BEFORE THE IOWA INDUSTRIAL COMMISSIONER
_________________________________________________________________
RICHARD J. EISENBACHER,
Claimant,
vs.
File No. 979203
UNITED PARCEL SERVICE,
A P P E A L
Employer,
D E C I S I O N
and
LIBERTY MUTUAL INSURANCE CO.,
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 issues on appeal:
I. Whether the deputy erred in ruling evidence concerning
alleged unlawful grounds for claimant's discharge was not
relevant and therefore inadmissable [sic].
II. Whether the deputy erred in concluding claimant is not
entitled to weekly compensation benefits for his industrial
disability caused by his work injuries.
FINDINGS OF FACT
The findings of fact contained in the proposed agency
decision filed February 9, 1993 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.
Richard J. Eisenbacher is a 52-year-old man who quit school
during the eleventh grade but subsequently obtained a GED. He
was not particularly good at academic pursuits. Much of his work
history has been involved with vehicle mechanics. He has also
worked in other fields. He repaired milking machines, worked at
a lumber yard and operated a gas station.
Richard commenced employment with United Parcel Service in
1979. He worked as a line mechanic at the Spencer, Iowa,
terminal. As shown in exhibit 2, his work required bending,
stooping, pushing, and pulling. On occasion he would be required
to lift as much as 100 pounds. Richard was able to perform as a
line mechanic and his pay advanced to as much as $10.67 per hour.
While working as a line mechanic Richard began dating Kathy
Page 2
Grady, who worked in the UPS office at Spencer.
In 1982 Richard suffered a heart attack. He was off work
approximately four months and returned with restrictions. The
heart attack and restrictions did not impair his work
performance. As recently as 1990 he underwent an angiogram.
Richard does not feel that his heart condition limits him today.
In October 1987 Richard was promoted to a supervisory
position. UPS has a policy which prohibits supervisory employees
from dating nonsupervisory employees. Richard did not want to
quit dating Kathy. He did not want to move to Des Moines. He
had been dating Kathy since 1979 and that fact was known when he
was promoted into the supervisory position. It had not been any
particular problem with his employer until early 1990 after the
injury in this case had been reported. Richard was then given a
choice of being fired or resigning. He elected to resign. His
resignation was not voluntary since he did not have the option of
staying with the company. The fact that he received unemployment
benefits, despite the employer's protest, is further evidence
that his resignation was not voluntary since a voluntary
resignation would have made him ineligible for unemployment.
Following his resignation Richard returned to the Spencer area
where he now resides with Kathy.
Richard worked as a press operator for several months
earning approximately $6 per hour. He has performed odd jobs and
continues to do so. His odd jobs provide him with an income in
the range of $200 to $250 monthly. He also receives
approximately $135 per month from an installment sales contract
of a property he owned in the Spencer area. Kathy Grady helps
support him.
Richard feels that he is unable to perform work as a regular
mechanic. He complains of pain and numbness affecting his left
hand and arm. He complains of problems with his low back.
Immediately following the injury Richard sought chiropractic
treatment at Sherwood Forest Chiropractic Clinic. He was seen a
total of 13 times during the months of November 1989 through
March 1990. The records of his initial visit, exhibits 9 and 15,
show his complaints to include his left thigh and leg, low back,
neck, headaches, sinus pressure, and numbness in his left arm.
It appears as though the thigh and leg ache complaints had their
origin two to three years previously but that the low back, neck,
headache, sinus pressure, and left arm numbness came on from
jumping off tractors at UPS. Interestingly, a later record,
exhibit 16 which is dated January 30, 1990, indicates that
Richard did not know how his headaches, neck pain and left arm
numbness came about (exhibit 16). It is noted that in that
history no mention is made of back problems.
Richard was also treated at the Mercy Occupational Medicine
Clinic. On December 6, 1989, the history shown in the records is
that he stepped out of a package car onto an object on the floor
and twisted his back. Subsequent records of December 29, 1989,
indicate that he continued to have low back and left hip problems
but that he was working his regular job without any difficulty.
Chiropractic care was authorized. Diagnostic tests which were
Page 3
conducted showed degeneration and conditions of long-standing
origin but did not objectively show any recent, acute trauma
(ex. 18).
In early 1990 Richard took two separate two-week vacations.
While in Spencer he treated with Rex Jones, D.C., for headaches,
left neck pain and left arm pain. The history given was that he
had slipped and twisted his back. The records show very little
in way of care for his back (exs. 19, 20).
Other than for the time Richard took vacation in early 1990,
he continued to work from the day of injury through the day that
his employment with UPS ended. He has not received further
treatment since being seen by Dr. Jones. He has not sought
further care through his employer.
Richard has been evaluated by three physicians for purposes
of litigation. The first was Daniel J. McGuire, M.D., an
orthopedic surgeon. In a report dated December 5, 1991, Dr.
McGuire related that he could not find much in the way of
objective problems in Richard's low back. He felt that as far as
the low back condition was concerned, there was no ratable
impairment and no permanent activity restrictions should be
imposed. Dr. McGuire noted that Richard did have a problem with
his neck, left shoulder and left upper extremity but he stated
that those problems were difficult to relate to the low back
problem. It is noted that the history in the report does not
include Richard catching himself with his left hand when he fell.
In the report the physical examination notes show that Richard
had decreased sensation in the left C-8 nerve distribution and
also in the left L5-S1 nerve distribution. Dr. McGuire felt that
the November 28, 1989 incident was a relatively minor event from
which Richard would have completely recovered in 6 to 12 months.
Richard was next evaluated by Pat Luse, D.C. The history
relied upon by Dr. Luse is incorrect to the extent that it showed
that Richard had not returned to work since the accident. Dr.
Luse found Richard to have sensory impairment which warranted a 3
percent impairment rating of the left upper extremity and reduced
range of motion regarding his back which warranted a 9 percent
impairment rating. Dr. Luse indicated that the combination of
those two impairments rounded to 15 percent. It is noted that 3
percent of any extremity is equivalent to approximately a 1 1/2
percent impairment of the whole person. When 1 1/2 percent is
combined with 9 percent and rounded, it rounds to 10 percent
rather than 15 percent. Dr. Luse recognized that Richard had
preexisting problems and reported that 50 percent of the total
impairment was due to the November 28, 1989 injury. Dr. Luse
felt that claimant would have recurrent problems. He recommended
physical capacity limitations of 20 pounds for lifting, carrying,
pushing, and pulling. He felt that a 10-pound limit should be
applied to repetitive lifting (ex. 21).
Richard was also evaluated by Jay J. Parsow, M.D., a
specialist in physical medicine. Dr. Parsow formed the
impression that the fall of November 28, 1989, was responsible
for aggravating preexisting neck and back pain and also for
producing radicular symptoms in Richard's left arm and leg. Dr.
Page 4
Parsow noted that the prognosis was guarded but that it could be
improved with treatment. Dr. Parsow agreed that Richard should
be restricted to light work as recommended by Dr. Luse. Dr.
Parsow felt that Richard had an 18 percent permanent impairment
which was directly related to the November 28, 1989 injury.
Richard has incurred expenses with his various medical
providers. In the prehearing report it was stipulated that the
providers of these services would testify that the fees were
reasonable. No contrary evidence is in the record.
He incurred charges of $510 with Dr. Luse. Of that amount,
$350 was charged for the examination and $160 was charged for
x-rays. It is noted that it had been a considerable amount of
time since x-rays had been taken and it is therefore deemed
reasonable for additional x-rays to have been taken by Dr. Luse.
The examination by Dr. Luse was an examination conducted for
purposes of litigation in order to obtain a rating of impairment
after the impairment had been rated by Dr. McGuire, the physician
selected by the employer (ex. 37).
According to exhibit 38 Richard incurred charges at the
Mercy Hospital Medical Center in the total amount of $944. Those
charges were incurred during the month of January 1990 and appear
to coincide with the treatment provided by David Berg, M.D., the
employer's physician.
Exhibit 39 shows charges from Dr. Jones in the amount of
$48.20. Chiropractic care was authorized by Dr. Berg.
Exhibit 41 is additional charge sheets from the Mercy-Iowa
Occupational Medicine Clinic. The charges total $172. They were
incurred in December 1989 and March 1990. These charges are
consistent with the treatment provided by Dr. Berg.
Exhibit 43 shows charges from Robert VerDoorn, D.C., of the
Sherwood Forest Chiropractic Clinic. Charges were incurred
commencing November 29, 1989 and running through March 9, 1990.
Chiropractic treatment had been authorized by Dr. Berg. The
charges total $340.
