BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CHRIS SHELTON, : : Claimant, : : vs. : File No. 976855 : McDONALD'S HAMBURGERS, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : TRAVELERS INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE Claimant Chris Shelton sustained a shoulder dislocation on January 14, 1991, when a fellow employee attempted to wrench a broom from his hands. He has filed a petition in arbitration seeking benefits under the Iowa Workers' Compensation Act from his employer, McDonald's Hamburgers, and its insurance carrier, Travelers Insurance Company. This cause came on for hearing in Des Moines, Iowa, on June 23, 1992. Claimant's exhibits 1 through 8 and defendants' exhibits 1 through 4 were received into evidence. Claimant, Kelly Jones and Roberta Lane gave testimony. Counsel for both parties came to hearing unprepared to present evidence on several issues identified in the hearing assignment order of February 5, 1992, especially entitlement to permanent disability. The parties sought to bifurcate these on their own motion, citing a claimed misunderstanding at the time of the prehearing conference. The hearing was interrupted to allow the parties to argue before the prehearing deputy, Helenjean M. Walleser. Deputy Walleser thereupon verbally ruled that the issues of causation to permanent disability, extent of permanent disability and entitlement to penalty benefits with respect to permanent disability should be bifurcated. The hearing proceeded as to other issues. Page 2 ISSUES The parties have stipulated that an employment relationship existed between claimant and employer at the time of the alleged injury, that the injury caused temporary disability from January 14 through February 14, 1991, that medical expenses are fair and reasonable, incurred for reasonable and necessary treatment and causally connected to the injury, and that defendants do not seek credit for benefits paid prior to hearing. Issues now presented for resolution include: 1. Whether claimant sustained an injury arising out of and in the course of his employment on January 14, 1991; 2. Whether defendants have a valid affirmative defense of "horseplay"; 3. The rate of compensation; and, 4. The extent of entitlement to medical benefits. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Chris Shelton was 19 years of age on January 14, 1991. McDonald's Hamburgers is a well-known chain of fast food restaurants. McDonald's employs large numbers of young people, many of whom are doubtless prone to that exuberant and boisterous behavior so characteristic of young adults. Mr. Shelton has from time to time comported himself in like manner: snapping towels, "messing" with customers, throwing snowballs, spraying water and engaging in "sauce fights." Claimant began working for McDonald's Hamburgers in March 1989 as a high school junior. He started as a cook, but was shifted to the night maintenance crew in 1990. This part-time job involved general cleaning of food preparation machinery and the restaurant. Mr. Shelton was so engaged on the morning of January 14, 1991. Kelly Jones is claimant's former high school classmate and football teammate. Although acquaintances, they are not close friends. Jones worked on the morning maintenance crew, a shift that overlapped the night maintenance crew by one hour. Jones had arrived for work on January 14 and was leaning on or near the doorway to the "bun" room, and was talking to another employee when claimant went to pick up a broom he had previously placed against the wall near the door. As claimant reached for the broom, Jones grabbed for it first, clearly intending to engage in a bit of horseplay. The two young men grabbed the broom almost simultaneously, Jones slightly ahead. They briefly twisted the broom in opposite directions, one against the other, when Jones Page 3 reversed direction and "spun" the broom in the same direction as claimant was twisting. As a result, claimant's arm was abruptly forced above shoulder level. Unfortunately, Chris Shelton has a history of shoulder separations and weakness of the left shoulder. The shoulder separated again, resulting in the temporary disability stipulated by the parties. Although Jones and claimant have independently engaged in acts of horseplay while at work, neither had directed pranks against the other and there was no ill will between the two. No retaliation was involved. The two men had not engaged in any acts of horseplay immediately before this unfortunate incident. While Jones clearly intended an act of horseplay, claimant did not. Rather, Mr. Shelton was simply doing his job when Jones unexpectedly grabbed the broom he was reaching for. The entire incident took place in but a few seconds. While it is possible that claimant might--barely--have had time to relinquish the broom before his injury, this observer is convinced that the entire incident happened so quickly that he did not have sufficient time to intentionally participate in an act of horseplay. The amount of time involved in this incident is, however, a matter of some concern. Kelly Jones estimated that the two men wrestled for control of the broom for approximately 10 seconds. This deputy timed 10 seconds at hearing, following which Jones reaffirmed his estimate. Claimant thereupon estimated 5-7 seconds of elapsed time. This is troubling because 10 seconds, even 5 seconds, is an enormous amount of time for two young men to physically struggle against one another. If 5-10 seconds actually elapsed, this writer would conclude that claimant intentionally gave himself over to participation in Jones' prank. But, after conducting and deciding many thousands of contested cases over nine years as an administrative law judge and deputy industrial commissioner, the undersigned has concluded that many, many people are stunningly inept at estimating time and distance. Based on the balance of the testimony of Jones and claimant, along with the demonstrations each gave in open court, the undersigned is convinced that the entire episode was, for all practical purposes, over in a flash. Claimant did not become a willing participant. Claimant was earning an hourly wage of $4.30 on the day of injury. From company time records, it appears that he worked 246.87 hours in the 13 weeks preceding January 14, 1991. 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 Page 4 904 (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). Defendants assert "horseplay" as an affirmative defense. If it were so, they would bear the burden of proof on the issue. Iowa Rule of Appellate Procedure 14(f)(5). However, the Iowa court has treated "horseplay" as an "arising out of and in the course of" issue. In Ford v. Barcus, 261 Iowa 616, 155 N.W.2d 507 (1968), the Iowa court held: "Horseplay which an employee voluntarily instigates and aggressively participates in does not arise out of and in the course of his employment and therefore is not compensable." In this case, claimant was the victim of horseplay rather than a voluntary participant. As such, the injury is compensable. Wittmer v. Dexter Mfg. Co., 204 Iowa 180, 214 N.W. 700 (1927); Swanson v. Lynch Roofing & Siding, Thirty-third Biennial Report of the Industrial Commissioner 150 (App. Decn. 1977); Klinker v. Wilson Foods Corp., Thirty-fourth Biennial Report of the Industrial Commissioner 167 (App. Decn. 1979). It is accordingly held that claimant's injury arose out of and in the course of employment. Mr. Shelton also asserts entitlement to penalty benefits under Iowa Code section 86.13. The standard to determine whether penalty benefits should be allowed is whether the defense asserted is "fairly debatable." Stanley v. Wilson Foods Corp., File No. 753405 (App. Decn., August 23, 1990); Seydel v. U of I Physical Plant, File No. 818849 (App. Decn., November 1, 1989). Iowa Lutheran Hospital emergency department records of the date of injury note that claimant stated he was "wrestling around at work" when he twisted his left arm. When Jones was first questioned about the incident by the store manager, Roberta Lane, he inaccurately claimed that "we" were "screwing around." Defendants' investigation was fairly cursory. Neither claimant nor Jones was disciplined. The question is close, but it is held that the "horseplay" defense rises to the fairly debatable standard necessary to avoid assessment of a penalty. Based on claimant's hourly wage and the hours reported during the 13 weeks prior to his work injury, it appears that he earned $1,061.54, or an average weekly wage of $81.66. As he was single and entitled to but a single exemption, his weekly compensation rate is $72.50. Claimant's medical expenses to date total $928.77 as shown by his exhibit 5. Defendants shall be ordered to pay those expenses. Page 5 ORDER THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant four point five seven one (4.571) weeks of healing period/temporary total disability benefits at the rate of seventy-two and 50/100 dollars ($72.50) per week commencing January 14, 1991. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Defendants shall pay the medical expenses totalling nine hundred twenty-eight and 77/100 dollars ($928.77) set forth in claimant's exhibit 5. Costs to date are assessed to defendants pursuant to rule 343 IAC 4.33. Because the issues of causation and extent of permanency and entitlement to penalty benefits with respect to permanency have been bifurcated, the cause shall be returned to the prehearing docket for further proceedings. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr. Max Schott Mr. Robert W. Pratt Attorney at Law 6959 University Avenue Des Moines, Iowa 50311-1540 Mr. William D. Scherle Attorney at Law 803 Fleming Building Des Moines, Iowa 50309 1105; 2901; 4000.2 Filed July 13, 1992 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHRIS SHELTON, Claimant, vs. File No. 976855 McDONALD'S HAMBURGERS, A R B I T R A T I O N Employer, D E C I S I O N and TRAVELERS INSURANCE CO., Insurance Carrier, Defendants. ____________________________________________________________ 1105; 4000.2 Off-duty employee grabbed a broom just as claimant reached for it. After a momentary struggle for possession, it was twisted out of claimant's hand, dislocating a weak shoulder. HELD: Claimant did not voluntarily participate in horseplay, but claim was "fairly debatable," so no penalty benefits were awarded. 2901 Claiming a "misunderstanding" at the prehearing conference, parties attempted to bifurcate several issues on their own motion. The hearing was recessed to permit argument before the prehearing deputy, who granted the relief sought. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARY FRANCES DAVIS, : : Claimant, : : vs. : : File No. 976932 BURLINGTON MEDICAL CENTER, : : ARBITRATION Employer, : : DECISION and : : FARM BUREAU MUTUAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This contested case proceeding is upon the petition in arbitration of Mary Frances Davis against her employer, Burlington Medical Center, and its insurance carrier, Farm Bureau Mutual Insurance Company. Ms. Davis sustained injury arising out of and in the course of her employment on January 27, 1991, and now seeks benefits under the Iowa Workers' Compensation Act. A hearing was accordingly held in Burlington, Iowa on August 25, 1993. The record consists of the testimony of claimant and Birgit Fries along with claimant's exhibits A and B and defendants' exhibits 1-5. ISSUES The parties have entered into the following stipulations: 1. Claimant sustained injury arising out of and in the course of employment on January 27, 1991; 2. The injury caused both temporary and permanent disability; 3. Entitlement to healing period benefits is no longer in dispute; 4. Claimant's permanent disability should be compensated industrially commencing November 1, 1991; 5. The proper rate of weekly compensation is $156.20; Page 2 6. Entitlement to medical benefits is no longer in dispute; 7. In addition to healing period, defendants voluntarily paid 49 weeks of compensation at the stipulated rate towards claimant's entitlement to permanency benefits. The sole issue presented for resolution is the extent of claimant's industrial disability. