BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
VERLYN GREGERSON, :
:
Claimant, : File No. 979201
:
vs. : A P P E A L
:
UNITED STATES GYPSUM CO., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
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
Those portions of the proposed agency decision
pertaining to issues not raised on appeal are adopted as a
part of this appeal decision. The issues raised on appeal
are:
I. Whether the claimant's right upper extremity
disability is causally connected to the 1-21-90
tool box incident.
II. What is the extent of the claimant's right
upper extremity disability.
III. Whether the claimant is entitled to penalty
benefits.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed November 6, 1992 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.
Claimant is a 47-year-old who will have worked for
defendant employer 21 years as of June 1993. He described
the nature of the work which basically involved driving a
rock truck and operating a rock shovel which is like a big
back hoe that lifts up rocks and loads them onto the trucks
and the rock is then hauled to a crusher. Defendant
employer makes plaster, plaster board and compounds.
Claimant also at times had other duties such as grading
roads and loading dynamite, etc., for defendant employer.
Claimant described his work days, hours, the nature of
Page 2
his work, and the use of his hands and arms in operating the
equipment.
Claimant testified that on January 21, 1990, when he
was at defendant employer's project test drilling, he went
to get some teeth out of the toolbox to use on the drill.
He indicated he had lifted the lid with his left hand and it
slipped out of his hand and fell on his right wrist. He
described the toolbox as about two feet in length, one foot
wide, eighteen inches deep and weighing up to 200 pounds.
He described the pain immediately after the incident as
feeling as if he had fire in his wrist and he was in a lot
of pain. Claimant described the pain that he has in his
fingers, hands and arms up to his shoulders.
Claimant described the medical treatment and the
doctors he saw. Claimant testified that he had a carpal
tunnel surgery on his right hand in 1989 and that he was
released to go to work and has not had any problems since
this surgery.
Claimant had surgery again on his right hand on March
26, 1991, at which time he also had a ganglion cyst removed.
Claimant indicated the hospital bill has not been paid
and that he has received no benefits. Claimant was off work
March 26, 1991 up to and not including June 3, 1991, as a
result of this surgery. Claimant indicated that he took a
bonus and two weeks vacation during this period as he needed
money because he was not getting benefits. He indicated
that he had been approached by defendant employer and was
given a scenario on a couple of options, one being that he
could receive 80 percent from his disability insurance which
would be based on a non-workers' compensation injury or he
could go through the workers' compensation procedure.
Defendant employer did not think his January 21, 1990
incident was work related and told claimant this before his
March 26, 1991 surgery.
Claimant related that he had a group disability policy
with his self-insured employer which paid 80 percent of the
wages. When asked why he didn't apply for or try to receive
benefits under this policy, he retorted that he felt this
injury was work related and therefore would be workers'
compensation and would not be able to come under the
disability policy. Claimant indicated that the defendant
employer gave him the disability forms to fill out but he
again emphasized that he could not sign them because he felt
it was a work-related injury. Claimant indicated that
Richard Hundley told him that if claimant would file for the
disability benefits, he would get benefits faster. Claimant
testified that claimant's exhibit 18 is the diagram that was
made by Mr. Hundley to show the two types of insurance
benefits; namely, workers' compensation or group insurance.
Claimant indicated that exhibit 8 is a list of the
bills that are unpaid to date. It was obvious from the
discussion among attorneys that a $224 anesthesia bill was
paid and that the claimant had received a check from
Travelers Insurance, the group administrator, made payable
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to the anesthesiologist, which claimant forwarded on. It
would appear then that the balance of the bills in dispute
amounts to $2,500.82. It appears possibly that this exhibit
8 is not complete and there may be other bills that are
unpaid which claimant thought should be paid. If, in fact,
liability is found, whatever bills are connected to this
alleged injury should be paid notwithstanding what is
necessarily set out on claimant's exhibit 8.
Claimant related that in April of 1991, he was having
drainage from his incision on his right hand and the doctor
wrapped it and said it would heal. The last time he saw
Robert Weatherwax, M.D., was on September 24, 1991, at which
time claimant related the pain he was having but that
surgery was not indicated. He related that the doctor
didn't really examine his hand but said he was just going to
have pain anyway. He gave claimant a shot of cortisone.
Claimant related that his problems are the same today
as they were in September 1991 except the pain is getting
worse. He said the pain was in his palm and the last three
fingers and that it goes up into his shoulders and his hand
goes to sleep at night. Claimant related that he wears a
brace at night around his hand and during the day he wears a
small wrist band that helps him. Claimant compared the five
to ten minute exam of Dr. Weatherwax in September 1991 to
the one and one-half hour exam of David R. Archer, M.D., in
1992, where he was sent after an appointment was arranged by
his attorney.
Claimant relates he does have trouble driving a truck
as his wrist goes to sleep. He emphasized he doesn't need
his right hand to drive but does need it to shift gears. He
is right handed. Claimant acknowledged that he has had no
loss of time from work since his return to work in June of
1991.
Claimant insisted that he told Dr. Archer about his
pain problems in May of 1992 even though there is nothing
mentioned in the report. Claimant further acknowledged that
he had a ganglion cyst on his right wrist and that he
related it was work connected as he had never had a cyst or
any problems before. He acknowledged that no doctor has
indicated it was work related.
Claimant said it was his decision to see Dr. Weatherwax
as this doctor had done a right hand carpal tunnel on
claimant previously in 1989.
On cross-examination, claimant was questioned as to
what appeared to be several inconsistencies in his testimony
at the hearing and his testimony in a deposition. Claimant
seemed to indicate he was having no problems performing his
job and that he could operate the truck and shovel without
any problems, the same as before his accident. Claimant was
further referred to claimant's exhibit 1, page 7, in which
the doctor indicated claimant told him that claimant had
numbness in both upper extremities more on the right side
for the last two years off and on. Claimant indicated he
didn't remember telling the doctor this. Claimant
Page 4
emphasized he was not having pain in the two years referred
to by the doctor.
Claimant said that he can still do his daily driving
but it still causes pain. He believes that he could still
do this same work in the future.
Ruth Ann Gregerson, claimant's wife, testified that
claimant was not having any problems between his 1989
surgery and the January 21, 1990 toolbox accident. She
indicated claimant is in pain at night and that his right
hand goes to sleep at night and he has problems putting
pressure and power to use tools. She indicated claimant has
a lot of problems using his right hand and lifting things.
Richard A. Hundley is a human resources official with
defendant employer and also has many other administrative
jobs within the company. He was first called as a witness
by the claimant. Mr. Hundley indicated the plant is self-
insured both as to workers' compensation and as to health
and disability group insurance. Mr. Hundley indicated that
Travelers Insurance Company is the agent processing any
disability and that Gallagher & Bassett handle and
investigate the claims concerning workers' compensation.
But, in all cases, any payment of claims is on a
self-insured basis and all of such payment would be out of
the defendant employer's pocket.
Mr. Hundley described the reasons he denied coverage
both as to disability and as to workers' compensation and
further acknowledged that he signed claimant's exhibit 16,
which includes an accident investigation report but was not
sure who prepared the report. He did review and participate
in that exhibit.
Mr. Hundley indicated it was a group decision to deny
claimant's claim. He named those involved in this decision.
Mr. Hundley testified as to what he relied upon and the
information that went into denying the claim. It appeared
that he did not have any of these records with him and the
question came up from claimant's attorney as to answers to
interrogatories regarding claimant's personnel file. Mr.
Hundley indicated that he turned over claimant's personnel
and workers' compensation file to the attorney but it was
apparent in the conversation in the courtroom that claimant
was not given all of the information requested nor was there
an update of information requested that would aid claimant
in determining one or more of the issues herein. Mr.
Hundley said he answered interrogatories but did not
thoroughly review them nor did he supplement or update them
after June 5, 1991. It appears ***** that there was
information that would be discoverable or would be the
subject of updating the interrogatories or request for
production of documents that was not in fact provided to the
claimant.