It is found that all the medical expenses contained in
exhibits 38, 39, 41, and 42 were incurred in obtaining reasonable
treatment for the injuries Richard sustained on November 29,
1989. The charges shown on exhibit 37 were incurred in obtaining
an independent medical examination. All of the treatment appears
to have been reasonably suited to the injury which Richard
sustained. All the treatment appears to have been clearly
authorized by the employer.
The assessments of the medical providers in this case are
somewhat divergent. As indicated by Dr. McGuire, the problems
affecting Richard's neck, left shoulder and left upper extremity
do not have their origin or basis in his low back. They have
their origin in catching himself when he fell. This makes those
problems as much a result of the injury as if they were somehow
caused by some abnormality in his low back. The injurious event
which was described at hearing is one which would appear to have
a potential for producing an injury in the cervical spine and
Page 5
left upper extremity as well as injury to the low back. The real
question is whether or not they did in fact cause those injuries.
The claim is well corroborated by the fact that Richard began
seeking treatment immediately after the injurious event and
continued to seek treatment into early March of 1990. Initial
patient history discussion (ex. 15) is not particularly
illustrative one way or the other. It is recognized that
physicians often do not obtain accurate, complete, detailed
histories of all the preceding events. They often fail to ask
the patient whether whatever they have written for the history is
complete and accurate. The history subsequently entered in
exhibit 16 is quite corroborative of the claim.
The history entered on December 6, 1989, in exhibit 18 with
Dr. Berg, is also corroborative of the claim. Litigation was
ongoing and the subsequent medical histories given to the three
examining physicians are all somewhat suspect as are the
interpretations made by each particular physician as it appears
in their reports.
The case is perplexing in the sense that Richard Eisenbacher
has a very commendable work history. He has had a number of
employers but has generally been regularly employed. He was
apparently sufficiently productive with UPS to be promoted into a
management position. His performance as a supervisor was
apparently adequate. Based upon all the known information about
Richard Eisenbacher it would be totally out of character for him
to feign an injury or disability.
On the other hand, the record in this case shows that
Richard had preexisting problems. Doctors Luse and Parsow concur
in finding preexisting problems. The loss of sensation noted in
Dr. McGuire's report is really the only objective evidence of a
significant medical problem, other than for the preexisting
problems. Richard has not sought further treatment, not even
chiropractic care for his problems. He was able to work in a
factory setting. These things all seem to indicate that the
November 28, 1989 injury did not produce any substantial
permanent problems for Richard.
The sequence of events in this case is sufficient to make
one suspect that Richard's report of injury and seeking of
medical care may have induced his supervisors to use his
relationship with Kathy Grady as a sham excuse for terminating
his employment. On the other hand, there is no direct evidence
that any such occurrence actually happened. Further, as seen in
other cases, a number of other UPS employees have pursued
workers' compensation claims, even into litigation, without loss
of employment. Nevertheless, it is difficult to believe that the
Kathy Grady relationship, which had existed with the knowledge of
Richard's supervisors since prior to his appointment into a
managerial position, was really, in fact, the motivating factor
for forcing Richard to choose between the relationship,
resignation or firing. Richard did not supervise Kathy, did not
work in the same city as Kathy or hold a position in which there
was any reasonable likelihood that he would ever be in a
supervisory position over her. It is difficult to understand why
UPS would choose to have or enforce a rule such as the one relied
upon when forcing Richard to make the choices which resulted in
Page 6
his resignation.*****
Richard obtained his supervisory position by moving to the
Des Moines, Iowa area. Following the end of his employment
relationship with UPS, he returned to northwest Iowa. It is well
known that managerial and supervisory positions exist in far
greater numbers in the Des Moines, Iowa area than in the Spencer,
Iowa area. Richard's success at obtaining re-employment has been
quite dismal. He has experienced a profound reduction in actual
earnings. It is quite possible, however, that even if Richard
had not been injured, his attempts to resume employment would be
a little different from what has actually occurred. The one
thing that is different, however, is that prior to his move to
Des Moines to become a supervisor his principal occupation had
been that of a mechanic. The restrictions recommended by Doctors
Luse and Parsow effectively prohibit him from performing work as
a mechanic. He most likely does have the level of knowledge and
expertise which is necessary to be a mechanic but his physical
capacity is limited. While he can in all likelihood perform some
functions of a mechanic if allowed to work at his own pace,
employment as a mechanic requires the ability to perform those
functions at a commercially productive pace. It is that capacity
to perform at a commercially productive rate that Richard has
apparently lost.
It is difficult to determine whether Richard's loss of ability to
perform as a productive mechanic is in any manner affected by the
events of November 28, 1989. He continued to work as a
supervisor for nearly five months following the injury. It is
recognized that one of those five months was taken as vacation.
He has not sought further medical care since leaving his
employment with UPS. He has not taken any action to compel the
employer to provide any type of further care for his condition.
These are very strong indications that the injury did not produce
any significant degree of disability.
It is therefore found that the record in this case does not
show it to be probable that the event of November 28, 1989,
produced any significant permanent disability which affects
Richard Eisenbacher. His loss of earnings is highly related to
his decision to leave the Des Moines, Iowa area and move to the
Spencer area. His loss of ability to work as a productive
mechanic is as likely related to the previously existing
degenerative condition as to any injury.
CONCLUSIONS OF LAW
The conclusions of law contained in the proposed agency
decision filed February 9, 1993 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.
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
Page 7
The record in this case is clearly sufficient to show that
it is possible that the events of November 28, 1989, in some way
might have permanently damaged Richard's low back or neck and
left upper extremity. The record does not, however, show that to
be probable or more likely than not. The fact that Richard was
able to continue performing his work until the employment was
terminated and the fact that he has not sought further care for
his condition is a strong indication that the physical disability
which has been identified did not result from the incidents of
November 28, 1989.*****While he was injured and received
appropriate care, his disability had apparently resolved by the
time the employment terminated in late April of 1990. Defendants
are responsible for paying the costs of medical treatment and
also for the costs of the independent medical examination.*****
Defendants have admitted the injury. Following the injury
they directed the care and treatment through their company
physician, Dr. Berg. It is unclear why they have not paid the
medical expenses which were incurred under their direction and
express authorization. Defendants are therefore responsible for
payment of the expenses shown in exhibits 38, 39, 41, and 42 as
follows:
Mercy Hospital Medical Center $ 944.00
Chiropractic Arts Clinic, P.C. 48.20
Mercy-Iowa Occupational Medicine Clinic 172.00
Sherwood Forest Chiropractic Clinic 340.00
Richard is not seeking compensation for healing period. His
only claim is for permanent partial disability benefits.
[At the hearing in this matter, claimant attempted to
introduce evidence that he was discharged from employment with
defendant due to his work injury, and not because of his alleged
violation of a work rule against dating hourly employees. The
transcript shows that claimant's evidence was ruled irrelevant by
the deputy.
Q. What did he say?
A. And he says, "You'll be all right. You just
have butterflies in your stomach." And then Tom
Poppinteen was in the office with Frank and Tom -- I
heard Tom say over the phone --
MR. CORTESE: I'm going to object to all this
hearsay testimony. They haven't called Mr. Parkins to
come in here and testify. All of this is self-serving.
It's irrelevant to what we're talking about.
DEPUTY INDUSTRIAL COMMISSIONER: I was going to
say, how is this relevant?
MR. McELWAIN: Your Honor, perhaps I should have
done an opening statement. Mr. Eisenbacher was
terminated four months after his work injury, a few
months after the employer had full knowledge that he
was making a back claim or had a back claim and was
Page 8
considering litigation over his hearing loss.
He was terminated based on an unwritten rule that
managers don't date hourly employees. What we're
getting into is the notice that the employer had back
in '87 about his situation with an hourly employee from
another office.
MR. CORTESE: Well, if he wants to prove that,
he's got to get these people in here to show they know.
DEPUTY INDUSTRIAL COMMISSIONER: Regardless of --
this is an administrative hearing. Assuming that
management knew it, that he was dating the hourly
employee, assuming Tom Parkins or whatever the fellow's
name was told him it's okay for you to date this hourly
employee and assuming four months after he made his
injury claims they fired him and used that for -- as
the basis, how does that fall within my jurisdiction?
MR. McELWAIN: We're not litigating a tort. What
we're attempting to show is that the industrial
disability is greater by virtue of the fact that the
employer would not continue to employ him after the
injury. The company is going to obviously make the
argument that Mr. Eisenbacher willingly quit or he
voluntarily quit and that would clearly lessen his
industrial disability if that were the case.
DEPUTY INDUSTRIAL COMMISSIONER: Only if -- I
mean, industrial disability is related to disability
and I don't -- I have -- I don't understand how
something dealing with who he dated has anything to do
with his disability.
MR. McELWAIN: Couching that language
admittedly it wouldn't, but the reasons for him not
continuing his employment at UPS would be a factor in
considering the -- weighing his industrial disability.