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Mary Davis, 29 years of age at hearing, worked for approximately 12 years as a certified nurses' aide prior to the subject work injury. Although Ms. Davis has not graduated from high school, she did obtain a GED certificate in 1982. Ms. Davis also has some clerical training and is currently enrolled in reading courses at Rock Valley College. Claimant was injured on January 27, 1991, when she and an LPN were assisting a patient in the bathroom. The patient fell while being lifted from his wheelchair, and the sudden extra weight caught claimant in a twisted position. She felt that she had pulled muscles and "felt funny." Sitting down, she was unable to get up. Unfortunately, claimant's recovery has been slow, very slow. At hearing, this observer noted that claimant's gait is extraordinarily slow and her movements appear tortured. The medical records contain a number of very similar observations. Claimant has been treated by a number of physicians, especially Michael W. Hendricks, M.D., and Jeffrey T. Behr, M.D. Dr. Hendricks' records contain a lumbar MRI study on May 9, 1991 and a myelogram/CAT scan on June 5, 1992. The earlier study showed minimal disc desiccation at L4-5 and L5-S1 and a small central protrusion at L5-S1 which "minimally" impinged on the subarachnoid space. Absence of herniation was specifically reported. The CAT scan, by a different radiologist, showed prominent annulus fibrosis at each lumbar disc space, but no herniated nuclear pulposus. In the months following her injury, claimant returned to some intermittent light duty office work, but never returned to her regular job. Dr. Hendricks' chart notes of October 23, 1991, indicated that claimant was to increase her work day to eight hours. By December 4, 1991, claimant was reported as feeling "great." She still had pain, but reportedly could tolerate the discomfort. Dr. Hendricks acquiesced in claimant being assigned to a permanent work station "with her current restrictions," although those restrictions are not specified. He approved of claimant Page 3 trying to work at her current level in a viable line of employment. Eleven days later, claimant was involved in a domestic violence incident. Hospital notes of December 15 show an emergency room admission recording that claimant's husband had picked her up and slammed her body to the floor, resulting in complaints of pain in the lower back, hips and legs described as "sharp." The left leg had been numb, but sensation had returned. Physician's notes record that claimant's husband had jumped on her and that she had been slammed on the floor several times. Objectively, claimant showed marked spasm of the paravertebral muscles. Diagnosis was of strain of the lumbar paravertebral muscles. A contemporaneous police report showed that claimant's husband had grabbed her and thrown her to the floor "several times" and also against his nephew and then a bathroom wall, causing her to have "severe back pain." Claimant's statement to the police included the following passage: Then I went back home. I opened the door and it looked to me like he was standing there talking to Darrell, I don't know for sure. I didn't even get the door closed and he grabbed me by my coat. He started body slamming me on the floor. He had ahold of my arm and my leg. Then he picked me up again threw me on the floor again. Then he threw me up against the wall. Then he picked me up again and threw me on Darrell. Then he told me you better tell me where you got that information from. He was asking me about some questions I had asked him before the assault started. I had asked him about him having a girl friend and her carrying a .45 weapon. She reportedly said she was going to use this gun on me according to my nephew who was supposed to have been told this by Billie. Getting back to the assault after he threw me at Darrell he then grabbed me again and threw me towards the bathroom and the wall. (Defendants' Exhibit 3B, Page 13). Although claimant returned to work on December 23, 1991, and was feeling well enough to volunteer working Christmas Day, notes of the rehabilitation specialist Deb Johnston show claimant reporting on January 9, 1992 that she was unable to go to work due to increased low back pain and that symptoms have worsened since her husband threw her on the floor. Dr. Hendicks charted on January 16 that claimant's problems with her leg shaking whenever she descended stairs had "only occurred since she was assaulted by her husband." Another incident of domestic violence occurred in June 1992. The police report indicates that claimant was knocked to the floor at least once, although that is not clearly confirmed by claimant's statement. Page 4 Following the second incident, claimant moved to the state of Illinois, where she began treatment with Dr. Behr. On September 21, 1992, claimant reported continued back pain and discomfort. Dr. Behr charted a positive Waddell test and expressed his concern about some components of symptom magnification. In the understanding of this writer, a positive "Waddell" test refers to inconsistent reporting of symptoms (Here, straight leg raising in the supine and in the sitting positions), such that failure to report symptoms in one test casts suspicion on the positive reporting of symptoms in the other. Dr. Behr further reported positive Waddell tests on October 22 and November 23, 1992. On both occasions, Dr. Behr reported concern that he was unable to explain claimant's subjective complaints in the absence of objective evidence. On November 23, he was "concerned about inappropriate illness behavior." Claimant was released from care p.r.n. (return as needed). It does not appear that Dr. Behr imposed permanent activity restrictions or that he rated impairment. On January 13, 1993, he refused claimant's request for a handicap parking sticker. Dr. Hendricks, claimant's other primary treating physician, also is not seen to have recommended permanent activity restrictions. However, on March 26, 1992, Dr. Hendricks rated impairment as eight percent of the body as a whole based on MRI evidence of a bulging disc with one year of continued medically documented pain, spasticity, and rigidity with decreased range of motion, particularly in extension and flexion. Claimant has also been seen for evaluation by Charles J. Wright, M.D., Bakkiam Subbiah, M.D., and Robert H. Brockman, a doctor of chiropractic. Claimant was also seen in a consulting capacity by Dr. Shivapour, at the behest of the Iowa Department of Education, Division of Vocational Rehabilitation Services (Exhibit 4G). That exhibit shows that Counselor Schatz found the case "complicated as the client is presenting a different picture or set of behaviors than what is being presented to the Workers Comp. specialist. This counselor is suspecting that a Workers' Comp. settlement may need to be resolved." This note is dated March 30, 1992. A May 5, 1992 note by Dr. Shivapour found a diagnosis of lumbar strain and recommended certain activity restrictions: to avoid heavy lifting, protracted stooping, squatting, bending, sitting or standing so as to aggravate chronic lumbar strain. Dr. Shivapour recommended claimant work in a clerical field to avoid those limitations. On this record, Dr. Shivapour is the only physician shown to have recommended activity restrictions. Claimant testified that Dr. Hendricks told her she was unable to continue work as a nurses' aide and told a vocational rehabilitation specialist of a similar recommendation by Dr. Wright, but the medical records of those physicians do not contain confirmation. Dr. Wright saw claimant for evaluation on May 14, 1993. He found no clear pathology to adequately explain claimant's symptoms so as to warrant additional aggressive intervention Page 5 such as surgery and recommended either steroid injections or possible additional work hardening. Dr. Subbiah saw claimant on July 9, 1991. This, of course, was fairly early in claimant's regimen of treatment, and even before the MRI scan was taken. Dr. Subbiah reported that claimant's neurologic examination was well within normal limits, except for subjective complaints of pain and reported decrease sensation in the L2-3 distribution along the medial foot. Dr. Subbiah felt claimant should be actively mobilized for work through work hardening, and should be returned to work initially to light duty and then full duty. Dr. Brockman saw claimant on March 17, 1993. His diagnosis was of sacroiliac subluxation complex with component parts including a probable L5 posterior disc herniation and lower lumbar spinal stenosis L5-L5. Although Dr. Brockman utilized plain film x-rays in diagnosing a probable herniation, it does not appear that he was aware of the negative MRI and CAT scan studies. Dr. Brockman went on to rate permanent impairment liberally at 45 percent of the whole person, citing the American Medical Association Guides in reaching his total. Claimant underwent work hardening at Burlington Medical center in 1991. The report of Deb Hamilton and Krista Gaal dated September 4, 1991, shows that claimant was inconsistent and frequently late to sessions. Her motivation was described as "questionable." Claimant also underwent a functional capacity evaluation at Rockford Memorial Hospital on July 22, 1993. John Gerrond, P.T. and Steven Spencer, M.S., concluded: Due to the worker curtailing a majority of subtests secondary to pain complaints and an absence of signs of physical exertion during material handling activities, it is not felt the worker's performance is representative of a maximum effort. Therefore, her functional capacity has not been classified according to Department of Labor standards. Keeping in mind that the evaluation was felt to be less than a maximum effort, the worker's demonstrated physical capacity is outlined in the enclosed Functional Capacity Evaluation Summary. Based on the worker's testing positive for inappropriate illness behavior as well as her observed pain behaviors during the clinical performance of this evaluation, it is felt she does display inappropriate illness behavior. This also correlates with the fact that medical imaging has not produced any diagnostic findings which can account for her extreme pain level. (Exhibit 5A, Page 29). Three days prior to hearing, claimant obtained work as Page 6 a security guard on a part time basis. Although vocational rehabilitation specialist Birgit Fries (who referred claimant to the opening) testified that her job was full time, claimant reported being hired for only sixteen hours per week, and that she splits time with a retired gentleman. Fries' testimony on this point, being hearsay, is less persuasive. ANALYSIS AND CONCLUSIONS OF LAW 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 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 Page 7 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. Even though Dr. Shivapour is the only physician shown to have imposed permanent activity restrictions, it seems clear from his recommendations that claimant should not return to work as a nurses' aide. Such work may be emotionally satisfying, but it clearly involves hard physical labor. Although the two physicians to have rated impairment differ greatly in their opinions, both find at least some physical impairment. Dr. Hendricks' opinion is preferred, since as a doctor of medicine, he is better qualified than a chiropractor to apply American Medical Association Guidelines as set forth in the AMA Guides to the Evaluation of Permanent Impairment. Observation of claimant's behavior and posture at hearing was indicative of great physical disability, but it will be recalled that numerous practitioners in this record question her motivation and the appropriateness of her extreme pain behavior absent correlative objective findings. Self imposed limitations are far less significant than medically imposed restrictions. Claimant is 29 and has obtained her GED. She does appear capable of retraining, and is now employed as a security guard within the restrictions suggested by Dr. Shivapour. Although part time, claimant will presumably be eventually able to work as a full time security guard, should she so choose. This job pays $5.00 per hour, slightly below (extrapolated to full time, of course) claimant's gross weekly earnings of $231.00 for the thirteen weeks prior to her injury (at 40 hours per week, an average of $5.78). Based upon the foregoing in specific and the record otherwise in general, it is held that claimant has sustained a permanent industrial disability equivalent to fifteen percent of the body as a whole, or 75 weeks. