Page 1 before the iowa industrial commissioner ____________________________________________________________ : VICKI WILLIAMS, : : Claimant, : : vs. : : File No. 981380 IOWA 80 TRUCK STOP, : : 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. : ___________________________________________________________ statement of the case This case came on for hearing on November 17, 1992, at Davenport, 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 March 10, 1991. The record in the proceeding consists of the testimony of the claimant, Jim Morris and Delia Meier; joint exhibits A through M and P through Y; and, claimant's exhibits N and O. issues The issues for resolution are: 1. Whether an injury arose out of and in the course of claimant's employment on March 10, 1991; 2. Whether there is any causal connection between claimant's alleged disability and the March 10, 1991 alleged injury; 3. The nature and extent of claimant's permanent disability and entitlement to disability benefits; 4. Claimant's entitlement to 85.27 medical benefits. The issue is causal connection and authorization; 5. Whether claimant is entitled to 86.13(4) penalty benefits; and, 6. Payment of costs. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Page 2 Claimant is 38 years old. She couldn't recall when she began working for defendant employer but indicated it was over one year before her alleged March 10, 1991 injury. Claimant mentioned only one prior employment which was approximately six or seven months before she began working with defendant employer. Claimant testified she was injured on March 10, 1991, when she turned to reach for a package of cigarettes for a customer while working as a cashier for defendant employer. March 10 was a Sunday and claimant was not to work March 11 as that was not a scheduled workday for her. Claimant, at that time, was working three days a week, Friday through Sunday, for a total of 24 hours per week. Claimant said her pain started on the Tuesday after her alleged Sunday injury and she had coldness and numbness in her hand and pain in her shoulder. Claimant said she went to her doctor, David Nebbeling, D.O. She said he treated her until November 1991, at which time he indicated he could no longer do anything for her. Claimant never returned to the defendant employer truck stop and testified her immediate supervisor, Jim Morris, told her in June or July 1991 that her job was not available. Claimant has not been paid any benefits. She contends she still has pain in her right arm which becomes numb and cold and it hurts if it is cold outside. She said her neck feels the same way. Claimant was asked several questions on cross-examination and her answers were different than what she indicated in her deposition taken in 1992. Her explanation as to apparent contradictions as to when she first felt pain was that she distinguished pain from discomfort. She said when defendants' attorney asked her about pain she didn't think that meant discomfort also. Claimant attempted to further explain any contradictions when she testified in her deposition she didn't experience pain until two days later or when she earlier testified she didn't notice anything with her neck and shoulder. Claimant thought defendants' attorney was only referring to pain and not discomfort. Claimant believes symptoms did not include discomfort, only pain. The undersigned finds claimant's explanation unbelievable and not at all credible. There is no reason to further dwell in this area. Claimant was effectively impeached on several occasions. Claimant asserted she has done nothing to find work since June 1991 to the present. Jim Morris works for defendant employer as a store manager and was claimant's immediate supervisor on March 10, 1991. He indicated claimant did not tell him she was injured at work. He indicated he heard of claimant's allegation from Delia Meier and that he was first aware of claimant's claim of injury when he saw her walk up the steps at the Palmer Chiropractic Clinic around March 27, 1991. Page 3 Mr. Morris related that claimant called him between March 11th and the 15th that she would not be working her next weekend three day shift (March 15, 16 and 17, 1991) because her kids were sick. Claimant never mentioned any work injury to him. Mr. Morris completely refuted claimant's claim she called him in June of 1991 regarding a return to work. He emphasized he heard from no one that claimant was released to return to work. Mr. Morris said he received a notification from the Job Service about an unemployment hearing (Joint Exhibit W) in the fall of 1991 and he went to the hearing. He said he does not have a job for claimant and he has not called claimant to return to work. He indicated he did have a cashier opening two weeks ago. Delia Meier, a senior vice president of defendant employer, knows claimant. She first heard from claimant March 27, 1991, when claimant called her and said she hurt her neck and would be off work. When she asked claimant about her claimed injury, she said claimant replied that she was thinking how it might have