DEPUTY INDUSTRIAL COMMISSIONER: Well, my ruling
is that even if it were proven beyond any shadow of a
doubt that it were drummed up -- that they were drummed
up to fire him or force him to quit or force him to
resign or whatever in retaliation for him making an
injury claim or hearing loss claim or whatever, that
doesn't provide a basis for me to make an award or to
affect the size of any award that I might make based
upon an injury.
MR. McELWAIN: Okay.
DEPUTY INDUSTRIAL COMMISSIONER: So with that I'm
sustaining the objection made by Mr. Cortese.
MR. McELWAIN: Very good. I understand it, and
just so you're clear, Your Honor, obviously that's not
the only basis for a claim for permanency or industrial
disability and I didn't mean to hint that that was.
Page 9
DEPUTY INDUSTRIAL COMMISSIONER: You may proceed.
(Transcript page 53, line 6 through page 56, line 1)
However, in the arbitration decision, the deputy then
apparently relied on the lack of evidence on this question in
determining claimant's industrial disability: "Nevertheless,
claimant has not argued in his brief that the employment
termination was a reaction to the workers' compensation claim and
the record does not show any such sequence of events to be a
probability." (Arbitration Decision, page 6)
Defendants objected to claimant's testimony on why he was
discharged on the basis of hearsay. To the extent the testimony
of claimant attempted to quote a conversation he overheard, the
conversation did constitute hearsay. However, generally hearsay
is not excluded in workers' compensation proceedings.
The deputy's evidentiary ruling went beyond ruling on the
hearsay objection. The deputy prohibited claimant from offering
any testimony or evidence, hearsay or otherwise, on why he was
discharged. The deputy correctly stated that if claimant had
been discharged for filing a workers' compensation claim, the
claimant might have a tort remedy for retaliatory discharge.
However, the conduct of the employer in not rehiring an injured
worker, or in discharging or taking other adverse action against
a worker because he or she has suffered an on-the-job injury, is
a relevant factor of industrial disability.
Under McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa
1980) and Blacksmith v. All-America, Inc., 290 N.W.2d 348 (Iowa
1980), if a worker is placed in a position by his employer after
an injury to the body as a whole and because of the injury which
results in an actual reduction in earning, this may justify an
award of industrial disability. This would appear to be so even
if the worker's "capacity" to earn has not been diminished.
When an employer discharges an employee for having suffered
a work injury, such conduct is a proper factor under industrial
disability. The fact that some portion of the same conduct may
also form the basis for a tort action for retaliatory discharge
does not preclude consideration of the conduct as a factor of an
industrial disability award. If an employer places a worker in a
less advantageous position or even terminates the employment
because the worker has suffered an injury, such employer conduct
is considered in assessing industrial disability
The evidence as to why claimant was discharged should not
have been excluded. This is especially true when the arbitration
decision acknowledges that such evidence may have been relevant,
then penalizes claimant for not introducing the evidence he was
prohibited from submitting.]
WHEREFORE, the decision of the deputy is remanded for
further findings of fact.
ORDER
Page 10
THEREFORE, it is ordered:
That this case is remanded to a deputy industrial
commissioner for further evidence limited to evidence of the
reasons for claimant's discharge. Upon receipt of the evidence,
the defendants shall file a transcript at defendants' initial
expense. Within thirty (30) days of the receipt of evidence, the
parties shall file simultaneous briefs to the industrial
commissioner and the case will be considered fully submitted on
appeal at that time.
Signed and filed this ____ day of September, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Copies to:
Mr. Harry Smith
Mr. Dennis McElwain
Attorneys at Law
632-40 Badgerow Building
P O Box 1194
Sioux City, Iowa 51102
Mr. Joseph Cortese, II
Attorney at Law
500 Liberty Building
Des Moines, Iowa 50309-2421
1803; 2902
Filed September 30, 1993
BYRON K. ORTON
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RICHARD J. EISENBACHER,
Claimant,
vs.
File No. 979203
UNITED PARCEL SERVICE,
A P P E A L
Employer,
D E C I S I O N
and
LIBERTY MUTUAL INSURANCE CO.,
Insurance Carrier,
Defendants.
____________________________________________________________
1803; 2902
Case was remanded to deputy on limited question of
circumstances surrounding claimant's termination of
employment. Claimant attempted to introduce evidence that
he was fired under a non-fraternization rule as a pretext,
and was actually terminated because of his work injury.
Claimant was precluded by the deputy from introducing any
evidence on why he was fired, as such might constitute a
separate cause of action for retaliatory discharge in tort.
The deputy's decision then remarked that claimant had failed
to introduce evidence or argue that he had been fired due to
his injury.
On appeal, held that relevant and admissible evidence on the
circumstances surrounding claimant's termination should have
been admitted, as employer conduct that places a worker in
an adverse position after a work injury may constitute an
element of industrial disability under McSpadden and
Blacksmith. Remanded to accept evidence on this question
only.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
RICHARD J EISENBACHER, :
:
Claimant, :
:
vs. :
: File No. 979203
UNITED PARCEL SERVICE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
statement of the case
This is a proceeding in arbitration brought by Richard
J. Eisenbacher against his former employer United Parcel
Service based upon an admitted injury of November 28, 1989.
Claimant seeks compensation for permanent partial disability
based upon that injury. He also seeks payment of medical
expenses and payment of expenses incurred in obtaining an
independent medical examination under the provisions of Code
section 85.39.
The record in this proceeding consists of testimony
from Richard J. Eisenbacher, Jim Foot and Curtis Cruise.
The record also contains claimant's exhibits 1 through 43
and defendants' exhibits 1, 2, 4 and 6.
findings of fact
Having considered all the evidence received, together
with the appearance and demeanor of the witnesses, the
following findings of fact are made:
Richard J. Eisenbacher is a 52-year-old man who quit
school during the eleventh grade but subsequently obtained a
GED. He was not particularly good at academic pursuits.
Much of his work history has been involved with vehicle
mechanics. He has also worked in other fields. He repaired
milking machines, worked at a lumber yard and operated a gas
station.
Richard commenced employment with United Parcel Service
in 1979. He worked as a line mechanic at the Spencer, Iowa,
terminal. As shown in exhibit 2, his work required bending,
stooping, pushing, and pulling. On occasion he would be
required to lift as much as 100 pounds. Richard was able to
perform as a line mechanic and his pay advanced to as much
as $10.67 per hour. While working as a line mechanic
Richard began dating Kathy Grady, who worked in the UPS
Page 2
office at Spencer.
In 1982 Richard suffered a heart attack. He was off
work approximately four months and returned with
restrictions. The heart attack and restrictions did not
impair his work performance. As recently as 1990 he
underwent an angiogram. Richard does not feel that his
heart condition limits him today.
In October 1987 Richard was promoted to a supervisory
position. UPS has a policy which prohibits supervisory
employees from dating nonsupervisory employees. Richard did
not want to quit dating Kathy. He did not want to move to
Des Moines. He had been dating Kathy since 1979 and that
fact was known when he was promoted into the supervisory
position. It had not been any particular problem with his
employer until early 1990 after the injury in this case had
been reported. Richard was then given a choice of being
fired or resigning. He elected to resign. His resignation
was not voluntary since he did not have the option of
staying with the company. The fact that he received
unemployment benefits, despite the employer's protest, is
further evidence that his resignation was not voluntary
since a voluntary resignation would have made him ineligible
for unemployment. Following his resignation Richard
returned to the Spencer area where he now resides with
Kathy.
Richard worked as a press operator for several months
earning approximately $6 per hour. He has performed odd
jobs and continues to do so. His odd jobs provide him with
an income in the range of $200 to $250 monthly. He also
receives approximately $135 per month from an installment
sales contract of a property he owned in the Spencer area.
Kathy Grady helps support him.
Richard feels that he is unable to perform work as a
regular mechanic. He complains of pain and numbness
affecting his left hand and arm. He complains of problems
with his low back.
Immediately following the injury Richard sought
chiropractic treatment at Sherwood Forest Chiropractic
Clinic. He was seen a total of 13 times during the months
of November 1989 through March 1990. The records of his
initial visit, exhibits 9 and 15, show his complaints to
include his left thigh and leg, low back, neck, headaches,
sinus pressure, and numbness in his left arm. It appears as
though the thigh and leg ache complaints had their origin
two to three years previously but that the low back, neck,
headache, sinus pressure, and left arm numbness came on from
jumping off tractors at UPS. Interestingly, a later record,
exhibit 16 which is dated January 30, 1990, indicates that
Richard did not know how his headaches, neck pain and left
arm numbness came about (exhibit 16). It is noted that in
that history no mention is made of back problems.
