BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
RICHARD CHARLES WOLTHUIS, :
:
Claimant, :
:
vs. :
: File No. 981321
SHINE BROTHERS CORP., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
CNA INS. CO., :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Richard
Charles Wolthuis, claimant, against Shine Brothers Corpora
tion, employer, hereinafter referred to as Shine, and CNA
Insurance Company, insurance carrier, defendants, for
workers' compensation benefits as a result of an alleged
injury on May 20, 1989. On March 19, 1993, a hearing was
held on claimant's petition and the matter was considered
fully submitted at the close of this hearing.
The parties have submitted a hearing report of
contested 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 hearing report, the parties have stip
ulated that an employee-employer relationship existed
between claimant and Shine at the time of the alleged
injury.
ISSUES
The parties submitted the following issues for determi
nation in this proceeding:
I. Whether claimant received an injury arising out
of and in the course of employment;
II. Whether claimant gave timely notice of injury;
III. The extent of claimant's entitlement to disabil
ity benefits; and
Page 2
IV. The extent of claimant's entitlement to medical
benefits.
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
Claimant worked for Shine for approximately 10 years.
At the time of his claimed injury, claimant was a foreman of
the steel/iron yard. Claimant supervised three workers.
Claimant was a working foreman, assisting his helpers which
included operation of yard equipment.
Claimant testified that he received his work injury
when he was jostled about in the cab of a tracked backhoe
crane used to load, unload and cut-up heavy items of scrap.
On the date of the alleged injury, May 20, 1989, claimant
was sorting and lifting crushed combines using a Kamatsu
excavator fitted on the end of the boom with a Mosley metal
shear instead of a bucket. This shear was hydraulically
operated to not only pick up and drop scrap but to cut scrap
to workable size chunks. Claimant stated that he picked up
a crushed combine on one occasion with the boom and the
excavator tipped lifting the back track off the ground.
When he lowered the boom, claimant said that the Mosley
sheared through and released the combine causing the excava
tor to fall backwards throwing claimant forward about the
cab. Both claimant and defendants agree that this combine
would weigh no more than 3000 pounds. Claimant states that
he suffered right leg pain and, after a break, began to
experience numbness in the fingers in the right hand and leg
and eventually entirely on the right side including his
face.
Claimant stated to insurance adjusters and at hearing
that he talked about the incident with two of his employees
in the yard during break. He stated that he asked Shine's
office manager for a doctor appointment with the company
doctor that day but was told that arrangements could not be
made until the following Monday. Claimant did go to the
office of the company doctor, J. E. Kelly, M.D., on May 22,
1989, a Monday, but was treated by a young physician intern
ing in the office, David Robinson, D.O. Dr. Robinson diag
nosed high blood pressure and dental problems and began
treating claimant for these problems. In June, claimant's
care was transferred to Dr. Kelly when Dr. Robinson left to
complete his residency. Dr. Kelly continued to treat
claimant over the next several months for high blood pres
sure but continued to note right sided complaints of pain
and numbness.
Claimant went to a chiropractor, Vernon Tieszen, D.C.,
in July, 1989 complaining of right side problems and
received approximately 15 treatments upon a diagnosis of
Page 3
subluxation at various levels in the cervical, thoracic and
lower spine. It was noted by Dr. Tieszen in his September
11, 1990 report that he advised claimant at that time that
his continual work could continue to aggravate his condi
tion. When treatment failed to alleviate claimant's prob
lems, Dr. Tieszen recommended that claimant go to the Mayo
Clinic for evaluation.
In November, Dr. Kelly referred claimant for neurologi
cal evaluation to Keith McLarnon, M.D. The only impression
reached by Dr. McLarnon after this evaluation was possible
carpal tunnel syndrome and he recommended further testing.
In December 1989, Dr. Kelly made an appointment for
claimant at the Mayo clinic and claimant was evaluated by
the Clinic in January 1990. Physicians at this Clinic and
specifically a neurologist, Richard J. Caselli, M.D., diag
nosed that claimant suffers from cervical syringomyelia, a
condition in which a cavity develops in the center of the
spinal cord that fills with fluid placing pressure on the
nerve pathways. There was considerable dispute among the
physicians in this case as to the cause of this condition
and whether claimant's incident on May 20, 1989 could have
caused or aggravated this condition. In any event, severe
work restrictions were placed upon claimant by Dr. Caselli
consisting of no lifting over 25 pounds and no work which
would aggravate the neck. These restrictions prevented a
return to work at Shine. Claimant remains unemployed to
date. Physicians also disagree in this case as to the
necessity of Caselli's restrictions.
After careful review of the evidence, a work injury
could not be found. Initially, claimant's story was totally
believable. However, according to Toby Shine, claimant's
boss, there is a real question whether or not the incident
as described by claimant could happen. According to the
manufacturer, that particular crane should be able to lift
up to 4,800 pounds without tipping and the combine weighed
less than that. Also, the automatic overload valve on the
hydraulic system would by-pass if a safe weight were
exceeded.
Also there is inconsistency in claimant' story. He
stated that he told his fellow workers at Shine of the
incident. Yet, no one remembered the incident. In order to
find for claimant, all of these workers would have to be
found as not credible. Furthermore, there is no mention of
a history of onset after a work injury in the medical
records of Dr. Kelly or claimant's chiropractor until the
evaluation by Dr. McLarnon in November 1989, almost six
months after the alleged incident.
Consequently, this evidence, viewed as a whole, leaves
the undersigned trier-of-fact in a quandary as to who to
believe. There was nothing in the demeanor of any of the
witnesses at hearing that suggest either credibility or the
lack thereof. As set forth in the Conclusion of Law
Page 4
section, in such situations claimant must lose because
claimant has the burden of persuasion. As the undersigned
is unconvinced, claimant cannot prevail.
In light of an inability to find a work injury, further
findings are unnecessary.
CONCLUSIONS OF LAW
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.
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
personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620,
106 N.W.2d 591 (1961), and cases cited therein.
In the case sub judice, the defendants presented enough
evidence to prevent the trier-of-fact from being convinced
that the incident happened as alleged.
As claimant did not prevail, costs are assessed against
him.
Page 5
ORDER
1. Claimant's petition is dismissed with prejudice and
he shall take nothing from this proceeding.
2. Claimant shall pay the costs of this action pur
suant to rule 343 IAC 4.33.
Signed and filed this ____ day of May, 1993.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. Patrick M. Carr
Attorney at Law
201 East Fifth Street
Spencer, Iowa 51301
Mr. Michael P. Jacobs
Attorney at Law
300 Toy National Bank Building
Sioux City, Iowa 51101
5-1l00
Filed May 11, 1993
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
RICHARD CHARLES WOLTHUIS,
Claimant,
vs.
File No. 981321
SHINE BROTHERS CORP.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
CNA INS. CO.,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1100 - Non-precedential
Claimant did not prevail. Deputy unconvinced that the
incident allegedly causing the injury actually happened.
Claimant failed to meet his burden of persuasion.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARGIE SCHAEFER-MOORE,
Claimant,
vs.
File No. 981327
IOWA BANKERS INSURANCE &
SERVICES, INC.,
A P P E A L
Employer,
D E C I S I O N
and
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
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. The decision of the deputy
filed December 16, 1992 is affirmed and is adopted as the
final agency action in this case with the following
additional analysis:
Defendants requested a setoff of any award to claimant for a
judgment against claimant in district court. The judgment
was for an unrelated matter. Defendants' request for setoff
was untimely filed. In addition, there is no statutory
authority for the setoff requested by defendants. A setoff
is denied.
