revealing conversation with
claimant must have occurred in 1990.
Duane Robinson also testified that claimant, during his
tenure, often spoke about retiring because he was "too old"
for such heavy work. Robinson also reported that when
claimant quit in 1991, he did not claim that his decision
was due to back problems, but instead, cited a prior leg
injury he had suffered when stepping off his bulldozer.
Medical records show such a incident occurred in 1988, while
claimant was self-employed. Additionally, claimant was
again seen by Dr. MacMenamin for "swelling" in the right leg
on April 18, 1991.
Based on the great number of inconsistencies with other
evidence, many of which are difficult to explain, it must be
concluded that claimant lacks credibility as a witness.
ANALYSIS AND CONCLUSION OF LAW
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
Claimant was the only witness to this alleged injury.
He was not a credible witness. Other evidence fails to
support his claim of injury arising out of and in the course
of employment. Claimant has failed to meet his burden of
proof.
Other issues are accordingly rendered moot.
ORDER
THEREFORE, IT IS ORDERED:
Claimant takes nothing.
Costs are assessed to claimant.
Signed and filed this ____ day of May, 1993.
Page 6
________________________________
DAVID R. RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Robert F Wilson
Attorney at Law
210 2nd Street
810 Dows Building
Cedar Rapids Iowa 52401-1407
Ms Carole J Anderson
Attorney at Law
600 Davenport Bank Building
Davenport Iowa 52801
5-1402.30
Filed May 10, 1993
DAVID R. RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
DAVID STARN,
Claimant,
vs.
File No. 976100
ROBINSON SERVICES, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
AETNA,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1402.30
Claimant, who lacked credibility, was the only witness to
the alleged injury. Much evidence was inconsistent with his
story. Claimant failed to prove an injury arising out of
and in the course of employment.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
SALLY J. GREINER,
Claimant,
vs.
File No. 976604
EXCEL CORP.,
A P P E A L
Employer,
D E C I S I O N
and
CNA,
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 25, 1994 is affirmed
and modified as the final agency action in this case. The order
portion of the deputy's decision is modified as follows:
This case will not be returned to assignment for hearing. Defendants
may seek review-reopening if necessary.
Defendants shall pay the costs of the appeal, including the preparation
of the hearing transcript.
Signed and filed this ____ day of February, 1995.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Gregg A. Pieper
Attorney at Law
P.O. Box 170
Fairfield, IA 52556
Ms. Dorothy L. Kelley
Attorney at Law
500 Liberty Bldg
Des Moines, IA 50309
5-1803
Filed February 27, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SALLY J. GREINER,
Claimant,
vs.
File No. 976604
EXCEL CORP.,
A P P E A L
Employer,
D E C I S I O N
and
CNA,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Nonprecedential, extent of disability case.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
SALLY J. GREINER, :
:
Claimant, :
:
vs. :
: File No. 976604
EXCEL CORP., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Sally J.
Greiner, claimant, against Excel Corporation, employer,
hereinafter referred to as Excel, and CNA Insurance Company,
insurance carrier, defendants, for workers' compensation
benefits as a result of an alleged injury on February 18,
1989. On August 31, 1993 and March 21, 1994, a hearing was
held on claimant's petition and the matter was considered
fully submitted at the close of this hearing.
The parties have submitted a hearing report of
contested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the hearing report, the parties have
stipulated to the following matters:
1. An employee-employer relationship existed between
claimant and Excel at the time of the alleged injury.
2. At the time of injury claimant was single and she
was entitled to one exemption.
Page 2
ISSUES
The parties submitted the following issues for
determination 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, rate of weekly compensation and penalty
benefits, if any; 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 the credibility of claimant and her family
at issue during the hearing as to the occurrence of the
injury and its impact upon claimant's back and mental
conditions. From their demeanor, appearance and gestures
while testifying, claimant, her father and her mother are
found credible. This finding was crucial to the issue of
which group of medical experts should be relied upon in this
decision because the treating physicians, which were
supportive of this claim for compensation, relied heavily
upon claimant's version of events and their own assessment
that she was a credible and honest person, an assessment
shared by the undersigned.
Claimant worked for Excel from November 1988 until
April 13, 1989 at which time she resigned. It is found that
she resigned due to her work injury and low back pain. This
was a disputed matter at hearing but her written exit
statement from Excel supported this finding as well as a
favorable ruling from an administrative law judge in
claimant's unemployment compensation hearing. Although
appealed, the finding by the judge that claimant left her
Excel employment upon advice from her doctor due to back
pain from a work injury was upheld. Although there was
evidence to indicate that claimant was unhappy at Excel
because of the physical work, the work injury and resulting
pain was the precipitating factor in her decision to leave.
On or about February 18, 1989, claimant suffered an
injury to her low back which arose out of and in the course
of her employment at Excel. The account of the incident by
claimant is largely uncontroverted. She fell on her back
while going down a flight of slippery stairs at Excel and
suffered the immediate onset of low back pain. Claimant was
initially reluctant to report the injury and seek medical
treatment due to a policy at Excel that discourages the
Page 3
reporting of work injuries. Apparently, there was an
incentive pay system in which employees in a department will
receive more pay if no work injuries are reported. Claimant
was credible when she stated that this policy caused her to
delay reporting of the injury and seeking medical treatment
from Excel. Hopefully, this policy is now ended at Excel as
it appears to greatly conflict with the purposes of the
workers' compensation and OSHA laws in this state.
After the injury, claimant did seek medical treatment
on her own from a local chiropractor who advised her to
leave Excel. She was off work at Excel only a couple of
days. Later on, she was treated by a family physician who
referred her to Donald Berg, M.D., an orthopedic surgeon.
Dr. Berg initially treated claimant for coccydynia thinking
her pain may be from a fractured tailbone. However, by the
end of November 1990, he concluded that she had a bulging
disc at L4-5 of the low spine. At claimant's request, Dr.
Berg referred claimant to a neurologist, Richard Neiman,
M.D. Dr. Neiman has since remained as claimant's primary
treating physician for her chronic low back pain.