Richard was also treated at the Mercy Occupational
Medicine Clinic. On December 6, 1989, the history shown in
the records is that he stepped out of a package car onto an
Page 3
object on the floor and twisted his back. Subsequent
records of December 29, 1989, indicate that he continued to
have low back and left hip problems but that he was working
his regular job without any difficulty. Chiropractic care
was authorized. Diagnostic tests which were conducted
showed degeneration and conditions of long-standing origin
but did not objectively show any recent, acute trauma (ex.
18).
In early 1990 Richard took two separate two-week
vacations. While in Spencer he treated with Rex Jones,
D.C., for headaches, left neck pain and left arm pain. The
history given was that he had slipped and twisted his back.
The records show very little in way of care for his back
(exs. 19, 20).
Other than for the time Richard took vacation in early
1990, he continued to work from the day of injury through
the day that his employment with UPS ended. He has not
received further treatment since being seen by Dr. Jones.
He has not sought further care through his employer.
Richard has been evaluated by three physicians for
purposes of litigation. The first was Daniel J. McGuire,
M.D., an orthopedic surgeon. In a report dated December 5,
1991, Dr. McGuire related that he could not find much in the
way of objective problems in Richard's low back. He felt
that as far as the low back condition was concerned, there
was no ratable impairment and no permanent activity
restrictions should be imposed. Dr. McGuire noted that
Richard did have a problem with his neck, left shoulder and
left upper extremity but he stated that those problems were
difficult to relate to the low back problem. It is noted
that the history in the report does not include Richard
catching himself with his left hand when he fell. In the
report the physical examination notes show that Richard had
decreased sensation in the left C-8 nerve distribution and
also in the left L5-S1 nerve distribution. Dr. McGuire felt
that the November 28, 1989, incident was a relatively minor
event from which Richard would have completely recovered in
six to twelve months.
Richard was next evaluated by Pat Luse, D.C. The
history relied upon by Dr. Luse is incorrect to the extent
that it showed that Richard had not returned to work since
the accident. Dr. Luse found Richard to have sensory
impairment which warranted a 3 percent impairment rating of
the left upper extremity and reduced range of motion
regarding his back which warranted a 9 percent impairment
rating. Dr. Luse indicated that the combination of those
two impairments rounded to 15 percent. It is noted that 3
percent of any extremity is equivalent to approximately a 1
1/2 percent impairment of the whole person. When 1 1/2
percent is combined with 9 percent and rounded, it rounds to
10 percent rather than 15 percent. Dr. Luse recognized that
Richard had preexisting problems and reported that 50
percent of the total impairment was due to the November 28,
1989 injury. Dr. Luse felt that claimant would have
Page 4
recurrent problems. He recommended physical capacity
limitations of 20 pounds for lifting, carrying, pushing, and
pulling. He felt that a 10-pound limit should be applied to
repetitive lifting (ex. 21).
Richard was also evaluated by Jay J. Parsow, M.D., a
specialist in physical medicine. Dr. Parsow formed the
impression that the fall of November 28, 1989, was
responsible for aggravating preexisting neck and back pain
and also for producing radicular symptoms in Richard's left
arm and leg. Dr. Parsow noted that the prognosis was
guarded but that it could be improved with treatment. Dr.
Parsow agreed that Richard should be restricted to light
work as recommended by Dr. Luse. Dr. Parsow felt that
Richard had an 18 percent permanent impairment which was
directly related to the November 28, 1989 injury.
Richard has incurred expenses with his various medical
providers. In the prehearing report it was stipulated that
the providers of these services would testify that the fees
were reasonable. No contrary evidence is in the record.
He incurred charges of $510 with Dr. Luse. Of that
amount, $350 was charged for the examination and $160 was
charged for x-rays. It is noted that it had been a
considerable amount of time since x-rays had been taken and
it is therefore deemed reasonable for additional x-rays to
have been taken by Dr. Luse. The examination by Dr. Luse
was an examination conducted for purposes of litigation in
order to obtain a rating of impairment after the impairment
had been rated by Dr. McGuire, the physician selected by the
employer (ex. 37).
According to exhibit 38 Richard incurred charges at the
Mercy Hospital Medical Center in the total amount of $944.
Those charges were incurred during the month of January 1990
and appear to coincide with the treatment provided by David
Berg, M.D., the employer's physician.
Exhibit 39 shows charges from Dr. Jones in the amount
of $48.20. Chiropractic care was authorized by Dr. Berg.
Exhibit 41 is additional charge sheets from the
Mercy-Iowa Occupational Medicine Clinic. The charges total
$172. They were incurred in December 1989 and March 1990.
These charges are consistent with the treatment provided by
Dr. Berg.
Exhibit 43 shows charges from Robert VerDoorn, D.C., of
the Sherwood Forest Chiropractic Clinic. Charges were
incurred commencing November 29, 1989 and running through
March 9, 1990. Chiropractic treatment had been authorized
by Dr. Berg. The charges total $340.
It is found that all the medical expenses contained in
exhibits 38, 39, 41, and 42 were incurred in obtaining
reasonable treatment for the injuries Richard sustained on
November 29, 1989. The charges shown on exhibit 37 were
incurred in obtaining an independent medical examination.
All of the treatment appears to have been reasonably suited
Page 5
to the injury which Richard sustained. All the treatment
appears to have been clearly authorized by the employer.
The assessments of the medical providers in this case
are somewhat divergent. As indicated by Dr. McGuire, the
problems affecting Richard's neck, left shoulder and left
upper extremity do not have their origin or basis in his low
back. They have their origin in catching himself when he
fell. This makes those problems as much a result of the
injury as if they were somehow caused by some abnormality in
his low back. The injurious event which was described at
hearing is one which would appear to have a potential for
producing an injury in the cervical spine and left upper
extremity as well as injury to the low back. The real
question is whether or not they did in fact cause those
injuries. The claim is well corroborated by the fact that
Richard began seeking treatment immediately after the
injurious event and continued to seek treatment into early
March of 1990. Initial patient history discussion (ex. 15)
is not particularly illustrative one way or the other. It
is recognized that physicians often do not obtain accurate,
complete, detailed histories of all the preceding events.
They often fail to ask the patient whether whatever they
have written for the history is complete and accurate. The
history subsequently entered in exhibit 16 is quite
corroborative of the claim.
The history entered on December 6, 1989, in exhibit 18
with Dr. Berg, is also corroborative of the claim.
Litigation was ongoing and the subsequent medical histories
given to the three examining physicians are all somewhat
suspect as are the interpretations made by each particular
physician as it appears in their reports.
The case is perplexing in the sense that Richard
Eisenbacher has a very commendable work history. He has had
a number of employers but has generally been regularly
employed. He was apparently sufficiently productive with
UPS to be promoted into a management position. His
performance as a supervisor was apparently adequate. Based
upon all the known information about Richard Eisenbacher it
would be totally out of character for him to feign an injury
or disability.
On the other hand, the record in this case shows that
Richard had preexisting problems. Doctors Luse and Parsow
concur in finding preexisting problems. The loss of
sensation noted in Dr. McGuire's report is really the only
objective evidence of a significant medical problem, other
than for the preexisting problems. Richard has not sought
further treatment, not even chiropractic care for his
problems. He was able to work in a factory setting. These
things all seem to indicate that the November 28, 1989,
injury did not produce any substantial permanent problems
for Richard.
The sequence of events in this case is sufficient to
make one suspect that Richard's report of injury and seeking
of medical care may have induced his supervisors to use his
relationship with Kathy Grady as a sham excuse for
Page 6
terminating his employment. On the other hand, there is no
direct evidence that any such occurrence actually happened.
Further, as seen in other cases, a number of other UPS
employees have pursued workers' compensation claims, even
into litigation, without loss of employment. Nevertheless,
it is difficult to believe that the Kathy Grady
relationship, which had existed with the knowledge of
Richard's supervisors since prior to his appointment into a
managerial position, was really, in fact, the motivating
factor for forcing Richard to choose between the
relationship, resignation or firing. Richard did not
supervise Kathy, did not work in the same city as Kathy or
hold a position in which there was any reasonable likelihood
that he would ever be in a supervisory position over her.
It is difficult to understand why UPS would choose to have
or enforce a rule such as the one relied upon when forcing
Richard to make the choices which resulted in his
resignation. Nevertheless, claimant has not argued in his
brief that the employment termination was a reaction to the
workers' compensation claim and the record does not show any
such sequence of events to be a probability.
Richard obtained his supervisory position by moving to
the Des Moines, Iowa, area. Following the end of his
employment relationship with UPS, he returned to northwest
Iowa. It is well known that managerial and supervisory
positions exist in far greater numbers in the Des Moines,
Iowa, area than in the Spencer, Iowa, area. Richard's
success at obtaining re-employment has been quite dismal.