happened and could only think it happened when she was reaching for cigarettes at defendant employer's truck stop location. Ms. Meier said neither she nor defendant employer was ever notified when claimant was to return to work or able to return to work. She indicated she never called a doctor or claimant to find out either. Ms. Meier said she received a call from claimant in November of 1991 and claimant asked her to stop Mr. Morris from fighting her unemployment claim. Ms. Meier said at no time did claimant indicate that she wanted to return to work. Ms. Meier did not call a doctor regarding a follow-up. Byron W. Rovine, M.D., a neurologist, testified through his deposition taken on May 20, 1992. The doctor testified he saw claimant for the first time on April 3, 1991, and again on April 12, 1991, at which time he referred her back to the Work Well Center which was the center which referred her to him in the first place. He indicated that he noticed marked tenderness and muscle spasms in claimant's right scapular space. The left biceps reflex was plus 2 and the right biceps reflex was plus 1 and was less active than the left. The triceps reflex was plus 1 bilaterally. The doctor went on to explain what else his examination measures revealed and indicated that he felt there was ample objective evidence of a sixth cervical nerve radiculopathy (Joint Exhibit A, pages 7 and 8). He further indicated that the myelogram he gave claimant was negative which indicated to him that he was dealing with something other than a disc problem and that claimant's symptoms were consistent with a sick nerve root irritation of some sort due to trauma. The doctor indicated that in cases of severe trauma he might see a picture of radiculopathy immediately or very early on but that more typically it develops over a period of days or Page 4 weeks and that it is not likely there will be any symptoms whatsoever between the trauma and the commencement of symptomatology. The doctor further indicated that he didn't believe a patient could be totally asymptomatic following an injury sufficient to result later on in the development of radiculopathy but he also indicated that the amount of pain, discomfort or other symptomatology very frequently may be relatively minor for quite some time following the strain-type injury, certainly mild enough to permit the patient to go on working (Jt. Ex. A, pp. 9 and 10). Dr. Rovine's notes reflect that due to claimant's complaints he thought there was possible cervical radiculopathy or possible cervical disc herniation but he had a myelogram done and this showed no evidence of disc herniation. Also, the diagnostic studies completely failed to demonstrate any compression or impingement upon the clinically involved nerve root and surgery was not indicated. His notes on April 12, 1991, indicate that the patient may be suffering from traumatic radiculopathy and he recommended additional conservative treatment. His examination had shown some clinical evidence of radiculopathy (Jt. Ex. A-18 and A-19). On July 16, 1991, Dr. Rovine wrote a letter indicating that his assumption was that the injury to the nerve root was due to direct trauma from the strain-type movement of her neck that initiated the problem. He went on to indicate that manipulation of the neck of an individual suffering from either a disc extrusion or traumatic injury to her nerve root would be well calculated to aggravate the problem. He made it clear that chiropractic treatment would be contra-indicated and would have definite potential for aggravating the patient's condition. Two days later in a letter to the defense attorney, he again indicated that claimant's condition could have been aggravated by the care she received at Palmer Clinic but would not be influenced by the specific cause of her condition (Jt. Ex. A-21 and A-22). The radiology report of April 12, 1991, leaves the impression of "[e]quivocal findings at C5-6 on the right which may represent a cut-off of the nerve root on the right at C5-6 level. The remainder of the cervical myelogram is normal." (Jt. Ex. C-13.) David A. Orme, D.C., testified through his deposition on May 12, 1992 (Jt. Ex. F). He testified he first saw claimant on June 12, 1991, pursuant to a referral by Dr. Nebbeling. The doctor indicated that he saw her only the one time for the evaluation and treatment. The doctor described in detail the nature of his examination, the use of equipment and the EMG. He talked about how sensitive the equipment he used is even to the extent that sometimes he worries more about it showing something else that would be excessive. He testified that the findings on the EMG showed nothing (Jt. Ex. F-15). The doctor testified as to the range of motion tests Page 5 one, two and three which involved muscle positioning, forward flexion, bending, etc., and all of these were double zero all the way across the board. He indicated no spasms or nerve root interference. The doctor then indicated that "[t]he significant thing of this, this whole test was one of the clearest EMGs I've ever seen, quite frankly. I do a