BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
GARY D. MOORE,
Claimant,
vs.
File No. 977466
MIDWEST FLY ASH AND
MATERIALS, INC.,
A P P E A L
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY
COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
The record, including the transcript of the hearing before the deputy
and all exhibits admitted into the record, has been reviewed de novo on
appeal.
ISSUES
Claimant states the following issue on appeal: "Does claimant have a
disability of an industrial nature greater than 10% as a result of the
accident on February 20, 1991."
Defendants state the following issues on cross-appeal:
I. Whether the entitlement to HP/TTD benefits extends beyond 7/10/71.
II. Whether there is any basis to make an industrial disability award.
III. Whether the defendants are responsible for payment of physical
therapy expenses at Mahaska County Hospital.
FINDINGS OF FACT
The findings of fact contained in the proposed agency decision filed
August 29, 1994 are adopted as set forth below. Segments designated by
asterisks (*****) indicate portions of the language from the proposed
agency decision that have been intentionally deleted and do not form a
part of this final agency decision. Segments designated by brackets ([
]) indicate language that is in addition to the language of the
proposed agency decision.
Gary Moore is a 49-year-old married man who lives at Oskaloosa, Iowa.
He dropped out of school during the ninth grade and has not completed
high school or obtained a GED.
During most of Gary's adult life he has worked in the construction
industry. For approximately the past 20 years he has operated heavy
equipment.
On February 28, 1991, Gary was injured when he slipped from an end
loader and fell to the ground, hitting one of the fenders or steps with
the lower part of his back. He was initially treated by Donald Berg,
M.D., an orthopedic surgeon. He was hospitalized for approximately one
week. (Exhibit 3, page 2) His care was then transferred to William R.
Boulden, M.D., who became the primary authorized treating physician.
Dr. Boulden found claimant to have no evidence of a herniated disc and
no other identifiable surgical problems. He placed claimant into an
aggressive therapy program and work hardening. (Ex. 2, pp. 12-13)
Gary did well in the work hardening program and was released to return
to work without restrictions effective July 10, 1991. (Ex. 4, p. 1;
Ex. 2, p. 9; Ex. 6, pp. 21 & 25)
According to Gary he improved but did not completely recover. He
worked off and on operating a dozer but was unable to tolerate the
bouncing. He then obtained work with J and J Steel from West
Burlington, Iowa, operating cranes. He stated that his back bothered
all of the time. He stated that his legs went numb and he was unable
to hold the brake pedals safely. On October 1, 1991, he returned to
seek further care from Dr. Boulden and was again treated with therapy
and a work hardening program. (Ex. 4, p. 1; Ex. 6, pp. 10-11) By
January 14, 1992, it was indicated that claimant's problem was
mechanical and soft tissue and that it was not correctable by surgery.
It was reported that he had reached maximum medical improvement.
Activity restrictions against repetitive bending and twisting and
extended sitting were recommended. (Ex. 2, p. 5; Ex. F, p. 6)
Claimant resumed employment working somewhat intermittently.
In April 1993, claimant returned to Dr. Boulden for further care and
was prescribed additional therapy. (Ex. 2, p. 3; Ex. 6, pp. 17-18)
The therapy was provided at Mahaska County Hospital. Claimant incurred
charges in the amount of $593. (Ex. K, pp. 1-2)
In 1994 claimant sought care from David Boarini, M.D., a neurosurgeon.
The care was not successful at resolving Gary's symptoms.
Dr. Boulden and Dr. Boarini appear to be in agreement that the injury
of February 28, 1991, was a temporary aggravation of a preexisting
condition and that it did not cause any permanent disability. (Ex. 1,
p. 1; Ex. 2, p. 1) An associate of Dr. Boulden, Richard S. Tunkel,
M.D., reported on November 6, 1991, that claimant had come to the
office on October 1, 1991, and that the symptoms were directly related
to the February 28, 1991 injury. (Ex. F, p. 4) On March 6, 1992, Dr.
Tunkel reported that the pain which claimant was experiencing in
January 1992 was an aggravation of a preexisting condition that was
directly related to the injury of February 1991. Dr. Tunkel
recommended permanent restrictions and provided a permanent impairment
rating of seven percent. (Ex. F, pp. 5-6). When deposed Dr. Boulden
stated that it was not probable that the fall of February 28, 1991,
caused claimant's current pain complaints. He could not provide any
medical explanation for why claimant has pain and stated that a similar
situation exits in 90 percent of the patient's who have back pain. In
only approximately 10 percent of the cases is the source of the pain
identifiable. (Ex. 6, pp. 16, 20, 22, & 23)
In view of the activity restrictions and symptoms Gary has had
difficulty working the larger friction cranes which provide him the
greatest opportunity for employment. He is still able to operate
hydraulic cranes.
It is found that other than for the incident in 1986 when Gary was
injured, he had little in the way of back complaints prior to this
injury. Since this injury he has had continuing back symptoms. Those
symptoms have affected his ability to be employed. The extent to which
they have been affected is not well documented in the record. Gary
continues to work although it appears that he worked less in 1992 and
1993 than he did in 1990. (Exs. G, I & J)
This case presents an irreconcilable conflict between the opinions of
Drs. Boulden and Boarini when compared to the assessment from Dr.
Tunkel and claimant's own apparently credible testimony. It is found
that the injury of February 28, 1991, did in fact aggravate a
preexisting condition and cause it to become symptomatic. It is also
found that the amount of disability resulting from that aggravation is
not corroborated by any objective medical evidence. ***** In making
this assessment Dr. Boulden's statement that permanency was a
possibility is coupled with the credible testimony of the claimant.
The activity restrictions are found to be in part causally related to
the February 28, 1991 injury. He had no such restrictions before this
injury. [Permanent work restrictions can be an indication of permanent
disability even in the absence of ratings of permanent impairments. It
is found that claimant has incurred permanent disability as a result of
his February 28, 1991 work injury.]
CONCLUSIONS OF LAW
Section 85.34(1) provides that healing period benefits are payable to
an injured worker who has suffered permanent partial disability until
(1) the worker has returned to work; (2) the worker is medically
capable of returning to substantially similar employment; or (3) the
worker has achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable expectation
of improvement of the disabling condition. See Armstrong Tire & Rubber
Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period
benefits can be interrupted or intermittent. Teel v. McCord, 394
N.W.2d 405 (Iowa 1986).
It is determined that the healing period in this case is intermittent.
The first session runs from February 28, 1991 through July 10, 1991, a
period of 19 weeks. The second runs from October 1, 1991 through
January 14, 1992, a period of 15 1/7 weeks. It is arguable that there
may have been a third instance of healing period commencing in April
1993 but that cannot be determined with accuracy from the record made.
There is no showing that claimant was taken off work by any physician
or that he was released to resume work by any physician in connection
with the 1993 physical therapy provided under the direction of Dr.
Boulden.
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 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 disability 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 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.
*****
It is determined that when all the factors of industrial disability are
considered that the injury has had a minimal impact on claimant's
ability to be employed in his customary field. It is determined that
he has a 10 percent permanent partial disability as a result of the
February 28, 1991 injury. He likely also has other disability which is
attributable to other unidentified factors. He is entitled to receive
compensation only for that which is shown by the evidence to have been
caused by the injury.
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).
Defendants directed claimant to Dr. Boulden for the purpose of
receiving care for this injury. There is no indication in the record
that they ever directed him elsewhere or advised him that he should not
seek his care from Dr. Boulden. When an employer exercises the
statutory right to control medical care and the employee complies with
the directives of the employer, the employer is then responsible for
paying the costs of the care that it has chosen. Janssen v. United
Parcel Service, file number 1019753 (App. Dec. April 29, 1994);
Schofield v. W. A. Klinger, Inc., file number 531753 (R.R. Dec.
September 28, 1984). Claimant was acting in compliance with the
employer's directive when he returned to Dr. Boulden in April 1993.
There is nothing in the record to indicate that he was informed or
advised that the employer's liability for his care was questioned or
disputed. Defendants are therefore responsible for the charges
incurred by claimant under the direction of Dr. Boulden at Mahaska
County Hospital in the amount of $593. The remaining care shown in
exhibit K was unauthorized and was not shown to have improved
claimant's condition. Defendants are therefore not responsible for its
payment.
WHEREFORE, the decision of the deputy is affirmed.
ORDER
THEREFORE, it is ordered:
That defendants pay claimant thirty-four and one-sevenths (34 1/7)
weeks of compensation for healing period at the stipulated rate of two
hundred ninety and 55/100 dollars ($290.55) with nineteen (19) weeks
thereof payable commencing February 28, 1991 and with the remaining
fifteen and one-sevenths (15 1/7) weeks payable commencing October 1,
1991.