He has experienced a profound reduction in actual earnings.
It is quite possible, however, that even if Richard had not
been injured, his attempts to resume employment would be
little different from what has actually occurred. The one
thing that is different, however, is that prior to his move
to Des Moines to become a supervisor his principal
occupation had been that of a mechanic. The restrictions
recommended by Doctors Luse and Parsow effectively prohibit
him from performing work as a mechanic. He most likely does
have the level of knowledge and expertise which is necessary
to be a mechanic but his physical capacity is limited.
While he can in all likelihood perform some functions of a
mechanic if allowed to work at his own pace, employment as a
mechanic requires the ability to perform those functions at
a commercially productive pace. It is that capacity to
perform at a commercially productive rate that Richard has
apparently lost.
It is difficult to determine whether Richard's loss of
ability to perform as a productive mechanic is in any manner
affected by the events of November 28, 1989. He continued
to
Page 7
work as a supervisor for nearly five months following the injury.
It is recognized that one of those five months was taken as
vacation. He has not sought further medical care since leaving
his employment with UPS. He has not taken any action to compel
the employer to provide any type of further care for his
condition. These are very strong indications that the injury did
not produce any significant degree of disability.
It is therefore found that the record in this case does not
show it to be probable that the event of November 28, 1989,
produced any significant permanent disability which affects
Richard Eisenbacher. His loss of earnings is highly related to
his decision to leave the Des Moines, Iowa, area and move to the
Spencer area. His loss of ability to work as a productive
mechanic is as likely related to the previously existing
degenerative condition as to any injury.
conclusions of law
The party who would suffer loss if an issue were not
established has the burden of proving that issue by a
preponderance of the evidence. Iowa R. of App. P. 14(f).
The record in this case is clearly sufficient to show that
it is possible that the events of November 28, 1989, in some way
might have permanently damaged Richard's low back or neck and
left upper extremity. The record does not, however, show that to
be probable or more likely than not. The fact that Richard was
able to continue performing his work until the employment was
terminated and the fact that he has not sought further care for
his condition is a strong indication that the physical disability
which has been identified did not result from the incidents of
November 28, 1989. Richard is therefore not entitled to recover
any weekly compensation benefits in this case. While he was
injured and received appropriate care, his disability had
apparently resolved by the time the employment terminated in late
April of 1990. Defendants are responsible for paying the costs
of medical treatment and also for the costs of the independent
medical examination but they are not responsible for any weekly
compensation benefits.
Defendants have admitted the injury. Following the injury
they directed the care and treatment through their company
physician, Dr. Berg. It is unclear why they have not paid the
medical expenses which were incurred under their direction and
express authorization. Defendants are therefore responsible for
payment of the expenses shown in exhibits 38, 39, 41, and 42 as
follows:
Mercy Hospital Medical Center $ 944.00
Chiropractic Arts Clinic, P.C. 48.20
Mercy-Iowa Occupational Medicine Clinic 172.00
Sherwood Forest Chiropractic Clinic 340.00
Richard is not seeking compensation for healing period. His
only claim is for permanent partial disability benefits.
order
IT IS THEREFORE ORDERED that defendants pay the following
Page òòò 8
expenses under the provisions of Iowa Code section 85.27:
Mercy Hospital Medical Center $ 944.00
Chiropractic Arts Clinic, P.C. 48.20
Mercy-Iowa Occupational Medicine Clinic 172.00
Sherwood Forest Chiropractic Clinic 340.00
It is further ordered that under the provisions of Iowa Code
section 85.39 defendants pay $510 for the evaluation performed by
Pat Luse, D.C.
It is further ordered that defendants have no liability for
weekly compensation benefits in this case.
It is further ordered that the costs of this action are
assessed against defendants pursuant to rule 343 IAC 4.33.
It is further ordered that defendants file claim activity
reports as requested by this agency.
Signed and filed this ____ day of February, 1993.
______________________________
MICHAEL G. TRIER
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Harry Smith
Mr. Dennis McElwain
Attorneys at Law
632-40 Badgerow Bldg
PO Box 1194
Sioux City, Iowa 51102
Mr. Joseph Cortese, II
Attorney at Law
500 Liberty Bldg
Des Moines, Iowa 50309-2421
Page 1
51402.40
Filed February 9, 1993
Michael G. Trier
before the iowa industrial commissioner
____________________________________________________________
:
RICHARD J EISENBACHER, :
:
Claimant, :
:
vs. :
: File No. 979203
UNITED PARCEL SERVICE, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
LIBERTY MUTUAL, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
51402.40
Injured employee failed to prove that injury caused any
permanent disability. Claimant awarded medical expenses.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MICHAEL HARVEY, :
:
Claimant, :
:
vs. :
: File No. 979205
KINKADE PLUMBING, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
AETNA CASUALTY & SURETY :
COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition of
claimant, Michael Harvey, against his employer, Kinkade Plumbing,
and its insurance carrier, Aetna Casualty and Surety Company,
defendants. The case was heard on September 8, 1992 at the
office of the Industrial Commissioner in Des Moines, Iowa. The
record consists of the testimony of claimant. The record also
consists of the testimony of Shari Epstein, friend of claimant;
David Harris, former co-employee of claimant; Gale Russell, back
hoe operator and uncle of Bruce E. Kinkade; Cindy Pierce, office
manager; and Bruce E. Kinkade, president and owner of Kinkade
Plumbing.
Additionally, the record is comprised of claimant's exhibits
1, 2, 3, 4, 5 and defendants' exhibits A-K and L is admitted only
for credibility purposes.
It is noted for the record that subsequent to the date of
the hearing, but prior to the filing of the date of this
decision, claimant's witness, Shari Epstein, had an occasion to
converse with the undersigned deputy. The communication was ex
parte. The attorneys of record were orally notified of the
communication. However, the attorneys deemed the communication
as harmless and no subsequent motions were filed by the parties.
Page 2
ISSUES
The issues to be determined are:
1) Whether claimant sustained an injury which arose out of
and in the course of his employment; 2) whether there is a causal
relationship between the alleged injury and any temporary or per
manent disability; 3) whether claimant is entitled to any healing
period or permanent partial disability benefits; and 4) whether
claimant is entitled to any medical benefits pursuant to section
85.27.
FINDINGS OF FACT
The deputy, having heard the testimony and considered all
the evidence, finds:
Claimant graduated from Roosevelt High School in Des Moines,
Iowa in 1971. Since 1972 claimant has been engaged in the con
struction field. He has had vast experiences which include
putting footings in houses; doing cement work; operating cranes;
doing roofing tasks; using shovels and spades; operating an air
hammer; installing sewer and water pipes; and installing fix
tures, copper lines and water heaters.
Claimant had been an employee of defendant-employer from
1985 until January of 1990. During his employment, claimant
worked as an apprentice plumber and then as a journeyman plumber.
In 1986 or 1987 claimant became a licensed plumber in both Des
Moines and West Des Moines. While he was employed by defendant,
claimant earned $14.00 per hour. Claimant was terminated for
"unauthorized moonlighting."
At the time of the hearing, claimant was employed by a dif
ferent plumbing contractor. He earned $16.00 per hour. Claimant
was employed as a regular full time employee.
Claimant testified that on July 24, 1989, he was working on
the premises of 1116 20th Street, West Des Moines, Iowa. His
testimony was verified by defendants' exhibit K. Claimant
described his work activities on that date. He explained that he
was replacing and cutting off a septic tank. He testified that
he was tunneling with a spade so he could hook onto the sewer
system. Claimant stated that while he was shoveling, he hit an
obstruction, thus jamming his right wrist. At the time of the
incident, claimant stated his left hand was around the shaft of
his shovel and the right hand was around the handle.
Claimant also testified that upon hitting the obstruction,
he experienced a sharp sensation in his right wrist. However, he
described himself as having a high tolerance for pain and so he
continued to work that day and for the remainder of the week. No
one else on the job site knew of the incident.
Claimant neglected to report the incident until January 16,
1990, the day after claimant was terminated. The testimony is
uncontroverted.
Page 3
Claimant did not seek medical treatment for his right wrist
until August 10, 1989 when he appeared at Charter Community
Hospital. Medical notes for the attending physician, Dr. Brady
(first name unknown), state: "...States approx 2 wks ago pain
inside R wrist, Pain, swelling, Lump R wrist...Diagnosis
Tenosynovitis" (Defendants' Exhibit A-2)
According to the testimony of Cindy Pierce, office manager
with defendant-employer, the company had no knowledge of the
incident in question until there was a telephone call from an
employee in the office of Martin S. Rosenfeld, D.O., who provided
information relative to the alleged work injury. The telephone
call occurred on the day after claimant was terminated. Prior to
that date, claimant had given no notice of an incident.