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of one hundred fifty-six and 20/100 dollars ($156.20) per week commencing November 1, 1991. All accrued benefits shall be paid in a lump sum together with statutory interest. Page 8 Costs are assessed to defendants. Signed and filed this ____ day of December, 1993. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Bryan J Humphrey Attorney at Law 708 Eighth Street Fort Madison Iowa 52627 Ms Angela A Swanson Attorney at Law 5400 University Avenue West Des Moines Iowa 50266 5-1803 Filed December 15, 1993 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MARY FRANCES DAVIS, : : Claimant, : : vs. : : File No. 976932 BURLINGTON MEDICAL CENTER, : : ARBITRATION Employer, : : DECISION and : : FARM BUREAU MUTUAL : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Industrial disability determined. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DONALD D. CONKLIN, Employee, by CHARLENE JOHNSON-CONKLIN, spouse, Claimant, vs. File No. 977122 MACMILLAN OIL COMPANY, INC., A P P E A L Employer, D E C I S I O N and UNITED STATES FIDELITY AND GUARANTY COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE Claimant, Charlene Johnson-Conklin, filed a petition for Arbitration, Death Benefits and Equitable Apportionment on February 26, 1993 against Donald D. Conklin's former employer, MacMillan Oil Company, Inc., and its insurance carrier, United States Fidelity and Guaranty Company. Claimant's petition alleged that on March 1, 1991 she was the common law wife of Donald D. Conklin, who was tragically killed while at work on that date. An answer was filed by the defendants on March 18, 1993 denying the existence of a common law marriage between Charlene and Donald. Shortly after Donald's death, defendants began paying and continue to pay workers' compensation death benefits on behalf of Donald's dependent children. A hearing was held on September 20, 1994 in Des Moines, Iowa before a deputy industrial commissioner. The deputy filed an Arbitration Decision on October 4, 1994 and defendants filed a notice of appeal on October 21, 1994, appealing the deputy's decision that held claimant is the common law wife of Donald D. Conklin and is entitled to death benefits under the workers' compensation act. 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. ISSUE The sole issue on appeal is whether Charlene Johnson-Conklin is the common law wife of the deceased employee, Donald D. Conklin. FINDINGS OF FACT Charlene graduated from the Greater Des Moines Education Center in 1973 earning a high school diploma. (Transcript, pages 72-73) Charlene Johnson (maiden name) and Donald Conklin were married May 16, 1974. (Tr., p. 73) Charlene took her husband's surname and became known as Charlene Conklin. To this marriage three children were born: Tabitha, Virginia and Crystal, ages 18, 16 and 15 respectively. (Tr., pp. 70-71) Prior to her marriage to Donald, Charlene gave birth to a son, Lee. Donald is not the father of Lee. (Tr., pp. 70-71) As a result of Donald's marital infidelity, Charlene and Donald separated in 1980. (Tr., p. 74) Charlene and Donald were divorced August 20, 1985. (Tr., p. 73) From 1980 until August 1987 Donald lived with another woman. In August 1987 Charlene and Donald reconciled and at that time began living together along with their children in a home they rented at 1713 Ovid, Des Moines. (Tr., pp. 74-76) With the exception of a separation during the three consecutive months ending in January 1990, Charlene and Donald lived together continuously at the above address from August 1987 until Donald's death on March 1, 1991. (Tr., pp. 76, 78, 83 & 94) Charlene contends a common law marriage began in August 1987 (Tr., p. 107) and that it was the intent of herself and Donald to live together as husband and wife, but they did not think it was necessary "to get remarried legally." (Tr., p. 75) While living together Charlene and Donald shared the same bedroom and had a relationship that included sex (Tr., p. 77); shared in the responsibility of raising their children; in conversations between themselves referred to each other as husband and wife (Tr., p. 83); shared household chores (Tr., p. 84); and shared rent, utility and other household expenses. (Tr., p. 92) During this period of cohabitation Charlene had no other romantic relationships and has no reason to believe Donald had any such relationships. (Tr., p. 93) During the entire period of cohabitation Charlene used her maiden name "Johnson." (Tr., p. 106) Charlene did not go by "Conklin" or "Johnson-Conklin" until after the date of Donald's death. (Tr., p. 106) On August 28, 1989 Charlene opened a savings account solely in her name at the United Methodist Minister Service Credit Union. Charlene and Donald became joint owners of this savings account on September 24, 1990. (Tr., p. 90; Joint Exhibit F) On June 15, 1990 Donald signed an HMO Iowa enrollment form. On this form Donald indicated his marital status was "divorced," but elsewhere on the form it was indicated Charlene Johnson was his spouse. (Tr., pp. 96-97; Jt. Ex. J) During the period of cohabitation Charlene publicly referred to Donald as her husband. In the presence of Charlene, Donald never objected to this representation nor did he ever indicate in any manner that the representation was not true. (Tr., pp. 101-102) During the period of cohabitation Donald publicly referred to Charlene as his wife, old lady and better half. (Tr., pp. 100-101) Donald's public utterances that Charlene was his wife were not always consistent. Barbara Harkins, a co-worker and friend of Donald, offered credible testimony. Ms. Harkins and Donald discussed his personal life, including family. In the presence of Ms. Harkins, Donald never referred to Charlene as his wife. He always referred to Charlene as his "ex-wife" or "ex." (Tr., pp. 136-138, 140; Jt. Ex. O) Likewise, Jolene Ann Gowen, a co-worker and friend of Donald, offered credible testimony. Donald told Ms. Gowen that Charlene was his ex-wife and, in the presence of Ms. Gowen, always referred to Charlene as "my ex." (Tr., pp. 152-153, 155; Jt. Ex. P) Charlene's public utterances that Donald was her husband are inconsistent with various legal documents she filed with public and private institutions. Joint Exhibits A, D, E, G and I are federal income tax returns signed and filed by Charlene during the period of her and Donald's cohabitation. (Tr., p. 109) On each of these tax returns Charlene indicates her last name is "Johnson" and the filing status is either "single" or "head of household." On the 1988 tax return, Joint Exhibit E, Charlene indicates she is divorced. Joint Exhibit B is the rental agreement for the house on Ovid that was rented by Charlene and Donald. Charlene uses her maiden name on this document. Page 3 of this joint exhibit is the rental application form filled out by Charlene. (Tr., p. 108) Thereon, Charlene indicates Donald Conklin is her "ex-husband." Joint Exhibit C is an application for life insurance that was completed by Charlene during her cohabitation with Donald. On this document Charlene uses her maiden name and names "Donald Conklin, ex-spouse," as the primary beneficiary. (Tr., pp. 108-109) Joint Exhibit H is an application for Medicaid benefits prepared and filed by Charlene in January 1990. (Tr., p. 113) Charlene uses her maiden name. On page 3 of this joint exhibit Charlene indicates her marital status is "divorced." (Tr., p. 114) Joint Exhibits A, B, C, D, E, G, H and I pertain to periods of time prior to Donald's death. By way of summary, Charlene uses her maiden name on each of these documents. Not once does she use the surname "Conklin." On each of these documents Charlene either expressly or impliedly indicates her marital status is "single" or "divorced." Not once does she indicate she is married or Donald's wife. Lack of sophistication and lack of knowledge are cited by Charlene as explanations for listing herself as unmarried or divorced on these legal documents. This trier of fact next turns his attention to those joint exhibits that pertain to periods of time after Donald's death. In chronological order: Joint Exhibit L, dated March 6, 1991, is a statement of charges from the funeral home handling Donald's arrangements. Charlene signs this document "Mrs. Donald Conklin." Joint Exhibit K is the Certificate of Death signed by Medical Examiner Dr. R. C. Wooters on March 11, 1991. "Charlene Conklin" is shown as the informant and surviving spouse. Joint Exhibit M is an application for Social Security benefits as Donald's surviving spouse signed and filed by Charlene on April 1, 1991. On page 3 of this joint exhibit she signs her name "Charlene S. Johnson-Conklin." Joint Exhibit N is Charlene's 1991 federal income tax return signed on January 25, 1992 by "Charlene S. Johnson-Conklin." Charlene receives Social Security benefits as Donald's surviving spouse. (Tr., pp. 105-106) The Social Security Administration's intake person typed the following information on Charlene's application: The deceased was last married to Charlene Johnson on May 16, 1974 in Des Moines, Iowa by a clergyman or public official. The marriage ended by death on March 1, 1991. (Jt. Ex. M, p. 2) Charlene admits that the information relative to her marital history is incomplete because she failed to tell the intake person that she and Donald were divorced in 1985. (Tr., pp. 117-118) REASONING AND CONCLUSIONS OF LAW Although Iowa recognizes the validity of common law marriages, such a claim of marriage is regarded with suspicion and will be closely scrutinized. In re Estate of Fisher, 176 N.W.2d 801, 805 (Iowa 1970); In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979) The supreme court repeatedly has asserted that no public policy favoring common law marriage is in existence in Iowa. In re Marriage of Reed, 226 N.W.2d 795 (Iowa 1975); In re Estate of Fisher, 176 N.W.2d at 804; Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, (2nd Ed.), 14-4. The party asserting the existence of a common law marriage must prove three elements by a preponderance of clear, consistent, and convincing evidence. In re Estate of Stodola, 519 N.W.2d 97, 98 (Iowa App. 1994); In re Marriage of Gebhardt, 426 N.W.2d 651, 652 (Iowa App. 1988) The three elements are: (1) present intent and agreement to be married by both parties; (2) continuous cohabitation; and, (3) public declaration that the parties are husband and wife. Winegard, 