That defendants pay claimant fifty (50) weeks of compensation for
permanent partial disability at the stipulated rate of two hundred
ninety and 55/100 dollars ($290.55) per week. The initial eleven and
five-sevenths (11 5/7) weeks thereof are payable commencing July 11,
1991. The remaining thirty-eight and two-sevenths (38 2/7) weeks are
payable commencing January 15, 1992.
That the entire amount of claimant's entitlement has been previously
paid and that defendants have no further obligation to claimant for
weekly compensation benefits. Defendants have overpaid the claim by
the amount of thirteen and five-sevenths (13 5/7) weeks.
That defendants pay claimant's bill with Mahaska County Hospital in the
amount of five hundred ninety-three dollars ($593).
That claimant and defendants shall share equally the costs of the
appeal including transcription of the hearing. Defendants shall pay
all other costs.
Signed and filed this ____ day of March, 1995.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies To:
Mr. James Q. Blomgren
Attorney at Law
P.O. Box 1066
Oskaloosa, Iowa 52577
Mr. Glenn Goodwin
Attorney at Law
4th Floor Equitable Building
Des Moines, Iowa 50309
5-1402; 5-1402.40; 5-1803; 5-2501
Filed March 27, 1995
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
GARY D. MOORE,
Claimant,
vs.
File No. 977466
MIDWEST FLY ASH AND
MATERIALS, INC.,
A P P E A L
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY
COMPANY,
Insurance Carrier,
Defendants.
_________________________________________________________________
5-1402
In the face of conflicting evidence it was found that the injury caused
some degree of permanent disability.
5-1402.40; 5-1803
Where there were permanent activity restrictions but no objective
medical finding, claimant awarded 10 percent permanent partial
disability.
5-2501
Where employer directed claimant to Dr. Boulden defendants were held
responsible for paying the costs of the care provided by Dr. Boulden.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
GARY D MOORE, :
:
Claimant, :
:
vs. :
: File No. 977466
MIDWEST FLY ASH and :
MATERIALS, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA CASUALTY & SURETY, :
:
Insurance Carrier, :
Defendants. :
------------------------------------------------------------
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Gary D.
Moore based upon an injury that occurred on February 28,
1991. Claimant seeks compensation for healing period,
permanent partial disability and payment of medical
expenses. The issues to be determined include causation.
Defendants seek to recover costs in the event that they are
successful.
The case was heard at Oskaloosa, Iowa, on May 3, 1994.
The evidence consists of testimony from Gary D. Moore and
Lyle Hirsh. The record also contains claimant's exhibits A
through K and defendants' exhibits 1 through 7.
FINDINGS OF FACT
Gary Moore is a 49-year-old married man who lives at
Oskaloosa, Iowa. He dropped out of school during the ninth
grade and has not completed high school or obtained a GED.
During most of Gary's adult life he has worked in the
construction industry. For approximately the past 20 years
he has operated heavy equipment.
On February 28, 1991, Gary was injured when he slipped
from an end loader and fell to the ground, hitting one of
the fenders or steps with the lower part of his back. He
was initially treated by Donald Berg, M.D., an orthopedic
surgeon. He was hospitalized for approximately one week.
(exhibit 3, page 2). His care was then transferred to
William R. Boulden, M.D., who became the primary authorized
treating physician. Dr. Boulden found claimant to have no
evidence of a herniated disc and no other identifiable
surgical problems. He placed claimant into an aggressive
Page 2
therapy program and work hardening. (ex. 2, pp. 12-13).
Gary did well in the work hardening program and was released
to return to work without restrictions effective July 10,
1991. (ex. 4, p. 1; ex. 2, p. 9; ex. 6, pp. 21 & 25).
According to Gary he improved but did not completely
recover. He worked off and on operating a dozer but was
unable to tolerate the bouncing. He then obtained work with
J and J Steel from West Burlington, Iowa, operating cranes.
He stated that his back bothered all of the time. He stated
that his legs went numb and he was unable to hold the brake
pedals safely. On October 1, 1991, he returned to seek
further care from Dr. Boulden and was again treated with
therapy and a work hardening program. (ex. 4, p. 1; ex. 6,
pp. 10-11). By January 14, 1992, it was indicated that
claimant's problem was mechanical and soft tissue and that
it was not correctable by surgery. It was reported that he
had reached maximum medical improvement. Activity
restrictions against repetitive bending and twisting and
extended sitting were recommended. (ex. 2, p. 5; ex. F, p.
6).
Claimant resumed employment working somewhat
intermittently.
In April 1993, claimant returned to Dr. Boulden for
further care and was prescribed additional therapy. (ex. 2,
p. 3; ex. 6, pp. 17-18). The therapy was provided at
Mahaska County Hospital. Claimant incurred charges in the
amount of $593. (ex. K, pp. 1-2).
In 1994 claimant sought care from David Boarini, M.D.,
a neurosurgeon. The care was not successful at resolving
Gary's symptoms.
Dr. Boulden and Dr. Boarini appear to be in agreement
that the injury of February 28, 1991, was a temporary
aggravation of a preexisting condition and that it did not
cause any permanent disability. (ex. 1, p. 1; ex. 2, p. 1).
An associate of Dr. Boulden, Richard S. Tunkel, M.D.,
reported on November 6, 1991, that claimant had come to the
office on October 1, 1991, and that the symptoms were
directly related to the February 28, 1991 injury. (ex. F,
p. 4). On March 6, 1992, Dr. Tunkel reported that the pain
which claimant was experiencing in January 1992 was an
aggravation of a preexisting condition that was directly
related to the injury of February 1991. Dr. Tunkel
recommended permanent restrictions and provided a permanent
impairment rating of 7 percent. (ex. F, pp. 5-6). When
deposed Dr. Boulden stated that it was not probable that the
fall of February 28, 1991, caused claimant's current pain
complaints. He could not provide any medical explanation
for why claimant has pain and stated that a similar
situation exits in 90 percent of the patient's who have back
pain. In only approximately 10 percent of the cases is the
source of the pain identifiable. (ex. 6, pp. 16, 20, 22, &
23).
In view of the activity restrictions and symptoms Gary
has had difficulty working the larger friction cranes which
Page 3
provide him the greatest opportunity for employment. He is
still able to operate hydraulic cranes.
It is found that other than for the incident in 1986
when Gary was injured, he had little in the way of back
complaints prior to this injury. Since this injury he has
had continuing back symptoms. Those symptoms have affected
his ability to be employed. The extent to which they have
been affected is not well documented in the record. Gary
continues to work although it appears that he worked less in
1992 and 1993 than he did in 1990. (exs. G, I & J).
This case presents an irreconcilable conflict between
the opinions of Drs. Boulden and Boarini when compared to
the assessment from Dr. Tunkel and claimant's own apparently
credible testimony. It is found that the injury of February
28, 1991, did in fact aggravate a preexisting condition and
cause it to become symptomatic. It is also found that the
amount of disability resulting from that aggravation is not
corroborated by any objective medical evidence. While it
may be unexplainable from a medical standpoint as to how the
injury produced disability, it is found that it did. In
making this assessment Dr. Boulden's statement that
permanency was a possibility is coupled with the credible
testimony of the claimant. The activity restrictions are
found to be in part causally related to the February 28,
1991 injury. He had no such restrictions before this
injury. Claimant has no ratable permanent impairment as a
result of the injury when standard rating guides are
applied.
CONCLUSIONS OF LAW
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
It is determined that the healing period in this case
is intermittent. The first session runs from February 28,
1991 through July 10, 1991, a period of 19 weeks. The
second runs from October 1, 1991 through January 14, 1992, a
period of 15 1/7 weeks. It is arguable that there may have
been a third instance of healing period commencing in April
1993 but that cannot be determined with accuracy from the
record made. There is no showing that claimant was taken
off work by any physician or that he was released to resume
work by any physician in connection with the 1993 physical
therapy provided under the direction of Dr. Boulden.
Functional impairment is an element to be considered in
determining industrial disability which is the reduction of
Page 4
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. Standard rating
guides provide uniformity and consistency but are
necessarily arbitrary. Loss of function is not necessarily
the same as an impairment rating.
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
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).
Page 5
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.
Industrial disability or loss of earning capacity is a
concept that is quite similar to impairment of earning
capacity, an element of damage in a tort case. Impairment
of physical capacity creates an inference of lessened
earning capacity. The basic element to be determined,
however, is the reduction in value of the general earning
capacity of the person, rather than the loss of wages or
earnings in a specific occupation. Post-injury earnings
create a presumption of earning capacity. The earnings are
not synonymous with earning capacity and the presumption may
be rebutted by evidence showing the earnings to be an
unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531
(Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa
1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973);
Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516
(Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County,
Thirty-fourth Biennial Report of the Industrial Commissioner
218 (1979); 2 Larson Workmen's Compensation Law, sections
57.21 and 57.31.