CONCLUSIONS OF LAW
The party who would suffer loss if an issue were not estab
lished has the burden of proving that issue by a preponderance of
the evidence. Iowa R. App. P. 14(f).
The claimant has the burden of proving by a preponderance of
the evidence that the alleged injury actually occurred and that
it arose out of and in the course of employment. McDowell v.
Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v.
Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words
"arising out of" refer to the cause or source of the injury. The
words "in the course of" refer to the time, place and circum
stances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415
(Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a preponderance of
the evidence that the injury is a proximate cause of the disabil
ity on which the claim is based. A cause is proximate if it is a
substantial factor in bringing about the result; it need not be
the only cause. A preponderance of the evidence exists when the
causal connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980);
Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974).
The question of causal connection is essentially within the
domain of expert testimony. The expert medical evidence must be
considered with all other evidence introduced bearing on the
causal connection between the injury and the disability. The
weight to be given to any expert opinion is determined by the
finder of fact and may be affected by the accuracy of the facts
relied upon by the expert as well as other surrounding circum
stances. The expert opinion may be accepted or rejected, in
whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903
(Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa
1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
(1965).
Claimant's evidence is filled with inconsistencies. His
behavior is inconsistent with claimant's prior behavior regarding
the filing of first reports of injury. Claimant had filed previ
ous claims involving workers' compensation.
Page 4
Claimant appeared at hearing and testified to having suf
fered a work-related injury on July 24, 1989. He made no report
of the injury until the day after claimant was terminated by his
employer. The incident allegedly occurred at a job site on 20th
Street in West Des Moines, Iowa. Claimant testified there were
no other witnesses to the incident. However, there were other
individuals on site. They had no knowledge of the alleged inci
dent.
Gale Russell, a backhoe operator, was present that day and
was working on the same job site. Mr. Russell testified that on
the date in question, he never saw claimant injure his wrist.
Additionally, Mr. Russell testified that claimant never com
plained to him of any work injury, nor did claimant even complain
of pain in his wrist, or use any "foul language" to describe any
pain.
Likewise, there was the testimony of David Harris. He too
was on the job site on the date in question. Mr. Harris, while
able to recall that claimant was tunneling, was not able to
recall whether claimant had said he was injured.
Claimant did not report the alleged incident to either the
owner of the company, Bruce Kinkade or to the office manager,
Cindy Pierce until the day after claimant was terminated.
Claimant testified, "he feared for his job if he filed another
workers' compensation claim." However, the undersigned, after
having heard the testimony of Bruce Kinkade, did not believe that
Mr. Kinkade threatened claimant with possible termination if
claimant filed a workers' compensation claim. The veracity of
claimant's testimony concerning the incident in question was sus
pect, especially since claimant's credibility was successfully
impeached by defendants' exhibit L. Again claimant's behavior
was inconsistent with the behavior of a man who had filed previ
ous workers' compensation claims.
Claimant did not seek any medical treatment for a right
wrist injury until 17 days after the occurrence of the alleged
incident. Even then, claimant did not report to the attending
physician that the injury occurred at work. All that was
reported was that he had experienced pain for approximately two
weeks (Def. Ex. A-2).
Also the report claimant made to his treating orthopedic
surgeon, Dr. Rosenfeld, was totally inconsistent with the injury
date alleged by claimant. In the office note of January 16,
1990, it was reported that:
Michael returns at this time with complaints of pain in
both wrists. He feels he jammed them at work while
digging sometime in November....
(Emphasis added)
Claimant testified that the date should have been July.
However, the undersigned has no basis for questioning the accu
racy of Dr. Rosenfeld's office note.
Page 5
While it is acknowledged that Ms. Shari Epstein testified on
behalf of claimant, Ms. Epstein's testimony was mostly based on
statements made to her by claimant. Additionally, Ms. Epstein
could not remember the date on which claimant allegedly injured
his wrist. Her testimony was less than credible.
The undersigned observed claimant's demeanor and noted the
inconsistencies between his testimony and that of the witnesses
for defendants. Claimant has been less than candid. There are
numerous inconsistencies in the evidence. Claimant is not credi
ble. It is impossible to support recovery in this case.
Claimant did not receive an injury which arose out of and in the
course of his employment and consequently, claimant can take
nothing from these proceedings.
ORDER
THEREFORE, IT IS ORDERED:
Claimant takes nothing from these proceedings.
Each party shall bear its own costs pursuant to rule 343 IAC
4.33.
Signed and filed this ____ day of October, 1992.
______________________________
MICHELLE A. McGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Burns H. Davison, III
Attorney at Law
620 Hubbell Building
Des Moines, Iowa 50309
Ms. Lorraine J. May
Mr. J. D. Hilmes
Attorneys at Law
404 Equitable Building
Des Moines, Iowa 50309
1100; 1401
Filed October 27, 1992
MICHELLE A. McGOVERN
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MICHAEL HARVEY,
Claimant,
vs.
File No. 979205
KINKADE PLUMBING,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
AETNA CASUALTY & SURETY
COMPANY,
Insurance Carrier,
Defendants.
___________________________________________________________
1100; 1401
Claimant could not prove by a preponderance of the evidence
that he had sustained a work injury which arose out of and
in the course of his employment on July 24, 1989. Claimant
was less than credible. His evidence was inconsistent. The
incident was unwitnessed. Two individuals who were on the
job site had no knowledge of an alleged injury occurring on
that date. Claimant did not report the alleged incident
until the day after he was terminated which was more than 5
months after the alleged injury occurred.
Claimant sought no medical treatment until 17 days after the
alleged incident had occurred. Additional medical evidence
indicated the incident had occurred in November rather than
in July.
Claimant had inconsistencies in his evidence. Claimant's
credibility was challenged by use of an exhibit where
claimant had falsified his driving record and status.
2209; 2401; 2803; 2901
Filed April 15, 1991
DAVID RASEY
before the iowa industrial commissioner
____________________________________________________________
:
CAROLYN LOFFREDO, :
:
Claimant, :
:
vs. : File Nos. 843434
: 979207
HY-VEE FOOD STORES, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL COMPANIES, :
:
Insurance Carrier, :
Defendants. :
____________________________________________________________
2209; 2401; 2803; 2901
Parties tried claims for bilateral upper extremity and
cervical complaints as one litigated case.
Actually, claimant first developed right arm problems and
left work, creating a compensable injury under McKeever.
After returning to work, she then developed left arm
problems (in part due to compensating for the right) and
left work again -- a second injury.
While off work the second time, claimant began treatment for
degenerative cervical discs allegedly caused by cumulative
trauma. This was held to relate back to when she left work
the second time, but was barred by failure to give timely
notice. Claimant's doctor's letter to carrier was more than
90 days after claimant left work -- the assigned injury
date.
Arms were compensated as separate injuries based on Guide in
effect at the time of each. Division was ordered to
establish a file and file number for second (left) arm
injury.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
MERLIN R. FAULKNER and
HILDEGARD A. FAULKNER
Administrator of
the Estate of
MERLYN R. FAULKNER
File No. 979221
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
JOHN DEERE CO.,
Employer,
Self-Insured,
Defendants
________________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on March 22, 1995, at Waterloo, Iowa.
This is a proceeding in arbitration wherein claimant seeks compensation
for permanent partial disability benefits as a result of an alleged
injury occurring on November 3, 1989. The claimant also appears to be
seeking, because of the death of the employee, additional death
benefits.
There is no hearing report order, as the undersigned has previously
ruled that claimant is prevented from any activity or presenting any
evidence in this case because of violation of the Iowa Rules of Civil
Procedure, Industrial Commissioner Rules, and the Rules of the Iowa
Administrative Code.
There has been a previous ruling as to the cutting off of the
claimant's evidence and activity.
FINDINGS OF FACT
There has been no evidence presented in this case by the claimant;
therefore, claimant has failed to prove claimant's burden. Claimant
therefore takes nothing from this proceeding. The defendant was
present through its attorney, John Rathert, and, as expected, no
evidence was presented by the defendant; therefore, there were no
exhibits or evidence presented in this matter.
ORDER
THEREFORE IT IS ORDERED:
That claimant takes nothing from this proceeding and that costs are
assessed against claimant.
Signed and filed this _____ day of March, 1995.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. Michael D. Maxwell
Attorney at Law
601 Locust Street STE 1000
Des Moines, Iowa 50309
Mr. John W. Rathert
Attorney at Law
620 Lafayette Street
PO Box 178 STE 300
Waterloo, Iowa 50704
5-1400
Filed March 29, 1992
BERNARD J. O'MALLEY
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
________________________________________________________________
MERLIN R. FAULKNER and
HILDEGARD A. FAULKNER
Administrator of
the Estate of
MERLYN R. FAULKNER
File No. 979221
Claimant,
A R B I T R A T I O N
vs.