278 N.W.2d at 510; Gebhardt, 426 N.W.2d at 652; In re Marriage of Jones, 451 N.W.2d 25, 27 (Iowa App. 1989); Stodola, 519 N.W.2d at 98. For reasons that follow, the evidence of record in the instant case causes the industrial commissioner to conclude that claimant, Charlene Johnson-Conklin, has failed to establish by a preponderance of clear, consistent, and convincing evidence, the existence of a common law marriage between herself and the deceased employee, Donald D. Conklin. The industrial commissioner's analysis begins with required element number two, i.e., "continuous cohabitation." From August 1987 through March 1, 1991, the date of death, Charlene and Donald, with the exception of a brief three-month period, continuously cohabited. The industrial commissioner concludes that the "continuous cohabitation" element of a common law marriage has been established by a preponderance of clear, consistent, and convincing evidence. Therefore, the analysis of whether there was a common law marriage between Charlene and Donald continues. The industrial commissioner next addresses required element number one, i.e., "present intent and agreement to be married by both parties." WHILE COHABITING FROM 1987-1991, DID CHARLENE HAVE A PRESENT INTENT AND AGREEMENT TO BE MARRIED TO DONALD? To be sure, there is evidence in this record that tends to show Charlene had a present intent and agreement to be married to Donald. For example, each of the following facts present in the record are favorable to Charlene as she attempts to satisfy the "present intent" required element: Sharing the same bedroom and having a relationship that included sex; sharing the responsibility of raising their children; referring to each other as husband and wife; Donald not objecting to Charlene introducing him as her husband (non-denial of representation is a "strong circumstance evidencing that there is a meeting of the minds"), In re Estate of Fisher, 176 N.W.2d 801, 806-807, (Iowa 1970); sharing household chores; sharing household expenses; no other romantic relationships; and opening a joint savings account. However, when reviewing and analyzing the totality of evidence present in this record, the industrial commissioner concludes that Charlene has failed to meet her legal burden of establishing "present intent" by a preponderance of clear, consistent, and convincing evidence. To the contrary, the totality of evidence is anything but clear, consistent, and convincing. Throughout the entire period of cohabitation, Charlene, without fail, used the name "Johnson" on legal documents she filed with public and private institutions; she, without fail, filed federal income tax returns as "single" or "head of household"; and she listed Donald as her "ex-husband" on documents and listed her legal status as "divorced." (Emphasis added) The documentary evidence of record shows that not once during the entire period of cohabitation did Charlene show herself as married or Donald's wife. (Emphasis added) In fact, Charlene did not remain silent as to her marital status and relationship to Donald. She affirmatively showed her marital status as divorced or single and affirmatively listed Donald as her ex-husband. Charlene attempts to explain away the damaging effects of this documentary evidence by citing her lack of sophistication and lack of knowledge. The industrial commissioner recognizes that Iowa courts have held that a lack of knowledge and a lack of sophistication regarding legal documents will not defeat a claim of common law marriage, but are factors to be considered along with other evidence. Gebhardt, 426 N.W.2d at 653. However, in the instant case, Charlene's claim of lack of sophistication and lack of knowledge is unconvincing to this trier of fact and law. Charlene had more than ample opportunity to show a present intent to be married to Donald on the various legal documents she filed. On her income tax returns, her rental application, her application for life insurance, and her application for public assistance, Charlene revealed her subjective intent not to be presently married to Donald each and every time she listed herself as "divorced," or listed Donald as her "ex-spouse." It is quite telling to compare the legal documents filed by Charlene before Donald's death with those filed by Charlene subsequent to Donald's death. Not once prior to Donald's death did Charlene file a document that listed her as being married or Donald's wife. (Emphasis added) Subsequent to Donald's death, each and every document of record filed by Charlene indicates she is married to Donald and each and every document lists her name as either "Johnson-Conklin" or "Conklin." (Emphasis added) Within a matter of days after Donald's death, documents start appearing that indicate Charlene is married to Donald. (The statement from the funeral home dated March 6, 1991; the certificate of death dated March 11, 1991; and the application for Social Security benefits dated April 1, 1991.) The industrial commissioner is not unmindful that married persons do not always take the same last name. However, Charlene took Donald's surname when they were ceremonially married and kept that surname until divorced in 1985. Upon being divorced she consciously decided to restore her maiden name. Charlene immediately began using Donald's surname upon his death, but not during the period of cohabitation. Under such circumstances, Charlene's failure to use Donald's surname from 1987-1991 has evidentiary value and is a factor that weighs against Charlene's assertion of a common law marriage. For these reasons, the totality of evidence present in this record causes the industrial commissioner to conclude that Charlene has failed to meet her legal burden of establishing by clear, consistent, and convincing evidence a present intent and agreement to be married to Donald. WHILE COHABITING FROM 1987-1991, DID DONALD HAVE A PRESENT INTENT AND AGREEMENT TO BE MARRIED TO CHARLENE? As was the case with Charlene, there is evidence in this record that tends to show Donald had a present intent and agreement to be married to Charlene. The examples (see page 7) listed by the industrial commissioner when analyzing Charlene's "present intent" are equally applicable in analyzing Donald's "present intent" and will not be repeated herein. However, just as was the case with Charlene, the totality of evidence present in this record causes the industrial commissioner to conclude that Charlene has failed to meet her legal burden of establishing Donald's "present intent" by a preponderance of clear, consistent, and convincing evidence. The HMO application, Joint Exhibit J, was signed by Donald and indicated Charlene was his spouse. A close examination of Joint Exhibit J reveals it is not "clear, consistent, and convincing evidence" of Donald's alleged intent to be married to Charlene. Even though Charlene is listed as Donald's spouse on the HMO application, elsewhere on the application Donald's marital status is listed as "Divorced." The inconsistencies associated with Joint Exhibit J cause the industrial commissioner to conclude that this document is not "clear, consistent, and convincing evidence" of Donald's alleged intent to be married to Charlene. The credible testimony of two of Donald's co-workers, Barbara Harkins and Jolene Ann Gowen, both of whom have no personal stake in this matter, cast further doubt on Charlene's assertion that Donald had a "present intent" to be married. In the presence of these co-workers, Donald consistently referred to Charlene as his "ex-wife" or "ex." He never referred to Charlene as his wife in conversations with these co-workers. For these reasons, the totality of evidence present in this record causes the industrial commissioner to conclude that Charlene has failed to meet her legal burden of establishing by clear, consistent, and convincing evidence that Donald had a present intent and agreement to be married to her. The industrial commissioner next addresses required element number three, i.e., "public declaration that the parties are husband and wife." Clearly, there is evidence in this record that both Charlene and Donald, during the period of cohabitation, publicly held themselves out as husband and wife. The testimony of claimant and her credible witnesses leaves no doubt in the industrial commissioner's mind that such public declarations were made by Charlene and Donald. However, the record must be viewed in its entirety to resolve the question of whether Charlene has carried her legal burden of establishing the "public declaration" element by a preponderance of clear, consistent, and convincing evidence. For the same reasons previously utilized and discussed by the industrial commissioner when analyzing required element number one, i.e., "present intent", the industrial commissioner concludes that Charlene has failed to carry her legal burden as it relates to the "public declaration" required element. The reader's attention is brought to the analysis appearing under the headings "WHILE COHABITING FROM 1987-1991, DID CHARLENE HAVE A PRESENT INTENT AND AGREEMENT TO BE MARRIED TO DONALD?" and "WHILE COHABITING FROM 1987-1991, DID DONALD HAVE A PRESENT INTENT AND AGREEMENT TO BE MARRIED TO CHARLENE?". (see pages 7-9) The reasoning appearing therein is the basis for the industrial commissioner concluding that Charlene has failed to carry her legal burden of establishing required element number three, i.e., "public declaration", by clear, consistent, and convincing evidence. The industrial commissioner incorporates that reasoning into the analysis of the "public declaration" requirement and deems it unnecessary to repeat that analysis herein. Just as was the case with "present intent," the "public declaration" element is rife with contradictions and inconsistencies, thus leading to the conclusion that claimant has failed to carry her legal burden. In summary, Charlene carried her legal burden as it relates to the "continuous cohabitation" required element; she failed to carry her legal burden as it relates to the "present intent" and "public declaration" required elements. A common law marriage between Charlene Johnson-Conklin and Donald D. Conklin has not been established. Before leaving this issue, the industrial commissioner must address the fact that Charlene receives Social Security benefits as Donald's surviving spouse. As stated in the findings of fact, Charlene admits that the information relative to her marital history is incomplete because she failed to tell the Social Security Administration's intake person that she and Donald were divorced in 1985. The Social Security Administration clearly was proceeding with the belief that Charlene and Donald were married by a clergyman or public official and that that marriage remained intact until Donald's death. Based upon the information provided to the Social Security Administration, there was no reason for that federal agency to believe Charlene was claiming to be the common law wife of Donald. As Charlene did not provide a complete marital history to the Social Security Administration, that federal agency's determination that Charlene is Donald's surviving spouse has no preclusive effect and carries no evidentiary weight in this contested case proceeding. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant shall take nothing from this proceeding. That defendants shall pay the costs of this matter including the transcription of the hearing. Signed and filed this ____ day of February, 1995. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David S. Wiggins Attorney at Law 1200 Valley West Dr 700 West Towers West Des Moines IA 50266-1908 Ms. Stephanie L. Glenn Attorney at Law PO Box 10434 Des Moines IA 50306  Age at the time of hearing.  