lot of these, and there was no indication in this entire test whatsoever of any excessive electrical activity or muscle spasm." (Jt. Ex. F-20) The doctor then testified as to some orthopedic and neurologic examinations involving checking reflexes, etc., and in all of these instances the claimant claimed that she hurt. The doctor emphasized that claimant's complaints were all subjective within the control of patient and were not objective findings (Jt. Ex. F-23). The doctor then referred to his June 12, 1991, notes and indicated that claimant told him she had been hurting constantly for three months with pain in the back and something about a rash on her arm. The doctor then did a quick biochemical test to see if there was a chemical reason for her pain and found a positive for Candida albicans histamine. He indicated this is an abnormal growth of bacteria in the abdomen and is usually caused by antibiotics or other drug use or excessive sugar, etc. The doctor indicated that histamine is a natural response released from the mass cells which can go overboard in cases of an allergic or hypersensitive reaction. This can cause inflammation and pain in the body (Jt. Ex. F-25). The doctor indicated that he had some recommendations as to what could be done subsequently but that he did not get a chance to discuss his findings with the claimant thoroughly and she was very uncooperative and indicated that she had already done this before and that she didn't want to go through it again and wanted to get out of there in a hurry. The doctor indicated he scheduled an appointment for her but she never showed up so he never did have a chance to go over the findings with her (Jt. Ex. F-26). The doctor then referred to his records and read the following: "My initial thoughts were that this patient was malingering, i.e., negative EMG, and her overreaction to even light contact. Also it was observed that even though during the exam the patient had difficulty with light palpation and movement, when her friend asked her a question, she turned her head with no obvious difficulty. I'm not convinced that she's not playing this up some." (Jt. Ex. F-31 and F-32). The doctor further indicated that there was inconsistencies in the objective findings versus the subjective complaints. He indicated he saw nothing that claimant couldn't perform. (Jt. Ex. F-32). On cross-examination by claimant's attorney, she was asked whether she disagreed with Dr. Rovine's diagnosis. Dr. Orme indicated that he didn't see any diagnosis and that he felt Dr. Rovine's records indicated he couldn't find anything wrong with claimant and sent her back to the work place. He did acknowledge that Dr. Rovine indicated the claimant's examination has shown some clinical evidence of radiculopathy but that the diagnostic studies had completely failed to demonstrate any compression or impingement upon the clinically involved Page 6 nerve root (Jt. Ex. F-34). David P. Nebbeling, D.O., testified through his deposition on April 29, 1992. He had a complete copy of office records from September 1990 to December 1991, the dates in which he treated claimant for whatever she came in for. He referred to a September 27, 1990 visit in which claimant came in for a sore throat and cough. He also examined her thoracic spine and found tenderness along the thoracic vertebrae 1 through 4. She was also tender at the first joint of her neck. The diagnosis at that time was bronchitis and symptomatic dysfunction (Jt. Ex. H-10). He then referred to an October 4, 1990 visit. At that time his findings included tenderness of her ribs in the thoracic vertebrae 1 through 4 and he gave her an osteopathic manipulation. His records on October 9, 1990, showed positive findings at C-3 and thoracic vertebrae 1 through 4. He gave her an osteopathic manipulation again and found somatic dysfunction (Jt. Ex. H-13). In his examination of October 17, 1990, he found restriction in claimant's right and left side of C-1 through 7 and tenderness both in her right and left trapezius muscles. He also found palpable findings in both right and left side of T1 through 4 and that there was dysfunction on the lateral side of her ribs, both the right and left side of her rib cage. The doctor gave her osteopathic manipulation and referred her to Dr. Mahadavia, who is a pulmonologist (Jt. Ex. H-15). The doctor testified that on January 19, 1991 claimant came in and said she had trouble sleeping, felt depressed and fatigued and had recurrent thoughts of suicide. She had an increase in smoking, eating and weight. She also indicated she had a teenage child that she was concerned about who was using drugs at the time. His assessment was that claimant had depression and started her on Prozac to treat it. On February 20, 1991, claimant reported to the doctor that she was having trouble sleeping. At that time, he found a palpable findings of the cervical vertebrae 1, 2 and 3 and her right first rib was elevated as were the rest of the ribs. On February 28, 1991, when the doctor saw her, he found that claimant was restricted in the cervical vertebrae 