Dr. Neiman's diagnosis is degenerative arthritis of the
low spine at L4-5 and L5-S1 levels with bulging of the disc
at L4-5. Dr. Neiman has treated this condition now for over
four years and believes that claimant's back condition has
stabilized. However, he has imposed permanent activity
restrictions against heavy work. Dr. Neiman causally
relates the degenerative arthritis and building disc
conditions to claimant's fall at Excel in February 1989. In
his deposition he maintained this opinion despite records
that demonstrated low back pain episodes since 1981. Dr.
Neiman explains that despite prior incidents of pain,
claimant relates a history of the start of her current
chronic and severe pain to the incident at Excel and he
believes her. A contrary opinion was rendered by Michael
Kitchell, M.D., another orthopedic surgeon, on May 27, 1993
after a single examination of claimant. The finding of a
work injury is based upon the views of Dr. Neiman, the
primary treating physician. The rejection of Dr. Kitchell's
views is explained below.
It is also found that the work injury of February 18,
1989 was a significant cause of claimant's current low back
condition and significant permanent partial impairment.
This finding is likewise based upon the views of Dr. Neiman.
Dr. Neiman, as the treating physician, has far greater
understanding of the condition due to his clinical
involvement in claimant's case. Also, like the undersigned,
he believes the claimant. On the other hand, the report and
deposition of Dr. Kitchell demonstrated a cynicism toward
claimant's story that is not shared by this deputy
commissioner after observing her demeanor at hearing.
Claimant did return to work after leaving Excel. In
August 1989 she worked for Copperfield Chimney tracing UPS
packages. Between January 1990 and May 1992, she was
Page 4
employed at Jefferson County Hospital. Claimant stated that
the hospital work was less demanding but that she did
experience back problems with activity while walking and
moping or cleaning. Claimant has not worked since leaving
the Jefferson hospital. However, claimant's back problems
are not the cause of this inability to return to any type of
work.
Since childhood, claimant has suffered from episodes of
chronic mental depression. Her first significant
hospitalization was in 1988, six months before starting at
Excel. The diagnosis at the time was major depressive
disorder. It was felt by her treating psychiatrist, Albert
Norris, M.D., that the accidental death of her brother a
year and a half before the admission was a significant
stressor leading to this disorder. At the time of her fall
at Excel, claimant was under treatment for depression from
L. Elaine Ham, D.O., another psychiatrist. Claimant was
taking anti-depressive medication when she fell at Excel but
there is evidence to suggest that she was not taking it
regularly. It is found that claimant never fully recovered
from the depressive event in 1988. However, according to
claimant's parents, claimant herself, and the records of her
physicians, she was greatly improved at the time of the
fall. She was able to live independently and work despite
disliking the physical aspects of her job. Otherwise, she
enjoyed working and her fellow employees. She also began at
the time a significant relationship with a young man.
After the fall claimant began taking the
anti-depressive medication more frequently and Dr. Ham noted
an increase in her stress due to physical pain from the back
condition and from conflict with Excel over the
compensability of her workers' compensation claim. Claimant
was hospitalized again in October 1990 by another
psychiatrist, Gary Tiegland, D.O., for major depressive
disorder. Dr. Tiegland notes, as a significant cause for
this hospitalization, claimant's inability to cope with her
back pain following the Excel fall and the fact that she was
not improving. This increased stress from the back pain and
its effect on her depression was clearly noted by Dr. Neiman
during his treatment of the back.
In April 1991, claimant was given an intensive soft
tissue program to relieve her back pain and was also treated
for depression. Although claimant's back condition appeared
to stabilize, her depression continued to worsen.
Claimant's condition deteriorated until she became unable to
concentrate or to function. Finally, she was again
hospitalized in June 1992 for major depressive disorder and
for suicidal idealization. Claimant was subsequently
released but continues to be unable to work. She is
currently attempting to return to college but is only
capable of one course per quarter due to a lack of
concentration ability. She, however, does well in this one
Page 5
course and has received A's so far for each course. From
observations at hearing, claimant is still a long way from
being fully functional. She has continual bouts of crying
and clearly has limited ability to concentrate.
It is found that this worsening of claimant's ongoing
depression was due to lingering back pain from the fall.
This finding is based upon the observations of Dr. Neiman
and the opinions of claimant's current board certified
treating psychiatrist, Russell England, M.D. Dr. Neiman
clearly observed a change in her condition following the
fall and the lingering back pain. Dr. Neiamn had evaluated
claimant on two occasions before the fall but noted no
severe depressive symptoms. However, they became obvious
after the fall.
Dr. England, who testified personally at hearing,
opines that claimant's fall and continuing back pain from
this fall aggravated the prior-existing major depressive
disorder. He attributes claimant's current emotional
condition to two significant stressors: the death of
claimant's brother and her back condition. At one point in
this deposition, Dr. England stated that he could not be
reasonably certain that the fall caused the episode but that
the fall did worsen the condition. The undersigned believes
that this somewhat confusing statement is largely due to use
of the legal term "reasonable medical certainty." However,
there is little doubt from his testimony at hearing and
later on in the deposition that the injury and pain has
probably worsened the condition. There may have been many
other stressors which aggravated claimant's mental condition
such as stormy incidents with family members, a breakdown in
a love relationship, her continuing weight problem and just
coping with everyday life. However, the fall of February
18, 1990 remains as one of the significant stressors causing
claimants' mental problems.
Dr. England states that claimant has not returned to
the condition she was in at the time of the fall. Claimant
certainly was suffering from ongoing depression at the time
of the fall but she was recovering. He states that his
treatment is continuing to improve the situation but he has
not as yet achieved relief of the depression. Therefore, it
is found that claimant has not as yet achieved maximum
healing from the injury and aggravated depression.
As claimant has not as yet reached maximum healing, a
final assessment of industrial disability or loss of earning
capacity, if any, from the fall, the back condition and the
aggravated depression cannot be made at this time.
Defendants have denied the compensability of the fall
and have paid no workers' compensation benefits. The
ongoing nature of the mental depression at the time of the
fall in February 1989 clearly makes the causal connection
between the fall and the depression fairly debatable.
Page 6
However, defendants also denied the causal connection of the
fall to her back complaints treated by Dr. Neiman despite
clear statements by Dr. Berg and Dr. Neiman causally
relating the complaints and treatment to the fall.