Mr. Hundley was asked several questions concerning what
information he or the defendant employer based their
decision in denying claimant workers' compensation benefits.
Mr. Hundley related what he relied upon. Mr. Hundley also
Page 5
gave a deposition on September 9, 1991, represented by
claimant's exhibit 20. In summary, it appears defendant
employer's position is that the toolbox falling on
claimant's right wrist did not cause his symptoms and the
employer believes they reasonably based that on information
they obtained from James W. Rathke, M.D., Jugal T. Raval,
M.D., and a Dr. Greenlaw, and that he believes they allude
to the possibility of other scenarios for illnesses such as
claimant has (Joint Exhibit 20, page 25, lines 13-18).
Mr. Hundley was then called by defendant as its
witness. He said there isn't anything in the medical
records that he knows of which would indicate claimant's
problems are work related or are not work related.
Mr. Hundley indicated that in September 1991 when
claimant came and said his hand was still bothering him and
he wanted to see Dr. Weatherwax, the defendant okayed
claimant to see Dr. Weatherwax but was not certain at that
time the toolbox incident was what was causing claimant's
problems.
Mr. Hundley again affirmed the fact that whether
claimant's situation is work related or not, payment of
claims from either the disability program or the workers'
compensation program would come directly out of the
defendant's pocket and not from any insurance company.
Mr. Hundley again emphasized that he believed there was
considerable room for the causation dispute so the company
decided that claimant's injury was not work related. Mr.
Hundley did not explain why it didn't then pay under the
disability policy for a nonwork-related injury.
Claimant's exhibit 1 is medical information on the
claimant. From exhibit 1 it would appear that claimant was
not having any prior problems that would be causing any
symptoms that developed after the January 21, 1990 incident.
It appears claimant's first visit to the doctor was February
21, 1990, which was one month after his toolbox incident.
Defendant has made an issue of this as to the one month
interval before claimant sought medical attention for his
alleged January 21, 1990 injury. In those February 1990
records, it shows that claimant had a contusion of the right
wrist in addition to a ganglion cyst.
The Fort Dodge medical records, when claimant's history
was taken in January of 1991, reflect that claimant related
he was having numbness in both upper extremities, more so
the right side the last two years off and on but did
indicate that since the January 1990 accident, the numbness
was worse. At that time, a small ganglion over the volar
aspect of the right wrist joint towards the radial side was
discovered (Claimant's Exhibit 1, page 7). The assessment
was that it looked like claimant had carpal tunnel syndrome
bilaterally but the doctor did not rule out ulnar
mononeuropathy on the right side. The doctor could not at
that time answer whether the cyst was due to the toolbox
injury and could not tell whether claimant's recent problem
of numbness is due to the toolbox lid injury or not. He did
Page 6
refer to the fact that claimant had surgery for carpal
tunnel two years previously. On that same exhibit, pages 13
and 15, there are medical reports of Dr. Rathke and Dr.
Raval, respectively.
Claimant's exhibit 2, pages 6 and 7, reflect the notes
of Dr. Weatherwax. He attempted conservative treatment and
concluded that claimant should have surgery which claimant
did on March 26, 1991, involving a release of a carpal
tunnel with epineurolysis of the median nerve and excision
of the volar ganglion. His impression was that claimant had
right carpal tunnel syndrome, recurrent, secondary to median
nerve contusion volar wrist ganglion. On page 9 and 11 of
claimant's exhibit 2 there are the notes and report of Dr.
Weatherwax in which he opined that claimant's injury of
January 21, 1990, when a toolbox struck claimant's wrist
causing contusion of the median nerve, did in fact
eventually result in the surgery of March 26, 1991. At that
time, he wanted to wait six months after claimant's surgery
to determine any permanency as he didn't think there would
be any but it was too early to tell. Page 12 of claimant's
exhibit 2, reflects a September 24, 1991 letter of Dr.
Weatherwax wherein he felt claimant has a 2 percent upper
extremity impairment based on the continued pain, tingling,
dysesthesias in the hand that is likely to continue. He did
not think further surgical intervention is likely needed.
On September 14, 1992, the deposition of Dr.
Weatherwax, an orthopedic surgeon, was taken. The doctor
related that he did perform a right carpal tunnel release
and excision of a lesion on the right long finger of
claimant in March of 1989 and that claimant recovered from
the same and he had not seen him from April 25, 1989 until
October 22, 1990, at which time claimant indicated he had
injured himself in January 1990 when a toolbox lid at work
struck him in the right hand and wrist and claimant started
experiencing some numbness and tingling very similar to his
carpal tunnel symptoms of the previous year. (Def. Ex. E,
pp. 7 and 8). The doctor reflected his conservative
treatment of claimant resulting from his alleged January
1990 incident in which claimant complained of continuing
numbness in the upper extremity. The doctor testified as to
his post surgery care of the claimant and indicated that he
released claimant back to full duty on June 3, 1991, at
which point he felt there was no evidence of impairment
(Def. Ex. E, p. 24). The doctor was asked whether claimant
reached maximum medical improvement on that date and the
doctor indicated he usually does not make a conclusion
concerning maximum medical improvement from surgery until
about six months after surgery. The doctor testified he
then saw claimant on September 24, 1991, which was six
months post operation and claimant still had a burning pain
around the base of his thumb and a little tingling if he put
his wrist into flexion, meaning bending it down towards the
palm. It was at this point that he felt claimant had a two
percent upper impairment and felt any further surgery would
only likely vascularize the nerve more and not necessarily
improve it (Def. Ex. E, pp. 25 and 26). The doctor
indicated he saw claimant again on April 7, 1992, at which
Page 7
time claimant continued to have symptoms in his right
dominant hand very comparable to what he had when the doctor
saw him in September 1991. The doctor indicated he saw no
reason though to change his previous permanent partial
impairment rating of two percent. The doctor indicated that
he wasn't sure whether he resolved claimant's symptoms in
that there was a limit as to what he can do to a nerve that
has limited capability to regenerate less than any other
organ tissue in the body (Def. Ex. E, pp. 27-28). Although
he seemed to think there was some improvement, he certainly
did not indicate his hand was as good as it was before
January 1990 before it was struck with a toolbox lid (Def.
Ex. E, pp. 27, 28, 29).
The doctor opined that claimant's January 1990 work
injury did not injure claimant's ulnar nerve (Def. Ex. E, p.
35). The doctor also indicated his complete disagreement
with Dr. Archer's impairment rating of 25 percent. He also
indicated that Dr. Archer is a family practitioner who could
perform carpal tunnel but usually does not (Def. Ex. R, p.
40).
The doctor indicated that he used the AMA Guides to the
Evaluation of Permanent Impairment to come up with his two
percent permanent impairment but that he would not be
offended if someone came up with a multiple of two or three
times his impairment rating and was a qualified examiner as
there is a great deal of variability that is interpretable
in that table. He indicated the Guides do allow for a
determination of impairment based upon loss of sensation and
an impairment due to loss of power but in both instances,
the determination of the extent of that loss is subjective
in nature (Def. Ex. E, p. 43).
The doctor did acknowledge that it would be realistic
that the surgeon who did the surgery probably rates any
disability impairment the lowest because it reflects on the
quality of the doctor's surgery (Def. Ex. E, p. 45). He
emphasized that in no way is there a 35 percent impairment.
There is no question the doctor feels there can be some
variability depending on the examiner and the examined. It
is also obvious that Dr. Weatherwax did not use the current
revised third edition of the Guides and that the Guides he
was looking at are apparently the second edition which did
not even have the table that would normally be used to
determine the impairment involved herein. He then
acknowledged that the third revised edition of the Guides
shows that for an entrapment neuropathy the tables are rated
from 1 to 25 percent. When Dr. Weatherwax was then asked if
the tables did not allow the evaluator to interpret under
the Guides, it appeared he became quite angry and lost his
cool and kept referring to the 35 percent rating as being a
travesty of the system and that claimant does not have a 35
percent impairment rating in his hand (Def. Ex. E, pp. 48-
50).