Defendants shall pay the costs of the appeal, including the
preparation of the hearing transcript.
Signed and filed this ____ day of October, 1993.
________________________________
BYRON K. ORTON
INDUSTRIAL COMMISSIONER
Page 2
Copies To:
Mr. Joseph A. Happe
Attorney at Law
500 Liberty Bldg.
418 6th Ave., Ste 500
Des Moines, Iowa 50309-2421
Mr. David D. Drake
Attorney at Law
West Towers Office Complex
1200 35th St., Ste 500
West Des Moines, Iowa 50266
5-1100, 5-1400, 1800, 3400
Filed October 28, 1993
Byron K. Orton
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARGIE SCHAEFER-MOORE,
Claimant,
vs.
File No. 981327
IOWA BANKERS INSURANCE &
SERVICES, INC.,
A P P E A L
Employer,
D E C I S I O N
and
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND,
Insurance Carrier,
Defendants.
____________________________________________________________
5-1100, 5-1400
Claimant met her burden of proof that she had sustained
a work injury which arose out of and in the course of her
employment. She sustained injuries to her neck, shoulder
and upper extremity.
1800
Claimant was held to have sustained a 25 percent
permanent partial disability. She was a highly qualified
insurance salesperson who was required to travel extensively
to call upon customers. After her work injury, claimant was
able to return to work but she wore a cervical collar
whenever she traveled by car or else whenever she endured
excruciating pain.
Several months after the work injury, claimant was
terminated over her contract for compensation. The
termination was unrelated to her work injury.
After her termination, claimant sought conservative
treatment for her injury including osteopathic manipulative
therapy. She also sought treatment from an orthopedic
specialist. Eventually the orthopedist released claimant to
return to work but with restrictions. She was precluded
from lifting weights greater than 30 pounds and from
Page 2
engaging in repetitive extensions of her neck.
Claimant is 54 years old. She was not terminated
because of her physical condition or because her permanent
restrictions precluded her from performing her assigned
duties.
She has had to curtail her driving because of her
condition. She is incapable of driving as much now as she
did at the time of the work injury. The nature of her
business depends upon making customer calls throughout the
state. Since she is unable to travel as much, her
opportunities are lessened. She has incurred a loss of
earning capacity, as well as a loss of earnings.
Claimant, however is not precluded from working in the
insurance industry. She is highly qualified. She has every
certification in her field. She is licensed in Iowa and
other states. She is highly educated. Her experience is
vast. She has had supervisory experience which is a
transferable skill. She has many assets to offer a
prospective employer. She is also capable of operating her
own business. She has made some attempts to form her own
business where she can set her own hours, and establish her
own territories.
3400
Defendants were not allowed a setoff against claimant's
workers' compensation benefits for a jury verdict
defendant-employer obtained for an unrelated matter in the
Iowa District Court.
Page 1
before the iowa industrial commissioner
____________________________________________________________
:
MARGIE SCHAEFER-MOORE, :
:
Claimant, :
:
vs. :
: File No. 981327
IOWA BANKERS INSURANCE & :
SERVICES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
FIDELITY AND DEPOSIT COMPANY, :
OF MARYLAND :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration upon the petition
of claimant, Margie Schaeffer-Moore, against her former
employer, Iowa Bankers Insurance & Services, Inc., and its
insurance carrier, Fidelity and Deposit Co. of Maryland,
defendants. The case was heard on October 19, 1992, in Des
Moines, Iowa at the office of the Industrial Commissioner.
The record consists of the testimony of claimant. The
record also consists of joint exhibits 1-8.
Additionally, at the commencement of the hearing,
defendants filed a motion for leave to amend its answer. In
its motion, defendants requested that it be allowed to
include the following as part of its answer:
COMES NOW the Employer and Insurer, and for
their further affirmative defense, add the
following paragraph to their Amended Answer:
7. The Defendants hereby assert a set off
against any award herein to the extent of any
obligation/verdict imposed on Claimant in the case
now pending in the Iowa District Court for Polk
County, Iowa indexed at "CE 035-20413" and
captioned, "Iowa Bankers Insurance and Services,
Inc. vs Margie V. Schaefer."
WHEREFORE, Defendants pray that the Petition be
dismissed at Claimant's cost and that if an award
is entered herein, that the Defendants be allowed
to set off that award with any verdict obtained
against the Claimant in the above referenced Iowa
District Court action.
The Defendants Employer and Insurer further
Page 2
request leave to submit evidence of the amount of
the set off in a separate hearing after the
Division of Industrial Services enters an
Arbitration Decision.
Claimant vehemently resisted the proposed amendment and
any setoff of a future award in a civil action before the
Iowa District Court.
The hearing deputy did not rule on the motion. A
ruling on the motion to amend was reserved until such time
as the decision was filed.
STATEMENT OF THE ISSUE
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 permanent disability;
3) Whether claimant is entitled to any healing period
or permanent partial disability benefits;
4) Whether claimant is entitled to any medical
benefits pursuant to section 85.27; and
5) Whether defendants are entitled to a setoff against
any weekly benefits for an action in the Iowa District
Court.
findings of fact
Claimant is 54 years old. She has a high school
diploma as well as a bachelor of arts degree in zoology from
Colorado College. In addition, claimant graduated with the
honor of "Phi Beta Kappa." She married and moved to Iowa.
She obtained her Iowa teaching certificate and for one year
she taught high school in Ames, Iowa. However, an archaic
work rule existed at the time, and Ames teachers were not
permitted to teach in the public school setting if they were
pregnant. Since claimant was pregnant with her first child,
she was forced to terminate her employment.
From 1961 until 1972 claimant was employed full time as
a homemaker and mother. She reentered the work arena in
1972 when she worked in the food catering business with a
friend. Claimant left the catering business in 1975 and
entered the insurance industry.
In May of 1975, claimant commenced employment with
Lincoln McGoldrick and Associates as a salesperson. She was
hired to sell life and health insurance, as well as sell
annuities. Because she was so successful, she became the
brokerage manager for the agency. Her duties and
responsibilities grew. She made appointments, and calls
primarily in the hospital setting. She branched out into
the estate planning market which was quite lucrative. She
Page 3
received many awards and incentive trips.
In May of 1980, claimant left her employment in order
to improve her career opportunities. On June 16, 1980, she
commenced her employment with defendant-employer as the
manager of the Life Insurance Department. She was assigned
the task of marketing group life, or health insurance and
annuity programs through payroll deductions for all banks in
Iowa. Her duties intensified over time. She designed sales
materials, trained assistants, and developed over $39
million in licensed annuity products for bankers.
Claimant's duties required extensive traveling
throughout Iowa. She called on bank presidents, directors,
and human resource personnel. Her hours were long. Often,
she was required to attend evening meetings or to perform
paperwork duties in her motel room during evening hours.
Claimant was also responsible for conducting continuing
education seminars throughout the year. Her work was
challenging, to say the least. Because of the nature of her
duties, claimant was frequently required to transport, carry
and lift, briefcases, suitcases, projectors, and other
equipment.
Claimant testified that on the afternoon of April 25,
1990, she drove to a motel in Waverly, Iowa. She related
that when she lifted her suitcase from the car, she felt a
sharp pain at the base of her neck, and at her shoulder near
her collar. She checked into her motel and ate dinner, but
she still felt the pain in her shoulder so she drove home
that evening. On the next day, claimant had her spouse
drive her to her appointments in southern Iowa. Claimant
continued to experience pain until she reached the point
where she felt compelled to seek medical treatment.