Defendants did not have a supportive medical opinion denying
the causal connection until they hired Dr. Kitchell. Dr.
Kitchell did not issue his opinion until May 27, 1993, well
over four years after the injury. It is found that the
denial of compensability for the back injury between
February 18, 1989 and May 27, 1993 was without reasonable or
probable cause.
Evidence in the record with reference to gross weekly
compensation at the time of this work injury was sparse.
The best evidence available shows that claimant was earning
$6.05 per hour in February 1989. Claimant testified she
worked 40 hours a week. Therefore, it is found that
claimant's gross weekly earnings at the time of injury was
$242.00.
It is found that all of the requested medical expenses
set forth in exhibit 2 constitute reasonable and necessary
treatment of the injury. All of the treatment was conducted
by licensed physicians in Iowa and absent contrary evidence,
their treatment is found reasonably suited to treat the
injury. With reference to the reasonableness of the fees
and charges by the medical providers, it is found that all
of the requested expenses were either totally or partially
paid by either claimant herself or a group insurance
carrier. Absent contrary evidence, the fees and charges are
found reasonable and customary.
CONCLUSIONS OF LAW
I. Claimant has the burden of proving by a
preponderance of the evidence that claimant received an
injury arising out of and in the course of employment. The
words "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.
The question of causal connection is essentially within
the domain of expert medical opinion. Bradshaw v. Iowa
Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
The opinion of experts need not be couched in definite,
positive or unequivocal language and the expert opinion may
be accepted or rejected, in whole or in part, by the trier
of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
Page 7
1974). The weight to be given to such an opinion is for the
finder of fact to determine from the completeness of the
premise given the expert or other surrounding circumstances.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with non-expert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). 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 (1980). In the case of a
preexisting condition, an employee is not entitled to
recover for the results of a preexisting injury or disease
but can recover for an aggravation thereof which resulted in
the disability found to exist. Olson v. Goodyear Service
Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
In the case sub judice, claimant established causal
connection by a preponderance of the credible evidence and
benefits will be awarded accordingly.
II. Claimant is entitled to weekly benefits for
temporary total or healing period benefits under Iowa Code
section 85.33 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.
In this case, claimant returned to work several times
only to be compelled to end employment due to conditions
proximately caused by the injury. Healing period may
terminate and then begin again. Lawyer & Higgs, Iowa
Workers' Compensation -- Law and Practice Section 13-3.
Willis v. Lehigh Portland Cement Co., I-2 Iowa Indus.
Comm'r Dec 485 (1984); Riesselman v. Carrol Health Center, 3
Iowa Indus. Comm'r Rep 209 (Appeal Decision 1982); Clemens
v. Iowa Veterans Home, I-1 Iowa Indus. Comm'r Dec 35 (1984).
It was also found herein that claimant has not as yet
reached maximum healing. Therefore, temporary total or
healing period benefits will be awarded for all times she
was off work and for an indefinite period of time into the
future until maximum healing or a return to work occurs.
This is a so-called "running award" as termed by this
agency.
With reference to rate of compensation, it was found
that claimant's gross weekly rate was $242.00. Given the
stipulations as to marital status and entitlement to one
exemption, claimant's rate of compensation is $150.92
according to the commissioner's published rate booklet for
Page 8
an injury in February 1989.
Claimant seeks additional weekly benefits under Iowa
Code section 86.13, unnumbered last paragraph. That
provision states that if a delay in commencement or
termination of benefits occurs without reasonable or
probable cause or excuse, the industrial commissioner shall
award extra weekly benefits in an amount not to exceed 50
percent of the amount of benefits that were unreasonably
delayed or denied. Defendants may deny or delay the payment
of benefits only when the claim is fairly debatable. Seydel
v. U of I Physical Plant, (Appeal Decision, November 1,
1989). When the claim is "fairly debatable," the insurer is
entitled to debate it, whether the debate concerns a matter
of fact or law. The Supreme Court recently has clarified
the grounds necessary to impose a section 86.13 penalty.
In the recent case of Boylan v. American Motorists Ins.
Co., 489 N.W.2d 742, 744 (Iowa 1992), the Iowa Supreme Court
stated as follows:
We conclude that it is unlikely that the
legislature intended the penalty provision in
section 86.13 to be the sole remedy for all types
of wrongful conduct by carriers with respect to
administration of workers' compensation benefits.
By its terms, it applies only to delay in
commencement or termination of benefits. It
contemplates negligent conduct rather than the
willful or reckless acts that are required to
establish a cause of action under Dolan.
Consequently, not only bad faith but also negligent
conduct can invoke the penalty provisions of section 86.13.
In reviewing the propriety of defendants' actions, Iowa Code
section 507B.4(9) lists uniform unfair settlement claims
practices for insurance companies. This listing is useful
as a statement of public policy to identify the types of
claim settlement practices that should be viewed
unreasonable. Failing to promptly and fully investigate a
claim and to force claimant to begin litigation to secure
benefits are two types of unfair claims practices in this
listing.
Therefore, Iowa Code section 86.13, as now interpreted
by Boylan, creates an affirmative duty for workers'
compensation insurance carriers and self-insureds to act
reasonably once a claim is filed. Acting reasonably means
to fully and fairly investigate a claim, not to stand back
and deny a claim simply because they wish to deny a claim.
Failure to have a medical opinion to support a denial
of a claim may also justify an award of penalty benefits
when claimant's physician has opined in favor of claimant
even if an opinion supportive of denial is later obtained.
Turner v. Louis Rich Company, File No. 860345, (Appeal
Decision, June 5, 1991).
Page 9
Given the conduct exhibited herein, a reasonable
penalty for a denial of benefits between the date of injury
and August 1990, the date claimant first became re-employed
following the back injury is eight weeks to be paid in
addition to the weekly benefits awarded herein.
III. Pursuant to Iowa Code section 85.27, claimant is
entitled to payment of reasonable medical expenses incurred
for treatment of a work injury. Claimant is entitled to an
order of reimbursement if he/she has paid those expenses.
Otherwise, claimant is entitled only to an order directing
the responsible defendants to make such payments directly to
the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa
1988).