D E C I S I O N
JOHN DEERE CO.,
Employer,
Self-Insured,
Defendants
________________________________________________________________
5-1400
Deputy commissioner cut off claimant's evidence and activity. No
evidence provided. Claimant took nothing from the proceeding.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
STACY L. MONTGOMERY, :
:
Claimant, :
:
vs. : File Nos. 919123;
: 979225; 979226
ROLSCREEN, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL INS. CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Stacy
Montgomery, claimant, against Rolscreen Company, employer,
hereinafter referred to as Rolscreen, and Employers Mutual,
insurance carrier, defendants, for workers' compensation
benefits as a result of alleged injuries on March 12, 1989,
April 14, 1989 and May 10, 1989. On June 9, 1992, a hearing
was held on claimant's petition and the matter was consid
ered fully submitted at the close of this hearing.
The parties have submitted a prehearing report of con
tested issues and stipulations which was approved and
accepted as a part of the record of this case at the time of
hearing. The oral testimony and written exhibits received
during the hearing are set forth in the hearing transcript.
According to the prehearing report, the parties have
stipulated to the following matters:
1. An employee-employer relationship existed between
claimant and Rolscreen at the time of the alleged injuries.
2. At the time of the injuries, claimant's gross rate
of weekly compensation was $273.00; she was married; and she
was entitled to five exemptions. Therefore, claimant's
weekly rate of compensation is $191.72 according to the
Industrial Commissioner's published rate booklet for FY 89.
3. Medical benefits were no longer at issue.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
I. Whether claimant received an injury arising out of
Page 2
and in the course of employment; and,
II. The extent of claimant's entitlement to disability
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
A credibility finding is necessary to this decision as
defendants placed claimant's credibility at issue during
cross-examination as to the nature and extent of the
injuries and disability. From her demeanor while testify
ing, claimant is found credible.
Claimant worked for Rolscreen as a temporary hire. She
worked from February 24, 1987 through July 24, 1987; from
February 22, 1988 through May 27, 1988 and finally from
December 19, 1988 through March 10, 1989. Claimant was laid
off after the first two periods of work but left in March
1989 as a result of the work injury herein. When not work
ing at Rolscreen, claimant worked as a nurse's aide at a
nursing home. She had been working as a nurse's aide for
several years before her Rolscreen employment. Claimant
preferred working at Rolscreen as she enjoyed the work and
earned $7.00 per hour. She only earned $4.95 per hour at
the nursing home.
Claimant's work at Rolscreen involved repetitive use of
her wrists, hands and arms. She operated an electronic
press, radial arm saw, and puttying windows. Claimant said
that she experienced most of her problems while operating
the radial arm saw.
On or about March 10, 1989, claimant injured her right
arm from cumulative trauma as a result of her repetitive
work at Rolscreen. This injury arose out of and in the
course of claimant's employment at Rolscreen. Beginning in
February 1989, claimant began to experience numbness and
tingling along with a severe stabbing pain in the hands,
wrists and arms. Upon an initial diagnosis of carpal tunnel
syndrome and a ganglion cyst, claimant received her first
treatment from a Dr. Adams (first name and specialty
unknown). When conservative care failed to alleviate the
symptoms, claimant left work on March 10, 1989 to undergo
carpal tunnel release and ganglion removal surgery.
Claimant has not returned to work at Rolscreen since March
10, 1989.
Although claimant alleges other injury dates, all of
her claims with reference to these injury dates arise from
the same injury process and complaints of hand, wrist and
arm pain while working for Rolscreen in the winter and
spring of 1989. The date chosen herein as the injury date
is the time when claimant left her work at Rolscreen due to
her injury. This date is not significantly different than
the first date alleged of March 12, 1989.
Page 3
After the surgery claimant's hand, wrist and arm pain
complaints failed to improve and she sought and received
additional care from Ronald Bergman, D.O., a specialist in
hand surgery. Dr. Bergman kept claimant off work for an
additional time. He opined that claimant's continued symp
toms were a recurrence of carpal tunnel syndrome and he sug
gested additional release surgery. Claimant chose not to
undergo this second surgery and Dr. Bergman released
claimant from his care in November 1989 with a three percent
impairment rating to the right extremity. He also released
claimant to return to work without restrictions. This
appears a little inconsistent with his impairment rating and
claimant's obvious ongoing symptomatology.
There is no physician in this case that disputes that
the symptoms claimant experienced in 1989 were causally
related to the work at Rolscreen. This was also the view of
Rolscreen as they did not allow her to return to work even
after her release from care by Dr. Adams and Dr. Bergman
because her work at Rolscreen was too repetitive for
claimant.
Claimant testified that she never recovered from her
pain after the carpal tunnel release and her symptoms of
right hand, wrist and arm pain continued and worsened in
1990. However, she did return to work at the nursing home
on January 7, 1990 without any physician imposed work
restrictions. She continued to work as a nurse's aide until
February 1992, at which time she left due to chronic and
continuous pain in not only her right hand, wrist and arm;
but also in her right shoulder, neck and back. Claimant
first complained of shoulder pain in August 1990 when she
requested and received an evaluation at defendants' expense
from Scott Neff, D.O., an orthopedic surgeon. Claimant tes
tified that she did not seek treatment between her release
from Dr. Bergman in November 1989 and her visit to Dr. Neff
because she did not believe defendants would pay for it.
Whether or not claimant requested defendants for an earlier
exam is not clear in the record. Dr. Neff felt that
claimant's complaints of pain indicated possible myofascial
pain syndrome (hereinafter referred to as MPS) and thoracic
outlet syndrome (hereinafter referred to as TOS). Dr. Neff
however opined that her MPS or TOS complaints were not
related to her work at Rolscreen. Little weight was given
to this opinion as Dr. Neff's letter of September 26, 1990
to the defendant insurer makes reference to information pro
vided to him by the insurer which is not set forth in the
record. Therefore, there is no way to determine if the
opinion is based upon correct information.
Claimant then suffered an aggravation injury to her
right arm and shoulder while working at the nursing home in
October 1990. Claimant testified that she aggravated her
shoulder and back from this injury while assisting a resi
dent in walking. Claimant returned to Dr. Bergman who con
tinued to diagnose recurrent carpal tunnel. Despite the
pain, claimant continued to work until February 28, 1991 at
which time she left due to pain upon the recommendation of
her family physician. In March 1991, she was evaluated by a
neurologist, A. D. Socarras, M.D. He could find no clinical
Page 4
evidence of cervical radiculopathy or thoracic outlet syn
drome. He stated that claimant's symptoms are suggestive of
carpal tunnel syndrome but noted a recent EMG showing no
abnormality. He felt she had underlying psychological
depression and prescribed medication to treat the depres
sion.
Claimant was then evaluated in April 1991 by Karen
Kienker, M.D., a board certified physician in physical
medicine and rehabilitation. After extensive review of
claimant's history and detailed examination, Dr. Kienker
diagnosed thoracic outlet syndrome and myofascial pain of
the neck and upper back. She did not believe that the orig
inal carpal tunnel diagnoses by Drs. Adams and Bergman were
correct. She then recommended a treatment program for these
problems involving physical therapy and pain management over
the next several weeks. Physical therapy was discontinued
in June 1991 and Dr. Kienker referred claimant for pain man
agement to Craig DeBois, M.D., at the Iowa Methodist Medical
Pain Center for evaluation and treatment.
The focus of Dr. DeBois's treatment was on neck and low
back pain complaints. Dr. DeBois attributed much of the low
back pain to degenerative changes in the spine. He stated
that the cervical pain was possibly the result of TOS but
his findings were not typical for such a condition. Dr.
DeBois also found claimant to be suffering from deep
depression as a result of the chronic pain, sleep
disturbances and sedative medications. He therefore
recommended additional physical therapy, biofeedback
treatment and psychological evaluation. After several weeks
of outpatient pain management therapy, Dr. DeBois in
September 1991 concluded that claimant had myofascial pain
syndrome exacerbated by depression in a "vicious cycle."
Page 5
He stated that in-patient care was needed to break this
cycle. At this time, claimant was evaluated by Peter Wirtz,
M.D., another orthopedic surgeon retained by defendants.
Dr. Wirtz relates claimant's arm symptomatology to the
original carpal tunnel syndrome but not the neck and low
back pain. He felt that the neck and back pain would bene
fit from additional treatment in the form of an exercise
program but that the carpal tunnel problem would not require
pain management. Based upon Dr. Wirtz's views, defendants
then discontinued authorization for additional treatment.