On April 27, 1990, claimant sought medical attention
from her family physician, David Musgrave, D.O. He
performed osteopathic manipulation and he prescribed Tylenol
number 3.
Claimant returned to work the next week after the work
injury. She continued performing her regular duties.
However, she wore a soft collar around her neck, especially
when she traveled in a car. Claimant testified that
traveling aggravated her condition, and that her pain
increased whenever she traveled by automobile or by
airplane.
Claimant worked until September 6, 1990, the date she
was terminated. Her termination was unrelated to her
workers' compensation claim. Rather, the termination
centered around a dispute over a contract for compensation.
At the time of her termination claimant was earning $51,270
per year. Following her termination, defendant-employer
sued claimant in the Iowa District Court for money damages.
The lawsuit was unrelated to the workers' compensation
claim. A jury trial was held and the verdict was in favor
of defendant and against claimant.
Subsequent to her termination from defendant-employer,
Page 4
claimant entered the hospital for an unrelated surgery due
to an intestinal blockage. She was released to return to
work in January of 1991. Claimant then began exploring the
possibilities for self-employment in the insurance industry.
She engaged in duties involving traveling, typing, mailing,
and telephoning. She then also began experiencing
difficulties with her neck, shoulders and upper extremities.
Claimant was referred to an orthopedic specialist,
Robert Hayne, M.D. in February of 1991. In his report of
September 10, 1992, Dr. Hayne opined:
...
Neurological examination on February 28th showed
the cranial nerves to be normal. The blood
pressure was 145/80. The neck was only mildly
restricted in range of passive motion. The deep
reflexes are 0-1+ throughout with, however some
weakness of extension of the right forearm.
Recent x-rays of the cervical spine reveal
narrowing at the 5th cervical interspace with an
MRI made recently showing evidence of a herniated
disc at the 5th and 6th cervical interspaces.
A cervical myelogram was made at Methodist
Hospital on 3/14/91. Deformity was demonstrated
bilaterally in the opaque column opposite the C6-7
interspace. The changes were slightly greater on
the right. There was also deformity noted in the
lateral aspect of the opaque column at the C5-6
level.
The fifth cervical interspace was not particularly
remarkable on the myelographic study.
The patient was seen for follow-up examination on
5/15/91. At that time, she was much improved.
She was still wearing a soft collar.
Neurological examination on that date showed the
biceps reflex and the triceps reflex to be
diminished on the left as compared to the right.
She was to return to work on June 1, 1991, with a
30-pound weight lifting limit.
She was seen, on the last occasion, on 6/1/92.
she stated that pain was persisting over the
lateral aspect of the right upper extremity and
the side of the neck on the right side. There was
some tingling of the radial two fingers of the
right hand.
Neurological examination on that date showed some
weakness of extension of the right forearm. It
was felt advisable for her to continue on
symptomatic measures with the patient being
cautioned to avoid excessive lifting and also
activity entailing extension of the neck.
Page 5
The final diagnosis is spondylosis at the 5th and
6th cervical interspaces with some herniation of
the 6th cervical intervertebral disc on the right
side. This involvement of the cervical spine
appears to be related to the lifting incident back
in April, 1990. In view of the recent
improvement, I felt that no specific treatment was
indicated. Her permanent disability at the time
of my examination appeared to be approximately
twelve percent of total. If she were to require
surgical treatment, the permanent disability
could, in all probability, be reduced to seven or
eight percent of total.
It is recommended that with or without surgical
treatment, she should restrict her lifting to
weights not over 30 pounds and should avoid
repetitious extension of her neck. At this time,
Mrs. Schaefer-Moore can continue on symptomatic
conservative measures. If her symptoms should
increase sufficiently in severity she may be a
candidate then for diskectomy and interbody fusion
at the 5th and 6th cervical interspaces.
Claimant did not desire to have any cervical surgery.
She indicated she wanted to follow a conservative mode of
treatment.
At the time of the hearing, claimant was still engaged
in self-employment as an insurance salesperson. Her hours
were part-time and she had earned little money. In 1991,
she earned $2,899 net income while she had earned $6,000
gross income for 1992.
CONCLUSIONS OF LAW
The first issue to address is whether claimant has
sustained an injury which arose out of and in the course of
her employment. The claimant has the burden of proving by a
preponderance of the evidence that the alleged injury
actually occurred and that it arose out of and in the course
of employment. McDowell v. Town of Clarksville, 241 N.W.2d
904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352,
154 N.W.2d 128 (1967). The words "arising out of" refer to
the cause or source of the injury. The words "in the course
of" refer to the time, place and circumstances of the
injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986);
McClure v. Union County, 188 N.W.2d 283 (Iowa 1971).
The claimant has the burden of proving by a
preponderance of the evidence that the injury is a proximate
cause of the disability on which the claim is based. A
cause is proximate if it is a substantial factor in bringing
about the result; it need not be the only cause. A
preponderance of the evidence exists when the causal
connection is probable rather than merely possible.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296
(Iowa 1974).
Page 6
The question of causal connection is essentially within
the domain of expert testimony. The expert medical evidence
must be considered with all other evidence introduced
bearing on the causal connection between the injury and the
disability. The weight to be given to any expert opinion is
determined by the finder of fact and may be affected by the
accuracy of the facts relied upon by the expert as well as
other surrounding circumstances. The expert opinion may be
accepted or rejected, in whole or in part. Sondag v. Ferris
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer,
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
The claimant has met her requisite burden of proof that
she has sustained a work injury on April 25, 1990. Claimant
is credible. Her rendition of the work injury is
believable. While it is acknowledged that Claimant has
sustained a prior work injury to her neck and shoulders, in
1987, she has sustained no permanent disability as a result
of the 1987 injury. There is no other explanation posed for
the cause of her present condition other than the work
injury in question.
Likewise, claimant has established the requisite causal
connection. All medical experts relate claimant's condition
to the work injury on April 25, 1990. Their expert opinions
are unrefuted. No physician relates claimant's condition to
anything other than to the work injury. Claimant's
condition is related to her work injury.
The next issue addresses the nature and extent of
claimant's condition.
Dr. Hayne opined claimant has a permanent functional
impairment between 7 and 12 percent. His opinion is
unrefuted. He has placed permanent restrictions on
claimant's activities. She is precluded from lifting
weights greater than 30 pounds, and from engaging in
repetitive extensions of her neck. Generally, these are
severe permanent restriction.
Claimant has an industrial disability. She is 54 years
old. However, because claimant has usually been employed in
sedentary positions, her restrictions are not as severe as
they would be for a person engaged in heavier type labor
positions. Claimant has not been terminated because of her
physical condition or because her permanent restrictions
have precluded her from her employment with defendant. She
has been terminated for other reasons. Prior to the date of
her termination, claimant was able to perform her job
duties, although she performed them wearing a cervical
collar, or else she performed them while she was in
excruciating pain. There is no question in this deputy's
mind that Claimant has had to curtail her driving because of
her work injury. She is incapable of driving as much now as
she did in 1990. The nature of her business depends upon
making personal customer calls throughout the state. Since
she is unable to travel as much, her business is curtailed
to some degree. Consequently, she has incurred a loss of
earning capacity, as well as a loss of actual earnings.
Page 7
Claimant, however, is not precluded from working in the
insurance industry. She is highly qualified. She has every
certification in her field. She is licensed in Iowa, and
other states. She is highly educated. Her experience is
vast. She has had supervisory experience which is
transferable. She has many assets to offer a prospective
employer. She is also capable of operating her own
business. She has made some attempts to form her own
business where she can set her own hours and territories.