In the case at bar, all of the expenses requested were
found causally connected to the injury. However, no
evidence was offered as to the reasonableness of the charges
and fees despite the fact that the issue was listed as
disputed in the prehearing conference report. However it
was found that all of these expenses were either paid by
claimant or partially paid by the group insurance carrier.
Payment of medical fees can constitute evidence of their
reasonableness and, in the absence of contrary evidence, is
sufficient to carry claimant's burden of proof on
reasonableness of the fees. Schneider v. Prairie
Contractors, Inc., File No. 869747, (Appeal Decision, April
20, 1992).
ORDER
1. Defendants shall pay to claimant temporary total
disability/healing period benefits from February 18, 1989
through the present and continuing for an indefinite period
into the future except for those periods of time claimant
was employed either at Excel or with some other employer at
the rate of one hundred fifty and 92/l00 dollars ($150.92)
per week. These benefits shall continue until any of the
conditions set forth in Iowa Code section 85.33 or 85.34(1)
are satisfied which would justify a termination of such
benefits and the commencement of permanent partial benefits.
2. Defendants shall pay in addition to the weekly
benefits set forth above an additional eight (8) weeks of
weekly benefits from February 18, 1989 as a penalty for an
unreasonable denial of weekly benefits.
3. Defendants shall pay the medical expenses listed in
the claimant's exhibit 2. Claimant shall be reimbursed for
any of these expenses paid by him. Otherwise, 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.
Page 10
5. Defendants shall receive credit for previous
payments of benefits under a non-occupational group
insurance plan, if applicable and appropriate under Iowa
Code section 85.38(2), less any tax deductions from those
payments.
6. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
7. Defendants shall pay the costs of this action
pursuant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
8. Defendants shall file activity reports on the
payment of this award as requested by this agency pursuant
to rule 343 IAC 3.1.
9. This matter shall be set back into assignment for
hearing on the issue of extent of permanency benefits and
for re-issuance of orders to submit a prehearing conference
report indicating readiness for hearing.
Signed and filed this ____ day of April, 1994.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Gregg A. Pieper
Attorney at Law
103 1/2 E Broadway
PO Box 170
Fairfield, Iowa 52556
Ms. Dorothy L. Kelley
Attorney at Law
500 Liberty Building
Des Moines, Iowa 50309
5-1803
Filed April 25, 1994
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
SALLY J. GREINER,
Claimant,
vs.
File No. 976604
EXCEL CORP.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CNA,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.
before the iowa industrial commissioner
____________________________________________________________
_____
:
JEFFREY A. SCHWAB, :
:
Claimant, :
:
vs. :
: File No. 976608
COLONIAL BAKING COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
PACIFIC EMPLOYERS INSURANCE, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
_____
The record, including the transcript of the hearing before
the deputy and all exhibits admitted into the record, has
been reviewed de novo on appeal. The decision of the deputy
filed September 22, 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 January, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. Jack Paige
Attorney at Law
P.O. Box 1968
Cedar Rapids, Iowa 52401
Mr. James M. Peters
Attorney at Law
1200 Merchants Nat'l Bank Bldg.
Cedar Rapids, Iowa 52401
9998
Filed January 28, 1993
Byron K. Orton
PJL
before the iowa industrial commissioner
____________________________________________________________
_____
:
JEFFREY A. SCHWAB, :
:
Claimant, :
:
vs. :
: File No. 976608
COLONIAL BAKING COMPANY, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
PACIFIC EMPLOYERS INSURANCE, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
_____
9998
Summary affirmance of deputy's decision filed September
22, 1992.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JEFFREY SCHWAB, :
:
Claimant, :
:
vs. :
: File No. 976608
COLONIAL BAKING COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
PACIFIC EMPLOYERS INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Jeffrey
Schwab, claimant, against Colonial Baking Company, employer,
and Pacific Employers Insurance, insurance carrier, as
defendants. Claimant filed his petition based on an alleged
work-related injury occurring on December 30, 1990.
A hearing was held on August 5, 1992, at Cedar Rapids,
Iowa. The record consists of testimony from the claimant
and Scott Edmunds; and, joint exhibits 1 through 10.
ISSUES
The parties submit the following issues for resolution:
1. Whether claimant sustained an injury on December
30, 1990, which arose out of and in the course of his
employment;
2. Whether there is a causal relationship between the
alleged injury and claimant's disabilities;
3. Whether claimant is entitled to temporary total
disability or healing period benefits or permanent partial
disability benefits; and,
4. Whether claimant is entitled to medical benefits as
governed by Iowa Code section 85.27.
Page 2
FINDINGS OF FACT
The undersigned deputy, having reviewed all of the
evidence received, finds the following facts:
Claimant, Jerry Schwab, was 22 years old at the time of
the hearing. He currently works as a laborer at Colonial
Baking Company. Claimant began working for the defendant on
June 5, 1988.
In December of 1990, claimant's title was that of "cake
person." As such, he was required to unload a semi truck,
distribute different bakery products to trucks assigned to
various routes, and paperwork duties. Claimant also has the
capability to "spot" trucks, and on a regular basis would
move trucks so that the semi could back into the loading
dock. Claimant testified that he was the only one on his
shift that had the ability to move the trucks.
Claimant was classified as a part-time worker, but
averaged 44 hours of work per week. As a part-time
employee, he was not given a guarantee to work any hours,
was offered no insurance plan, and could not participate in
the company's pension program.
December 30, 1990 was a Sunday. Claimant was scheduled
to begin work at 6:00 a.m. The weather on this particular
day was that of a typical Iowa winter day, freezing rain.
Claimant stated that some ice had formed on the sidewalks,
but he encountered no problems driving to work.
Claimant arrived at work and reported to Scott Edmunds,
his supervisor. He was told that the semi truck that was to
be unloaded was late. Claimant states he was told to go
home and wait by the phone so that Edmunds could call him
when the truck arrived. Edmunds told claimant that the
truck could be five to six hours late. Claimant apparently
told Edmunds that he could be reached by telephone at a
friend's house. Claimant "punched out" and drove to his
friend's house. As he reached the door of the house, he
slipped on the ice and fell. He sustained a fractured
ankle, and has incurred medical bills totaling more than
$5,000 as a result of two surgeries and other medical
treatment rendered.