Claimant's exhibit 6 reflects Dr. Archer's report in
which he opined claimant had a 35 percent upper extremity
Page 8
impairment or a 21 percent whole person impairment based on
the Guides. Of course, the doctor's use of the charts to
arrive at a whole person is not proper. He did use the AMA
Guides to the Evaluation of Permanent Impairment, third
edition revised. He saw claimant only once and it was
obvious this June 15, 1992 report was the result of the
evaluation of claimant on May 19, 1992. That appointment
was arranged by claimant's attorney. Said exhibit at page 6
shows a September 16, 1992 follow-up letter in which the
doctor assigned claimant's disability due to entrapment
neuropathy at 15 percent of the upper extremity for the
median nerve and 10 percent for the ulnar nerve at the
wrist, totaling 25 percent impairment of the upper extremity
for the entrapment neuropathy. He used table 15 of the AMA
Guides to the Evaluation of Permanent Impairment, third
edition revised, for this determination.
Claimant's exhibit 16, at pages 7 through 12, reflects
the employer's accident/illness analysis was prepared
pursuant to their apparent investigation. It indicates that
there was an accident on January 21, 1990, at a location in
which defendant employer was test drilling on a farm. It
reflects a witness in addition to the claimant and shows
claimant had a hand/wrist injury and a contusion. The
report within claimant's personnel record reflects that
there was, in fact, an injury on January 21, 1990. Although
defendant denies an injury, there is no question that an
injury did arise out of and in the course of claimant's
employment on January 21, 1990 *****. Of course, there are
still remaining issues as to causal connection and
permanency.
The parties are disputing the rate of which any
benefits would be paid if any are payable. Claimant's
exhibit 17 reflects the rate claimant feels is the rate any
payments should be paid at, namely, $324.98. Defendant
contends the rate would be $323.28. The $1.70 difference
apparently results from the fact that claimant is working
some hours in the second shift which pays more per hour than
the first shift, mainly because of the hours of the day or
evening involved. Defendant contends that the rate should
be based on a first shift which is a lower rate. It is
found that claimant is being paid based on the rate that is
standard for the particular shift and is not considered
overtime or premium in that it takes into consideration the
fact that it may be harder for individuals to be willing to
work at the hours of the second shift versus the more
convenient first shift hours. Defendant's exhibit D
indicates that claimant worked during the week hours in both
the first and second shift. Said exhibit also reflects
overtime hours. In claimant's exhibit 17, they do not
reflect overtime hours and the figures reflected by the
claimant are substantiated by the figures in defendant's
exhibit D. It would appear that defendant's argument is
based on the fact that they thought claimant was
incorporating overtime hours in their weekly rates but that
Page 9
is not the fact. It is therefore found that any benefits
herein would be paid at the weekly rate of $324.98.
It has already been found previously that claimant was
injured on January 21, 1990. The question as to whether
claimant incurred any healing period or temporary total
disability will be decided next.
Dr. Weatherwax, on August 5, 1991, opined that
claimant's January 21, 1990 injury, caused when the toolbox
lid struck claimant's wrist, eventually resulted in
claimant's surgery on March 26, 1991. The parties agree
that claimant was off work from March 26, 1991 up to and not
including June 3, 1991, when he was returned to work. It is
found that the greater weight of evidence shows claimant
incurred a work injury on January 21, 1990, and resulted in
claimant incurring a healing period beginning March 26, 1991
up to and not including June 3, 1991, involving 10.286 weeks
payable at the $324.98 rate.
Regarding the issue as to whether claimant incurred any
permanent partial disability, it is found that claimant did
incur a permanent impairment as a result of his January 21,
1990 work injury. There is a difference as to the extent of
impairment. Dr. Weatherwax, the orthopedic surgeon who
performed claimant's surgery, opined a 2 percent. Dr.
Archer, who evaluated claimant on one occasion over two
years after his injury, opined 25 percent on a revised
opinion issued after he originally opined a total of 35
percent.
Dr. Weatherwax acknowledged that there can be a
difference in opinion and he would not be offended if
another doctor came up with a rating two to three times his.
He also acknowledged that he used the AMA Guides to the
Evaluation of Permanent Impairment, second edition and not
the third edition. It appears the chart that would be used
for the condition claimant had by using the third revised
edition did not have in existence the same chart when the
second edition was issued. Dr. Weatherwax also indicated
that since he was a surgeon there would be an inclination to
be conservative regarding any impairment as that could
otherwise reflect on whether his surgery was successful or
not. It is obvious in this case that claimant had his
operation in March of 1991 on the same right hand upper
extremity that he had in 1989, also performed by Dr.
Weatherwax. Dr. Weatherwax did not change his opinion when
his attention was called to the fact that he did use the
current edition of the Guides and, in fact, Dr. Weatherwax
got rather angry and upset and lost his cool when cross
examined. He seemed to blame the claimant's attorney for
prolonging the deposition and taking an hour and a half of
the doctor's time on his cross examination and apparently
threatened to walk out of the deposition when, in fact, as
reflected by defendant's exhibit E, the defendant's attorney
took 38 pages of a deposition and the claimant's attorney
took 11 pages.
*****
Page 10
[When dealing with a scheduled member injury, the
claimant's disability is determined by the amount of loss of
use the affected member has suffered as a result of the work
injury. The record shows two medical ratings of permanent
partial impairment of the right upper extremity. Dr.
Archer, claimant's family practitioner, has offered a rating
of 25 percent. Dr. Weatherwax, the specialist that
performed the second surgery on claimant's wrist, has given
a rating of two percent. Although Dr. Weatherwax
acknowledged that his rating could perhaps be modified two
or three fold, he did not change the rating of two percent.
It was also brought out that Dr. Weatherwax utilized the AMA
Guides to the Evaluation of Permanent Impairment, second
edition, whereas Dr. Archer used the Third Edition.
Although use of the second edition does not make Dr.
Weatherwax's rating invalid, use of the more recent edition
caries an assumption that more recent medical knowledge is
contained in the third edition and ratings under that
edition may be entitled to more weight. However, there are
several factors to be utilized in choosing which impairment
rating to use, and the edition of the Guides used is only
one of those factors. Other factors, such as the particular
training and experience of the physician, the relation
between the physician's specialty and the particular injury
being rated, and the opportunity for contact with and
observation of the claimant are also factors that need to be
considered.
The record contains only two ratings of impairment. It
is not generally appropriate to ignore the ratings in the
record absent a showing they are somehow invalid. On rare
occasions a rating in the record may be rejected because it
clearly is inaccurate when gauged against other aspects of
the record, such as inconsistent work restrictions, or
observations of the claimant that negate the rating. But
generally speaking, an award for a scheduled member injury
must be based on the medical record offered. This agency is
often called upon to choose between competing opinions on
the extent of impairment, by use of the factors referred to
above.
In this case, Dr. Weatherwax is a specialist, whereas
Dr. Archer is a general practitioner. Dr. Weatherwax has
clearly had more opportunity to observe claimant's
condition, both in terms of the number of visits, and the
opportunity to make an internal observation during surgery.
These factors outweigh the fact that Dr. Weatherwax did not
use the most current edition of the AMA Guides. The opinion
of Dr. Weatherwax will be given the greater weight.
The question remains whether Dr. Weatherwax modified
his opinion. Although the rating he gave was two percent,
he agreed that this rating might be a low estimate, and the
actual impairment might be two or three times higher.
Defendant in its brief concedes that claimant's impairment
may be six percent. It is concluded that claimant's
impairment as a result of the January 21, 1991 injury is six
Page 11
percent of the right upper extremity.