Therefore, after reviewing the evidence, after
listening to the testimony and after observing claimant, it
is the determination of this deputy that claimant has a 25
percent permanent partial disability. She is entitled to
125 weeks of benefits at the stipulated rate of $565.03 per
week and commencing on June 1, 1991.
Likewise, claimant is entitled to some healing period
benefits.
Section 85.34(1) provides that healing period benefits
are payable to an injured worker who has suffered permanent
partial disability until (1) the worker has returned to
work; (2) the worker is medically capable of returning to
substantially similar employment; or (3) the worker has
achieved maximum medical recovery. The healing period can
be considered the period during which there is a reasonable
expectation of improvement of the disabling condition. See
Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa
Ct. App. 1981). Healing period benefits can be interrupted
or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa
1986).
In the case at hand, claimant is requesting benefits
from January 19, 1991 through May 31, 1991. During this
time frame, Claimant was experiencing difficulties with her
neck, shoulder, and upper extremity. She sought treatment
from Dr. Hayne, an orthopedic specialist. He released
claimant to return to work on June 1, 1991. Claimant is
entitled to 19 weeks of healing period benefits for the
aforementioned period.
Claimant is also requesting medical benefits pursuant
to section 85.27.
The employer shall furnish reasonable surgical,
medical, dental, osteopathic, chiropractic, podiatric,
physical rehabilitation, nursing, ambulance and hospital
services and supplies for all conditions compensable under
the workers' compensation law. The employer shall also
allow reasonable and necessary transportation expenses
incurred for those services. The employer has the right to
choose the provider of care, except where the employer has
denied liability for the injury. Section 85.27. Holbert v.
Townsend Engineering Co., Thirty-second Biennial Report of
the Industrial Commissioner 78 (Review-reopen 1975).
It is the determination of this deputy industrial
commissioner that claimant is entitled to the following
Page 8
medical benefits:
Central Iowa Radiology $288.00
2-14-91
Dr. David Musgrave 900.00
4-27-90 to 10-29-91
Iowa Methodist Medical Center 731,77
3-14-91
Robert Hayne, M.D. 320.50
2-28-91 to 6-1-92
Radiology, P.C. 185.00
3-14-91
Des Moines General Hospital 802.00
2-14-91
Hammer Medical Supply 47.32
6-5-90
Prescription Expense $ 59.24
TOTAL $3,333.83
The final issue to address is whether defendants are
entitled to a setoff of workers' compensation benefits
against the jury award in an unrelated civil action in the
Iowa District Court. As mentioned previously, defendants
filed its motion.
Section 627.13 of the Iowa Code provides that:
nefits from January 19, 1991
through May 31, 1991 at the stipulated rate of five hundred
sixty-five and 03/100 dollars ($565.03) per week.
Defendants are also liable for three thousand three
hundred thirty-three and 83/100 dollars ($3,333.83) in
reasonable and necessary medical expenses pursuant to
section 85.27 of the Iowa Code.
Accrued benefits are to be paid in a lump sum together
with statutory interest at the rate of ten percent (10%) per
year pursuant to section 85.30, Iowa Code, as amended.
Defendants shall receive credit for any workers'
compensation benefits previously paid.
Costs are taxed to defendants pursuant to rule 343 IAC
4.33.
Defendants shall file a claim activity report as
requested by this division and pursuant to rule 342 IAC 3.1.
Signed and filed this ____ day of December, 1992.
______________________________
MICHELLE A. MCGOVERN
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. David D. Drake
Attorney at Law
West Towers Office Complex
1200 35th St., Suite 500
West Des Moines, IA 50265
Mr. Joseph A. Happe
Attorney at Law
418 6th Ave.
500 Liberty Building
Des Moines, IA 50309-2421
Page 1
51100, 51400, 1800, 3400
Filed December 16, 1992
Michelle A. McGovern
before the iowa industrial commissioner
____________________________________________________________
:
MARGIE SCHAEFER-MOORE, :
:
Claimant, :
:
vs. :
: File No. 981327
IOWA BANKERS INSURANCE & :
SERVICES, INC., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
FIDELITY AND DEPOSIT COMPANY, :
OF MARYLAND :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
51100, 51400
Claimant met her burden of proof that she had sustained
a work injury which arose out of and in the course of her
employment. She sustained injuries to her neck, shoulder
and upper extremity.
1800
Claimant was held to have sustained a 25 percent
permanent partial disability. She was a highly qualified
insurance salesperson who was required to travel extensively
to call upon customers. After her work injury, claimant was
able to return to work but she wore a cervical collar
whenever she traveled by car or else whenever she endured
excruciating pain.
Several months after the work injury, claimant was
terminated over her contract for compensation. The
termination was unrelated to her work injury.
After her termination, claimant sought conservative
treatment for her injury including osteopathic manipulative
therapy. She also sought treatment from an orthopedic
specialist. Eventually the orthopedist released claimant to
return to work but with restrictions. She was precluded
from lifting weights greater than 30 pounds and from
engaging in repetitive extensions of her neck.
Claimant is 54 years old. She was not terminated
because of her physical condition or because her permanent
restrictions precluded her from performing her assigned
Page 2
duties.
She has had to curtail her driving because of her
condition. She is incapable of driving as much now as she
did at the time of the work injury. The nature of her
business depends upon making customer calls throughout the
state. Since she is unable to travel as much, her
opportunities are lessened. She has incurred a loss of
earning capacity, as well as a loss of earnings.
Claimant, however is not precluded from working in the
insurance industry. She is highly qualified. She has every
certification in her field. She is licensed in Iowa and
other states. She is highly educated. Her experience is
vast. She has had supervisory experience which is a
transferable skill. She has many assets to offer a
prospective employer. She is also capable of operating her
own business. She has made some attempts to form her own
business where she can set her own hours, and establish her
own territories.
3400
Defendants were not allowed a setoff against claimant's
workers' compensation benefits for a jury verdict
defendant-employer obtained for an unrelated matter in the
Iowa District Court.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BONNIE JO GLAWE, :
:
Claimant, :
:
vs. :
: File No. 981347
HAROLD ROWLEY RECYCLING :
CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This case came on for hearing on July 22, 1992, at
Storm Lake, 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 February 19, 1991. The record in the
proceedings consist of the testimony of the claimant and
John Green; and, joint exhibits 1 through 33.
ISSUES
The issues for resolution are:
1. Whether claimant incurred an injury on February 19,
1991, which arose out of and in the course of her
employment;
2. Whether there is a causal connection as to any
temporary or permanent disability as a result of an alleged
February 19, 1991 work injury;
3. The nature and extent of claimant's disability and
entitlement to disability benefits;
4. When any benefits would in fact begin;
5. The rate at which any benefits, if liability is
found, would be; and,
6. Claimant's entitlement to 85.27 medical benefits.
The issues being causal connection, authorization and
reasonable and necessary treatment. It was agreed that
liability was denied.
FINDINGS OF FACT
Page 2
The undersigned deputy, having heard the testimony and
considered all the evidence, finds that:
Claimant is approximately 30 years old and completed
the tenth grade, quitting high school in the eleventh grade
at age 16 in 1976. She obtained her GED around 1987 or
1988. Claimant had additional education of seven months as
a medical secretary and was certified in CPR and received a
nurse's aide certificate and went to school to be an LPN for
one semester. She related her work history as that
involving detasseling, consumer supply, seasonal work,
fabric care, working in a hotel, working in a clinic,
working in a nursing home, and then beginning work with
defendant employer in December 1990. Claimant said she took
a pre-employment physical and x-rays were taken (Joint
Exhibits 5 and 6). Claimant indicated there was no problems
concerning her physical and she was hired beginning December
17, 1990, as general labor at $5 per hour. She eventually
changed her position and receivied $5.50 per hour.