ANALYSIS AND CONCLUSIONS OF LAW
The first issue to be addressed is whether claimant
sustained an injury on December 30, 1990, which arose out of
and in the course of his employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on December 30,
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
Page 3
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 v. Union
et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261
Iowa 352, 154 N.W.2d 128.
Claimant argues that after he left the warehouse, he
was still under the employer's control because he was
instructed to wait for a telephone call from his supervisor
so that he could return to work when the truck arrived.
Claimant states that he was not free to do anything or go
anywhere he wanted, but rather had to be accessible by phone
until the truck arrive
Comp., Ap. Bd., 106 Cal. Rptr. 39, 29 CoA.3d 902 (1973)
(benefits denied to police officer who, although on-call 24
hours per day, was not involved in any conduct for
employer's benefit when injured while driving to work);
Kansas City, Missouri, Police Dep't. v. Bradshaw, 606 SW2d
277 (Mo. App. 1980) (benefits denied when policeman, was on-
call 24 hours a day, was traveling from his regular job to a
second job, as on-call does not necessarily mean on-duty);
Thornton v. Texarkana Cotton Oil Corp., 219 Ark.650, 243
SW2d 940 (1951) (benefits denied to employee who was going
home from regular work but was subject to call at any time).
Claimant argues that after he left the warehouse, he
was still under the employer's control because he was
instructed to wait for a telephone call summoning him back
to work. Claimant contends he was not free to do anything
or go anywhere he wanted. Additionally, he argues that his
act of going home to sleep benefited the employer and makes
his injury compensable.
The undersigned is not convinced that claimant was an
on-call employee, and that even if he was, does not believe
his claim is compensable.
Claimant, once he left the employer's premises, was
told that the truck would be five to six hours late. During
those hours, he feasibly could have done anything he chose
to do. He punched out, and returned to a friend's house to
sleep. At 6:00 a.m., it is more likely than not that
claimant's act of sleeping was as much for his own benefits
(if not more so) than for the benefit of his employer.
Although claimant disagrees, the cakes job could have been
performed by other people at the plant and/or at anytime
after the truck finally arrived.
Likewise, the evidence does not support a finding that
claimant's act of going home to sleep until his duties could
be performed constitute a special errand. Claimant was not
instructed to do anything other than return to the warehouse
when the truck arrived.
As a result, claimant has failed to prove by a
preponderance that his injury arose out of his employment.
Page 5
ORDER
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That defendants shall pay the costs of this action.
Signed and filed this ____ day of September, 1992.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr Jack Paige
Attorney at Law
700 Higley Bldg
P O Box 1968
Cedar Rapids IA 52401
Mr James M Peters
Attorney at Law
1200 Merchants natl Bank Bldg
Cedar Rapids IA 52401
5-1100
Filed September 22, 1992
Patricia J. Lantz
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
JEFFREY SCHWAB, :
:
Claimant, :
:
vs. :
: File No. 976608
COLONIAL BAKING COMPANY, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
PACIFIC EMPLOYERS INSURANCE, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100
Claimant failed to prove by a preponderance of the evidence
that he sustained a work-related injury. Claimant had been
told to punch out on the time clock and wait for five to six
hours before returning to work. Claimant was free to do
anything he wanted during the time he was off duty.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
LARRY HOCH, :
:
Claimant, :
:
vs. : File Nos. 956038
: 976617
FIRESTONE TIRE & RUBBER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CIGNA INSURANCE COMPANIES, :
:
Insurance Carrier, :
:
and :
:
SECOND INJURY FUND OF IOWA, :
:
Defendants. :
____________________________________________________________
STATEMENT OF THE CASE
Claimant Larry Hoch asserts that he suffered a
work-related injury to the left knee on December 8, 1988
(956038) or, in the alternative, on June 26, 1989 (976617).
He has filed petitions in arbitration seeking benefits under
the Iowa Workers' Compensation Act from his employer,
Firestone Tire & Rubber Company, and its insurance carrier,
Cigna. Claimant also named Second Injury Fund of Iowa as a
party defendant in file number 956038. The cases were
consolidated for hearing, and as the asserted injury dates
were offered in the alternative, it was determined that
Second Injury Fund of Iowa would properly be considered a
party defendant in both actions.
The cause came on for hearing in Des Moines, Iowa, on
July 9, 1992. Claimant and Duane Abels testified at hearing
(claimant's deposition of April 29, 1992, is also in
evidence). Claimant's exhibits 1 through 12 and Second
Injury Fund exhibits A, B and C were also received into
evidence. Claimant's exhibit 13 and defendants' exhibits X,
Y and Z were excluded upon objection.
During the hearing, claimant requested that official
notice be taken of the first report of injury in each file.
The presiding deputy thereupon belatedly discovered that
defendants Firestone and Cigna had failed to file a first
report in case number 976617, as ordered by the hearing
assignment order filed January 9, 1992. The hearing
assignment order further specified that failure to file the
Page 2
first report prior to commencement of hearing would result
in an order closing the record to further evidence or
activity on the part of those defendants. Accordingly, that
sanction was imposed. Defendants subsequently offered a
first report in case number 976617 which was accepted by the
deputy for filing. Official notice was taken of the first
report of injury in each case.
ISSUES
The parties have stipulated to the existence of an
employment relationship at all times relevant; that if
liability is established, to temporary total disability/
healing period from June 26 through August 27, 1989; that
any permanent disability is to the left leg; to the facts
necessary to determine the compensation rate; that
affirmative defenses are waived; that medical benefits are
not in dispute; and, that defendants Firestone and Cigna
paid nine weeks of compensation at the rate of $466.85 prior
to hearing.
Issues presented for resolution include:
1. Whether claimant sustained an injury arising out of and
in the course of his employment on December 8, 1988, or June
26, 1989;
2. Whether there exists a causal relationship between the
claimed injury and temporary or permanent disability;
3. The extent of permanent disability;
4. Whether claimant sustained an injury under chapter 85 or
an occupational disease under chapter 85A; and,
5. The extent of Second Injury Fund liability.
FINDINGS OF FACT
The undersigned deputy industrial commissioner finds:
Larry Hoch, 52 years of age at hearing, is a high
school graduate with work experience in farm labor, factory
work, gas station work, and various unspecified part-time
jobs held briefly while on layoff or strike during the
course of his employment with defendant Firestone. This
employment began in March 1960, although claimant's
seniority date is August of that year due to a layoff
shortly after his first hire. Claimant continues to work
for Firestone, although he anticipates retiring in about
five years.