A penalty is justified by the record in this case. As
noted above, there is no medical opinion in the record that
claimant's condition was caused by anything other than the
work injury. Defendants seek to justify the delays in
payment by various acknowledgments by physicians that
another cause was "possible." A "possibility" of another
cause does not justify the unreasonable withholding of
voluntary benefits where the medical evidence establishes
causation. However, the penalty is imposed based on the
withholding of healing period and permanent partial
disability benefits only. The withholding of medical
benefits is not a part of this penalty award as there is no
statutory authority for same.]
The parties set out 85.27 medical benefits as an issue
but the issue within that is causal connection. The parties
did agree that the other issues were resolved in favor of
the claimant, namely, causal connection and arising out of,
and since defendant denied liability, the defendant would be
responsible for claimant's bills incurred as a result of
this January 21, 1990 work injury. It is therefore found
that the defendant is responsible for payment of claimant's
medical bills, not only those that have not been paid as
represented on claimant's exhibit 8, but any bills that are
outstanding that the parties may have thought have been paid
or should have been paid as a result of this injury. It is
also understood that if claimant has not paid the bills,
then defendant shall pay the particular part that is owed
directly to the provider and holds claimant harmless of any
liability thereon.
The final issue is whether there should be penalty
benefits under 86.13. Defendant, of course, contends there
should not be as there are reasonable reasons as to whether
they are liable.
***** We have here a situation in which the defendant
employer is self-insured. Claimant has both workers'
compensation coverage if, in fact, there is a work injury
and disability if there is a nonwork injury. Although the
employer has different entities as administrative agents to
handle the respective claims, it is undisputed that any
amount that would be payable under either workers'
compensation or disability would be out of the defendant's
pocket. We therefore have only two possible sources to help
claimant get over either a work injury or an illness that
has caused some temporary or permanent disability. We do
not have a third source. In this instance, the employer
took the position that it was a nonwork injury and therefore
there would be no workers' compensation paid. Yet, because
the claimant contended that it was workers' compensation,
they would not pay any workers' compensation benefits.
Claimant therefore is in a catch 22 position and is without
any funds. It is obvious that he would be entitled to one
or the other.
The question arises as to whether the employer is
Page 12
trying to force claimant to choose one source or the other
over the claimant's objection in order to have food and
shelter with which he can survive. It is found that Dr.
Weatherwax, the orthopedic surgeon, opined on August 5,
1991, that claimant's surgery of March 26, 1991 was the
result of claimant's January 21, 1990 work injury. It is
further found that defendant was unreasonable in the delay
in payment of the healing period which has been found to
amount to 10.286 weeks. Claimant is entitled to an
additional five weeks of penalty benefits in regard to the
delay of the payment of healing period benefits.
As to the permanent partial disability benefits, it
appears from claimant's exhibit 2, page 12, that Dr.
Weatherwax did not opine a permanency ***** until September
24, 1991. It appears that as of that date the defendant
should have began paying at least two percent or 10 weeks of
permanent partial disability benefits. Defendant shall pay
an additional five weeks as a penalty due to the
unreasonable delay without reasonable probable cause or
excuse in the payment of permanent partial disability
benefits based on the facts of this case.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on January 21,
1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
The claimant has the burden of proving by a
preponderance of the evidence that the injury of January 21,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
Iowa Code section 85.34(1) provides that if an employee
has suffered a personal injury causing permanent partial
Page 13
disability, the employer shall pay compensation for a
healing period from the day of the injury until (1) the
employee returns to work; or (2) it is medically indicated
that significant improvement from the injury is not
anticipated; or (3) until the employee is medically capable
of returning to substantially similar employment.
Iowa Code section 85.27 provides, in part:
For purposes of this section, the employer is
obliged to furnish reasonable services and
supplies to treat an injured employee, and has the
right to choose the care. The treatment must be
offered promptly and be reasonably suited to treat
the injury without undue inconvenience to the
employee. If the employee has reason to be
dissatisfied with the care offered, the employee
should communicate the basis of such
dissatisfaction to the employer, in writing if
requested, following which the employer and the
employee may agree to alternate care reasonably
suited to treat the injury. If the employer and
employee cannot agree on such alternate care, the
commissioner may, upon application and reasonable
proofs of the necessity therefor, allow and order
other care. In an emergency, the employee may
choose the employee's care at the employer's
expense, provided the employer or the employer's
agent cannot be reached immediately.
Section 86.13 permits an award of up to 50 percent of
the amount of benefits delayed or denied if a delay in
commencement or termination of benefits occurs without
reasonable or probable cause or excuse. The standard for
evaluating the reasonableness of defendants' delay in
commencement or termination is whether the claim is fairly
debatable. Where a claim is shown to be fairly debatable,
defendants do not act unreasonably in denying payment. See
Stanley v. Wilson Foods Corp., File No. 753405 (App. August
23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No.
818849 (App. November 1, 1989).
It is further concluded that:
Claimant incurred an injury to his right upper
extremity that arose out of and in the course of his
employment on January 21, 1990, and that said injury caused
claimant to incur a healing period of 10.286 weeks and
permanent partial disability of ***** 15 weeks at the weekly
rate of $324.98. The healing period will begin March 26,
1991 up to and not including June 3, 1991. The permanent
partial disability benefits will begin September 24, 1991.
The rate for any benefits is payable at the rate of
$324.98 per week.
Defendant is responsible for claimant's medical
expenses which include but are not necessarily limited to
those on claimant's exhibit 8 that have not been paid.
Page 14
Claimant is entitled to five weeks of penalty benefits
on claimant's healing period and ***** five weeks of penalty
benefits for the unreasonable delay without probable cause
or excuse in payment of claimant's permanent partial
disability benefits.
WHEREFORE, the decision of the deputy is affirmed and
modified.
ORDER
THEREFORE, it is ordered:
That defendant shall pay unto claimant healing period
benefits at the rate of three hundred twenty-four and 98/100
dollars ($324.98) for the period beginning March 26, 1991,
up to but not including June 3, 1991, involving ten point
two eight six (10.286) weeks.
That defendant shall reimburse claimant or pay directly
to the medical provider, if not already paid, claimant's
medical bills incurred which amount to at least two thousand
five hundred and 82/100 dollars ($2,500.82) as represented
by claimant's exhibit 8, as revised.
That defendant shall pay unto claimant fifteen (15)
weeks of permanent partial disability benefits at the rate
of three hundred twenty-four and 98/100 dollars ($324.98)
beginning September 24, 1991.
That defendant shall pay claimant five (5) weeks of
penalty benefits based on the unreasonable delay in payment
of healing period benefits and an additional five (5) weeks
as a penalty for the unreasonable delay of payment of
permanent partial disability benefits, all at the rate of
three hundred twenty-four and 98/100 dollars ($324.98).
That defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendant has not
previously paid any weekly benefits.
That defendant shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendant shall pay the costs of this matter
including the transcription of the hearing.
That defendant shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of August, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISISONER
Page 15
Copies To:
Mr. Tito Trevino
Attorney at Law
801 Carver Bldg
Fort Dodge, IA 50501
Mr. Stephen Spencer
Mr. Lee P. Hook
Attorney at Law
218 Sixth Ave., Ste 700
P O Box 9130
Des Moines, IA 50306-9130
1100; 1108; 1803; 4000.2
5-1802; 5-2503
Filed August 23, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
VERLYN GREGERSON, :
:
Claimant, : File No. 979201
:
vs. : A P P E A L
:
UNITED STATES GYPSUM CO., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant. :
____________________________________________________________
1100; 1108; 1803
Found claimant incurred an injury that arose out of and in
the course of his employment causing a 13 percent permanent
impairment to claimant's right upper extremity (32.5 weeks).
5-1802
Claimant awarded 10.286 weeks healing period.
4000.2
Claimant awarded an additional five weeks healing period as
an 86.13 penalty and 15 additional weeks of permanent
partial disability as an 86.13 penalty.