Claimant related her duties at the plant as involving
line inspection, picking off plastic or cardboard, cleaning
windows, clearing ditches, picking up tin which blew off
truck. She indicated that about two hours per day they had
plant cleanup.
Claimant described her motions as she worked picking
certain required things out of the junk that had been piled
at the beginning of the conveyor belt on a table that is
able to be controlled as far as speed.
Claimant said she first noticed her problem around
February 19 to 24, 1991, and reported it to her supervisor.
Claimant referred to various medical services rendered
and particularly was referred to joint exhibit 7 in which
the doctor at Buena Vista Clinic did not think claimant had
evidence of carpal tunnel at that time on April 9, 1991.
Claimant then was referred to joint exhibit 8 (May 3, 1991)
in which the doctor at that time indicated in his notes that
claimant had a mild early bilateral carpal tunnel syndrome.
On April 23, 1991, claimant indicated she was not able
to work. This is also reflected in joint exhibit 4, page 2,
in which claimant also indicated she had lost her job.
On cross-examination, claimant acknowledged that she
had consulted an attorney on April 1, 1991. She indicated
that when she was hired she was on a 90 day probationary
period and that her boss wanted to extend that for 30 days.
The claimant wasn't sure why it was necessary or the reason
therefor. Claimant indicated the main reason at that time
for seeing an attorney was whether she needed to sign
another 30 day probationary period document as she had
already worked 120 days. She indicated that while at the
attorney's and discussing this overall matter, it was
suggested that under the circumstances it would be wise also
for her to send a report of injury concerning her intent to
file a workers' compensation claim. Claimant sent notice of
injury to the defendant employer by certified mail on April
Page 3
6 and it was signed by the employer on April 9, 1991.
Claimant indicated the only reaction she got was being
terminated the following day, April 10, 1991. Claimant
indicated that after she went to the doctor on April 2,
1991, as to her alleged workers' compensation injury, it was
on April 3 that she was approached regarding signing an
additional 30 day probationary slip because defendant
employer wanted to reserve the right to further observe her.
Claimant indicated that the week prior to this she was
informed she was an excellent worker and that they didn't
want to get rid of her but they also didn't want to be
liable for injuries (Jt. Ex. 33, pp. 46-49). Claimant
acknowledged that she has never held a job for more than 120
days except possibly one job that lasted as long as five to
six months. Claimant also indicated that she has not been
employed since April 10, 1991, nor applied for any jobs up
to the date of her deposition on July 17, 1992 (Jt. Ex. 33,
p. 52).
Claimant also indicated that it was not her intent to
go back to work in December 1990, but when the opportunity
came up to become employed, she decided to go ahead and
apply with defendant employer.
Claimant acknowledged that it wasn't until April 23,
1991, after she had left her employment that she consulted
her family physician, Patricia J. Harrison, M.D. with
complaints of difficulties with her hands and arms. She
indicated that the company doctor, Scott Wulfkhuhler, was
unable to diagnose her condition at the time even though he
thought her symptoms were suspicious. She indicated he did
not have the ability to perform the type of testing
necessary (Jt. Ex. 33, p. 54).
Claimant testified at the hearing as to her various
medical services, contacts with doctors and what she
understood they told her or were doing for her. There were
about three occasions in which claimant disagreed with what
the doctor had put down in writing. The undersigned
believes there is no reason to set out claimant's positions
or understanding concerning this medical as the medical
records will be reviewed and the necessary items will be set
out herein. Claimant contends that her healing period began
April 23, 1991 up through February 10, 1992. It appears
they are basing this on joint exhibit 11, page 1, which on
February 10, 1992, the doctor said he was going to release
her to work. There are other notations on this date by the
doctor which claimant testified that she disagreed with the
doctor's notes. The undersigned believes the disagreement
had to do with the area of her anatomy where the doctor
indicated on that date that the claimant was not having any
trouble with the numbness and tingling as she had before and
that her hands are actually feeling fairly normal.
On page 1 of joint exhibit 11, the doctor indicated on
December 30, 1991, that claimant had reached maximum
healing.
Defendants contend that if there is liability,
claimant's healing period at most began July 29, 1991, which
Page 4
was the date claimant had her first carpal tunnel surgery
involving the right hand and claimant then reached maximum
healing through October 31, 1991. Defendants draw that
conclusion from joint exhibit 12, page 2, in which the same
doctor as referred to above opined on October 31, 1991, that
claimant appeared to have good results from her carpal
tunnel release and that the impairment rating as to
claimant's carpal tunnel release would be zero but that due
to her persistent problem with her shoulder discomfort that
he felt to be secondary to an overuse syndrome, he opined
claimant had a 6 percent permanent impairment of the right
upper extremity and 4 percent of the left upper extremity
based on loss of motion of the shoulders.
John Green, who had worked with defendant employer as
plant manager and who has for the last five months been
working for the Sioux City Waste Department, testified that
he was familiar with claimant and that he was at defendant
employer when claimant began work. He described claimant's
assignments and indicated he had talked to claimant and
others about missing a lot of Styrofoam in the junk by
allowing it to pass on through instead of being taken off
the conveyor. He mentioned other occasions and other items
that were not retrieved by the claimant and others as
required. Mr. Green indicated he was not satisfied with
claimant's performance and that he had talked with claimant
concerning this as well as others including the foreman
having talked to claimant. Mr. Green indicated he was not
satisfied with the claimant's performance and had talked to
her more about her performance than the others. He had
reservations as to claimant's ability to work at the tip
table position. Mr. Green indicated that the reason for the
30 day probation periods is because of switching from one
particular job to another. He indicated claimant's
additional 30 days was to begin March 7, 1991.
Mr. Green insisted that claimant was taken off the job
or terminated based on job performance and not her physical
complaints.
He indicated that when claimant declined to sign the
extra 30 day probation, he had already asked the commission
to evaluate claimant and the fact that she was not doing her
job correctly.
Mr. Green agreed that he did recommend claimant's
employment be terminated based on her job performance and
not on any physical condition. Mr. Green emphasized that he
was getting complaints from another employee as to claimant
not doing her job.
Joint exhibit 5, page 1, shows a December 15, 1990
physical claimant was given and it showed nothing unusual.
Claimant's medical records over the years prior to that time
basically show nothing unusual and claimant was not
suffering any physical problems prior to beginning work for
defendant employer that would prevent her from doing the
kind of jobs required of defendant employer.
Joint exhibit 10, page 1, is the Sioux Valley Memorial
Page 5
Hospital records dated June 19, 1991, and indicated an
impression that claimant had a bilateral diffused overuse
syndrome of the upper extremities, especially flexor
tendinitis and some carpal tunnel syndrome symptoms.
The claimant has picked February 19, 1991, as to her
alleged injury date. The undersigned is not certain from
the medical records and the nature of her condition how she
arrived at that date. On joint exhibit 13, page 1, a July
18, 1991 letter of Dr. Rick Wilkerson, he indicates that
claimant had a bilateral carpal tunnel syndrome right worse
than on the left and indicated she can continued
conservative treatment until she was no able to tolerate the
symptoms. Claimant indicated to him that she would like to
have something done soon because of the effect her condition
was having on her and the pain involved. The doctor then
scheduled her for a right carpal tunnel for July 29, 1991
(Jt. Ex. 14, p. 1). On September 9, 1991, she had a left
carpal tunnel surgery (Jt. Ex. 13, p. 2). The undersigned
believes that as to an injury date, the actual injury date
if liability is found would be July 29, 1991 instead of the
February date.