1, 2 and 3 on the right. Her right rib was elevated and she was restricted on the thoracic vertebrae 1 through 4 on the right side. Claimant then visited him on March 15, 1991, at which time she mentioned she had a problem in her right trapezius and in the area between her neck and shoulder. She had problems with the muscles between her neck and shoulder (Jt. Ex. H-19). On his examination on this date, he found there was a great increase of the lordosis of the cervical spine. He also noted increased kyphosis of the thoracic spine or the area below the neck (Jt. Ex. H-20). Her assessment at that time was somatic dysfunction and he applied osteopathic Page 7 manipulation (Jt. Ex. H-23). The doctor continued to testify as to his treatment, examination and claimant's complaints. His assessment appeared to continue to be somatic dysfunction of the cervical thoracic spine and right extremity and depression. He then assessed the claimant with the possibilities of a cervical motion study, EMG and mild therapy with Dr. Orme. This visit appeared to be around May 5, 1991. The doctor indicated that on her visit on July 11, 1991, she was complaining of tingling in her right hand and fingers and the right side of her back (Jt. Ex. H-40). The doctor continued to testify as to claimant's complaints and on August 7, 1991, he still had claimant's assessment as somatic dysfunction with muscle spasm. He offered her Prozac again for her depression (Jt. Ex. H-48). On October 9, his assessment was depression (Jt. Ex. H-53). Dr. Nebbeling then referred to his June 19, 1991 report identified as deposition exhibit 3, which is also exhibit H- 80 and H-81, in which he diagnosed the claimant's condition, although not a complete one as an inflammation of the right bronchial plexus and multiple somatic dysfunction due to the sudden movement at work on March 10, 1991. He based this on this history given to him by claimant (Jt. Ex. H-58). He also issued restrictions June 19, 1991 and then again on November 19, 1991 (Jt. Ex. H-80, H-83 and H-86). Exhibit N-1 is an April 6, 1992 letter from Barry L. Fischer, M.D., who examined claimant at her attorney's request on March 30, 1992. He opined that claimant had a permanent partial functional impairment of a whole person of 5 percent as a result of injuries sustained on March 10, 1991. The undersigned notes that in this four-page report the history of the claimant is very deficient as to her true medical history including her pre-March 10, 1991 medical history. Claimant claims she incurred an injury on March 10, 1991, while working at defendant employer, when she turned to get cigarettes for a customer. It is not unusual that one can incur back problems through little body movements, even sneezing. The medical records reflect that claimant was having considerable problems prior to March 10, 1991, and these included a period of time within a month of her alleged injury. Claimant had pain and problems in her cervical and thoracic area, had general somatic dysfunction prior to March 10, 1991. The medical records seem to indicate that this continued on into the present. It is obvious to the undersigned that in those cases in which the doctor either refers to or seems to state a causal connection, the medical history given to the doctor was void of or very deficient as to claimant's medical history prior to the March 10, 1991. It is obvious that claimant had personal problems with herself and the family prior to March 10, 1991, and that these problems at one time or another continued on after that date and that claimant has been in a depressed situation prior to and after March 10, 1991. Page 8 The undersigned finds that claimant's credibility in many instances to be suspicious and, in fact, not credible. The undersigned believes the store manager, Mr. Morris, and the defendant employer's senior vice president, Delia Meier, as to their understanding of, or lack of knowledge of the circumstances surrounding claimant's alleged injury, any complaint of injury, and whether certain conversations occurred. The undersigned finds it unbelievable as to the claimant's explanation of the difference in discomfort and pain and her logic as to what she understood when asked the question whether she had discomfort or pain. A question might arise as to whether events on March 10, 1991 may have substantially or materially aggravated or lighted up a preexisting condition. The undersigned believes the greater weight of evidence shows that there was not a substantial aggravation or lighting up of claimant's preexisting medical condition. The undersigned finds that basically there was a continuation of claimant's pre-March 10, 1991 medical complaints or condition and that her physical condition was such that any type of body movements or natural movement or daily living, whether at work or at home, could aggravate or cause problems due to her somatic dysfunction and cervical thoracic problems for which she had been treated over a period of time before March 10, 1991, including such treatment within a month of March 10, 1991. The undersigned therefore further finds that there is no causal connection between claimant's alleged disability and any alleged March 10, 1991 work injury. With these two issue being resolved, the undersigned finds it is unnecessary to continue on with any further elaboration or disposal of any remaining issues as they now become moot in light of the above findings. The undersigned therefore finds that claimant takes nothing from these proceedings. Page 9 conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on March 10, 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 March 10, 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, 261 Iowa 352, 154 N.W.2d 128. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Page 10 It is further concluded that: Claimant did not incur an injury which arose out of and in the course of her employment on March 10, 1991. Claimant's alleged disability was not caused by any work injury that arose out of and in the course of her employment on March 10, 1991. Claimant's alleged March 10, 1991 injury did not materially aggravate, light up or heighten any preexisting condition that claimant may have had. Claimant's preexisting medical condition is the cause of and was a continuing condition that has resulted in claimant's current medical or disability condition. Any medical report that may have causally connected claimant's medical condition and disability to a March 10, 1991 alleged work injury was based on an incomplete or totally deficient pre-March 10, 1991 medical history of the claimant. Claimant did not carry her burden of proof as to the issues herein. Claimant was not a credible witness. order THEREFORE, it is ordered: That claimant takes nothing from these proceedings. That claimant is to pay the cost of this action. Signed and filed this ____ day of December, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Peter M Soble Attorney at Law 505 Plaza Office Bldg Rock Island IL 61201 Ms Linda E Frischmeyer Attorney at Law 200 Plaza Office Bldg P O Box 3250 Rock Island IL 61204-3250 5-1100; 5-1402.30; 5-1108 Filed December 3, 1992 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : VICKI WILLIAMS, : : Claimant, : : vs. : : File No. 981380 IOWA 80 TRUCK STOP, : : 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. : ___________________________________________________________ 5-1100 Found claimant did not incur an injury which arose out of and in the course of her employment. 5-1402.30 Found no causal connection as to claimant's alleged disability and alleged work injury. 5-1108 Found preexisting condition was not materially or substantially aggravated or lighted up by any alleged work injury. Claimant took nothing. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JACQUELINE FERNANDEZ, : : Claimant, : File No. 981387 : vs. : A P P E A L : 2800 CORPORATION, d/b/a : D E C I S I O N BOTTOMS UP LOUNGE, : : Employer, : Defendant. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed May 29, 1992 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: In order to establish entitlement to workers' compensation benefits, a claimant must show that the injury arose out of and was in the course of the employment. In the instant case, claimant's ingestion of alcohol was clearly a part of her work. The employer not only condoned the consumption of alcohol, but encouraged and even required it by setting a quota of drinks each dancer was to have had bought for her by customers. The fact that claimant could have ordered non-alcoholic drinks is irrelevant. To consider claimant's conduct in ordering alcoholic drinks instead of non-alcoholic drinks would inject into the analysis an element of contributory negligence by the claimant. Contributory negligence is an aspect of tort law and has no application to workers' compensation. Claimant's consumption of alcohol during her work hours was akin to ingestion of a toxic substance or fumes in an industrial setting. Claimant's alcohol consumption clearly arose out of her employment. However, claimant must show that the injury arose out of the employment. If claimant can show that her injury is caused by her consumption of alcohol, and claimant has shown that her consumption of alcohol arose out of her employment, she will have shown that her injury also arose out of her employment. If claimant had been operating the vehicle in which she was injured, the causal connection between her consumption of alcohol and her injuries would be clearer, as the alcohol in her system would likely be the cause of the accident. Here, however, claimant was not operating the vehicle, but rather was a passenger in the vehicle. It is true that the driver of the Page 2 vehicle was also an employee and was also intoxicated. But a question remains whether claimant's own intoxication contributed to her injuries. It was the intoxication of the driver that led to the accident. It is arguable that claimant would have suffered the same injuries whether she was intoxicated or not, simply due to her presence in the vehicle. It is also arguable, however, that claimant's impaired judgment from her