It is determined that when all the factors of
industrial disability are considered that the injury has had
a minimal impact on claimant's ability to be employed in his
customary field. It is determined that he has a 10 percent
permanent partial disability as a result of the February 28,
1991 injury. He likely also has other disability which is
attributable to other unidentified factors. He is entitled
to receive compensation only for that which is shown by the
evidence to have been caused by the injury.
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).
Defendants directed claimant to Dr. Boulden for the
purpose of receiving care for this injury. There is no
indication in the record that they ever directed him
elsewhere or advised him that he should not seek his care
from Dr. Boulden. When an employer exercises the statutory
right to control medical care and the employee complies with
the directives of the employer, the employer is then
responsible for paying the costs of the care that it has
chosen. Janssen v. United Parcel Service, file number
1019753 (App. Dec. April 29, 1994); Schofield v. W. A.
Klinger, Inc., file number 531753 (R.R. Dec. September 28,
Page 6
1984). Claimant was acting in compliance with the
employer's directive when he returned to Dr. Boulden in
April 1993. There is nothing in the record to indicate that
he was informed or advised that the employer's liability for
his care was questioned or disputed. Defendants are
therefore responsible for the charges incurred by claimant
under the direction of Dr. Boulden at Mahaska County
Hospital in the amount of $593. The remaining care shown in
exhibit K was unauthorized and was not shown to have
improved claimant's condition. Defendants are therefore not
responsible for its payment.
ORDER
IT IS THEREFORE ORDERED:
That defendants pay claimant thirty-four and
one-sevenths (34 1/7) weeks of compensation for healing
period at the stipulated rate of two hundred ninety and
55/100 dollars ($290.55) with nineteen (19) weeks thereof
payable commencing February 28, 1991 and with the remaining
fifteen and one-sevenths (15 1/7) weeks payable commencing
October 1, 1991.
It is further ordered that defendants pay claimant
fifty (50) weeks of compensation for permanent partial
disability at the stipulated rate of two hundred ninety and
55/100 dollars ($290.55) per week. The initial eleven and
five-sevenths (11 5/7) weeks thereof are payable commencing
July 11, 1991. The remaining thirty-eight and two-sevenths
(38 2/7) weeks are payable commencing January 15, 1992.
It is further ordered that the entire amount of
claimant's entitlement has been previously paid and that
defendants have no further obligation to claimant for weekly
compensation benefits. Defendants have overpaid the claim
by the amount of thirteen and five-sevenths (13 5/7) weeks.
It is further ordered that defendants pay claimant's
bill with Mahaska County Hospital in the amount of five
hundred ninety-three dollars ($593).
It is further ordered that each party pay the costs
that each has incurred in participating in this proceeding
with neither to receive an award of costs from the other.
Signed and filed this __________ day of August, 1994.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. James Q. Blomgren
Attorney at Law
1201 High Ave W
Page 7
PO Box 1066
Oskaloosa, Iowa 52577
Mr. Glenn Goodwin
Attorney at Law
4th Floor Equitable Bldg
Des Moines, Iowa 50309
51402 51402.40 51803 52501
Filed August 29, 1994
Michael G. Trier
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
------------------------------------------------------------
GARY D MOORE,
Claimant,
vs.
File No. 977466
MIDWEST FLY ASH and
MATERIALS, INC.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY,
Insurance Carrier,
Defendants.
------------------------------------------------------------
51402
In the face of conflicting evidence it was found that the
injury caused some degree of permanent disability.
51402.40 51803
Where there were permanent activity restrictions but no
objective medical finding, claimant awarded 10 percent
permanent partial disability.
52501
Where employer directed claimant to Dr. Boulden defendants
were held responsible for paying the costs of the care
provided by Dr. Boulden.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERTA J. DEETS,
Claimant,
vs.
File Nos. 977577 & 1003243
SKYLINE CENTER,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
INSURANCE COMPANY OF
NORTH AMERICA,
Insurance Carrier,
Defendants.
___________________________________________________________
INTRODUCTION
This is a proceeding in arbitration filed by Roberta J.
Deets, claimant, against Skyline Center, employer, and
Insurance Company of North America, insurance carrier,
defendants, for benefits arising out of an injury which
occurred on February 13, 1991, when claimant injured her low
back while lifting a resident (file no. 977577) and an
alleged injury which occurred on February 15, 1991 (file no.
1003243) that allegedly occurred when claimant was pushed
against the wall when several other employees were
restraining and subduing a resident which injured claimant's
neck and upper thoracic area as well as her low back area.
A hearing was held at Davenport, Iowa, on August 2, 1993,
and the case was fully submitted at the close of the
hearing. Claimant was represented by Robert J. McGee.
Defendants were represented by Mark A. Woollums. The record
consists of the testimony of Roberta J. Deets, claimant, Kim
Lucky, program manager, Letha Schilling, human resources
manager, and joint exhibits 1 through 5, 7, 9 through 15,
and 17 through 19.
The hearing assignment order was issued on January 27,
1993 and the hearing was held on August 2, 1993. Thus, the
parties had six months in which to prepare the exhibits in
compliance with the instructions in the hearing assignment
order.
Paragraph 9. Exhibit Requirements. provides as
follows, "All exhibits including medical records and reports
shall be organized by author in chronological form. Exhibit
pages shall be consecutively numbered." The exhibits in
this case were not arranged in chronological order by author
or otherwise. On the contrary, the dates of the various
Page 2
exhibits were scattered throughout the packet in no
observable order. Thus, in order to examine the exhibits in
chronological order it was necessary to search through all
155 pages of exhibits each time it was necessary to find the
next chronological event.
The hearing assignment order also states: "The
provisions of Iowa Code section 17A.14(1) require the
exclusion of irrelevant, immaterial and unduly repetitious
evidence. However, absent objection, a party's submission
of 50 pages or less of written evidence will not be subject
to detailed review at hearing for compliance with this Code
section." Counsel appeared at hearing with far more than 50
pages each of written evidence. They were requested to and
did eliminate many of these exhibits near the end of the
hearing and dictated a new exhibit list which then consisted
of 155 pages (the deposition of Eugene Herzberger, M.D. and
the telephonic deposition of Joseph B. Neiweem, M.D., each
counted as only one page). Nevertheless, upon examination
of each of these remaining exhibits, approximately 45
percent of them were not relevant, material, essential or
helpful in the determination of the issues in this case
(Transcript page 8).
Defendants ordered a transcript and furnished the
original copy of it to the Industrial Commissioner's Office.
Both attorneys submitted excellent post-hearing briefs.
Also present in the courtroom at the time of the
hearing was Rita Barnhart, claimant's aunt and Jennifer
Smith, a representative of defendants' law firm (Tran. p.
4).
STIPULATIONS
The parties stipulated that claimant did in fact
sustain an injury on February 13, 1991 to her back when she
lost her footing while lifting a heavy resident.
It was further stipulated that this injury was the
cause of temporary disability and that claimant was paid 51
weeks of temporary disability benefits prior to hearing and
that causal connection and entitlement to temporary
disability benefits were no longer in dispute at the time of
the hearing.
ISSUES
The parties submitted the following issues for
determination at the time of the hearing.
Whether claimant sustained an injury on February 15,
1991, which arose out of and in the course of employment
with employer.
Whether either the injury of February 13, 1991 or the
alleged injury of February 15, 1991 were the cause of
permanent disability.
Page 3
Whether claimant is entitled to permanent disability
benefits, and if so, the extent of benefits to which she is
entitled.
Whether claimant is entitled to the payment of the
medical bill of Dr. Neiweem for his services on July 16,
1993 in the amount of $58, and whether claimant is entitled
to the payment of the functional capacity examination
ordered by Dr. Neiweem and performed by Clinton Physical
Therapy Services on July 19, 1993 in the amount of $250
(Tran. pp. 7 & 14-16).
INJURY
File Number 1003243-Combative Resident Incident
Defendants admit that claimant sustained an injury to
her back, more particularly, her low back, on February 13,
1991, which occurred while she was lifting a resident and
lost her footing and felt something pull in her back (Tran.
pp. 44-48).
Defendants denied that claimant sustained an injury on
February 15, 1991 to her back, more particularly her neck,
upper torso spine and her entire back when staff members
were restraining and subduing a combative resident and
claimant was pushed against the wall (Tran. pp. 48-53).