The parties further agree that if liability is found,
the injury would be a bilateral simultaneous upper extremity
injury under 85.34(2)(s), even though there has been
indications in the record as to neck or shoulder injuries.
It is obvious from the records and the parties' stipulation
that whatever injuries there would be they would involve
claimant's upper extremity. It would also be obvious from
the record, even though we have two carpal tunnel surgeries
involved which usually involves a wrist which is considered
part of the hand, that because of the overall medical
condition, complaints and areas of complaints concerning
claimant, when the parties refer to the upper extremity they
are referring to claimant's arms and are not using the
general terminology of extremity to refer to the particular
two hands. If it were otherwise, the undersigned would
believe the parties would stipulate that if there was
liability found, it would be a bilateral carpal tunnel
and/or a bilateral injury to the hands.
Joint exhibit 15, page 4, is a letter drafted by
defendants' attorney posing some questions to the doctor to
nail down certain issues that were in dispute. The
undersigned believes that this is a well drafted letter and
represents the particular issues involved and that the
doctor answered them in accordance with not only his medical
opinion but they are substantiated also by other evidence in
this record. Dr. Wilkerson is also the surgeon who
performed claimant's bilateral carpal tunnel surgeries, left
and right upper extremities.
Defendants contend that claimant's injury did not arise
out of and in the course of claimant's employment. The
undersigned mentioned earlier that if in fact there is an
injury, it would appear it would not be February 19, 1991,
under McKeever Custom Cabinets v. Smith, 379 N.W.2d 368
(Iowa 1985), but would be when claimant, because of injury,
first missed work.
Page 6
This agency has held that the deputy is not bound in
cases of this nature to the alleged injury date if another
date is more applicable. Deheer v. Clarklift of Des Moines,
File No. 804325 (May 12, 1989); McCoy v. Donaldson Company,
Inc., File Nos. 805200 and 752670 (April 28 1989); Shank v.
Mercy Hospital Medical Center, File No. 719627 (August 28,
1989).
Claimant had a pre-employment physical. There is no
evidence in the record that claimant was suffering from an
injury or cumulative upper extremity injury prior to
beginning employment in December of 1990 with defendant
employer. Claimant has had a very meager work history prior
to beginning work for defendant employer and in fact for a
period of approximately from 1979 to 1989 she was not
employed at all for any practical purposes and claimant's
work history has indicated she has not worked prior to
working for defendant employer more than 120 days for anyone
except one which may have been a five to six month stint.
The undersigned finds that claimant did incur an injury
which arose out of and in the course of her employment and
this work injury occurred on July 29, 1991, which is the
date claimant had her right carpal tunnel surgery and missed
or would have missed work because of that surgery.
The defendants additionally contend that because of the
approximate two months claimant was working for defendant
that she could not in that period of time incur a cumulative
injury in that two month period of time and considering the
nature of her work. There is some merit in defendants'
contention and yet based on claimant's history and her
physical condition, which condition the employer takes
claimant as she is, there is no other known cause in the
record why claimant would develop this type of cumulative
injury. The nature of work at defendant employer is such
that it is evident that claimant would have to be doing
repetitive work pulling certain types of trash or recyclable
material out of trash and this required reaching, throwing,
etc., and operating at a rather fast pace.
The parties stipulated that if liability is found it
would be a simultaneous bilateral upper extremity injury
under 85.34(2)(s). Claimant had two carpal tunnel injuries.
Claimant is also complaining of additional upper extremity
injuries or medical problems. There is nothing specifically
in the record in which a doctor uses the word causal
connection. Yet, taking the record as a whole and the facts
obviously show that the medical condition resulting in the
surgeries was the result of claimant's work injury,
particularly after the undersigned has found that these
injuries arose out of and in the course of claimant's
employment. The undersigned therefore finds that claimant
incurred a work injury on July 29, 1991, which caused
claimant to incur a bilateral simultaneous upper extremity
injury. The surgeon, Dr. Wilkerson opined that claimant had
a 6 percent and 4 percent impairment of the right and left
upper extremity, respectively (Jt. Ex. 12, page 2).
Applying 85.34(2)(s) and converting the 6 percent right
upper extremity which equals 4 percent body as a whole, and
Page 7
the 4 percent left upper extremity impairment which equals 2
percent body as a whole and converting them under the charts
of the AMA Guides to the Evaluation of Permanent Impairment,
results in claimant incurring a 6 percent body as a whole
injury which equals 30 weeks (500 x 6%).
The parties are disputing the extent of healing period
if liability is found.
Claimant contends the healing period begins April 23,
1991, which is the date that Dr. Harrison indicated pursuant
to questions asked by claimant or a comment made by
claimant, that she was not able to work, and that said
healing period ended February 10, 1992, which is the date
claimant contends Dr. Wilkerson released her to return to
work. Defendants contend that if liability is found,
claimant's healing period would begin July 29, 1991, the
date of her first carpal tunnel surgery and would end
October 31, 1991, which is the date Dr. Wilkerson, the
surgeon, specifically on more than one occasion indicated
was the date that claimant reached maximum healing period
(Jt. Ex. 15, p. 4). Claimant obviously has not carefully
read 85.34(1) healing period and has chosen to pick one of
the alternatives which would best suit the claimant's
position. Said section provides that whichever of the three
alternative first occur, is the one that applies. In this
case at bar, the claimant reached maximum healing period on
October 31, 1991 and the undersigned so finds. As to the
beginning date, the evidence shows that claimant was
terminated around April 10, 1991. The undersigned does not
find that the termination was due substantially because of
claimant's physical condition or the fact that she was
claiming a workers' compensation injury. The undersigned
believes claimant could have continued working and that the
April 23, 1991 date was the date that was more or less a
suggested or resulted from claimant's subjective complaints
and not any diagnosis by the doctor. The undersigned
therefore finds that claimant's July 29, 1991 work injury
caused her to incur 13.429 weeks of healing period.
Therefore, any permanent partial disability benefits would
begin on November 1, 1991.
The parties are disputing the rate for which benefits
would be paid. They agree that claimant is single with two
dependent children and, therefore, would be allowed three
exemptions. The claimant contends that the rate should be
$106.14 and defendants contend it should be $97.53. It is
undisputed that there were only eight weeks of wages paid to
claimant prior to the date alleged in the petition of
February 19, 1991, and, therefore, to arrive at the 13 weeks
claimant was taking five weeks after the date of alleged
injury (February 19, 1991). Defendants contend that you
would take the eight weeks before the date of injury and
divide that by eight and arrive at the gross wages and then
arrive at the rate. The defendants' position would be
correct if it were not for the fact that the undersigned has
found that the date of injury is July 29, 1991 instead of
February 19, 1991, and, therefore, the 13 weeks arrived by
Page 8
the claimant would be correct since claimant did work after
the original alleged February 19, 1991 injury date. The
problem with accepting claimant's rate which would be
$106.14 is that the undersigned has now chosen a July 29,
1991 date. There is nothing in the record indicating the 13
weeks before that date what the claimant was making or the
hours worked and as shown by exhibit 2, the hours were
irregular. The hourly rate was $5 as shown thereon but the
undersigned understands that claimant was eventually raised
to $5.50. The parties seem to stipulate or indicate that
depending on what the undersigned found based on a February
19, 1991 date, that either claimant's rate or defendants'
rate would be used. Since the claimant has not shown any
other rate criteria as to the 13 weeks before July 29, 1991,
the undersigned will use the criteria set out in joint
exhibit 2 except that instead of using the rate book
effective July 1, 1990 through June 30, 1991, which would be
proper if there is a February 19, 1991 injury, which would
amount to $106.14, The undersigned must use the rate book
for rates effective July 1, 1991 through June 30, 1992,
which would amount to a rate of $106.56 per week. The rate
of $106.56 is the one the undersigned finds applies in this
case herein.