intoxication was at least in part responsible for her decision to enter the vehicle with the apparent knowledge that the driver would be operating under the influence of alcohol. Claimant clearly knew that April was intoxicated, as the bartender had asked both of them to leave because of their intoxicated state. Claimant's presence in the vehicle in an intoxicated state and the resulting accident and injuries to claimant arose out of her employment. Claimant must also show that her injuries occurred while in the course of her employment. Normally, under the "going and coming" rule, an employee is not in the course of her employment after leaving the work site and while traveling home. Clearly, claimant's work duties had ended and she had left the employer's premises. The employer no longer had control over her activities. Claimant was not like a traveling salesperson, who has no fixed place of business, but rather had a fixed site where she performed her work during specified hours. At the time of the accident that caused claimant's injuries, she had clearly left her place of employment and ended her work duties. Nevertheless, one aspect of claimant's work followed her beyond the door of the bar. The alcohol the employer encouraged her to ingest was still in her system, and continued to affect her. Professor Larson has recognized an exception to the normal intoxication defense where an employer encourages the employee to ingest alcohol and the ingestion results in injury. Professor Larson cites cases where the intoxication defense was held not to apply where the employee was injured under circumstances that would otherwise clearly be outside the course of employment. In McCarty v. Workmen's Comp. (App. Bd., 12 Cal. 3d 677, 117 Cal. Rptr. 65, 527 P. 2d 617 (1974), quoted by Professor Larson in section 34.36, p. 6-131, an employee that had consumed alcohol at a company Christmas party was injured while driving home from the party. The intoxication defense was denied because the employer Page 3 had encouraged the consumption. Clearly, an employee on their way home from a Christmas party would not normally be in the course of their employment, but it was impliedly held that the alcohol consumption at a Christmas party that was in the course of employment extended the employment during the trip home when the alcohol was still affecting the employee. Also see Flavorland Indus., Inc., v. Schumacker, 32 Wash. App. 428, 647 P. 2d 1062 (1982), where the Washington court held that an employee encouraged to drink at social outings with potential buyers was in the course of his employment when he was injured driving home from one such meeting. The court reasoned that while intoxication is normally an abandonment of the employment, where the intoxication is encouraged by the employer no abandonment occurs. In Tate v. Industrial Acc. Comm'n, 120 Cal. App. 2d 657, 261 P.2d 759 (1953), it was held that an employer who encourages an employee to drink was held liable for the employee's injuries on his way home, with the statement that "to send an intoxicated employee onto a busy highway in a company car is not furnishing him with a safe place to work." In a case closely on point, Larson quotes Panagos v. Industrial Commission, 171 Ill. App. 3d 12, 120 Ill. Dec. 836, 524 N.E.2d 1018 (1988), involving a belly dancer who was encouraged by the employer to drink and socialize with customers between dancing sessions. The claimant was injured on her way home after work, and compensation was awarded as an exception to the going and coming rule. In addition, Larson recognizes a "zone of employment danger" or "spilled-over danger" exception to the normal going and coming rule. Where off-premises conditions are still risks of the employment and cause an injury to a worker on his way to or from work, those injuries should be compensable. Larson, sec. 15.31, pp. 4-92 to 4-100. In Iowa, we are guided by the principle that the workers' compensation statutes are to be construed liberally in favor of the employee, and all doubts are to be resolved in favor of the employee. Teel v. McCord, 394 N.W.2d 405, 406-407 (Iowa 1986). Iowa Code 86.61(7) states: The words "personal injury arising out of and in the course of the employment" shall include injuries to employees whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business.... The employer argues that claimant's blood alcohol level of .149 was a "low blood level." On the contrary, claimant was substantially beyond the level at which a person is considered under Iowa law to be too intoxicated to operate a motor vehicle. Page 4 The employer also attempts to attribute claimant's condition to various illegal drugs she consumed in the 24 hour period prior to the accident. The record does not show how much of these drugs were still in her system at the time of the accident. The record only shows the amount of alcohol in her system. In addition, it is undisputed in the record that claimant's consumption of other alcohol and drugs was several hours before her accident and before her work shift began. It would be