Claimant testified that on Friday, February 15, 1991,
which was two days after the lifting injury on Wednesday,
February 13, 1991, she was injured a second time when staff
members were restraining an out-of-control resident and she
was inadvertently pushed against the wall. Claimant
testified that the upper part of her back struck the wall.
She said that she felt pain in her entire back.
Claimant further testified that she reported the injury
to Deb Hagge her supervisor substitute and Hagge told
claimant to go to the doctor (Tran. pp. 48-54). Claimant
related that she asked her husband to pick her up from work
because she was stiff. At home that night she took Tylenol
and applied a heating pad. She asserted that later in the
evening when she could not turn her head from side to side
she went to the emergency room. Claimant testified that the
emergency room doctor provided her with a soft collar and
some medications and told her to see Jay Ginther, M.D., an
orthopedic surgeon, at the Bluff Medical Center in Clinton,
Iowa on Monday, February 18, 1991.
There is an employer's incident report made out by
claimant on March 4, 1991 for the incident of February 13,
1991 but it does not mention the incident of February 15,
1991 (Exhibit 1, p. 18). Likewise, a separate incident
report was not introduced into evidence for the pushing
incident of February 15, 1991. Claimant did not testify
that she completed a separate incident report for the second
injury. There is no evidence in the record as to whether it
was the responsibility of the employer or the employee to
see that incident reports were completed.
Claimant testified that she reported both injuries at
Page 4
the emergency room (Tran. p. 53). The emergency room record
verifies that claimant did in fact report two incidents.
The record shows that she was pushed against the wall on
February 15, 1991 and heard a pop in her neck and that two
days earlier she was lifting a resident at work and felt a
pull in her lower back (Ex. 5, p. 4). The hospital
admission form for February 15, 1991 shows that she was
admitted for "sore neck and back" (Ex. 5, p. 1).
An x-ray at that time reported "Essentially normal bony
structures of the cervical spine." (Ex. 5, p. 3). However,
Dr. Ginther's interpretation of the x-ray said it showed
muscle spasm (Ex. 11, p. 3). The ER doctor diagnosed
probable disc herniation, provided a soft collar and
medications and told claimant to see a physician for further
evaluation on Monday (Ex. 5, p. 4).
Thus, it is demonstrated from the medical evidence that
claimant did in fact report both injuries at the time of her
first encounter with medical personnel. It is also
demonstrated that the first doctor who saw her diagnosed
"Probable disc herniation." (Ex. 5, p. 4).
Claimant reported both injuries several times to
several of the medical providers (Ex. 11, p. 3; Ex. 10, p.
5; Ex. 2, p. 4; Ex. 2, p. 15; Ex. 7, p. 1; & Tran. pp. 82,
83 & 86).
Defendants' counsel said that he had subpoenaed a
witness to controvert claimant's testimony on this issue but
the alleged witness, Carolyn Newsom, did not appear at the
hearing.
Thus, claimant's assertion that she was pushed against
the wall during a fracas caused by several employees
attempting to restrain a combative resident is supported by
the medical evidence in this case. Furthermore, claimant's
testimony and the above cited references to the record
showing that claimant reported both injuries to several
medical authorities was not controverted, contradicted,
rebutted or refuted.
Wherefore, it is determined that claimant did in fact
sustain an injury to her neck and upper back which arose out
of and in the course of employment with employer on February
15, 1991.
CAUSAL CONNECTION-ENTITLEMENT-PERMANENT DISABILITY
It is determined that claimant has sustained a 15
percent industrial disability to the body as a whole and is
entitled to 75 weeks of permanent partial disability
benefits.
Claimant, born February 27, 1960, was 30 years old at
the time of these two injuries and 33 years old at the time
of the hearing. She completed high school in 1978. She
took some secretarial courses where she learned to type but
did not complete the course because she was a single parent
and she was required to work part-time (Tran. pp. 21-24).
Page 5
She did not receive any kind of certificate, diploma or
degree from this training.
Claimant's first job during high school and after high
school was physically caring for and providing workshop
training to blind, deaf and mentally handicapped persons.
At this time she completed the full-time four-week Tech 1
and six-week Tech 2 course for which she received a
certificate which allowed her to dispense medications.
While working for this employer she completed and received a
certificate for a two-day training course called Mandt in
which she learned how to manage aggressive and nonaggressive
persons (Tran. pp. 24-28, & 36; Ex. 1, p. 6). Claimant also
worked as a waitress, a building cleaning employee, a
shipping clerk, a department store clerk, cashier and a
receptionist.
The Skyline Center in Clinton, Iowa is a rehabilitation
center for handicapped persons (Tran. p. 34). Claimant
started to work for this employer on September 25, 1990 as
occupational therapy aide at the ICFMR department (Tran. pp.
34, 35 & 38; Ex. 1, pp. 2 & 3). The letters ICFMR stand for
Immediate Care Facility for Mentally Retarded (Tran. p.
111). Letha Schilling, human resources manager, testified
that employer provides various levels of community living
and training for persons who are mentally or physically
disabled. The organization also manages a recycling center
in order to provide employment to the residents of their
center (Tran. p. 110).
Kim Lucky, who was claimant's ICFMR supervisor,
testified that an occupational therapy aide carries out
programs directed by the occupational therapist such as
range of motion exercises, tooth brushing skills, daily
hygiene skills, and toiletry skills (Tran. pp. 97, 98 &
106). Lucky related that the residents in the ICFMR unit
are the lowest functioning individuals in the center. They
have severe and profound behavior disorders or they are
physically handicapped. She said some of them cannot
verbalize. Sometimes these residents are physically
combative. They hit, bite and scream at employees at the
center (Tran. pp. 97-99, 108 & 109). Lucky said an employee
must be able to physically subdue physically aggressive
residents (Tran. p. 103). Also an employee must be able to
lift adult residents (Tran. 104).
Claimant testified that the job entailed lifting
residents who weighed up to 170 pounds and also restraining
physically combative residents at times. Claimant testified
that she is 5' 4" tall and weighs 125 pounds (Tran. pp.
39-44). Claimant averred that she was required to take a
preemployment physical examination with her own doctor at
her own expense. Schilling testified that she did not have
a copy of this physical examination (Tran. p. 115).
Claimant denied that she had any prior problems with her
neck or back. She said that her preemployment physical
examination did not disclose any prior problems with her
neck or back. (Tran. pp. 36 & 37).
Claimant saw Dr. Ginther on February 18, 1991. He
Page 6
found that she had a restricted range of motion, took
claimant off work and prescribed medications and physical
therapy (Ex. 1, p. 15; Ex. 11, p. 3). On March 4, 1991,
claimant was still stiff and had not increased her range of
motion (Ex. 11, pp. 4, 6 & 7).
Claimant then elected to see a physician of her own
choice, Joseph B. Neiweem, M.D., a board certified
orthopedic surgeon, at the Sterling/Rock Falls Clinic in
Sterling, Illinois on March 5, 1991 (Tran. p. 57; Ex. 10, p.
2). Dr. Neiweem related that claimant's condition was a
cervical syndrome. He ordered an MRI to rule out disc
herniation. The MRI of the cervical spine done on March 11,
1992 disclosed a moderate sized herniation of C6-7
intervertebral disk with extrinsic pressure over the thecal
sac and slight impingement of the spinal cord. The MRI also
disclosed a mild bulging or herniation of C4-5 disk (Ex. 9,
p. 82; Ex. 10, p. 3).
Dr. Neiweem then referred claimant to a neurosurgeon in
Rockford, Illinois by the name of Dr. Yake (full name
unknown). However, the insurance carrier, through its
rehabilitation nurse, directed claimant to see Eugene E.
Herzberger, M.D., a board certified neurosurgeon in Dubuque,
Iowa (Tran. pp. 57 & 58).
Dr. Herzberger saw claimant on April 1, 1991. Dr.
Herzberger ordered a cervical myelogram coupled with a
cervical CT scan (Ex. 12, pp. 1 & 2). Claimant was admitted
to Finley Hospital from April 3, 1991 through April 6, 1991
for these tests (Ex. 4, pp. 1 & 2).
The MRI of the lumbar spine made on April 5, 1991
disclosed that, "There are no disc deformities and basically
the lumbar MR appears to be within limits of normal." (Ex.
4, p. 3).
The cervical spine MRI that was taken by Dr. Neiweem in
Sterling, Illinois on March 20, 1991 was compared with the
one taken by Dr. Herzberger in Dubuque on April 3, 1991. It
was determined that there was a herniated nucleus pulposus
and a small disc fragment present at C6-7. The radiologist
said that based on size it was potentially significant.