Tragically, Donald was shot and killed at his place of employment during an armed robbery. 1901 Filed February 16, 1995 Bryon K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ DONALD D. CONKLIN, Employee, by CHARLENE JOHNSON-CONKLIN, Spouse, Claimant, vs. File No. 977122 MACMILLAN OIL COMPANY, INC., A P P E A L Employer, D E C I S I O N and UNITED STATES FIDELITY AND, GUARANTY COMPANY, Insurance Carrier, Defendants. ________________________________________________________________ 1901 Claimant and decedant were married, then divorced. Several years later, a reconciliation took place and the couple co-habited, although claimant, who had returned to using her maiden name at the time of the divorce, continued to use it. On all legal documents, bank accounts and tax returns, claimant used her maiden name until his death, at which time she changed her surname to his. Held no common-law marriage existed. 2909 Filed September 1, 1993 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT R. VANDERVORT, : : File No. 977162 Claimant, : : vs. : E X P E D I T E D : CONSOLIDATED FREIGHTWAYS, : H E A R I N G INC., : : D E C I S I O N Employer, : : (343 IAC 4.44) and : : OLD REPUBLIC INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2909 Claimant's attorney requested a permanent impairment rating from the authorized treating physician. Defendants refused to pay for a section 85.39 independent medical examination, and argued that they were not going to request a rating from the authorized treating physician. Defendants' argument was rejected; they were ordered to pay for an independent medical examination performed by claimant's physician of choice. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : ROBERT R. VANDERVORT, : : File No. 977162 Claimant, : : vs. : E X P E D I T E D : CONSOLIDATED FREIGHTWAYS, : H E A R I N G INC., : : D E C I S I O N Employer, : : (343 IAC 4.44) and : : OLD REPUBLIC INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is an expedited proceeding pursuant to rule 343 IAC 4.44. Claimant, Robert Vandervort, filed an original notice and petition requesting an independent medical examination pursuant to Iowa Code section 85.39. Mr. Vandervort states that due to a work-related injury occurring on March 4, 1991, he has sustained a permanent disability which has been evaluated by James Blessman, M.D. He requests an independent medical evaluation from Marc Hines, M.D. Claimant offered exhibits 1-5. At the conclusion of the hearing, exhibit 5 was withdrawn; exhibits 1, 2 and 4 were received, and claimant's exhibit 3 was excluded because it had not been timely served on the defendants. Defendants offered exhibits A-E, which were received. Both parties offered oral arguments, with additional comments from Heather Dwinell, a representative from the insurance carrier. The matter came on for a telephone hearing before the undersigned deputy industrial commissioner on August 31, 1993. The proceeding was audio taped. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Robert Vandervort, sustained an injury on March 4, 1991 which arose out of and in the course of his employment. While he has received treatment from numerous Page 2 physicians, the defendant insurance company admitted that Roy Overton, M.D., was the authorized treating physician. Dr. Overton referred claimant to James Blessman to evaluate claimant's permanent impairment. This evaluation was performed on February 25, 1993, and Dr. Blessman issued his report to claimant's attorney on March 3, 1993. ANALYSIS AND CONCLUSIONS OF LAW Iowa Code Section 85.39 provides, in relevant part: After an injury, the employee, if requested by the employer, shall submit for examination at some reasonable time and place and as often as reasonably requested, to a physician or physicians authorized to practice under the laws of this state or another state, without cost to the employee; but if the employee requests, the employee, at the employee's own cost, is entitled to have a physician or physicians of the employee's own selection present to participate in the examination.... If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and reasonably necessary transportation expenses incurred for the examination. The agency has stated that a referral to another physician from the authorized treating physician is authorized. See, Coleman v. Coleman Indus. Cleaning, 4 Iowa Indus. Comm'r Rep. 67 (1984). Defendants argue that claimant has already received his independent medical examination because claimant's attorney asked Dr. Blessman for the permanency rating. They posit that they had not requested any ratings, nor had they contemplated asking for any ratings. Claimant argues that employers and insurance companies would always be able to circumvent the spirit of Iowa Code section 85.39 by never requesting an opinion addressing a permanent disability. With no prior rating, claimant's right to an independent medical examination would never arise, and defendants would never be obligated to pay for an independent medical examination. The undersigned agrees with claimant's attorney. Clearly, Dr. Overton and Dr. Blessman have been authorized treating physicians. One has rendered an opinion with respect to the amount of permanent impairment claimant has sustained due to the work-related injury. Claimant did not chose Dr. Blessman to evaluate his permanent disability; Page 3 therefore, claimant is entitled to select a physician for an independent medical examination, and defendants are responsible for payment of the expense of the examination. ORDER THEREFORE, IT IS ORDERED: Claimant has selected Dr. Hines, who evaluated claimant on May 28, 1993. Defendants are ordered to pay for the costs associated with this independent medical examination. Signed and filed this ____ day of September, 1993. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms Mary S Bernabe Attorney at Law 1150 Polk Blvd Des Moines IA 50311 Mr Michael R Hoffmann Attorney at Law Breakwater Bldg 3708 75th St Des Moines IA 50322 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------ GEORGE HOBSON, Claimant, vs. JOHN'S FLOOR COVERING, File Nos. 977189 1007645 1037274 Employer, and WEST BEND MUTUAL INSURANCE, Insurance Carrier, A R B I T R A T I O N D E C I S I O N GEORG HOBSON, Claimant, and OASIS MANUFACTURING, Employer, and STATE FARM INSURANCE CO., Insurance Carrier, Defendants, ------------------------------------------------------- STATEMENT OF THE CASE These cases came on for hearing on October 18, 1994, at Cedar Rapids, Iowa. These are proceedings in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of alleged injuries occurring on February 20, 1991 (file number 977189), January 22, 1992 (file number 1007645), and September 8, 1992 (file number 1037274). The record in these proceedings consists of the testimony of claimant, William Arnold, Tom Conner, the stipulated testimony of Randy and Ron Benesh; claimant's exhibits 1 and 2; defendant Oasis exhibits F, G, I and J; and, joint exhibits 1 through 13. ISSUES The issues for resolution are: Regarding file number 977189 (alleged injury date of February 20, 1991), file number 1007645 (alleged injury date of January 22, 1992), and file number 1037274 (alleged injury date of September 8, 1992). 1. Whether there is a causal connection as to any healing period or temporary total disability or permanent partial disability benefits. The parties agree that claimant was off work on January 21, 1993 through March 3, 1993; 2. The nature and extent of claimant's disability and entitlement to disability benefits, if any; and, 3. An 85.27 medical issue, the issue being causal connection. Regarding file number 1037274 (alleged injury date of September 8, 1992): In addition to the above issues, there is an additional issue of whether claimant gave timely notice under the provisions of 85.23. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 32-year-old high school graduate who took an additional truck driving course at Kirkwood Community College but he didn't finish it. Claimant related his past job experience to which he referred to claimant's exhibit 1, pages 2, 3 and 4. He then described a particular job, the nature and duties regarding those jobs listed. It was obvious during claimant's work history that it was necessary to lift, twist, bend, etc. This was claimant's second time he worked for defendant John's Floor Covering. The previous time was around 1982 and 1983 and this last time he began in 1988. The job was basically the same, which involved installing carpet, lifting rolls, installing rolls of carpet, cutting carpet, using a power stretcher, knee kicker, trimming and gluing. It required stooping, bending, being at times on one's hands and knees, and lifting rolls of carpet some in excess of 100 to 200 pounds. Claimant was making $7 per hour when he left John's Floor Covering in February 1992. Claimant began working for Oasis Manufacturing Company approximately two weeks after he left John's Floor Covering the last time. Claimant's job at this company was working with plaster and plaster molds. He had to handle 50 pound bags of plaster. He indicated some of the molds were 80 pounds and with plaster in them weighed around 125 pounds and he would have to stand up the molds. He made $6.25 per hour when he began and the same wage when he left. This defendant made ceramic molds. Claimant also drove a truck at times in order to distribute these molds. Claimant described how his injury occurred on February 20, 1991, at John's Floor Covering. He indicated that he was taking a van loaded with 150 plus feet of carpet early in the morning. Claimant indicated that he was inside the van trying to get the carpet to move in order to take it out for the job and in so doing felt a sharp pain in his back and down his buttocks. He indicated that the pain got worse as he worked the rest of the day. Claimant described the medical services he received including going to a chiropractor. He had physical therapy and did treadmill exercises. Claimant eventually had surgery after more conservative treatment did not work. Claimant had surgery on April 26, 1991, which involved a partial hemilectomy, excision of large extruded disc fragment and minimal laminotomy L4-5. (Joint Exhibit 3, page 6) Claimant indicated that two or three months after his surgery the doctor returned him to work as an employee at John's Floor Covering in the same capacity. Claimant said it was painful but was told he was young and should tolerate it. Claimant said he never felt he fully recovered but he still has the same symptoms he had before the first surgery. He said it feel like he constantly has a charley horse and numbness on the right side of his foot. Claimant testified that the same type of thing happened regarding his January 22, 1992 injury as he was lifting a roll of carpet and it began to affect his lower back. He said the symptoms in his leg were still there until his second surgery. While he doesn't recall, claimant doesn't dispute he was off work two weeks. Claimant indicated that the reason he left John's Floor Covering to work for Oasis around the first of March 1992 was because it didn't require bending or being on his hands or knees and there wasn't as much standing. He said he had talked to the owner of John's Floor Covering before quitting and it was decided it would be best if claimant would work somewhere else. Claimant testified that on September 8, 1992, he was injured again working for Oasis lifting a large mold. He said his back popped again. He indicated the pain was more severe than in the past. He said this was the largest mold they made and that it weighed over 100 pounds. Claimant said he felt and heard his back pop and that he told one of the owers, Ron or Randy, immediately