improper to speculate as to what effect these drugs would have on her at 2:51 a.m. the next morning without expert medical evidence on that question. It is not speculation to note that the record shows that during her work shift immediately prior to the accident, claimant consumed several alcoholic beverages bought for her by customers pursuant to the employer's usual practice. It is also undisputed that claimant was intoxicated when she left work, as evidenced both by the fact that the bartender asked claimant and April to leave because they were drunk, and by the blood alcohol level. The employer suggests that claimant may have consumed more alcohol in the approximately 50 minutes between leaving work and the accident, but there is no evidence to support this and in fact such a suggestion is contradicted by claimant's testimony that only one stop was made and only non-alcoholic items purchased. Employer also suggests that April may have consumed alcohol off the premises during a short period of time when she was absent from the bar after completing her work, and then returning in a change of clothing. Again, this calls for speculation, and in addition it is not necessary in this case that claimant show that April's intoxication arose out of her employment. It is sufficient that claimant has shown that her own intoxication grew out of the employment, and that that intoxication affected her judgment to such an extent that she placed herself into a motor vehicle with an intoxicated driver and suffered extensive injuries as a result. In this case, not only is the intoxication defense not available to the employer, but the employer has also extended the normal course of employment beyond the normal working hours and normal location. Page 5 Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 3rd Avenue P O Box 1588 Council Bluffs, Iowa 51502 Mr. Bill Bracker Attorney at Law 501 South Main Street Suite 203, Kiel Building Council Bluffs, Iowa 51503 1101; 1601 Filed July 29, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JACQUELINE FERNANDEZ, : : Claimant, : File No. 981387 : vs. : A P P E A L : 2800 CORPORATION, d/b/a : D E C I S I O N BOTTOMS UP LOUNGE, : : Employer, : Defendant. : ___________________________________________________________ 1101 & 1601- Intoxication. Held: Intoxication of a "gogo dancer" which lead to her injuries in an auto accident was found to arise out of and in the course of her employment and is excluded as a defense under Iowa Code section 85.16. The dancers were required to hustle at least two drinks per hour from customers. Claimant became intoxicated, left the bar with another dancer who was also intoxicated, and was injured in a car accident. Claimant was a passenger in the car. Held that the intoxication defense was not available to an employer who encouraged the consumption of alcohol and the alcohol then led to the injury. Also held that claimant was in the course of her employment even though normally, under the going and coming rule, she would not have been. Larson cited for proposition that the course of employment is, under some circumstances, extended under a "zone of employment danger" beyond the normal work premises. Here, the intoxication of claimant extended the zone of employment danger beyond the bar premises. Claimant's intoxication impaired her judgment to the extent she entered a vehicle about to be operated by an intoxicated driver, and as a result was injured. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JACQUELINE FERNANDEZ, : : Claimant, : : vs. : : File No. 981387 2800 CORPORATION, d/b/a : BOTTOMS UP LOUNGE, : : A R B I T R A T I O N Employer, : Defendant. : D E C I S I O N : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jacqueline Fernandez, claimant, against 2800 Corporation d/b/a Bottoms Up Lounge, employer, hereinafter referred to as the Lounge, defendant, for workers' compensation benefits as a result of an alleged injury on September 3, 1989. On April 10, 1992, 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 pre-hearing report of con tested issues and stipulations which was approved and ac cepted 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 pre-hearing report, the parties have stipulated to the following matters: 1. If defendant is liable for the alleged injury, claimant is entitled to temporary total or healing period benefits from September 3, 1989 through December 4, 1991. 2. If the injury is found to have caused permanent disability, the type of disability is scheduled as an injury of both feet and for disfigurement in the amount of 150 weeks. 3. If permanent disability benefits are awarded, they shall begin as of December 5, 1991. 4. At the time of injury, claimant's gross rate of weekly compensation was $600. She was single and entitled to four exemptions. Therefore, claimant's weekly rate of compensation is $363.41 according to the industrial commis sioner's published rate booklet for fiscal year 1990. 