However, the fragment was on the left and claimant's
symptoms were more pronounced on the right, and he
recommended further clinical correlation (Ex. 4, pp. 3 & 7).
On April 3, 1991, Dr. Herzberger commented,
"This combined study which was technically very
good showed the patient has only a small disc
herniation at C6-7, not a moderate one. Small
disc herniations most of the time do not need
surgical treatment as they may heal spontaneously
over a period of time with additional conservative
treatment." (Ex. 4, p. 5).
In his discharge summary report on April 6, 1991, Dr.
Herzberger provides causal connection between claimant's
employment and this injury. He states that he believes that
Page 7
claimant's condition was caused by her employment. Dr.
Herzberger recorded, "She injured herself in the course of
her employment in the middle of February, 1991." (Ex. 4, p.
5).
Claimant asserted that the dye from the myelogram
caused her to have paralyses in her legs for two days for
which she received steroid shots every two hours. Claimant
asserted that Dr. Herzberger was forced to keep her in the
hospital for two additional days (Tran. pp. 59-61).
Dr. Herzberger did not mention paralyses but he
partially confirms claimant's assertion. On the discharge
summary of April 6, 1991, he wrote, "Following the
myelogram, however, the patient had headaches and nausea and
a feeling of general weakness for which she had to be given
intravenous fluids and steroids and after 2 days of this she
improved a great deal." (Ex. 4, p. 5).
On May 7, 1991, Dr. Herzberger repeated that the disc
herniation shown on his cervical myelogram and CT scan was
small and did not warrant surgery. He recommended the
continuation of the soft collar and medications. He
recommended the pain clinic at The University of Iowa but
said claimant did not want to go there (Ex. 12, p. 3; Tran.
pp. 65 & 66).
On July 19, 1991, Dr. Herzberger said that the
rehabilitation nurse told him that claimant's job entailed,
"... dealing with severe mentally retarded
patients that sometimes are violent and need to be
subdued. I don't think Mrs. Deets can do this
work at this time. She does have a cervical disc
herniation which is a minor one but might either
rupture further in case of effort or become again
severely symptomatic." (Ex. 12, p. 3).
On September 17, 1991, Dr. Herzberger said that he
discontinued walking exercise and physical therapy because
they aggravated claimant's condition. He recommended the
pain clinic at The University of Iowa to further investigate
the stresses claimant seemed to be under and that if further
diagnostic studies were needed they would be ordered by the
pain clinic (Ex. 12, p. 4).
On November 20, 1991, Daniel Reasoner, M.D., a resident
and Winston Barcellos, M.D., medical director of the pain
clinic at The University of Iowa reported to Dr. Herzberger
that claimant had "Chronic thoracic and lumbar back pain of
unclear etiology. There is no evidence for a radicular
component. There is only minimal muscle spasm present.
Exam is inconsistent." (Ex. 2, p. 5).
On January 13, 1992, Dr. Herzberger imposed
restrictions on claimant's work which foreclosed her from
returning to her former job. This comment also indicates
that the doctor believed that claimant's complaints were
caused by her employment for employer.
Page 8
"I have discussed with her her job where she
got injured in the first place, it seems that she
has to deal with many defective patients who most
of the time are not cooperative and there is a
need for wrestling with them in order to subdue
them. I don't think Mrs. Deets can do that type
of work as she is liable to get injured again.
... She is an occupational therapist and she
probably could work as an occupational therapist
in a hospital as the usual hospital patients are
cooperative and this work would not involve any
maximal physical efforts." (Ex. 12, p. 4).
On January 30, 1992, Dr. Herzberger again causally
linked the injury to claimant's disability and gave a
permanent impairment rating,
Mrs. Deets' diagnosis is that of a small disc
herniation at C6-7 and does result from her injury
at work on February 13, 1991.
The permanent partial disability rating for
Mrs. Deets is 5% for the body as a whole. (Ex. 12,
p. 6).
On November 12, 1991, claimant's husband asked Dr.
Neiweem to recommend a neurosurgeon in Iowa City in order to
get a second opinion (Ex. 10, p. 4; Tran. p. 69). Dr.
Neiweem recommended and claimant saw John C. VanGilder,
M.D., a professor of neurosurgery at The University of Iowa
on April 21, 1992 (Ex. 2, p. 2). Dr. VanGilder summarized
his findings on April 22, 1992 as follows,
I reviewed her myelogram both of the cervical
area and lumbar areas. I can see no specific root
cutoff and she does have a small transverse bar at
C6-7.
Review of her MRI shows a transverse bar at
C6-7 without impingement upon the spinal cord or
nerve roots. There is also a small bar at C4-5
again indenting the subarachnoid space but no
evidence of deformity of the spinal cord. An MRI
of the lumbar spine to my interpretation is
normal.
In summary, Ms. Deets has a multiplicity of
pain complaints with remissions and exacerbations.
I can find no evidence of objective neurological
deficit on examination. She does have a mild
abnormality on the MRI in relation to the cervical
spine, but I cannot correlate this with her
symptoms or neurological findings. (Ex. 2, p. 3).
The day after claimant saw Dr. VanGilder, she fell at
home and was treated by Dr. Neiweem and Dean J. Fondahn,
M.D., for left renal contusion, left hydronephrosis, lumbar
strain and pelvic inflammatory disease none of which is
related to either one of these two injuries (Ex. 9, pp.
89-94).
Page 9
On September 15, 1992, Michael Cullen, M.D., a
neurologist, reported to the insurance carrier that he had
examined claimant at their request (Ex. 7, pp. 1-2). His
examination was essentially negative for any serious
physical problem. Dr. Cullen concluded, "Chronic
cervical/thoracic strain." (Ex. 7, p. 3).
Claimant did not demonstrate any neurological deficits
to Dr. Herzberger or any of the other physicians.
Claimant returned to Dr. Neiweem on July 6, 1993 with
more complaints of neck and back problems (Tran. p. 83).
Dr. Neiweem said he had nothing to offer claimant but did
set up a functional capacity evaluation for her (Ex. 10, p.
7).
The functional capacity examination was performed on
July 19, 1993 by Clinton Physical Therapy Services. The
physical therapist said that claimant was cooperative
although she was unable to complete the entire evaluation.
The therapist stated that based on the partial results of
the examination that claimant was able to work at the
sedentary physical demand level for a period of four hours
but must be able to change positions frequently. No bending
(Ex. 3, p. 3).
Under the heading Behavioral Profile, the therapist
reported as follows,
Mrs. Deets did exhibit some Symptom
Exaggeration or Inappropriate Illness Behavior and
she failed 33% of her Validity Criteria giving her
an equivocal Validity Profile. Therefore the
results of this evaluation are considered
partially invalid and are at best a measure of her
minimal capabilities on this date. True
functional abilities must be left to speculation.
(Refer to the evaluation form for limitations on
the completed portion of the evaluation.)
Under the heading of Work-Hardening the therapist
recommends a conditional work-hardening.
The results of the Functional Capacity
Evaluation are considered equivocal but suggest
Mrs. Deets may benefit from a work-hardening
program. She presents as an overall moderately
deconditioned individual with a high pain profile
more than 2 years post injury. The program will
be terminated when the objective test data show
the program to be plateaued. Functional
capacities at that time will then be recorded.
(Ex. 3, p. 1).
The therapist concluded with a job analysis,
The results of the Functional Capacity
Evaluation indicate Mrs. Deets can work today at
the sedentary physical demand level for 4 hours.
Page 10
Certain aspects of this job level may be above her
safe functional ability. These activities should
be limited to prevent an exacerbation of her
existing conditions. Specifically, these include
standing or sitting greater than one hour at a
time. (Ex. 3, p. 2).
Dr. Herzberger gave a deposition on July 14, 1993 (Ex.
19). He stated that he had been a board certified
neurosurgeon since 1965. He said that the C6-7 disc
herniation was not very large and did not require surgery
(Ex. 18, pp. 5 & 6). Dr. Herzberger unequivocally stated
that this herniation was caused by the incident that
occurred on February 13, 1991 and that it caused a 5 percent
permanent impairment (Ex. 19, pp. 7 & 8).
The question of casual connection is essentially within
the domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
Both Dr. Herzberger and Dr. Neiweem unequivocally
established that the injuries of February, 1991 were the
cause of claimant's injury and it follows that these
injuries were the cause of any resulting temporary or
permanent disability. Neither one of these two doctors, or
any of the other doctors who examined claimant, suspected or
suggested any other cause for claimant's injury and
disability.
With respect to permanent impairment the opinion of Dr.