5-2503
Defendant was ordered to pay claimant's medical.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
VERLYN GREGERSON, :
: File No. 979201
Claimant, :
:
vs. : A R B I T R A T I O N
:
UNITED STATES GYPSUM CO., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant :
:
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on October 7, 1992, at
Fort Dodge, Iowa. This is a proceeding in arbitration
wherein claimant seeks compensation for permanent partial
disability benefits as a result of an alleged injury which
occurred on January 21, 1990. The record in the proceedings
consists of the testimony of the claimant, claimant's wife,
and Richard Hundley; and, claimant's exhibits 1 through 20
and defendants' exhibits A, B, D and E.
ISSUES
The issues for resolution are:
1. Whether claimant's alleged January 21, 1990 injury
arose out of and in the course of his employment;
2. Whether there is any causal connection as to
claimant's alleged injury and any temporary and permanent
disability;
3. The nature and extent of claimant's permanent
disability, if any;
4. The rate at which benefits would be paid;
5. An 85.27 medical benefits issue, the issue being
causal connection; and,
6. Whether claimant is entitled to 86.13 penalty
benefits.
Page 2
FINDINGS OF FACT
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is a 47-year-old who will have worked for
defendant employer 21 years as of June 1993. He described
the nature of the work which basically involved driving a
rock truck and operating a rock shovel which is like a big
back hoe that lifts up rocks and loads them onto the trucks
and the rock is then hauled to a crusher. Defendant
employer makes plaster, plaster board and compounds.
Claimant also at times had other duties such as grading
roads and loading dynamite, etc., for defendant employer.
Claimant described his work days, hours, the nature of
his work, and the use of his hands and arms in operating the
equipment.
Claimant testified that on January 21, 1990, when he
was at defendant employer's project test drilling, he went
to get some teeth out of the toolbox to use on the drill.
He indicated he had lifted the lid with his left hand and it
slipped out of his hand and fell on his right wrist. He
described the toolbox as about two feet in length, one foot
wide, eighteen inches deep and weighing up to 200 pounds.
He described the pain immediately after the incident as
feeling as if he had fire in his wrist and he was in a lot
of pain. Claimant described the pain that he has in his
fingers, hands and arms up to his shoulders.
Claimant described the medical treatment and the
doctors he saw. Claimant testified that he had a carpal
tunnel surgery on his right hand in 1989 and that he was
released to go to work and has not had any problems since
this surgery.
Claimant had surgery again on his right hand on March
26, 1991, at which time he also had a ganglion cyst removed.
Claimant indicated the hospital bill has not been paid
and that he has received no benefits. Claimant was off work
March 26, 1991 up to and not including June 3, 1991, as a
result of this surgery. Claimant indicated that he took a
bonus and two weeks vacation during this period as he needed
money because he was not getting benefits. He indicated
that he had been approached by defendant employer and was
given a scenario on a couple of options, one being that he
could receive 80 percent from his disability insurance which
would be based on a non-workers' compensation injury or he
could go through the workers' compensation procedure.
Defendant employer did not think his January 21, 1990
incident was work related and told claimant this before his
March 26, 1991 surgery.
Claimant related that he had a group disability policy
with his self-insured employer which paid 80 percent of the
wages. When asked why he didn't apply for or try to receive
benefits under this policy, he retorted that he felt this
injury was work related and therefore would be workers'
Page 3
compensation and would not be able to come under the
disability policy. Claimant indicated that the defendant
employer gave him the disability forms to fill out but he
again emphasized that he could not sign them because he felt
it was a work-related injury. Claimant indicated that
Richard Hundley told him that if claimant would file for the
disability benefits, he would get benefits faster. Claimant
testified that claimant's exhibit 18 is the diagram that was
made by Mr. Hundley to show the two types of insurance
benefits; namely, workers' compensation or group insurance.
Claimant indicated that exhibit 8 is a list of the
bills that are unpaid to date. It was obvious from the
discussion among attorneys that a $224 anesthesia bill was
paid and that the claimant had received a check from
Travelers Insurance, the group administrator, made payable
to the anesthesiologist, which claimant forwarded on. It
would appear then that the balance of the bills in dispute
amounts to $2,500.82. It appears possibly that this exhibit
8 is not complete and there may be other bills that are
unpaid which claimant thought should be paid. If, in fact,
liability is found, whatever bills are connected to this
alleged injury should be paid notwithstanding what is
necessarily set out on claimant's exhibit 8.
Claimant related that in April of 1991, he was having
drainage from his incision on his right hand and the doctor
wrapped it and said it would heal. The last time he saw
Robert Weatherwax, M.D., was on September 24, 1991, at which
time claimant related the pain he was having but that
surgery was not indicated. He related that the doctor
didn't really examine his hand but said he was just going to
have pain anyway. He gave claimant a shot of cortisone.
Claimant related that his problems are the same today
as they were in September 1991 except the pain is getting
worse. He said the pain was in his palm and the last three
fingers and that it goes up into his shoulders and his hand
goes to sleep at night. Claimant related that he wears a
brace at night around his hand and during the day he wears a
small wrist band that helps him. Claimant compared the five
to ten minute exam of Dr. Weatherwax in September 1991 to
the one and one-half hour exam of David R. Archer, M.D., in
1992, where he was sent after an appointment was arranged by
his attorney.
Claimant relates he does have trouble driving a truck
as his wrist goes to sleep. He emphasized he doesn't need
his right hand to drive but does need it to shift gears. He
is right handed. Claimant acknowledged that he has had no
loss of time from work since his return to work in June of
1991.
Claimant insisted that he told Dr. Archer about his
pain problems in May of 1992 even though there is nothing
mentioned in the report. Claimant further acknowledged that
he had a ganglion cyst on his right wrist and that he
related it was work connected as he had never had a cyst or
any problems before. He acknowledged that no doctor has
indicated it was work related.
Page 4
Claimant said it was his decision to see Dr. Weatherwax
as this doctor had done a right hand carpal tunnel on
claimant previously in 1989.
On cross-examination, claimant was questioned as to
what appeared to be several inconsistencies in his testimony
at the hearing and his testimony in a deposition. Claimant
seemed to indicate he was having no problems performing his
job and that he could operate the truck and shovel without
any problems, the same as before his accident. Claimant was
further referred to claimant's exhibit 1, page 7, in which
the doctor indicated claimant told him that claimant had
numbness in both upper extremities more on the right side
for the last two years off and on. Claimant indicated he
didn't remember telling the doctor this. Claimant
emphasized he was not having pain in the two years referred
to by the doctor.
Claimant said that he can still do his daily driving
but it still causes pain. He believes that he could still
do this same work in the future.
Ruth Ann Gregerson, claimant's wife, testified that
claimant was not having any problems between his 1989
surgery and the January 21, 1990 toolbox accident. She
indicated claimant is in pain at night and that his right
hand goes to sleep at night and he has problems putting
pressure and power to use tools. She indicated claimant has
a lot of problems using his right hand and lifting things.
Richard A. Hundley is a human resources official with
defendant employer and also has many other administrative
jobs within the company. He was first called as a witness
by the claimant. Mr. Hundley indicated the plant is self-
insured both as to workers' compensation and as to health
and disability group insurance. Mr. Hundley indicated that
Travelers Insurance Company is the agent processing any
disability and that Gallagher & Bassett handle and
investigate the claims concerning workers' compensation.
But, in all cases, any payment of claims is on a
self-insured basis and all of such payment would be out of
the defendant employer's pocket.
Mr. Hundley described the reasons he denied coverage
both as to disability and as to workers' compensation and
further acknowledged that he signed claimant's exhibit 16,
which includes an accident investigation report but was not
sure who prepared the report. He did review and participate
in that exhibit.
Mr. Hundley indicated it was a group decision to deny
claimant's claim. He named those involved in this decision.
Mr. Hundley testified as to what he relied upon and the
information that went into denying the claim. It appeared
that he did not have any of these records with him and the
question came up from claimant's attorney as to answers to
interrogatories regarding claimant's personnel file. Mr.
