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.[1]
(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.[2] (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
[1] Age at the time of hearing.
[2] 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.