The claimant contends that the defendants should pay
the substantial medical bills that are set out in the
itemization summary attached to the prehearing report, the
actual bills being represented by exhibits in the evidence.
The defendants contend that Dr. Frank J. Allender's
chiropractic bill in the amount of $1,441 is not reasonable
nor was it necessary in claimant's treatment. The
undersigned notices on joint exhibit 31, pages 1 through 3
that the chiropractic bills began on February 27, 1992 and
went through May 28, 1992. There is no evidence of the
necessity or reasonableness of these bills. Claimant did
have a weight problem. The claimant has failed to show
causal connection between these bills and her work injury
and any medical condition caused thereby. Therefore, these
bills will be denied. With that denial, the mileage charges
for items 32 through 66 on exhibit 21, page 2-4, in the
amount of $665 is also denied.
Claimant is also asking for certain medication drug
bills be paid by defendants and the medication represented
on exhibit 30, pages 1 and 2, are objected to by the
defendants even if liability otherwise is found herein.
Joint exhibit 30, page 1, indicates the drug bills are for
Imodium, Cephalexin and Anusol HC. The undersigned
understands Imodium is basically for diarrhea. Cephalexin
is an antibiotic and Anusol HC is a suppository with
hydrocortisone. There is no evidence that the bills shown
on exhibit 30, page 1, are for any treatment of any injury
that the undersigned has found defendants responsible for
involving the July 29, 1991 work injury. As to page 2 of
joint exhibit 30, claimant requests reimbursement for the
cost of Xanax pills in the total amount of $34.10 and $50.12
Page 9
for the other three drugs above. The undersigned
undersigned understands that Xanax is for anxiety symptoms
or tension and there is no evidence in this case that those
problems are connected with claimant's simultaneous
bilateral upper extremity injury of July 29, 1991. The mere
fact that defendants deny liability does not mean that the
claimant can go and obtain unnecessary or unreasonable
medical treatment. The undersigned finds that all of the
rest of the medical bills, pharmacy bills, or mileage
incurred therewith are to be paid by the defendants and that
they are causally connected to claimant's July 29, 1991
simultaneous bilateral upper extremity work injury.
CONCLUSIONS OF LAW
Claimant has the burden of proving by a preponderance
of the evidence that she received an injury on July 29,
1991, which arose out of and in the course of her
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 July 29,
1991, is causally related to the disability on which she now
bases her 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 v. Central Telephone
Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
It is not necessary that claimant prove his disability
results from a sudden unexpected traumatic event. It is
sufficient to show that a 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 a gradual injury case is the time when pain prevents the
employee from continuing to work. In McKeever the injury
date coincides with the time claimant was finally compelled
to give up his job. This date was then utilized in
determining rate and the timeliness of the claimant's claim
Page 10
under Iowa Code section 85.26 and notice under Iowa Code
section 85.23.
Iowa Code section 85.34(2)(2) provides, in part: "The
loss of both arms, or both hands, or both feet, or both
legs, or both eyes, or any two thereof, caused by a single
accident, shall equal five hundred weeks and shall be
compensated as such."
Workers' compensation benefits for permanent partial
disability of two members caused by a single accident is a
scheduled benefit under Iowa Code section 85.34(2)(s) and
that the degree of impairment caused by a partial loss must
be computed on the basis of functional, rather than
industrial disability. Simbro v. DeLong's Sportswear, 332
N.W.2d 886 (1983).
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.
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with nonexpert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish
compensability, the injury need only be a significant
factor, not be the only factor causing the claimed
disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d
348, 354 (Iowa 1980).
This agency has held that the deputy is not bound in
cases of this nature to the alleged injury date if another
date is more applicable. The parties are obviously
considering the same medical condition and cumulative-type
injury. Deheer v. Clarklift of Des Moines, File No. 804325
(May 12, 1989); McCoy v. Donaldson Company, Inc., File Nos.
805200 and 752670 (April 28 1989); Shank v. Mercy Hospital
Page 11
Medical Center, File No. 719627 (August 28, 1989).
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.
It is further concluded that:
Claimant incurred a simultaneous bilateral upper
extremity injury on July 29, 1991, which caused claimant to
incur right and left carpal tunnel surgeries on July 29,
1991 and September 9, 1991, respectively.
Claimant's bilateral simultaneous upper extremity work
injury cause claimant to incur under 85.34(2)(s) 30 weeks of
permanent partial disability benefits and that said benefits
are payable at a rate of $106.56.
Claimant incurred a healing period as a result of her
bilateral simultaneous upper extremity work injury of July
29, 1991, beginning July 29, 1991 through October 31, 1991,
involving 13.429 weeks at the rate of $106.56.
Claimant incurred certain medical and drug bills that
defendants shall pay. Defendants are not responsible for
the chiropractor bill of $1,441 represented by joint exhibit
31, pages 1-3. Defendants are not responsible for the
pharmacy bills represented by joint exhibit 30, pages 1 and
2. Defendants are likewise responsible for the medical
mileage incurred as a result of those bills that have been
ordered paid. The mileage charges for items 32 through 66
on joint exhibit 21, pages 2 through 4, in the amount of 665
miles are denied as they are concerning the chiropractor
bill.
ORDER
THEREFORE, it is ordered:
That defendants shall pay unto claimant healing period
benefits at the rate of one hundred six and 56/100 dollars
($106.56) for the period beginning July 29, 1991 through
October 31, 1991, involving thirteen point four two nine
(13.429) weeks.
That defendants shall pay unto claimant thirty (30)
weeks of permanent partial disability benefits at the rate
of one hundred six and 56/100 dollars ($106.56), beginning
November 1, 1991.
That defendants shall pay the medical and drug bills
represented by joint exhibits 22 through 39 and 29. If any
of those bills have been paid by any other company or
government agency, including Title XIX, and Title XIX
expects reimbursement, then defendants shall hold the
Page 12
claimant harmless from any liability thereon and take care
of any subrogation or reimbursement. Defendants are not
responsible for the chiropractor bill represented by joint
exhibit 31 nor the drug bills represented by joint exhibit
30, pages 1 and 2. Defendants are responsible for
claimant's mileage incurred with the medical except than
those represented by the mileage involving the chiropractor
bill which are items 32 through 66 on joint exhibit 21,
pages 2 through 4, which involves 665 miles.
That defendants shall pay accrued weekly benefits in a
lump sum and shall receive credit against the award for
weekly benefits previously paid. Defendants have not
previously paid any weekly benefits.
That defendants shall pay interest on benefits awarded
herein as set forth in Iowa Code section 85.30.
That defendants shall pay the costs of this action,
pursuant to rule 343 IAC 4.33.
That defendants shall file a first report of injury.
That defendants 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, 1992.