that his back went out. He said he had a discussion with Ron and Randy Benish, the owners, as to the accident and medical bills and he indicated they told him they would pay them. He understood that Oasis was contending they had no notice of the injury but there appears to be no dispute that there was a discussion as to medical bills within the 90 days of claimant's September 8, 1992 injury. Ron and Randy are also considered his supervisors in addition to being co-owners of Oasis Manufacturing. Claimant acknowledged that in January 1993 his father had had a heart attack so claimant shoveled his snow. He indicated it was about two inches and used a snowblower. He indicated his back did get worse and the pain went into his calf. Claimant said he had no difficulty handling a snowblower but had a hard time getting it started since he had to use a pull cord. He said it took him about an hour to remove the snow. Claimant said he had his second surgery January 26, 1993. This surgery involved a partial hemilectomy, removal of partial extruded disc fragment and further discectomy by James W. Turner, M.D. The parties have stipulated that claimant was off work on January 21, 1993 through March 3, 1993. He has been employed since that surgery and related the particular job which included cleaning furnaces, setting up the truck with hoses, pulling out the registers, etc. Claimant acknowledged that his back pain was worse after his January 10, 1993 snow shoveling incident. Claimant said the symptoms in his legs were still there after his second injury. Claimant said, on cross-examination by defendant John's Floor Covering's attorney, he was released to work on August 26, 1991, after his first injury and that there were no restrictions. He further acknowledged that he continued to work through the fall of 1991 and missed no work until the next incident of January 1992. He acknowledged that John's Floor Covering did not pressure him to quit in February 1992. Claimant solely made a decision on his own. He further acknowledged that he sought no further treatment from his February 1992 layoff date until September 8, 1992, at which time he incurred another injury at Oasis. Claimant described the nature of the job he took with Oasis a couple weeks after he quit John's Floor Covering which required lifting weight of 150 pounds and bending and twisting. Claimant then was laid off at Oasis in November 1992 after which time claimant indicated he did the normal activities between the layoff and the snow shoveling incident in January 1993. Although claimant seemed to downplay the snow shoveling incident his attention was called to page 46 of his deposition taken October 28, 1993 (def. Oasis ex. J) in which on pages 45 to 48 he had testified that he was pushing a snowblower and his back started to hurt and proceeded to get worse and he was bedridden for at least two weeks until he had seen the doctor Claimant indicated he shortly thereafter had surgery because of a herniated disc. Claimant was on unemployment from the time he was laid off at Oasis in November 1992 until after his surgery. He indicated he waited until October 1993 for a job even though in March 1993 he was to return to work. He still continued to be on unemployment and was not looking for a job. His contention is that he thought he was going to be recalled by Oasis but he did acknowledge that he never discussed with them about going back to work. It seems unbelievable to the undersigned that this claimant under the facts of this case didn't look for employment because he still thought he was going back to work for Oasis. He contends that he was able to still get unemployment benefits under the circumstances because he was expected to be recalled and therefore didn't have to look for the required number of job inquiries or applications. Claimant's conduct in this regard is questioned. Claimant acknowledged that he first saw Richard F. Neiman, M.D., in January 1994 after his second surgery. This appointment was arranged by his attorney. He indicated he was never treated by the doctor before. He also admitted that he didn't tell the doctor about the snowblowing incident and he didn't recall the doctor asking about it either. The undersigned would wonder how the doctor would think about asking about a snowblowing incident if he had no knowledge of it and the claimant hadn't told him about it. It is obvious the claimant knew the importance of the exam by Dr. Neiman as to attempting to medically show what might have caused claimant's medical condition and also to arrive at an impairment. He also acknowledged that the medical expense incurred at the time of the surgery right after the snow shoveling incident was submitted and paid by his wife's insurance company and he never asked for it to be paid for work-related injury. Claimant acknowledged that he left work about 3:00 p.m. on September 8, 1992, the date of his alleged injury and drove 12 hours the first day toward Las Vegas and completed the trip the next day. Claimant acknowledged that on November 10, 1992, he told Tom Conner that he lied to Randy when he told him he hurt his back the day before by moving an air conditioner. Claimant said that employees jokingly claiming back injury was common at Oasis. Tom Conner, president of Oasis, testified that he knew claimant and affirmed that there was a layoff at his company from February 1992 to the end of November 1992. He had no knowledge of claimant being injured in September 1992. The first notice of any alleged injury was when the claimant told him that he hurt his back lifting an air conditioner. He made a report as to the air conditioning incident and made a note to refresh his memory contemporaneous with this conversation. This took place on November 11, 1992, at 9:30 a.m. He said claimant then later acknowledged he lied and that he never moved the air cnditioner at all. He said it is not true that he jokes about having back injuries but he acknowledged claimant did joke about it a few times. Mr. Conner acknowledged that he knew claimant had a back injury that required surgery prior to his hiring him and further indicated that claimant did say he was having back pain from the beginning of his employment with Oasis to the last day. Defendant Oasis was going to call Randy and Ron Benesh to testify but in the interest of time and the nature of their testimony, the attorneys related that they would testify they have no recollection of being told of a September 8, 1992 injury by the claimant. William Arnold was subpoened to testify. He works for Paulson Boot and Shoe Repair and has known claimant 27 years and considers him his best friend at the time of the alleged injury and to the present. He related that he and claimant played basketball, washed cars and did other things and that claimant cannot do those things now. He indicated the last time they played basketball was three years ago and before that they played every Sunday with friends. He said they have played no basketball since the first surgery and he has asked claimant to play but claimant has refused because of his back surgery. He said that they used to pull car motors and transmissions and the last time he did that with claimant was three years ago before his first operation. He said claimant could never resume his former activiites after his first surgery. James W. Turner, M.D., an orthopedic surgeon, testified through his deposition on October 28, 1993. (Jt. Ex. 13) He first saw claimant on March 6, 1991, at which time claimant contends he was lifting carpet and experienced a sudden discomfort in his back. The doctor described his treatment pursuant to that injury and indicated that on April 26, 1991, he performed a partial hemilaminectomy, a removal of disc, extruded disc fragment at L5-S1, very mini, very small laminotomy at L4-5, which was to remove a portion of the ligament, examine the disc, with no disc being removed. Eventually, he opined a 5 percent permanent partial impairment as a result of that February 20, 1991 work injury. He had given claimant an unconditional lease on October 2, 1991. The doctor indicated that he saw claimant on January 22, 1992, as claimant had tried to lift a large roll of carpet and felt a popping sensation in his back. He said that claimant was able to return to work on February 6, 1992. He felt that injury represented a soft tissue-type sprain or a strain, possibly. He indicated claimant's permanent impairment rate was still 5 percent. The doctor's records then show he saw claimant on September 9, 1992, at which time claimant indicated that he was lifting large molds and again felt a popping sensation in his back. The doctor testified that he did not feel that claimant sustained any real major reinjury. On January 21, 1993, he saw claimant again at which time the claimant indicated he was shoveling snow and had a flare-up of his back with marked increase in left and right leg pain. He described the various tests he put claimant through and noticed the large right-sided disc herniation at L5-S1 impinging on the right S1 nerve root which was a herniation of the same level he was operated on before. The doctor opined that claimant's January 21, 1993 snow shoveling incident precipitated claimant's herniation. The claimant then had surgery shortly thereafter and was released to return to work on March 3, 1993 with a caution against significant lifting and bending for at least another month. The doctor indicated that after the second surgery claimant's impairment would go to approximately 12 percent but he did not understand that there was an issue of permanency pending because he considered this increased permanency was related to claimant's snow shoveling incident. He still opined that claimant had a 5 percent permanent impairment from his prior February 20, 1991 injury. The doctor acknowledged that once you have a disc herniation laminectomy you have a weakened disc and one is at an increased risk. The doctor was questioned on cross-examination as to the use of the AMA Guides To The Evaluation of Permanent Impairment versus the guide he used. The doctor came up with 5 percent and did acknowledge that if using the particular table of the Guides, one could come up with 8 percent. The doctor still stood by his 5 percent and indicated that there are no normative standards for the Guides on range of motion and that those same statements of range of motion in the Guides apply to people regardless how different their stature, weight, age, and condition is. The doctor felt that to use those guides as a range of motion without normative guides as to age, body and body habitus, it is felt by many people not to be an approrpriate use in the rating. This testimony of the doctor is again an example of the problems the medical profession has with the Guides in the use, how to use them, how they interpret them and, frankly, how deficient they are when they are solely used as a guide. Nonetheless, the doctor stood by his 5 percent. (Jt. Ex. 13, pp. 17-29) Joint exhibit 2, page 8, is a March 6, 1992 letter of Dr. Turner in which he indicated that he felt claimant reached his pre-aggravation status and made no change in his disability at that time. The undersigned understands when the doctor used the word disability he means impairment. Per his deposition the doctor felt that claimant's 5 percent permanent impairment from his February 20, 1991 injury and subsequent surgery remains the same through the second injury of January 22, 1992, as well through the alleged September 8, 1992 injury. Page 6 of joint exhibit 3 is the April 26, 1991 operative report regarding claimant's first surgery pursuant to his February 20, 1991 work injury. Page 9 of joint exhibit 3 is the January 26, 1993 operative procedure performed