In her last report of November 1991, Dr. Kienker main
tains her view that claimant suffers from TOS and rates
claimant's impairment as 70 percent of the arm or 42 percent
of the whole body plus 9 percent for restricted motion of
the neck and shoulder. She also imposes permanent work
restrictions consisting of only occasional lifting to 10
pounds; work activity which alternates sitting, standing
and walking; limited head movements; no repetitive motion of
the shoulder, elbow and wrist; avoidance of bending and
twisting; and avoidance of cold environments. She suggests
vocational retraining and refers claimant to the state voca
tional rehabilitation department. However, she also, along
with Dr. DeBois, recommends in-patient pain management care
that could allow claimant to cope with her pain and increase
her activity level.
Finally, Dr. Kienker causally related all of claimant's
problems to the work at Rolscreen and stated that all of
claimant's symptoms were present prior to claimant's return
to work at the nursing home in January 1990. In her
reports, she fully documented claimant's history and she was
aware that claimant's first shoulder complaint was to Dr.
Neff in August 1990.
The views of Dr. Kienker are the most convincing and
are given the greatest weight. Her reports were the most
detailed and they clearly coincided with claimant's credible
testimony. Her educational background and experience is
impressive. She is a specialist in physical medicine and
appears to be the most qualified in the treatment of muscu
lar pain problems such as those experienced by claimant.
The value of the contrary views of Dr. Wirtz as a one time
evaluator hired by defendants is quite limited.
Therefore, it is found that the permanent impairment of
March 10, 1989 extends beyond the arm and into the body as a
whole. This is based upon the diagnosis of TOS involving
impairment of an area of the body located in the upper truck
between the neck and shoulder. Claimant also has a general
ized myofascial chronic pain syndrome and resulting psycho
logical depression. Although a portion of this pain may be
attributable to a non-work-related low spine problem, a
major significant factor contributing to this pain and
depression syndrome remains to be TOS and claimant's shoul
der and upper extremity problems. Therefore, the myofascial
pain syndrome and psychological depression is likewise found
to have been caused by the work injury of March 10, 1989.
Page 6
As a result of the injury of March 10, 1989, claimant
was totally disabled from March 10, 1989 through November
22, 1991 except for the period of time she worked at the
nursing home from January 7, 1990 through February 28, 1991.
It is found that claimant reached maximum healing on
November 22, 1991 because Dr. Kienker on that date rated
claimant's impairment and imposed permanent activity
restrictions.
Therefore, it is found that the work injury of March
10, 1989 was a cause of a significant permanent impairment
to the body as a whole. Claimant had no prior impairment.
The exact percentage of impairment loss is not important to
a loss of earning capacity for industrial disability cases.
More important to such an analysis are the activity restric
tions imposed by Dr. Kienker. As a result of these restric
tions, claimant's medical condition prevents her from
returning to her former work at Rolscreen or any other work
requiring claimant to violate her work restrictions, includ
ing work as a nurse's aide in a nursing home where heavy
lifting is required. Claimant's only past work history has
been either at Rolscreen or as a nurse's aide. Rolscreen
failed to offer a return to work in any capacity and has
failed to offer any vocational rehabilitation services to
claimant.
On the other hand, claimant is relatively young at age
29 and is a high school graduate. She appeared intelligent
and articulate at hearing. Claimant has not shown that she
is incapable of sedentary office type work. Retraining
appears to be a viable alternative. However, claimant today
remains unemployed despite an effort to find suitable work
in the area of her residence.
Therefore, after examination of all of the factors of
industrial disability, it is found as a matter of fact that
the work injury of March 10, 1989 was a cause of a 40 per
cent loss of earning capacity.
CONCLUSIONS OF LAW
I. Defendants, for reasons that are not apparent,
raised an affirmative defense in the prehearing report of
occupational disease. It has been recently decided by this
agency that carpal tunnel syndrome, categorically, is to be
compensated as an injury under Chapter 85 of the Iowa Code,
not as an occupational disease under Chapter 85A. Noble v.
Lamoni Products, File Nos 857575 & 851309 (Appeal Decision,
May 7, 1992). In any event, it was found in this case that
the injury extended into the body as a whole. Therefore,
the issue of injury or disease appears moot.
Claimant has the burden of proving by a preponderance
of the evidence that claimant received an injury arising out
of and in the course of employment. The words "out of"
refer to the cause or source of the injury. The words "in
the course of" refer to the time and place and circumstances
of the injury. See generally, Cedar Rapids Community Sch.
v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol.
Page 7
Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer
takes an employee subject to any active or dormant health
impairments. A work connected injury which more than
slightly aggravates the condition is considered to be a per
sonal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620,
106 N.W.2d 591 (1961), and cases cited therein.
It is not necessary that claimant prove his disability
results from a sudden unexpected traumatic event. It is
sufficient to show that the disability developed gradually
or progressively from work activity over a period of time.
McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa
1985). The McKeever Court also held that the date of injury
in gradual injury cases is the time when pain prevents the
employee from continuing to work. In McKeever the injury
date coincided with the time claimant was finally compelled
to give up his job. This date was then used by the Court to
determine rate and the timeliness of claimant's claim under
Iowa Code section 85.26 and notice under Iowa Code section
85.23.
In the case sub judice, the fighting issue was not the
occurrence of a work injury but the nature and extent of
such an injury. Also, this agency may choose an injury date
other than those alleged to conform to the facts in a cumu
lative trauma case. McCoy v. Donnaldson Company, Inc., No.
752670 (Appeal Decision, April 28, 1989).
II. As the claimant has shown that the work injury was
a cause of a permanent physical impairment or limitation
upon activity involving the body as a whole, the degree of
permanent disability must be measured pursuant to Iowa Code
section 85.34(2)(u). However, unlike scheduled member dis
abilities, the degree of disability under this provision is
not measured solely by the extent of a functional impairment
or loss of use of a body member. A disability to the body
as a whole or an "industrial disability" is a loss of earn
ing capacity resulting from the work injury. Diederich v.
Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899
(1935). A physical impairment or restriction on work activ
ity may or may not result in such a loss of earning capac
ity. Examination of several factors determines the extent
to which a work injury and a resulting medical condition
caused an industrial disability. These factors include the
employee's medical condition prior to the injury, immedi
ately after the injury and presently; the situs of the
injury, its severity and the length of healing period; the
work experience of the employee prior to the injury, after
the injury and 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. See Peterson v. Truck Haven Cafe, Inc., (Appeal
Decision, February 28, 1985).
In the case sub judice, it was found that claimant suf
Page 8
fered a 40 percent loss of her earning capacity as a result
of the work injury. Such a finding entitles claimant to 200
weeks of permanent partial disability benefits as a matter
of law under Iowa Code section 85.34(2)(u) which is 40 per
cent of 500 weeks, the maximum allowable number of weeks for
an injury to the body as a whole in that subsection.
Claimant's entitlement to permanent partial disability
also entitles her to weekly benefits for healing period
under Iowa Code section 85.34 from the date of injury until
claimant returns to work; until claimant is medically capa
ble of returning to substantially similar work to the work
she was performing at the time of injury; or, until it is
indicated that significant improvement from the injury is
not anticipated, whichever occurs first. Given the findings
as to time lost and the date claimant reached maximum heal
ing, healing period benefits will be awarded accordingly.
ORDER
1. Defendants shall pay to claimant two hundred (200)
weeks of permanent partial disability benefits at a rate of
one hundred ninety-one and 72/l00 dollars ($191.72) per week
from November 23, 1991.
2. Defendants shall pay to claimant healing period
benefits from March 10, 1989 through January 16, 1990 and
from February 29, 1991 through November 22, 1991, at the
rate of one hundred ninety-one and 72/l00 dollars ($191.72)
per week.
3. Defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against this award for
weekly benefits previously paid.
4. Defendants shall pay interest on weekly benefits
awarded herein as set forth in Iowa Code section 85.30.
5. Defendants shall pay the costs of this action pur
suant to rule 343 IAC 4.33, including reimbursement to
claimant for any filing fee paid in this matter.
6. Defendants shall file activity reports on the pay
ment of this award as requested by this agency pursuant to
rule 343 IAC 3.1.
Signed and filed this ____ day of July, 1992.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Philip F. Miller
Page 9
Attorney at Law
Saddlery Building, Suite 200
309 Court Avenue
Des Moines, Iowa 50309
Mr. D. Brian Scieszinski
Attorney at Law
801 Grand Avenue
Suite 3700
Des Moines, Iowa 50309
5-1803
Filed July 15, 1992
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
STACY L. MONTGOMERY, :
:
Claimant, :
:
vs. : File Nos. 919123;
: 979225; 979226
ROLSCREEN, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
EMPLOYERS MUTUAL INS. CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1803
Non-precedential, extent of disability case.