Herzberger, the employer selected and authorized treating
neurosurgeon, is preferred over Dr. Neiweem, Dr. Cullen and
Dr. VanGilder for the reason that he was the primary
treating physician and bore a certain amount of
responsibility for claimant's ultimate recovery or failure
to recover. It is apparent that Dr. Neiweem preferred to
refer claimant to other physicians rather than to actively
treat her himself. First he referred her to Dr. Yake, a
neurosurgeon, and on claimant's last contact with Dr.
Neiweem he referred her to the Clinton Physical Therapy
Services rather than make his own independent evaluation of
claimant's impairment and what her restrictions should be.
Dr. Cullen, Dr. Reasoner, Dr. Barcellos and Dr. VanGilder
were one-time evaluating physicians. Rockwell Graphics
Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
Since all of the doctors summarized above treated all
of claimant's back symptoms (cervical, dorsal and lumbar)
simultaneously it is the interpretation of this deputy that
Dr. Herzberger did not mean that this injury was not caused
by the other incident when claimant was pushed against the
wall on February 15, 1991. There is no evidence that any of
the doctors at any time attempted to segregate these two
injuries, the treatment for these injuries, or to separate
out what injury caused what physical complaints. Actually,
a careful reading of the medical evidence establishes that
the lifting incident of February 13, 1991 caused lumbar
symptoms and complaints and the pushing against the wall
incident of February 15, 1991 caused claimant's upper
thoracic and cervical complaints.
Page 11
Thus, it is determined that it was actually, in fact,
the injury of February 15, 1991 which caused the cervical
disc herniation and the 5 percent permanent impairment to
the body as a whole.
Dr. Herzberger agreed that wrestling with uncooperative
residents might cause the herniation to rupture more and
cause a worse injury. The only lifting restriction that he
would impose is whatever a small delicate woman could lift
and he described claimant as a small delicate woman. Dr.
Herzberger agreed that the herniation made claimant more
susceptible to reinjury (Ex. 19, p. 9). He said that
because of this injury claimant might understandably be more
sensitive about her neck (Ex. 19, pp. 10 & 11).
Dr. Neiweem gave a telephonic deposition on the morning
of the hearing on August 2, 1993 (Ex. 18). He stated that
he had been a certified orthopedic surgeon since 1980 (Ex.
18, p. 4). He reaffirmed that his diagnosis was cervical
syndrome which he defined as a catch-all diagnosis for a
person with complaints of neck pain who may also have some
complaints of pain in the arms. He agreed that he
previously found a moderate herniation of C6-7 and a mild
posterior bulging of the C4-5 intervertebral disk (Ex. 18,
pp. 6 & 7). Dr. Neiweem further agreed that with this
condition that any pressure on the spinal cord could be a
source of pain (Ex. 18, pp. 8, 13 & 14).
Dr. Neiweem unequivocally stated that the disc
herniation was the caused by the injury of February 13,
1991. He related, "So given the history that she gave me
and our findings, I would have to say that this was
secondary to her injury at work." (Ex. 18, p. 8). Dr.
Neiweem further added, "Unless you have something different,
what I have is that she had sustained an injury to her neck
while at work on February 13." (Ex. 18, p. 9).
Dr. Neiweem's initial history was incomplete and
inaccurate. He was under the mistaken belief that lifting
the patient on February 13, 1991 injured her neck, whereas,
all of the other medical records and claimant's testimony
establish that the injury on February 13, 1991 affected her
low back and that the incident with the combative patient on
February 15, 1991 injured claimant's upper thoracic and
cervical area (Ex. 10, p. 2).
It is the determination of this deputy from a careful
examination of all of the medical evidence in this case that
after Dr. Herzberger and Dr. Neiweem began treating claimant
they made no distinction between what symptoms were caused
by the two separate incidents. However, the medical records
disclose that it was the incident of February 15, 1991,
where claimant was pushed against the wall, that initiated
her cervical complaints.
Dr. Neiweem confirmed that claimant was cooperative
with him but the therapist questioned how much effort she
was putting forth on the functional capacity examination
(Ex. 18, p. 9). The doctor said he could not say what
Page 12
restrictions were appropriate for claimant. He explained
that he sent her to the functional capacity examination to
find that out himself but the results of the test were not
valid (Ex. 18, p. 10). Dr. Neiweem added that for the same
reason he could not determine whether claimant had a
permanent impairment without a valid functional capacity
evaluation examination (Ex. 18, p. 12).
Claimant testified that her current situation is that
she has stiffness and pain in the middle of her back which
is located between her shoulder blades and also between her
neck and the middle of her back (Tran. p. 70). She said
that she could no longer restrain combative clients (Tran.
p. 72). She related the only medications she was currently
taking were Excedrin and Advil (Tran. p. 74). Claimant
admitted that she had not tried to find employment for a
year and was not looking for employment at this time because
she was going through a divorce, she was also going through
the liquidation of a business, and her son had physical
problems (Tran. p. 88). Claimant testified that she did
perform some book work for her husband at home and that this
did not present a problem for her (Tran. pp. 76 & 77).
Claimant admitted that she had had numerous health
problems in the past which involved her liver, kidney, and
hepatitis B (Tran. pp. 89-91). However, it is the
determination of this deputy that none of the symptoms and
complaints that she had manifested for her previous
illnesses were manifested in any significant degree during
her treatment for these two injuries (Ex. 9, pp. 18-88,
which are 70 pages of health problems and treatment, none of
which were medically linked to either one of these two
injuries.) None of the physicians who treated claimant for
these two injuries related any of these prior symptoms and
complaints to either one of these two injuries. There is
absolutely no medical evidence that any of this prior health
history is in any way connected with these two injuries.
Defendants' innuendos are groundless and not supported by
any medical evidence.
Lucky, claimant's former supervisor, testified that she
attempted to contact claimant several times without success.
She testified that she left messages but never was called
back (Tran. pp. 99 & 100). However, Lucky made these calls,
five of them, while claimant was taken off work by the
doctor. The dates of these calls are: (1) two calls were
made on March 7, 1991, (2) one call was made on March 15,
1991, (3) one call was made on March 18, 1991 and (4) one
call was made on April 9, 1991 (Tran. p. 102). Lucky
admitted that she was not aware of the fact that claimant
had been taken off work during this period of time by Dr.
Ginther and Dr. Herzberger (Tran. p. 102). Thus, these
calls by Lucky were certainly not a true and realistic
effort on the part of defendants to return claimant to work
at that time. Thus, it is not possible that these were bona
fide calls to offer claimant employment because she was not
authorized to return to work at that time.
Schilling, the manager of human services, testified
that in March of 1993 (two years after the injuries) she had
Page 13
a part-time position as a direct care worker which claimant
could perform without difficulty at the same rate of pay
that claimant was earning at the time of the injury in
February of 1991. However, this position was on the third
shift, which were nighttime and early morning hours.
It is noted that this offer appears to be instigated by
defendants' attorney on or about March 15, 1993, just a few
months prior to the hearing (Tran. p. 118; Ex. 14, p. 1; Ex.
13, p. 3). Thus, it would appear that this belated job
offer was more of a legal maneuver than a bona fide offer of
employment by the employer to the employee.
This job offer, however, is a moot point for the reason
that claimant admitted that she had not worked since the
injury and was not looking for work at the time of the
hearing because of a divorce, the liquidation of the
business, and a physical problem with her son.
The true state of affairs was that claimant had not
requested to be reemployed by employer and employer had not
on their own initiative considered offering continued
employment to the employee. As far as the employer was
concerned a new employee had replaced claimant in her
position as an occupational therapy aide. As far as
claimant was concerned since the injury (1) she had moved to
Sterling, Illinois which was approximately 45 miles from
Clinton, Iowa and (2) entailed a one hour drive in order to
get to Clinton, Iowa and (3) another one hour drive to get
home again. Furthermore, claimant admitted that the job was
not feasible for her at the time the offer was made because
she would have to pay for day care for her two children,
purchase gas for the car and spend two hours getting to and
from a part-time job which only paid $5.25 per hour and
required her to work the nighttime shift (Tran. p. 78). The
job did not provide claimant with any employee benefits
(Tran. p. 128).
Claimant testified that she was instructed by the
rehabilitation nurse that she was not to communicate
directly with employer or to go to her former place of
employment and she was not allowed to visit any of the
residents (Tran. p. 131). Schilling testified that she did
not know the rehab nurse assigned to the case (Tran. p.
130).
Thus, neither employer or employee have made any real
serious attempt to return claimant to duty with employer.
At age 30 claimant's industrial disability is decreased
because of her young age. She still has several employable
years in which to develop the skills or ability for
remunerative work. Becke v. Turner-Busch, Inc.,
Thirty-fourth Biennial Report of the Industrial Commissioner
34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II
Iowa Industrial Commissioner Report 426 (1981); McCoy v.