pursuant to claimant's snow shoveling incident on or around January 10, 1993. Joint exhibit 5 is the record of Dr. Neiman on January 12, 1994, in which he opined claimant had a 16.5 permanent impairment to his body as a whole as a result of claimant's February 20, 1991 injury. There is nothing mentioned of any snow shoveling incident in 1993. The overwhelming weight of medical evidence in this case shows that claimant incurred a work injury on February 20, 1991, at which time he incurred a permanent impairment. There are two different permanent impairment ratings in the evidence but it is obvious Dr. Neiman's permanent impairment rating made in 1994 regarding a 1991 injury had an incomplete history. It does not appear he knew anything about the snow shoveling incident that happened approximately one month or less prior to his impairment rating. Claimant had a surgery to his back and it is undisputed that a surgery to the back can leave one at increased risk as to future injuries in the same area due to the weakened back situation. There is no dispute that claimant was injured on February 20, 1991. Although claimant now is making more money, for a different employer, than he was in 1991, it is very little more and if adjusted for inflation would probably be quite similar. The fact is claimant has a back condition that causes him a loss of earning capacity in the work place. Claimant's work involves using his back, bending and twisting. Although Dr. Turner apparently does not like to put specific weight restrictions on an individual but likes to use the terminology "what is reasonable" or "what one thinks one can lift," it is obvious claimant is restricted from excessive bending and lifting. It is not uncommon for some doctors to attempt to motivate an injured worker by not putting on some specific weight limits so that one can try to lift certain weights and not be restricted by some arbitrary weight amount. It is obvious Dr. Turner feels that one knows their own body and they know their own limitations. One of the issues regarding the 1991 injury is whether the time claimant was off work on January 21, 1993 through March 3, 1993, was causally related to his 1991 injury. The evidence is clear that this period was incurred as a result of claimant's second surgery which occurred after claimant's snow shoveling incident on January 10, 1993. Also, it is undisputed that the medical that has been incurred was incurred from the second surgery and treatment of claimant pursuant to the January 10, 1993 snow shoveling incident. The undersigned finds that claimant incurred an injury on February 20, 1991, that left him with a permanent impairment and general restrictions. Taking into consideration all those factors in trying to determine one's industrial disability, including but not limited to claimant's pre and post-injury work history, medical history, age, intelligence, vocation, severity of the injury, healing period, motivation, and impairment, the undersigned finds that claimant has incurred a 20 percent industrial disability as a result of his February 20, 1991 work injury. The undersigned further finds that any medical that is connected with said injury has already been paid by defendants. The defendants are not responsible for any more medical regarding that particular injury. Also, claimant has no additional healing period that is connected with that injury and that any healing period he had has been already paid. To be more specific, the healing period claimant is asking for beginning January 21, 1993 through March 3, 1993 is not causally connected to claimant's February 20, 1991 injury. As to the January 22, 1992 alleged injury, file number 1007645, the undersigned finds that the greater weight of medical evidence indicates that claimant did not incur any permanent disability but only incurred a temporary aggravation of his condition that resulted from his February 20, 1991 work injury, and that claimant was off work temporarily for approximately 2.37 weeks beginning January 22, 1992, for which he has been paid and that claimant had no further healing period in connection with that injury. Claimant had no increased permanent impairment and claimant's condition at the time of that injury and subsequent to that injury after the short healing period was the same and the result of claimant's February 20, 1991 injury. The undersigned therefore finds that claimant takes nothing further from his alleged January 22, 1992 injury, and that there is no causal connection to any healing period in 1993 as claimed by the claimant. There is no increase in industrial disability. The parties had agreed that the medical bills that they are seeking are all after January 10, 1993, and, therefore, none of said bills are to be paid by the defendants as to this alleged January 22, 1992 injury. If there are any prescription drugs outstanding in reference to this particular date then they are payable by defendants. It is therefore found that claimant is entitled to no further benefits as a result of his January 22, 1992 injury, and that he has been paid in full for the 2.429 weeks temporary total disability. As to the alleged September 8, 1992 injury, file number 1037274, the undersigned finds that there was a temporary aggravation of claimant's medical and physical status resulting from his February 20, 1991 injury, that claimant incurred no healing period or any increased impairment or industrial disability as a result of any September 8, 1992 work injury. The greater weight of medical evidence clearly shows that any increase in claimant's impairment or any increased problems claimant has are resulting from a January 10, 1993 snow shoveling incident and/or his lifting of an air conditioner in the latter part of 1992. Although claimant contends that he was joking as to the air conditioning incident, matters of this kind are of no joking consequences, particularly when claimant is making a claim as herein and with the medical evidence and history he has had. As indicated earlier, Dr. Neiman obviously did not have a full history on claimant. The undersigned finds that claimant did not incur any increase in impairment, any additional medical bills or any increase in industrial disability as a result of any alleged September 8, 1992 work injury. Claimant's added problems other than his permanent impairment he had from his February 20, 1991 injury and his industrial disability as previously found herein resulting from his February 20, 1991 work injury are the result of claimant's snow shoveling incident. Therefore, the undersigned finds that claimant takes nothing from this September 8, 1992 alleged work injury which was no more than a little temporary aggravation of a prior injury resulting in no further injury or impairment or entitlement to additional benefits. The undersigned therefore finds that claimant is not entitled to any healing period in regard to any of the alleged injuries or file numbers for ther period of January 21, 1993 through March 3, 1993, nor are the defendants liable for any of the medical bills at issue herein. The only exception being any drug prescripion bills that occurred prior to January 10, 1993 that remain unpaid and are obviously related to the respective dates of the prior injuries. The parties did not separate their particular contention as to what prescription drugs they felt may have been specifically related to any particular injury. The undersigned believes they can determine that from the nature of this decision. It would appear from joint exhibit 7 that all the bills prior to January 10, 1993, which would involve pain or muscle relaxer pills, would be payable by defendant John's Floor Covering and West Bend Insurance Company. On joint exhibit 7 there is reference to antibiotics or penicillan and the undersigned does not see how those are applicable to any of the injuries herein. Therefore, those would not be part of the drug bills payable by defendants. In summary, the defendants Oasis Manufacturing Company and State Farm Insurance Company are not responsible for payment of anything under this decision. They are free from any liability as to any of the three cases herein. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris 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). Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. It is further concluded that: As to the February 20, 1991 work injury (file number 977189): Claimant incurred a 20 percent industrial disability. As to the January 22, 1992 work injury (file number 1007645): Claimant's condition from his February 20, 1991 injury was temporarily aggravated and claimant incurred 2.429 weeks of temporary total disability which has been paid and claimant incurred no further impairment or industrial disability. Claimant takes nothing further from this case. As to the September 8, 1992 alleged injury (file number 1037274): Claimant takes nothing from this alleged injury. Claimant merely temporarily aggravated his overall physical condition resulting from his February 20, 1991 injury, and did not incur any additional impairment, industrial disability or temporary total disability. Claimant therefore takes nothing further from that proceeding. That any increased impairment or disability claimant may have is the result of events or nonwork injuries claimant incurred, one being but not necessary limited to the January 1993 snow shoveling incident. The issue of notice is moot in light of this decision. ORDER THEREFORE, it is ordered: As to the February 20, 1991 injury (file number 977189): That claimant is entitled to one hundred (100) weeks of permanent partial disability at the weekly rate of one hundred sixty-three and 99/00 dollars ($163.99) beginning at the end of claimant's healing period (there is no record as to when that ended as that wasn't an issue). That defendants John's Floor Covering and West Bend Mutual Insurance Company shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants previously paid twenty-five (25) weeks of permanent partial disability at the rate of one hundred sixty-three and 99/00 dollars ($163.99). That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. As to the January 22, 1992 injury (file number 1007645): That claimant takes nothing further from this proceedings. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. As to the September 8, 1992 injury (file number 1037274): That claimant takes nothing from these proceedings. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of November, 1994. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Thomas J Currie Attorney at Law 3401 Williams Blvd SW P O Box 998 Cedar Rapids IA 52406-0998 Ms Vicki L Seeck Attorney at Law 600 Union Arcade Bldg 111 E Third St Davenport IA 52801-1596 Mr James E Shipman Attorney at Law 115 3rd St SE Ste 1200 Cedar Rapids IA 52401 5-1108; 5-1803; 5-2500 Filed November 11, 1994 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER GEORGE HOBSON, Claimant, vs. JOHN'S FLOOR COVERING, File Nos. 977189 1007645 1037274 Employer, and WEST BEND MUTUAL INSURANCE, Insurance Carrier, A R B I T R A T I O N D E C I S I O N GEORG HOBSON, Claimant, and OASIS MANUFACTURING, Employer, and STATE FARM INSURANCE CO., Insurance Carrier, Defendants, --------------------------------------------------------- 5-1108; 5-1803; 5-2500 Found claimant incurred a 20% industrial disability as a result of a February 20, 1991 work injury. 5-1108; 5-2500 Found claimant did not incur any increased industrial disability as a result of his January 22, 1992 alleged work injury. 5-1108; 5-2500 Found claimant did not incur an injury as a result of an alleged September 8, 1992 work injury but that any increased disability was the result of a snow shoveling incident and/or an air conditioning lifting incident. Defendants were not responsible for any medical bills. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DON BURNS, : : Claimant, : : vs. : : File No. 977195 BIL MAR FOODS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Don Burns against Bil Mar Foods and its insurance carrier The Travelers Insurance Company based upon an alleged injury of September 28, 1989. Don seeks compensation for temporary total disability or healing period for the period running from January 6 through April 1990. He seeks compensation for permanent partial disability and payment of medical expenses. He also seeks to recover the costs of the proceeding. It was stipulated that the correct rate of compensation is $207.49 per week. The case was heard at Storm Lake, Iowa, on November 5, 1992. The evidence in the proceeding consists of testimony from Don Burns, Dana Evaro, Lynann Burns, and Dale Carver. The record also contains claimant's exhibits A through E and defendants' exhibits 1 through 24. FINDINGS OF FACT Don Burns is a 24-year-old married man who lives at Arnolds Park, Iowa. He commenced employment at Bil Mar Foods in September 1988. In September 1989, he developed complaints involving his right hand and was treated by James A. Gamache, M.D. The treatment was conservative consisting of medications and time off work. He was released to resume work but developed recurrence of his symptoms. The scenario of resolution and recurrence occurred on a number of occasions. Eventually, after the symptoms recurred on January 6, 1990, claimant's employment was terminated. Claimant had been released to full duty effective January 3, 1990 (defendants' exhibit 8). He returned to Dr. Gamache on February 28, 1990, at which time Dr. Gamache noted that he had recurrent tendonitis. Claimant continued to take medication and remain on decreased activity until seen by Page 2 orthopedic surgeon Rick Wilkerson, D.O., on March 5, 1990 (ex. A, page 10). When claimant was seen by Dr. Wilkerson on March 5, 1990, Dr. Wilkerson formed the impression that claimant had vague wrist and forearm pain of unknown etiology. He prescribed a wrist splint and continued medications. He found no objective evidence of neurologic or joint pathology or tendonitis. EMG tests were normal. He released claimant to full activity and full work status (def. ex. 15). Claimant was seen again by Dr. Gamache on August 9, 1990. At that time his assessment was that claimant continued to have wrist discomfort of unclear etiology, that it was not classic for carpal tunnel syndrome and that his course had not been characteristic for an overuse syndrome or tendonitis. Further conservative treatment was continued. On September 10, 1990, claimant was examined by Joan M. Nellis, M.D., who found the results of the examination to be normal. No particular abnormality was identified (ex. A, pp. 10-12). Claimant has been evaluated by Thomas L. DeBartolo, M.D., an orthopedic surgeon, who is known to have a subspecialty in hand and upper extremity surgery. He felt that, according to the history he received, claimant had developed tendonitis but it had subsequently improved. He found no measurable permanent impairment secondary to claimant's employment (ex. 16). Claimant was evaluated by orthopedic surgeon L.T. Donovan, D.O., on October 7, 1991. Dr. Donovan noticed claimant's congenitally short ulna, a condition which had also been noted by Dr. DeBartolo. Dr. Donovan, in exhibit 23, provided a disability rating of 0 percent. Subsequently, in a report dated November 12, 1990, Dr. Donovan provided an impairment rating of 1 percent of the hand which he stated was equivalent to 1 percent of the upper extremity which in turn he found equivalent to 1 percent of the whole person (ex. 24). He reported that claimant had tendonitis-like pain which had been seen by Dr. Gamache and that it appeared to have been precipitated by claimant's work at Bil Mar Foods. He also found a ganglion cyst which he stated can arise without any particular cause or which can arise secondary to repetitive use. He is the only one to have identified a ganglion cyst. He reported that there was a possibility of Keinbock's disease developing as a result of repetitive trauma superimposed on the congenitally short ulna condition but that claimant's pain pattern was not consistent with Keinbock's disease. He felt that claimant had no significant impairment. He did not state that the 1 percent impairment rating had been caused by claimant's work. Claimant's complaints have little, if anything in the way of objective corroboration. The reliability of the claimant's testimony and his credibility is not well established by the evidence in this case. The case is one Page 3 which presents complaints of pain which are not strongly corroborated by objective medical findings. The only objective medical finding of any abnormality is a congenital abnormality involving the claimant's ulna. It is found that Don Burns did develop some type of an overuse syndrome or tendonitis as a result of his employment at Bil Mar Foods in late 1989 but that his testimony is not sufficiently reliable in order to base a finding of permanent partial disability upon his uncorroborated complaints. His testimony has been impeached by his felony conviction. While he may very well have complaints involving his left hand, the record fails to show substantial corroboration for his claim that the work at Bil Mar Foods caused any disability affecting his left hand or arm. It is found that the work activities on January 6, 1990, did re-aggravate the tendonitis or overuse condition. Dr. Gamache corroborated that claimant should be off work when he was seen on February 28, 1990. By March 5, 1990, claimant was released to full activity by Dr. Wilkerson. It is found that the assessment made by Dr. Gamache and Dr. Wilkerson is correct. Don is found to have been temporarily totally disabled from January 6, 1990 through March 5, 1990, but that he sustained no permanent disability. Claimant's exhibit C sets forth claimed medical expenses. The charges in the amount of $69 from Family Health Center of Storm Lake were incurred with Dr. Nellis on September 10, 1990. A charge of $109.20 from Iowa Lakes Orthopedics, P.C., was for an evaluation conducted in May 1991 by Dr. Donovan. A charge of $110 from Dr. DeBartolo was for his evaluation and report. The charges from Dr. Kinnard are for his treatment. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). Page 4 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). It is concluded that Don Burns has carried the burden of proving that he sustained an injury which arose out of and in the course of employment with Bil Mar Foods on or about September 28, 1989. There could be some argument made regarding whether a different date should be used as the date of injury but it provides no difference in the result of this case. It has previously been determined that the overuse syndrome or tendonitis condition which constitutes the injury was a temporary condition which resolved by the time claimant was seen by Dr. Wilkerson on March 5, 1990, and he was released to resume unrestricted work. It is therefore determined that claimant is entitled to recover temporary total disability compensation in accordance with section 85.33 for the period of time commencing January 7, 1990 and running through March 5, 1990, a span of 8 2/7 weeks. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Dr. Nellis was an employer-chosen physician. Defendants are therefore responsible for payment of her charges in the amount of $69. Claimant also seeks to recover expenses incurred at Iowa Lakes Orthopedics, Thomas DeBartolo, M.D., and James A. Kinnard, D.C. The report from Dr. Nellis in essence states that claimant has no permanent disability as a result of his injury. Claimant is therefore entitled under the provisions of section 85.39 to an independent medical examination. Section 85.39 permits an employee to be reimbursed for subsequent examination by a physician of the employee's Page 5 choice where an employer-retained physician has previously evaluated "permanent disability" and the employee believes that the initial evaluation is too low. The section also permits reimbursement for reasonably necessary transportation expenses incurred and for any wage loss occasioned by the employee's attending the subsequent examination. Defendants are responsible only for reasonable fees associated with claimant's independent medical examination. Claimant has the burden of proving the reasonableness of the expenses incurred for the examination. See Schintgen v. Economy Fire & Casualty Co., File No. 855298 (App. April 26, 1991). Defendants' liability for claimant's injury must be established before defendants are obligated to reimburse claimant for independent medical examination. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). It is determined that the evaluation performed by Thomas DeBartolo, M.D., constitutes an independent medical examination within the meaning of section 85.39. Claimant is therefore entitled to recover the cost of that examination, namely, $110. The treatment performed by Dr. Kinnard is found to not have been proximately caused by the injury at Bil Mar Foods. The passage of time is sufficiently great that, when combined with intervening activities, the chain of causation has broken. The charges incurred at Iowa Lakes Orthopedics were for another evaluation. They were not treatment with an authorized physician. Defendants are therefore not liable for the expenses of unauthorized treatment or for a second independent medical examination. ORDEREED IT IS THEREFORE ORDERED that defendants pay Don Burns eight and two-sevenths (8 2/7) weeks of compensation for temporary total disability payable at the stipulated rate of two hundred seven and 49/100 dollars ($207.49) per week commencing January 7, 1990. It is further ordered that defendants pay claimant's charges at Family Health Center of Storm Lake in the amount of sixty-nine dollars ($69) and with Thomas DeBartolo, M.D., in the amount of one hundred ten dollars ($110). It is further ordered that the weekly benefits awarded in this decision are all accrued and past due and shall be paid to claimant in a lump sum together with interest pursuant to section 85.30. It is further ordered that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1 Signed and filed this ____ day of March, 1993. Page 6 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. David J. Stein Attorney at Law 926 Okoboji Ave PO Box 537 Milford, Iowa 51351 Mr. Charles M. Patterson Attorney at Law 701 Pierce St., STE 200 PO Box 3086 Sioux City, Iowa 51102 Page 1 51402.20 51402.40 52501 52502 Filed March 16, 1993 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DON BURNS, Claimant, vs. File No. 977195 BIL MAR FOODS, A R B I T R A T I O N Employer, D E C I S I O N and TRAVELERS INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 51402.20 51402.40 Claimant, whose credibility was impaired by a felony conviction, was able to prove that he had sustained a tendonitis/overuse type of injury. He was not able to prove that it produced any permanent disability. Claimant awarded 8 2/7 weeks of temporary total disability. 52501 52502 Claimant sought to recover expenses for evaluations and treatment which had not been authorized by the employer as well as some unpaid charges with the employer-selected physician. Defendants held responsible for paying the charges with the authorized physician. Defendants were held responsible for paying the costs of an evaluation by a orthopedic specialist under the provisions of section 85.39. Claimant's attempt to recover the cost of a second orthopedic evaluation and chiropractic treatments was denied.