Hundley indicated that he turned over claimant's personnel
and workers' compensation file to the attorney but it was
Page 5
apparent in the conversation in the courtroom that claimant
was not given all of the information requested nor was there
an update of information requested that would aid claimant
in determining one or more of the issues herein. Mr.
Hundley said he answered interrogatories but did not
thoroughly review them nor did he supplement or update them
after June 5, 1991. It appears to the undersigned that
there was information that would be discoverable or would be
the subject of updating the interrogatories or request for
production of documents that was not in fact provided to the
claimant.
Mr. Hundley was asked several questions concerning what
information he or the defendant employer based their
decision in denying claimant workers' compensation benefits.
Mr. Hundley related what he relied upon. Mr. Hundley also
gave a deposition on September 9, 1991, represented by
claimant's exhibit 20. In summary, it appears defendant
employer's position is that the toolbox falling on
claimant's right wrist did not cause his symptoms and the
employer believes they reasonably based that on information
they obtained from James W. Rathke, M.D., Jugal T. Raval,
M.D., and a Dr. Greenlaw, and that he believes they allude
to the possibility of other scenarios for illnesses such as
claimant has (Joint Exhibit 20, page 25, lines 13-18).
Mr. Hundley was then called by defendant as its
witness. He said there isn't anything in the medical
records that he knows of which would indicate claimant's
problems are work related or are not work related.
Mr. Hundley indicated that in September 1991 when
claimant came and said his hand was still bothering him and
he wanted to see Dr. Weatherwax, the defendant okayed
claimant to see Dr. Weatherwax but was not certain at that
time the toolbox incident was what was causing claimant's
problems.
Mr. Hundley again affirmed the fact that whether
claimant's situation is work related or not, payment of
claims from either the disability program or the workers'
compensation program would come directly out of the
defendant's pocket and not from any insurance company.
Mr. Hundley again emphasized that he believed there was
considerable room for the causation dispute so the company
decided that claimant's injury was not work related. Mr.
Hundley did not explain why it didn't then pay under the
disability policy for a nonwork-related injury.
Claimant's exhibit 1 is medical information on the
claimant. From exhibit 1 it would appear that claimant was
not having any prior problems that would be causing any
symptoms that developed after the January 21, 1990 incident.
It appears claimant's first visit to the doctor was February
21, 1990, which was one month after his toolbox incident.
Defendant has made an issue of this as to the one month
interval before claimant sought medical attention for his
alleged January 21, 1990 injury. In those February 1990
records, it shows that claimant had a contusion of the right
Page 6
wrist in addition to a ganglion cyst.
The Fort Dodge medical records, when claimant's history
was taken in January of 1991, reflect that claimant related
he was having numbness in both upper extremities, more so
the right side the last two years off and on but did
indicate that since the January 1990 accident, the numbness
was worse. At that time, a small ganglion over the volar
aspect of the right wrist joint towards the radial side was
discovered (Claimant's Exhibit 1, page 7). The assessment
was that it looked like claimant had carpal tunnel syndrome
bilaterally but the doctor did not rule out ulnar
mononeuropathy on the right side. The doctor could not at
that time answer whether the cyst was due to the toolbox
injury and could not tell whether claimant's recent problem
of numbness is due to the toolbox lid injury or not. He did
refer to the fact that claimant had surgery for carpal
tunnel two years previously. On that same exhibit, pages 13
and 15, there are medical reports of Dr. Rathke and Dr.
Raval, respectively.
Claimant's exhibit 2, pages 6 and 7, reflect the notes
of Dr. Weatherwax. He attempted conservative treatment and
concluded that claimant should have surgery which claimant
did on March 26, 1991, involving a release of a carpal
tunnel with epineurolysis of the median nerve and excision
of the volar ganglion. His impression was that claimant had
right carpal tunnel syndrome, recurrent, secondary to median
nerve contusion volar wrist ganglion. On page 9 and 11 of
claimant's exhibit 2 there are the notes and report of Dr.
Weatherwax in which he opined that claimant's injury of
January 21, 1990, when a toolbox struck claimant's wrist
causing contusion of the median nerve, did in fact
eventually result in the surgery of March 26, 1991. At that
time, he wanted to wait six months after claimant's surgery
to determine any permanency as he didn't think there would
be any but it was too early to tell. Page 12 of claimant's
exhibit 2, reflects a September 24, 1991 letter of Dr.
Weatherwax wherein he felt claimant has a 2 percent upper
extremity impairment based on the continued pain, tingling,
dysesthesias in the hand that is likely to continue. He did
not think further surgical intervention is likely needed.
On September 14, 1992, the deposition of Dr.
Weatherwax, an orthopedic surgeon, was taken. The doctor
related that he did perform a right carpal tunnel release
and excision of a lesion on the right long finger of
claimant in March of 1989 and that claimant recovered from
the same and he had not seen him from April 25, 1989 until
October 22, 1990, at which time claimant indicated he had
injured himself in January 1990 when a toolbox lid at work
struck him in the right hand and wrist and claimant started
experiencing some numbness and tingling very similar to his
carpal tunnel symptoms of the previous year. (Def. Ex. E,
pp. 7 and 8). The doctor reflected his conservative
treatment of claimant resulting from his alleged January
1990 incident in which claimant complained of continuing
numbness in the upper extremity. The doctor testified as to
his post surgery care of the claimant and indicated that he
Page 7
released claimant back to full duty on June 3, 1991, at
which point he felt there was no evidence of impairment
(Def. Ex. E, p. 24). The doctor was asked whether claimant
reached maximum medical improvement on that date and the
doctor indicated he usually does not make a conclusion
concerning maximum medical improvement from surgery until
about six months after surgery. The doctor testified he
then saw claimant on September 24, 1991, which was six
months post operation and claimant still had a burning pain
around the base of his thumb and a little tingling if he put
his wrist into flexion, meaning bending it down towards the
palm. It was at this point that he felt claimant had a 2
percent upper impairment and felt any further surgery would
only likely vascularize the nerve more and not necessarily
improve it (Def. Ex. E, pp. 25 and 26). The doctor
indicated he saw claimant again on April 7, 1992, at which
time claimant continued to have symptoms in his right
dominant hand very comparable to what he had when the doctor
saw him in September 1991. The doctor indicated he saw no
reason though to change his previous permanent partial
impairment rating of 2 percent. The doctor indicated that
he wasn't sure whether he resolved claimant's symptoms in
that there was a limit as to what he can do to a nerve that
has limited capability to regenerate less than any other
organ tissue in the body (Def. Ex. E, pp. 27-28). Although
he seemed to think there was some improvement, he certainly
did not indicate his hand was as good as it was before
January 1990 before it was struck with a toolbox lid (Def.
Ex. E, pp. 27, 28, 29).
The doctor opined that claimant's January 1990 work
injury did not injure claimant's ulnar nerve (Def. Ex. E, p.
35). The doctor also indicated his complete disagreement
with Dr. Archer's impairment rating of 25 percent. He also
indicated that Dr. Archer is a family practitioner who could
perform carpal tunnel but usually does not (Def. Ex. R, p.
40).
The doctor indicated that he used the AMA Guides to the
Evaluation of Permanent Impairmentto come up with his 2
percent permanent impairment but that he would not be
offended if someone came up with a multiple of two or three
times his impairment rating and was a qualified examiner as
there is a great deal of variability that is interpretable
in that table. He indicated the Guides do allow for a
determination of impairment based upon loss of sensation and
an impairment due to loss of power but in both instances,
the determination of the extent of that loss is subjective
in nature (Def. Ex. E, p. 43).
The doctor did acknowledge that it would be realistic
that the surgeon who did the surgery probably rates any
disability impairment the lowest because it reflects on the
quality of the doctor's surgery (Def. Ex. E, p. 45). He
emphasized that in no way is there a 35 percent impairment.