Donaldson Company, Inc., file numbers 782670 & 805200 (App.
Dec. 1989).
With a high school education claimant has the typical
Page 14
basic education in order to obtain employment in the
competitive employment market.
Claimant is capable of retraining either academically
or on the job. After high school she attended a secretarial
course and learned to type. While working for her first
employer she completed Tech 1 and Tech 2, four-week and
six-week courses respectively, and obtained a certificate
from those courses. She attended the two day Mandt training
and obtained a certificate for that course. Claimant is
intelligent and articulate and her overall employment
prospects, even in spite of these injuries, should be good
on the long-term. Conrad v. Marquette School, Inc., IV Iowa
Industrial Commissioner Report 74, 89 (1984).
With respect to lumbar area, physically, claimant
sustained a strain of the lumbar spine which produced no
objective of permanent disability. Nevertheless, she has
complained of pain in her low back, buttock and into her
legs at times. At the same time, the medical evidence said
there were no true radicular symptoms.
With respect to her cervical area claimant has
sustained a herniated disc at C6-7 and lesser suspected
herniation at C4-5. Such minor herniations have been known
to heal themselves. At the same time, Dr. Herzberger, the
employer selected neurosurgeon agreed that the herniation
made claimant more susceptible to reinjury (Ex. 19, p. 9).
Dr. Herzberger restricted claimant from working with
residents who are violent or need to be subdued for the
reason that a future injury might cause either a rupture or
the injury to become severely symptomatic again (Ex. 12, p.
3).
Thus, it must be determined that claimant sustained a
serious cervical injury which has made her more susceptible
to reinjury and is restricted from types of work that could
cause a rupture or cause her symptoms to become severely
symptomatic again. Therefore, claimant's employability and
access to the competitive employment market is substantially
limited. Both Dr. Herzberger and Dr. Neiweem unequivocilly
stated that the C6-7 herniation was caused by the injuries
which claimant sustained in February of 1991.
Claimant's ability to work is further restricted for
the reason that her pain symptoms are activity related.
This is her testimony. Relying on her statements Dr.
Herzberger discontinued physical therapy, home traction and
long distance walking which claimant said aggravated her
symptoms.
At the same time, it must be stated that consciously or
unconsciously claimant magnifies and exaggerates her pain
complaints. Either way, her behavior has obstructed the
ability of the physical therapist performing the functional
capacity examination to make a realistic estimate of
claimant's true abilities and impairment.
It is determined that claimant is not restricted to
Page 15
sedentary work four hours a day to include no standing or
sitting greater than one hour at a time (Ex. 3, p. 2). At
the same time it is not possible to accurately determine
claimant's true disability for the reason that she has not
actually sought and obtained employment to the best of her
ability in the competitive employment market. Schofield v.
Iowa Beef Processors, Inc., II Iowa Industrial Commissioner
Report 334, 336 (1981).
Therefore, claimant's industrial disability cannot be
increased for the reason that she has not been able to find
employment since this injury.
At the time of the injury claimant was earning $5.25
per hour. If and when claimant returns to the employment
market it is not unusual to find that entry level jobs often
pay $5.25 per hour. At the present time, however, claimant
has not demonstrated any loss of actual earnings for the
reason that she admits that she has not actively sought,
found or engaged in any employment after this injury.
Claimant's attorney in his brief called attention to
the following legal authorities,
Industrial disability is loss of earnings
capacity rather than actual earnings. Impairment
Page 16
of physical capacity creates an inference of
lessened earning capacity. The basic element to
be determined is loss of earning capacity rather
than lack of actual wages or earnings in a
specific occupation. Holmquist v. Volkswagon of
American, 261 N.W. 2d, 516 (Iowa Appeals, 1977);
Larson Workers' Compensation Law, Section 57.21,
57.31.
Wherefore, based upon all of the factors used to
determine industrial disability and based in particular upon
the following factors (1) that claimant sustained two
traumatic injuries, one to her cervical area which was
caused by being pushed into a wall and one to her lumbar
area which was caused by losing her footing while lifting a
heavy resident, (2) that objective tests have established
that claimant has sustained a herniation of C6-7 and C4-5,
(3) that both Dr. Herzberger and Dr. Neiweem said that
claimant's injuries were caused by these events at work in
February of 1991, and considering that claimant was taken
off work for approximately one year and pursued several
months of physical therapy, (4) that Dr. Herzberger, the
employer selected board certified treating orthopedic
surgeon, determined that claimant had sustained a 5 percent
impairment to the body as a whole, (5) that Dr. Herzberger
determined that these injuries made claimant more
susceptible to reinjury in the future, (6) that Dr.
Herzberger restricted claimant from strenuous work or work
which might cause another traumatic contact with the
cervical spine, (6) based on claimant's age in the early
thirties, (7) based on claimant's high school education,
subsequent training and potential for retraining, (8) based
upon the fact that claimant has either consciously or
unconsciously magnified and exaggerated her symptoms and
pain complaints, (9) based upon the fact that claimant has
not actively searched for employment since this injury, and
(10) applying agency expertise [Iowa Administrative
Procedure Act 17A.14(5)], and based upon all the factors
used to determined industrial disability, Christensen v.
Hagen, Inc., vol. I, no. 3, State of Iowa Industrial
Commissioner Decisions 529 (App. Dec. March 26, 1985);
Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of
Iowa Industrial Commissioner Decisions 654, 658 (App. Dec.
February 28, 1985), it is determined that claimant has
sustained a 15 percent industrial disability to the body as
a whole and is entitled to 75 weeks of permanent partial
disability benefits. Iowa Code section 85.34(2)(u).
MEDICAL EXPENSES
At the time of the hearing defendants had paid all of
claimant's medical expenses except the bill from Dr. Neiweem
for his office visit on July 6, 1993 in the amount of $58
and the charges of the Clinton Physical Therapy Services for
the functional capacity examination ordered by Dr. Neiweem
which was performed on July 19, 1993 in the amount of $250.
Defendants declined to pay the bills because they had
Page 17
never seen them before. At the same time did not state they
would not pay the bills, but rather wished to examine them
in order to make a decision on whether they should be paid
or denied.
Claimant's counsel asserted that these two bills should
be considered an issue to be determined by this decision
(Tran. pp. 17 & 14).
The prehearing conference report signed by both
attorneys on January 6, 1993 specified that medical benefits
would be an issue to be determined by this decision. The
hearing report further specified that claimant sought an
order for payment of these two medical expenses.
Possibly defendants have paid the bills because neither
attorney addressed this issue in their post-hearing brief.
Nevertheless, the industrial commissioner was requested to
make a determination on the payment of these two bills at
the hearing and has no subsequent information that these two
bills are not an issue which is needed to be decided by this
decision.
It is determined that both of these two expenses were
caused by these two injuries. Both claimant and Dr. Neiweem
said that claimant saw the doctor for continued complaints
of pain to both her neck and back. It was Dr. Neiweem who
decided that claimant should receive a functional capacity
examination. Referral by an authorized doctor to another
physician constitutes the other physician as an authorized
physician. Limoges v. Meier Auto Salvage, I Iowa Industrial
Commissioner Report 207 (1981); Kittrell v. Allen Memorial
Hospital, 34 Biennial Report, Iowa Industrial Commissioner
164 (1979).
Likewise, an authorized physician can select whatever
treatment methods that his judgment determines is reasonable
and employers and insurance carriers are not entitled to
interfere with the professional judgment of the authorized
treating physician. Pote v. Mikow Corp., File No. 694639
(Review-Reopening Decn., June 17, 1986); Smith v. Acme
Electric, File No. 995667 Decided March 25, 1993; Martin v.
Armour-Dial Inc., File No. 754732 (Arb. Decn., filed July
31, 1985).
It is true that Dr. Neiweem was chosen by claimant.
Nevertheless, with respect to Iowa Code section 85.39, a
physician chosen by the employee but adopted by employer's
insurance carrier, is considered to be an employer retained
physician. Coble v. Metromedia, Inc., Thirty-fourth
Biennial Report of the Industrial Commissioner 71 (1979).
Likewise, with respect to Iowa Code section 85.27, even
though the employer has the right to choose the care, when
the employer and insurance acquiesce in the care of the
physician chosen by claimant then this physician is
considered to be an employer retained physician. By paying
his medical charges defendants have acquiesced in the care
of Dr. Neiweem and he became an authorized treating
physician. Munden v. Iowa Steel & Wire, Thirty-third
Biennial Report of the Industrial Commissioner 99 (1977).