Claimant also has training as an emergency medical
technician and has been an EMT and volunteer fire fighter
since 1978, being assistant chief for the last five years.
When claimant took work with Firestone, he was in good
health and had no problems with either knee. He injured the
right knee on November 17, 1981, while twisting and lifting.
He underwent surgery at the hands of Stephen G. Taylor,
M.D., on January 25, 1982. Dr. Taylor eventually released
claimant to return to work (in fact, his same job) with no
medical restrictions whatsoever, although he assigned an
eight percent impairment rating.
In late 1988, claimant was employed in the operation of
a stand-up jeep. This gasoline-powered device was, as
indicated by its name, operated in a standing position. The
Page 3
right foot operated an accelerator pedal, while the left
foot operated a clutch/brake device. This hinged pedal was
sprung under tension, so that it popped up if released and,
doing so, acted automatically as a brake. Operation of the
stand-up jeep required constant use of the pedal, as it must
be kept constantly depressed while the machine is in motion.
The particular jeep assigned to claimant was
characterized by extremely high tension on the left foot
clutch/brake pedal. Persons of lighter weight than claimant
had trouble even depressing it at all.
In late 1988, claimant had worked in the operation of
this particular jeep for about one to one and one-half
years. After developing pain symptoms in the left leg, and
successfully bid into another job operating a different jeep
in a sitting position. This did not cause further problems
to the knee. Later, he transferred to a different
department in the "floatation" area and aggravated his knee
symptoms pushing around and generally manhandling huge tires
(some 1,400-1,500 pounds).
Claimant reported this problem to Firestone for the
first time on February 8, 1989. The company doctor referred
him back to Dr. Taylor, who eventually performed an
arthroscopy and partial lateral meniscectomy to the left
knee on June 26, 1989. Post-operative diagnosis was of a
complex tear of the lateral meniscus in the left knee with
Grade I degenerative arthritis of the lateral compartment
and patellofemoral joint of the knee.
The date of surgery was the first time claimant missed
work due to left knee problems.
Claimant returned to work in August 1989, but still had
symptoms. On September 12, Dr. Taylor limited him to duty
requiring no more than 50 percent of his time on his feet.
However, by October 10, 1989, claimant was doing much better
and was released to full work duties on a PRN basis without
restriction of any kind. Dr. Taylor has rated claimant as
having sustained a 10 percent permanent partial impairment
of the left leg and has causally related the problem to work
activities which "significantly aggravated his underlying
knee problem" and eventually led to the surgical procedure.
Claimant now works the same job in the floatation area
as was the case immediately prior to surgery. He still has
no restrictions, except that the company physician (James
Blessman, M.D.) has recommended that he not work as a tire
builder due to an unrelated upper extremity problem
concerning which claimant has undergone two other surgical
procedures. Mr. Hoch is now relieved from his volunteer
fire fighting duties because of a heart ailment requiring
angioplasty in March 1992. This problem bears no
relationship to the subject work injury.
CONCLUSIONS OF LAW
Defendants dispute whether claimant sustained an injury
arising out of and in the course of employment on either
Page 4
date alleged, and further deny the existence of a causal
relationship between that injury and temporary or permanent
disability.
The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
A personal injury contemplated by the workers'
compensation law means an injury, the impairment of health
or a disease resulting from an injury which comes about, not
through the natural building up and tearing down of the
human body, but because of trauma. The injury must be
something which acts extraneously to the natural processes
of nature and thereby impairs the health, interrupts or
otherwise destroys or damages a part or all of the body.
Although many injuries have a traumatic onset, there is no
requirement for a special incident or an unusual occurrence.
Injuries which result from cumulative trauma are
compensable. McKeever Custom Cabinets v. Smith, 379 N.W.2d
368 (Iowa 1985); Olson v.urse of employment. The injury resulted in
surgery which, itself, has left claimant with an impairment
of the left leg. Dr. Taylor's assigned impairment rating of
10 percent is uncontradicted, consistent with agency
experience and is hereby accepted.
The leg is a scheduled member, the loss of which is
compensable during 220 weeks under Iowa Code section
85.34(2)(o). Claimant is accordingly entitled to 22 weeks
of compensation for his 10 percent impairment to that
member.
But what is the date of injury? This is significant in
that the compensation rate varies from December 8, 1988, to
June 26, 1989.
When the disability develops gradually over a period of
time, the "cumulative injury rule" applies. For time
limitation purposes, the compensable injury is held to occur
when because of pain or physical disability, the claimant
can no longer work. McKeever Custom Cabinets v. Smith, 379
N.W.2d 368 (Iowa 1985).
Although claimant first developed symptoms in 1988,
those symptoms later improved with a change of job and
became aggravated with yet another change. Claimant had no
disability or medical expenses until undergoing surgery on
June 26, 1989, the first time he missed work. The date of
injury is June 26, 1989.
The parties have stipulated to a gross weekly wage of
$859.36, marital status of married and entitlement to two
exemptions with respect to that injury. The Guide to Iowa
Workers' Compensation Claim Handling in effect at that time
shows that an individual so situated is entitled to a
compensation rate of $492.65.
Claimant also asserts entitlement to benefits from the
Second Injury Fund of Iowa.
Page 6
Section 85.64 governs Second Injury Fund liability.
Before liability of the Fund is triggered, three
requirements must be met. First, the employee must have
lost or lost the use of a hand, arm, foot, leg or eye.
Second, the employee must sustain a loss or loss of use of
another specified member or organ through a compensable
injury. Third, permanent disability must exist as to both
the initial injury and the second injury.
The Second Injury Fund Act exists to encourage the
hiring of handicapped persons by making a current employer
responsible only for the amount of disability related to an
injury occurring while that employer employed the
handicapped individual as if the individual had had no
preexisting disability. See Anderson v. Second Injury Fund,
262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers'
Compensation-Law and Practice, section 17-1.