There is no question the doctor feels there can be some
variability depending on the examiner and the examined. It
Page 8
is also obvious that Dr. Weatherwax did not use the current
revised third edition of the Guides and that the Guides he
was looking at are apparently the second edition which did
not even have the table that would normally be used to
determine the impairment involved herein. He then
acknowledged that the third revised edition of the Guides
shows that for an entrapment neuropathy the tables are rated
from 1 to 25 percent. When Dr. Weatherwax was then asked if
the tables did not allow the evaluator to interpret under
the Guides, it appeared he became quite angry and lost his
cool and kept referring to the 35 percent rating as being a
travesty of the system and that claimant does not have a 35
percent impairment rating in his hand (Def. Ex. E, pp. 48-
50).
Claimant's exhibit 6 reflects Dr. Archer's report in
which he opined claimant had a 35 percent upper extremity
impairment or a 21 percent whole person impairment based on
the Guides. Of course, the doctor's use of the charts to
arrive at a whole person is not proper. He did use the AMA
Guides to the Evaluation of Permanent Impairment, third
edition revised. He saw claimant only once and it was
obvious this June 15, 1992 report was the result of the
evaluation of claimant on May 19, 1992. That appointment
was arranged by claimant's attorney. Said exhibit at page 6
shows a September 16, 1992 follow-up letter in which the
doctor assigned claimant's disability due to entrapment
neuropathy at 15 percent of the upper extremity for the
median nerve and 10 percent for the ulnar nerve at the
wrist, totaling 25 percent impairment of the upper extremity
for the entrapment neuropathy. He used table 15 of the AMA
Guides to the Evaluation of Permanent Impairment, third
edition revised, for this determination.
Claimant's exhibit 16, at pages 7 through 12, reflects
the employer's accident/illness analysis was prepared
pursuant to their apparent investigation. It indicates that
there was an accident on January 21, 1990, at a location in
which defendant employer was test drilling on a farm. It
reflects a witness in addition to the claimant and shows
claimant had a hand/wrist injury and a contusion. The
report within claimant's personnel record reflects that
there was, in fact, an injury on January 21, 1990. Although
defendant denies an injury, there is no question that an
injury did arise out of and in the course of claimant's
employment on January 21, 1990, and the undersigned so
finds. Of course, there are still remaining issues as to
causal connection and permanency.
The parties are disputing the rate of which any
benefits would be paid if any are payable. Claimant's
exhibit 17 reflects the rate claimant feels is the rate any
payments should be paid at, namely, $324.98. Defendant
contends the rate would be $323.28. The $1.70 difference
apparently results from the fact that claimant is working
some hours in the second shift which pays more per hour than
the first shift, mainly because of the hours of the day or
Page 9
evening involved. Defendant contends that the rate should
be based on a first shift which is a lower rate. The
undersigned finds that claimant is being paid based on the
rate that is standard for the particular shift and is not
considered overtime or premium in that it takes into
consideration the fact that it may be harder for individuals
to be willing to work at the hours of the second shift
versus the more convenient first shift hours. Defendant's
exhibit D indicates that claimant worked during the week
hours in both the first and second shift. Said exhibit also
reflects overtime hours. In claimant's exhibit 17, they do
not reflect overtime hours and the figures reflected by the
claimant are substantiated by the figures in defendant's
exhibit D. It would appear that defendant's argument is
based on the fact that they thought claimant was
incorporating overtime hours in their weekly rates but that
is not the fact. The undersigned therefore finds any
benefits herein would be paid at the weekly rate of $324.98.
The undersigned has already found previously that
claimant was injured on January 21, 1990. The question as
to whether claimant incurred any healing period or temporary
total disability will be decided next.
Dr. Weatherwax, on August 5, 1991, opined that
claimant's January 21, 1990 injury, caused when the toolbox
lid struck claimant's wrist, eventually resulted in
claimant's surgery on March 26, 1991. The parties agree
that claimant was off work from March 26, 1991 up to and not
including June 3, 1991, when he was returned to work. The
undersigned finds that the greater weight of evidence shows
that claimant incurred a work injury on January 21, 1990,
and that resulted in claimant incurring a healing period
beginning March 21, 1991 up to and not including June 3,
1991, involving 10.286 weeks payable at the $324.98 rate.
Regarding the issue as to whether claimant incurred any
permanent partial disability, the undersigned finds that
claimant did incur a permanent impairment as a result of his
January 21, 1990 work injury. There is a difference as to
the extent of impairment. Dr. Weatherwax, the orthopedic
surgeon who performed claimant's surgery, opined a 2
percent. Dr. Archer, who evaluated claimant on one occasion
over two years after his injury, opined 25 percent on a
revised opinion issued after he originally opined a total of
35 percent.
Dr. Weatherwax acknowledged that there can be a
difference in opinion and he would not be offended if
another doctor came up with a rating two to three times his.
He also acknowledged that he used the AMA Guides to the
Evaluation of Permanent Impairment, second edition and not
the third edition. It appears the chart that would be used
for the condition claimant had by using the third revised
edition did not have in existence the same chart when the
second edition was issued. Dr. Weatherwax also indicated
that since he was a surgeon there would be an inclination to
be conservative regarding any impairment as that could
Page 10
otherwise reflect on whether his surgery was successful or
not. It is obvious in this case that claimant had his
operation in March of 1991 on the same right hand upper
extremity that he had in 1989, also performed by Dr.
Weatherwax. Dr. Weatherwax did not change his opinion when
his attention was called to the fact that he did use the
current edition of the Guides and, in fact, Dr. Weatherwax
got rather angry and upset and lost his cool when cross
examined. He seemed to blame the claimant's attorney for
prolonging the deposition and taking an hour and a half of
the doctor's time on his cross examination and apparently
threatened to walk out of the deposition when, in fact, as
reflected by defendant's exhibit E, the defendant's attorney
took 38 pages of a deposition and the claimant's attorney
took 11 pages.
Dr. Archer came up with a final 25 percent permanent
impairment. It is obvious to the undersigned that he is
high. The undersigned then is stuck with the problem of
determining what is considered a low conservative figure
based on the wrong AMA Guides that Dr. Weatherwax refused to
adjust but admitted that one could double or triple his
figures versus what the undersigned had found to be an
excessive evaluation by Dr. Archer. The undersigned finds
that claimant has a 13 percent permanent impairment of his
upper extremity. Although the records indicate the area of
claimant's surgery, the parties stipulated that if permanent
disability is found, it would be based on a scheduled member
right upper extremity. Although often the terminology for a
hand or a wrist is referred to as an upper extremity, it
appears from the parties' stipulation that the use of the
upper extremity meant exactly the upper extremity and not
the hand or wrist. It also appears that the areas in which
the claimant was having problems concerning the nerve, etc.,
did, in fact, affect the upper extremity beyond the hand and
wrist. The undersigned therefore finds that claimant is
entitled to 32.5 weeks of permanent partial disability
benefits at the rate of $324.98.
The parties set out 85.27 medical benefits as an issue
but the issue within that is causal connection. The parties
did agree that the other issues were resolved in favor of
the claimant, namely, causal connection and arising out of,
and since defendant denied liability, the defendant would be
responsible for claimant's bills incurred as a result of
this January 21, 1990 work injury. The undersigned
therefore finds that the defendant is responsible for
payment of claimant's medical bills, not only those that
have not been paid as represented on claimant's exhibit 8,
but any bills that are outstanding that the parties may have
thought have been paid or should have been paid as a result
of this injury. It is also understood that if claimant has
not paid the bills, then defendant shall pay the particular
part that is owed directly to the provider and holds
claimant harmless of any liability thereon.
The final issue is whether there should be penalty
Page 11
benefits under 86.13. Defendant, of course, contends there
should not be as there are reasonable reasons as to whether
they are liable.
The undersigned is disturbed in this case by the
defendant's actions. We have here a situation in which the
defendant employer is self-insured. Claimant has both
workers' compensation coverage if, in fact, there is a work
injury and disability if there is a nonwork injury.