Page 18
Wherefore, it is determined that Dr. Neiweem is an
authorized physician within the purview of Iowa Code section
85.27 in this case. Defendants acquiesced in his care and
paid all of claimant's previous bills from Dr. Neiweem
(Tran. p. 16). Conte v. Heartland Lysine, Inc., File No.
900546 (filed June 13, 1991). Therefore, it is determined
that Dr. Neiweem was an authorized treating physician and as
such he was entitled to order a functional capacity
examination and that defendants are liable for both of these
medical expenses. Santucci v. Air and Water Technologies
Corp., File No. 967995 Memorandum of Decision on Alternate
Medical Care, filed April 23, 1993.
CONCLUSIONS OF LAW
Wherefore, based upon the foregoing and following
principles of law, these conclusions of law are made:
That claimant did sustain the burden of proof by a
preponderance of the evidence that she sustained an injury
to her neck, upper back and entire back on February 15,
1991, which arose out of and in the course of employment
with employer. Section 85.3(1); McDowell v. Town of
Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
That claimant sustained the burden of proof by a
preponderance of the evidence that the injury to her neck
was the cause of permanent impairment and disability.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d
607 (1945).
That claimant sustained the burden of proof by a
preponderance of the evidence that she has sustained a 15
percent industrial disability to the body as a whole and is
entitled to 75 weeks of permanent partial disability
benefits. Iowa Code section 85.34(2)(u). Diederich v.
Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902
(1935); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125
N.W.2d 251 (1963).
That claimant sustained the burden of proof by a
preponderance of the evidence that the injury of February
13, 1991 and the injury of February 15, 1991 were the cause
of the charge of Dr. Neiweem on July 6, 1993 in the amount
of $58 and the charge of Clinton Physical Therapy Services
on July 19, 1993 in the amount of $250 and that these
charges were incurred at the direction of an authorized
physician and that these charges are reasonable. Iowa Code
section 85.27; See also the cites in the body of this
decision.
If claimant's medical expenses had not been allowed
pursuant to Iowa Code section 85.27 it would appear that
claimant has a good case to have them allowed pursuant to
Iowa Code section 85.39 based on the facts of this case.
Pirozek v. Swift Independent Packing, File No. 753643,
753642 and 724893 (Appeal Decn. February 18, 1987).
Page 19
ORDER
THEREFORE, IT IS ORDERED:
That defendants pay to claimant seventy-five (75) weeks
of permanent partial disability benefits at the stipulated
rate of one hundred ten and 26/100 dollars ($110.26) per
week in the total amount of eight thousand two hundred
sixty-nine and 50/100 dollars ($8,269.50) and that these
benefits are to commence on January 31, 1992 as stipulated
to by the parties.
That defendants are entitled to a credit for workers'
compensation weekly benefits paid to claimant prior to
hearing for twenty-five (25) weeks in the amount of one
hundred ten and 26/100 dollars ($110.26) in the total amount
of two thousand seven hundred fifty-six and 50/100 dollars
($2,756.50).
That these benefits are to be paid in a lump sum.
That interest will accrue pursuant to Iowa Code section
85.30.
That these permanent partial disability benefits are to
be charged to the injury of February 15, 1991 which is claim
file number 1003243.
That defendants pay to claimant or the provider of
medical services fifty-eight dollars ($58) for the bill of
Dr. Neiweem and two hundred fifty dollars ($250) for the
bill of Clinton Physical Therapy Services. Iowa Code
section 85.27
That these medical expenses are to be charged equally
to the injury of February 13, 1991 which is file number
977577 and the injury of February 15, 1991 which is file
number 1003243.
That the costs of this action, including the cost of
the attendance of the court reporter at hearing and the
transcript of hearing, are charged to defendants pursuant to
rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40.
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, 1994.
______________________________
WALTER R. McMANUS, JR.
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Page 20
Mr. Robert McGee
Attorney at Law
230 4th Ave. S.
Clinton, IA 52732
Mr. Mark Woolums
Attorney at Law
600 Union Arcade Bldg.
111 E. Third St.
Davenport, IA 52801
1106, 1108.50, 1401, 1402.20
1402.30, 1402.40, 1803, 2501, 2700
2901, 2906, 3700
Filed March 8, 1994
Walter R. McManus, Jr.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
ROBERTA J. DEETS,
Claimant,
vs.
File Nos. 977577 & 1003243
SKYLINE CENTER,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
INSURANCE COMPANY OF
NORTH AMERICA,
Insurance Carrier,
Defendants.
___________________________________________________________
2901, 2906, 3700
The deputy observed that counsel had over six months from
the date of the hearing assignment order until the hearing
to prepare the exhibits according to the instructions in the
hearing assignment order but nevertheless failed to (1)
reduce the pages to approximately 50 pages or less of
relevant and material evidence and (2) prepare the exhibits
in chronological form of some kind. Even though the
attorneys did eliminate several pages of written evidence at
the time of the hearing and dictated a new exhibit list the
deputy observed that about 45 percent of the exhibits
remaining were not relevant, material, essential or helpful
in the determination of the issues in this case.
1106, 1108.50, 1401, 1402.20, 1402.30
Claimant alleged two injuries, two days apart.
Defendants admitted the first one but denied the second one.
Claimant sustained the burden of proof on the second injury.
Her reports to the medical care providers tallied with her
testimony at the hearing. Claimant was credible.
1402.40
The two primary doctors said the work caused her neck
and back condition. This evidence was not controverted.
Claimant had a multitude of prior health problems but none
of her complaints from these two injuries were the same as
Page 2
her prior problems and no medical care provider linked up
any of claimant's prior problems with her current
complaints.
1803
The primary authorized treating physician assessed a 5
percent permanent impairment. He said this injury made her
more susceptible to other cervical injuries. He said she
was foreclosed from her employment as an occupational
therapy aide with mentally or physically disturbed persons.
She sustained two traumatic injuries. She had two bulging
cervical disks, one worse than the other, but neither one
required surgery. She had a long recovery period. Claimant
magnified her symptoms and exaggerated her complaints. She
was age 33, completed high school, retrainable, intelligent,
articulate but had not yet sought work due to personal
problems. Claimant was awarded 15 percent industrial
disability.
2501, 2700
Claimant awarded two unpaid medical expenses on the
basis of Limoges, Kittrell, Pote, Cobble, Munden, Conte, and
Santucci.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
CONNIE OLDENBURGER, :
:
Claimant, :
:
vs. :
: File No. 977623
HOTEL FORT DES MOINES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HAWKEYE-SECURITY/UNITED :
SECURITY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by the claimant,
Connie Oldenburger, against her employer, Hotel Fort Des
Moines, and its insurance carrier, Hawkeye-Security/United
Security, to recover benefits under the Iowa Workers'
Compensation Act as a result of an injury allegedly
sustained on February 21, 1991. This matter came on for
hearing before the undersigned deputy industrial
commissioner at Des Moines, Iowa, on January 19, 1993. A
first report of injury has been filed. Defendants appeared
through their counsel, John Fatino. Claimant who is pro se
in this matter did not appear.
issues
Pursuant to the prehearing report filed by defendants,
defendants admit an employer-employee relationship and
acknowledge gross weekly wages of $149.79 for claimant. All
other matters including whether claimant received an injury
which arose out of and in the course of her employment
remain disputed.
findings of fact
Claimant having not appeared, no evidence was taken on
claimant's behalf. Defendants declined to present evidence
as well. Wherefore, it is found that claimant has not
carried her evidentiary burden of showing that claimant did
receive an injury arising out of and in the course of her
employment on February 21, 1991.
Page 2
conclusions of law
Therefore, it is concluded that claimant has not established
an injury arising out of and in the course of her employment
on February 21, 1991.
order
THEREFORE, IT IS ORDERED:
Claimant take nothing from this proceeding.
Claimant pay costs of this proceeding pursuant to rule 343
IAC 4.33.
Signed and filed this ____ day of January, 1993.
______________________________
HELENJEAN M. WALLESER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Ms. Connie Oldenburger
475 N.E. 43rd Pl.
Des Moines, IA 50313
Mr. John F. Fatino
Attorney at Law
317 6th Ave., Ste. 1200
Des Moines, IA 50319-4110
51402.10, 51402.20
Filed January 19, 1993
Helenjean M. Walleser
before the iowa industrial commissioner
____________________________________________________________
:
CONNIE OLDENBURGER, :
:
Claimant, :
:
vs. :
: File No. 977623
HOTEL FORT DES MOINES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
HAWKEYE-SECURITY/UNITED :
SECURITY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
51402.10, 51402.20
Claimant did not appear at hearing. Found that claimant had
failed to carry claimant's burden of establishing an injury
arising out of and in the course of her employment.