______________________________
BERNARD J. O'MALLEY
DEPUTY INDUSTRIAL COMMISSIONER
Copies to:
Mr. William D. Cook
Attorney at Law
209 W Willow St
Cherokee IA 51012-0209
Mr Cecil L Goettsch
Attorney at Law
801 Grand Ave Ste 3700
Des Moines IA 50309-2727
5-1100; 5-1108; 5-1808
5-1802; 5-1803; 5-2503
Filed August 31, 1992
Bernard J. O'Malley
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
BONNIE JO GLAWE, :
:
Claimant, :
:
vs. :
: File No. 981347
HAROLD ROWLEY RECYCLING :
CENTER, :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
WAUSAU INSURANCE COMPANY, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
5-1100; 5-1108; 5-1808; 5-1802; 5-1803
Found claimant incurred a simultaneous bilateral upper
extremity injury on July 29, 1991, that arose out of and in
the course of claimant's employment, which injury caused
claimant to incur right and left carpal tunnel surgeries on
July 29, 1991 and September 9, 1991, respectively. Claimant
awarded healing period and permanent partial disability
benefits.
5-2503
Claimant was allowed certain drug and medical bills and was
denied certain medical, drug and mileage bills.
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
:
MARY DITTMER, :
:
Claimant, :
:
vs. :
: File No. 981354
PIRELLI-ARMSTRONG TIRE CORP., :
: A R B I T R A T I O N
Employer, :
: D E C I S I O N
and :
:
ALLIANZ INSURANCE CO., :
c/o GAB BUSINESS SERVICES, :
:
Insurance Carrier, :
Defendants. :
___________________________________________________________
STATEMENT OF THE CASE
This is a proceeding in arbitration brought by Mary
Dittmer, claimant, against Pirelli-Armstrong Tire Corp.,
employer, hereinafter referred to as Armstrong, and Allianz,
insurance carrier, defendants, for workers' compensation
benefits as a result of an alleged injury on May 21, 1989.
On September 2, 1993, a hearing was held on claimant's
petition and the matter was considered fully submitted at
the close of this hearing.
The parties have submitted a hearing report of
contested 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 hearing report, the parties have
stipulated that an employee-employer relationship existed
between claimant and Armstrong at the time of the alleged
injury.
ISSUES
The parties submitted the following issues for
determination in this proceeding:
I. Whether claimant received an injury arising out of
and in the course of employment;
II. The extent of claimant's entitlement to disability
benefits; and,
III. The extent of claimant's entitlement to medical
benefits.
Page 2
FINDINGS OF FACT
Having heard the testimony and considered all of the
evidence, the deputy industrial commissioner finds as
follows:
Claimant, age 39, worked for Armstrong only a few weeks
before the alleged injury. Claimant worked as a tire
builder. Although there was some heavy lifting on occasion,
claimant only expressed problems with pushing equipment
around in her area due to several holes in the concrete
floor.
On or about May 21, 1989, claimant injured her low back
while pushing a piece of equipment. Claimant sought and
received medical attention from the plant physician who
diagnosed muscle strain and prescribed an anti-inflammatory
medication. Claimant was to return a few days later but did
not do so.
Claimant testified that she continued to have low back
pain and did not have chronic pain in the lower back before
the May 21, 1989 incident. However, she did not seek
treatment after May 21, 1989 until September 1989. At that
time she did not report any history of an incident of pain
at Armstrong. The first mention of the pushing incident did
not occur until January 1990 to a physical therapist.
Defendants argue that this shows the lack of a work injury.
However, the company records are clear in demonstrating a
work injury. The fighting issue is whether the May 1989
injury was a causative factor in the low back condition
requiring extensive treatment beginning in September 1989.
Claimant left her employment at Armstrong in June 1989
after a dispute with her supervisor over her attitude.
Armstrong officials testified that although she was still in
probation at the time she left, they were planning on
retaining her as a permanent employee. Claimant never
complained to them about any back pain before she left but
had complained about pushing equipment over the plant floor
to the lead foreman.
Since September 1992, claimant has had extensive
examinations and tests to determine the cause of her chronic
low back pain. To date, no objective abnormalities have
been found except for a mild degenerative disk disease and
physicians currently offer no further treatment or surgical
option. One physician noted that since she has had
continuous problems for about two years, she will likely
continue to have problems in the future. Claimant was in a
motor vehicle accident in which she rolled her van in
January 1990 which aggravated her low back. In February
1991, she fell from a horse fracturing her wrist.
Claimant had chronic neck and upper back pain since a
whiplash injury from a motor vehicle accident in 1984.
Although one medical report reveals at least one complaint
of lower back tenderness after this accident, there does not
appear to be any significant treatment for low back pain
until September 1990.
Page 3
Although claimant demonstrated a work injury on May 21,
1989, she failed to show a causal connection of this injury
to her low back condition and her medical treatment
beginning in September 1989. The time lapse was too great
between the May injury and September 1989 treatment. More
importantly, there was no medical expert opinion causally
relating any of claimant's low back problems to any injury
in May 1989. The only opinion in the record was from a
Daniel McQuire, M.D., which was not favorable to claimant's
case. Although claimant may not have worked since her
employment at Armstrong, she apparently does lead an active
life as evidenced by her horseback riding accident in 1991.
The only medical bills submitted for reimbursement all
were incurred by claimant beginning in September 1990. For
the reasons given above, they are not found to be causally
related to the May 1989 injury.
CONCLUSIONS OF LAW
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.
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
personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620,
106 N.W.2d 591 (1961), and cases cited therein.
A disability may be either temporary or permanent. In
the case of a claim for temporary disability, the claimant
must establish that the work injury was a cause of absence
from work and lost earnings during a period of recovery from
the injury. Generally, a claim of permanent disability
invokes an initial determination of whether the work injury
was a cause of permanent physical impairment or permanent
limitation in work activity. However, in some instances,
such as a job transfer caused by a work injury, permanent
disability benefits can be awarded without a showing of a
causal connection to a physical change of condition.
Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa
1980).
The question of causal connection is essentially within
the domain of expert medical opinion. Bradshaw v. Iowa
Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
The opinion of experts need not be couched in definite,
positive or unequivocal language and the expert opinion may
be accepted or rejected, in whole or in part, by the trier
of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa
1974). The weight to be given to such an opinion is for the
finder of fact to determine from the completeness of the
premise given the expert or other surrounding circumstances.
Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867
Page 4
(1965).
Furthermore, if the available expert testimony is
insufficient alone to support a finding of causal
connection, such testimony may be coupled with non-expert
testimony to show causation and be sufficient to sustain an
award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146
N.W.2d 911, 915 (1966). Such evidence does not, however,
compel an award as a matter of law. Anderson v. Oscar Mayer
& Co. 217 N.W.2d 531, 536 (1974)
In the case sub judice, claimant was able to show a
work injury but failed to show its causal connection to the
condition upon which the claim was based.
ORDER
1. Claimant's petition is dismissed with prejudice.
2. Claimant shall pay the costs of this action
pursuant to rule 343 IAC 4.33.
Signed and filed this ____ day of December, 1993.
______________________________
LARRY P. WALSHIRE
DEPUTY INDUSTRIAL COMMISSIONER
Copies To:
Mr. David D. Drake
Attorney at Law
West Towers Office
1200 35th Street STE 500
West Des Moines, Iowa 50265
Ms. Patricia J. Martin
Attorney at Law
100 Court Avenue STE 600
Des Moines, Iowa 50309
5-1803
Filed December 13, 1993
LARRY P. WALSHIRE
BEFORE THE IOWA INDUSTRIAL COMMISSIONER
____________________________________________________________
MARY DITTMER,
Claimant,
vs.
File No. 981354
PIRELLI-ARMSTRONG TIRE CORP.,
A R B I T R A T I O N
Employer,
D E C I S I O N
and
ALLIANZ INSURANCE CO.,
c/o GAB BUSINESS SERVICES,
Insurance Carrier,
Defendants.
___________________________________________________________
5-1803
Non-precedential, extent of disability case.