Although the employer has different entities as
administrative agents to handle the respective claims, it is
undisputed that any amount that would be payable under
either workers' compensation or disability would be out of
the defendant's pocket. We therefore have only two possible
sources to help claimant get over either a work injury or an
illness that has caused some temporary or permanent
disability. We do not have a third source. In this
instance, the employer took the position that it was a
nonwork injury and therefore there would be no workers'
compensation paid. Yet, because the claimant contended that
it was workers' compensation, they would not pay any
workers' compensation benefits. Claimant therefore is in a
catch 22 position and is without any funds. It is obvious
to the undersigned that he would be entitled to one or the
other.
The question arises as to whether the employer is
trying to force claimant to choose one source or the other
over the claimant's objection in order to have food and
shelter with which he can survive. The undersigned finds
that this is incomprehensible and that the defendant
employer is in bad faith. The employer should not escape
consequences of its bad faith action. If there was a
nonwork injury, the undersigned could do nothing about it
and claimant would have to take his action through another
source. The undersigned has found that claimant is entitled
to workers' compensation benefits. The undersigned finds
that Dr. Weatherwax, the orthopedic surgeon, opined on
August 5, 1991, that claimant's surgery of March 26, 1991
was the result of claimant's January 21, 1990 work injury.
The undersigned finds that defendant was unreasonable in the
delay in payment of the healing period which has been found
to amount to 10.286 weeks. The undersigned therefore finds
that claimant is entitled to an additional five weeks of
penalty benefits in regard to the delay of the payment of
healing period benefits.
As to the permanent partial disability benefits, it
appears from claimant's exhibit 2, page 12, that Dr.
Weatherwax did not opine a permanency of 2 percent until
September 24, 1991. It appears to the undersigned that as
of that date the defendant should have began paying 2
percent or 10 weeks of permanent partial disability
benefits. The undersigned finds that defendant should pay
an additional 15 weeks as a penalty due to the unreasonable
delay without reasonable probable cause or excuse in the
payment of permanent partial disability benefits based on
Page 12
the facts of this case.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that he received an injury on January 21,
1990, which arose out of and in the course of his
employment. McDowell v. Town of Clarksville, 241 N.W.2d 904
(Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa
352, 154 N.W.2d 128 (1967).
The claimant has the burden of proving by a
preponderance of the evidence that the injury of January 21,
1990, is causally related to the disability on which he now
bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133
N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18
N.W.2d 607 (1945). A possibility is insufficient; a
probability is necessary. Burt v. John Deere Waterloo
Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The
question of causal connection is essentially within the
domain of expert testimony. Bradshaw v. Iowa Methodist
Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
However, expert medical evidence must be considered
with all other evidence introduced bearing on the causal
connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion
of experts need not be couched in definite, positive or
unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d
903 (Iowa 1974). However, the expert opinion may be
accepted or rejected, in whole or in part, by the trier of
fact. Id. at 907. Further, the weight to be given to such
an opinion is for the finder of fact, and that may be
affected by the completeness of the premise given the expert
and other surrounding circumstances. Bodish, 257 Iowa 516,
133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154
N.W.2d 128.
Iowa Code section 85.34(1) provides that if an employee
has suffered a personal injury causing permanent partial
disability, the employer shall pay compensation for a
healing period from the day of the injury until (1) the
employee returns to work; or (2) it is medically indicated
that significant improvement from the injury is not
anticipated; or (3) until the employee is medically capable
of returning to substantially similar employment.
Iowa Code section 85.27 provides, in part:
For purposes of this section, the employer is
obliged to furnish reasonable services and
supplies to treat an injured employee, and has the
right to choose the care. The treatment must be
offered promptly and be reasonably suited to treat
the injury without undue inconvenience to the
employee. If the employee has reason to be
dissatisfied with the care offered, the employee
should communicate the basis of such
dissatisfaction to the employer, in writing if
requested, following which the employer and the
employee may agree to alternate care reasonably
Page 13
suited to treat the injury. If the employer and
employee cannot agree on such alternate care, the
commissioner may, upon application and reasonable
proofs of the necessity therefor, allow and order
other care. In an emergency, the employee may
choose the employee's care at the employer's
expense, provided the employer or the employer's
agent cannot be reached immediately.
Section 86.13 permits an award of up to 50 percent of
the amount of benefits delayed or denied if a delay in
commencement or termination of benefits occurs without
reasonable or probable cause or excuse. The standard for
evaluating the reasonableness of defendants' delay in
commencement or termination is whether the claim is fairly
debatable. Where a claim is shown to be fairly debatable,
defendants do not act unreasonably in denying payment. See
Stanley v. Wilson Foods Corp., File No. 753405 (App. August
23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No.
818849 (App. November 1, 1989).
It is further concluded that:
Claimant incurred an injury to his right upper
extremity that arose out of and in the course of his
employment on January 21, 1990, and that said injury caused
claimant to incur a healing period of 10.286 weeks and
permanent partial disability of 32.5 weeks at the weekly
rate of $324.98. The healing period will begin March 26,
1991 up to and not including June 3, 1991. The permanent
partial disability benefits will begin September 24, 1991.
The rate for any benefits is payable at the rate of
$324.98 per week.
Defendant is responsible for claimant's medical
expenses which include but not are necessarily limited to
those on claimant's exhibit 8 that have not been paid.
Claimant is entitled to five weeks of penalty benefits
on claimant's healing period and 15 weeks of penalty
benefits for the unreasonable delay without probable cause
or excuse in payment of claimant's permanent partial
disability benefits.
ORDER
THEREFORE, it is ordered:
That defendant shall pay unto claimant healing period
benefits at the rate of three hundred twenty-four and 98/100
dollars ($324.98) for the period beginning March 26, 1991,
up to but not including June 3, 1991, involving ten point
two eight six (10.286) weeks.
That defendant shall reimburse claimant or pay directly
to the medical provider, if not already paid, claimant's
medical bills incurred which amount to at least two thousand
five hundred and 82/100 dollars ($2,500.82) as represented
by claimant's exhibit 8, as revised.
Page 14
That defendant shall pay unto claimant thirty-two point
five (32.5) weeks of permanent partial disability benefits
at the rate of three hundred twenty-four and 98/100 dollars
($324.98) beginning September 24, 1991.
That defendant shall pay claimant five (5) weeks of
penalty benefits based on the unreasonable delay in payment
of healing period benefits and an additional fifteen (15)
weeks as a penalty for the unreasonable delay of payment of
permanent partial disability benefits, all at the rate of
three hundred twenty-four and 98/100 dollars ($324.98).
That defendant shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendant has not
previously paid any weekly benefits.
That defendant shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendant shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendant shall file an activity report upon
payment of this award as required by this agency, pursuant
to rule 343 IAC 3.1.
Signed and filed this ____ day of November, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr Tito Trevino
Attorney at Law
801 Carver Bldg
Fort Dodge IA 50501
Page 15
Mr Stephen Spencer
Mr Lee P Hook
Attorney at Law
218 Sixth Ave Ste 700
P O Box 9130
Des Moines IA 50306-9130
1100; 1108; 1803; 4000.2
5-1802; 5-2503
Filed November 6, 1992
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
VERLYN GREGERSON, :
: File No. 979201
Claimant, :
:
vs. : A R B I T R A T I O N
:
UNITED STATES GYPSUM CO., : D E C I S I O N
:
Employer, :
Self-Insured, :
Defendant :
:
___________________________________________________________
1100; 1108; 1803
Found claimant incurred an injury that arose out of and in
the course of his employment causing a 13% permanent
impairment to claimant's right upper extremity (32.5 weeks).
5-1802
Claimant awarded 10.286 weeks healing period.
4000.2
Claimant awarded an additional five weeks healing period as
an 86.13 penalty and 15 additional weeks of permanent
partial disability as an 86.13 penalty.
5-2503
Defendant was ordered to pay claimant's medical.