The Fund is responsible for the industrial disability
present after the second injury that exceeds the disability
attributable to the first and second injuries. Section
85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467
(Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335
(Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274
N.W.2d 300 (Iowa 1970).
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
earning capacity, but consideration must also be given to
the injured employee's age, education, qualifications, expe
rience and inability to engage in employment for which the
employee is fitted. Olson v. Goodyear Serv. Stores, 255
Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry,
253 Iowa 285, 110 N.W.2d 660 (1961).
A finding of impairment to the body as a whole found by
a medical evaluator does not equate to industrial
disability. Impairment and disability are not synonymous.
The degree of industrial disability can be much different
than the degree of impairment because industrial disability
references to loss of earning capacity and impairment
references to anatomical or functional abnormality or loss.
Although loss of function is to be considered and disability
can rarely be found without it, it is not so that a degree
of industrial disability is proportionally related to a
degree of impairment of bodily function.
Factors to be considered in determining industrial dis
ability include the employee's medical condition prior to
the injury, immediately after the injury, and presently; the
situs of the injury, its severity and the length of the
healing period; the work experience of the employee prior to
the injury and after the injury and the potential for
rehabilitation; the employee's qualifications
intellectually, emotionally and physically; earnings prior
and subsequent to the injury; age; education; motivation;
functional impairment as a result of the injury; and
inability because of the injury to engage in employment for
which the employee is fitted. Loss of earnings caused by a
Page 7
job transfer for reasons related to the injury is also
relevant. Likewise, an employer's refusal to give any sort
of work to an impaired employee may justify an award of
disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181
(Iowa 1980). These are matters which the finder of fact
considers collectively in arriving at the determination of
the degree of industrial disability.
There are no weighting guidelines that indicate how
each of the factors are to be considered. Neither does a
rating of functional impairment directly correlate to a
degree of industrial disability to the body as a whole. In
other words, there are no formulae which can be applied and
then added up to determine the degree of industrial
disability. It therefore becomes necessary for the deputy
or commissioner to draw upon prior experience as well as
general and specialized knowledge to make the finding with
regard to degree of industrial disability. See Christensen
v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial
Commissioner Decisions 529 (App. March 26, 1985); Peterson
v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa
Industrial Commissioner Decisions 654 (App. February 28,
1985).
Compensation for permanent partial disability shall
begin at the termination of the healing period.
Compensation shall be paid in relation to 500 weeks as the
disability bears to the body as a whole. Section 85.34.
Other than his healing period of June 26, 1989, through
August 27, 1989, as per the parties' stipulation (nine
weeks), claimant has suffered no actual loss of earnings.
He has no medical restrictions attributable to either knee
injury which in any way diminish his ability to perform any
work for which he is otherwise suited by education and
experience. Claimant's only residual problem is that of
pain and soreness when he is on his feet too long,
particularly when working a 12-hour day. Pain alone, absent
some impact on earning capacity, is not equivalent to
industrial disability. If claimant has any industrial
disability at all, it does not exceed the disability
attributable to his "first" and "second" injuries.
Accordingly, the Second Injury Fund of Iowa has no liability
on this claim.
ORDER
THEREFORE, IT IS ORDERED:
In file number 956038:
Claimant shall take nothing.
In file number 976617:
Defendants Firestone Tire & Rubber Company and Cigna
shall pay unto claimant nine (9) weeks of healing period
benefits at the rate of four hundred ninety-two and 65/100
dollars ($492.65) per week commencing June 26, 1989.
Page 8
Defendants Firestone Tire & Rubber Company and Cigna
shall pay unto claimant twenty-two (22) weeks of permanent
partial disability benefits at the rate of four hundred
ninety-two and 65/100 dollars ($492.65) per week commencing
August 28, 1989.
Defendants shall have credit for all benefits
voluntarily paid prior to hearing.
All accrued benefits shall be paid in a lump sum
together with statutory interest pursuant to Iowa Code
section 85.30.
Costs are assessed to defendants Firestone Tire &
Rubber Company and Cigna pursuant to rule 343 IAC 4.33.
Defendants Firestone Tire & Rubber Company and Cigna
shall file claim activity reports upon compliance with this
decision pursuant to rule 343 IAC 3.1.
Signed and filed this ______ day of ____________, 1992.
______________________________
DAVID RASEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Robert W. Pratt
Attorney at Law
6959 University Avenue
Des Moines, Iowa 50311
Ms. Anne L. Clark
Attorney at Law
Suite 111, Terrace Center
2700 Grand Avenue
Des Moines, Iowa 50312
Ms. Joanne Moeller
Assistant Attorney General
Tort Claims Division
Hoover State Office Building
Des Moines, Iowa 50319
1803; 2901; 3202
Filed July 13, 1992
DAVID RASEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
LARRY HOCH,
Claimant,
vs. File Nos. 956038
976617
BRIDGESTONE/FIRESTONE,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CIGNA INSURANCE COMPANIES,
Insurance Carrier,
and
SECOND INJURY FUND OF IOWA,
Defendants.
____________________________________________________________
1803; 3202
Claimant had impairment ratings to both legs. Where neither
injury resulted in any medical restrictions whatsoever, his
industrial disability, if any, did not exceed scheduled
member disability, so there was no Second Injury Fund
liability.
2901
Evidence and activity was cut off for failure to file a
first report of injury prior to hearing.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
WILLIAM CONDON, :
:
Claimant, :
:
vs. :
: File No. 976627
RIVER CITY TRUCKING & :
EXCAVATING, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
Defendants did not supply the services of a court
reporter, and at the beginning the hearing both parties
agreed that this decision would serve as the official
transcript of the case
The record consists of live testimony from the
claimant; Everett Rewold, vice president of River City
Trucking & Excavating; Wayne Sterher; and, Arnold Barnett.
Claimant offered exhibits 1-3, which were received.
This matter was heard on December 19, 1991, at
Davenport, Iowa.
FINDINGS OF FACT
The undersigned deputy has carefully considered all of
the evidence and finds the following facts:
Claimant, William Condon, was born on July 18, 1953.
He is a high school graduate, and currently works as a
construction laborer, laying sewer tile for various
construction projects.
In July of 1990, claimant worked for the defendant
employer as a truck driver and loader. At one particular
job site, the drivers were required to load their own dump
trucks using a 950 wheel loader. Apparently, this piece of
machinery is somewhat difficult to use. Another truck
driver, Arnold Barnett, was attempting to load his truck
using the wheel loader. Mr. Barnett, who testified at the
hearing, indicated that while he was loading the truck,
several dump trucks were waiting to be loaded. One of these
trucks was being driven by the claimant.
Claimant became frustrated waiting for Mr. Barnett to
Page 2
finish loading his dump truck. Claimant approached Mr.
Barnett and offered to show him how to run the equipment.
Claimant then contacted his supervisor, Everett Rowold,
explained the situation, and was told to assume the loader
duties. Mr. Rowold, who also testified at the hearing,
indicated that claimant was an experienced end loader
operator, but that the company also allowed employees to use
the end loader to load their trucks as on-the-job training.
When claimant approached Mr. Barnett and told him that he
(claimant) was to take over loading the trucks, Mr. Barnett
refused to relinquish the controls. Claimant stated that
Mr. Barnett called him an obscene name. Claimant felt
intimidated, and hit Mr. Barnett. A brawl developed between
the two men, and claimant's ear was injured. He reported to
his supervisor, who told him to get medical treatment.
Claimant visited several doctors, and incurred medical bills
totaling $489.00 (Claimant's exhibit 1-3).
ANALYSIS AND CONCLUSIONS OF LAW
The sole issue to be addressed is whether claimant
received an injury which arose out of and in the course of
his employment.
An employee is entitled to compensation for any and all
personal injuries which arise out of and in the course of
the employment. Section 85.3(1).
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on July 24, 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.
Defendants raise an affirmative defense under Iowa Code
section 85.16, and argue that claimant's acts constitute a
willful injury, and preclude a recovery under Iowa's
Page 3
workers' compensation laws.
In the case at bar, there is no dispute that claimant
threw the first punch. However, there is enough evidence in
the record to show that claimant was, or felt, intimidated
by Mr. Barnett, and it would be contrary to the underlying
concept of workers' compensation law to select one overt act
out of a series of hostile verbal, psychological and/or
physical acts as the one that caused a quarrel or fight.
However, Iowa has statutory language which specifically
addresses initial acts of aggression.
Iowa Code section 85.16(1) provides:
No compensation under this chapter shall be
allowed for an injury caused by:
1. By the employee's willful intent to injure
the employee's self or to willfully injure
another.
Several agency decisions are instructive. Felder v.
Howard Steel Co., Thirty-fourth Biennial Rep., Iowa Indus.
Comm'r 67, analyzed a similar situation on this manner:
The key phrase to be interpreted is what
constitutes "willful intent to injure." Larson in
his treatise, supra, at 3-155 suggests the phrase
contemplates "behavior of greater deliberations,
gravity and culpability that the sort of thing
that has sometimes qualified as aggression."
According to Larson, the factors to be examined in
evaluating this defense are: the seriousness of
claimant's initial assault and the weighing of
premeditation against impulsiveness. Larson sees
consistency in decisions construing "willful
intent to injure" in that "[p]rofanity, suffering,
showing, rough handling, or other physical force
not designed to inflict real injury" do not arise
to the requisite degree of seriousness.
The analysis must lie with whether claimant's actions
were of such a magnitude as to be a willful intent to
injure, which mandates a discussion of the seriousness of
claimant's initial assault.
Claimant's actions go well beyond those such as
profanity, rough handling or other physical force not
designed to inflict real injury. Claimant hit Mr. Barnett
hard enough to draw blood, an act which was intended to
injure another. Then, claimant hit Mr. Barnett again.
These acts clearly show that claimant was acting as the
aggressor, and was intentionally trying to hurt Mr. Barnett.
And, even though the fight arose from employment conditions,
the statute does not require a showing that it was
employment related in order to compensate claimant for the
injuries he sustained.
Furthermore, Mr. Barnett testified that by the time
Page 4
claimant approached him the second time, he (Barnett) was
almost finished loading his truck. It was unnecessary for
claimant to try and remove Barnett from the equipment, let
alone use physical force in so doing.
And, although claimant was told by his supervisor to
operate the loader, it was never suggested that claimant hit
or punch Barnett in order to carry out his instructions.
The undersigned does not condone employees resorting to
violence in the work place in order to make operations run
more smoothly. It is particularly offensive that claimant
hit Mr. Barnett while Mr. Barnett was performing duties
required by the job. Although claimant is not necessarily
precluded from recovery because he was the first aggressor,
the legislature has specifically addressed his actions as
stated in Iowa Code section 85.16(1). Even though it was
shown that the fight arose solely from employment conditions
on the job site, claimant's aggressiveness takes him out of
his employment duties, and constitutes a willful intent to
injure another. As a result, any injuries sustained by
claimant are not covered by workers' compensation laws.
order
THEREFORE, it is ordered:
That claimant take nothing from these proceedings.
That each party shall pay their own costs in pursuing
this claim.
Signed and filed this ____ day of December, 1991.
________________________________
PATRICIA J. LANTZ
DEPUTY INDUSTRIAL COMMISSIONER
Page 5
Copies To:
Mr Douglas C Scovil
Attorney at Law
2009 9th Ave
Rock Island IL 61201
Ms Carole J Anderson
Attorney at Law
600 Davenport Bank Bldg
Davenport IA 52801
5-1100
Filed December 31, 1991
Patricia J. Lantz
before the iowa industrial commissioner
____________________________________________________________
:
WILLIAM CONDON, :
:
Claimant, :
:
vs. :
: File No. 976627
RIVER CITY TRUCKING & :
EXCAVATING, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100
Claimant was the initial aggressor in a fist fight which
developed on a construction job site.
Claimant threw two punches, the first of which drew blood.
He had approached the company employee on two occasions.
Following Felder v. Howard Steel Co., Thirty-fourth Biennial
Rep., Iowa Indus. Comm'r 67, claimant's actions were
analyzed focusing on the seriousness and premeditation of
the aggression.
Held: Claimant's actions were serious, and went well beyond
accepted acts of profane language and shoving or rough
handling. His actions precluded a recovery (defendants
relied on Iowa Code section 85.16(1) as a defense) and were
found to constitute a willful intent to injure another.