5. It was stipulated that the providers of the re quested medical expenses would testify as to their reason ableness and defendant is not offering contrary evidence. The medical bills submitted by claimant at the hearing are Page 2 causally connected to the medical condition upon which the claim herein is based but that the issue of their causal connection to any work injury remains an issue to be decided herein. 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 or is the claim barred by claimant's intoxication under Iowa Code section 85.16 II. The extent of claimant's entitlement to disability benefits. III. 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: A credibility finding is necessary to this decision as defendant placed claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From her demeanor while testifying, claimant is found credible. This claim arises from a single car auto accident which occurred between 2:00 to 3:00 a.m. on the morning of September 3, 1989. The driver, a fellow employee of claimant called "April" was killed in this accident. Claimant was a passenger in her car. At the time of this accident, claimant and April were employed by the Lounge as dancers. Their duties consisted of rotating with other female dancers each night and socializing with male customers when not dancing. An important job requirement was to motivate customers to buy them drinks. Each dancer had a quota of two drinks per hour. Although dancers were not required to drink alcoholic beverages as non-alcoholic drinks were available, usually dancers consumed in excess of six to eight alcoholic drinks during their nightly duty hours from 8:00 p.m. to 2:00 a.m. This consumption of alcohol by dancers was condoned if not encouraged by Lounge management. According to the oldest dancer at the Lounge, dancers who drink excessively are not sent home unless they get "out of hand." Other dancers tes tified that some dancers in the past have been punished or terminated for excessive drinking. Before the incident of September 3, 1989, claimant and her co-dancers at the Lounge had a propensity to party heavy on weekends using both alcohol and drugs. The Friday night before the accident, claimant and her friends injected crank or methamphetamine most of the night after drinking at work. Page 3 During the day on Saturday, September 2, 1989, claimant and another dancer traveled around eastern Nebraska looking for a bike race consuming part of a 12 pack of beer. Claimant testified that since she was a heavy drinker, consuming a 12 pack of beer would not affect her. Claimant reported for work late on Saturday night, September 2, 1989. Claimant admitted that she drank heavily on that night as she was quarreling with April. She and her friend had borrowed April's car earlier that day to go to the bike races without asking her permission. Claimant stated that she and April became drunk and argued. Claimant denies using drugs other than alcohol that day or that evening. There is no evidence to the contrary. Claimant testified that she became very drunk at work on the evening of September 2, 1989. She stated that she does not deny talking about going to a party after work but she cannot remember due to her intoxication. Claimant stated that the manager then told both her and April at closing time that they were drunk and ordered them both to leave the Lounge. Claimant stated that she could barely walk and entered April's vehicle thinking she was going to take her home. Claimant lives across the street from the Lounge at Bart's motel. However, she stated that April told her after they left that she was going to her home. The two then stopped at a convenience store where claimant purchased a Coke and April purchased a pickle. Claimant stated that she entered the car and took a sip of pop and the next thing she knew she awoke in the hospital. According to the Omaha police report, April's car suddenly veered off the roadway striking a utility pole, smashing head-on into a rock re taining wall. April subsequently died from injuries she sustained in the accident. Claimant suffered multiple injuries including a cerebral concussion, a right and left calcaneus fracture and a right lateral tibial plateau fracture. She also had facial fractures and lacerations with significant loss of teeth. Although now healed, these injuries have extensively disfigured her face, greatly impairing her ability to work as a dancer. She also has suffered a 10 percent permanent partial impairment to both of her feet. The views of Oscar Jardon, M.D., who treated claimant after the accident are uncontroverted on this matter. It is found that claimant's intoxication on the evening of September 2, 1989 and the morning of September 3, 1989 arose out of and in the course of her employment as a dancer at the Lounge. Although intoxication was not encouraged and dancers could drink non-alcoholic beverages, excessive drinking of alcoholic beverages with customers was condoned if not encouraged. The minimum drink quota per hour clearly contributes to this excessive drinking. Employers such as the Lounge herein should expect that the consumption of numerous alcoholic beverages, which they meticulously kept track of, and the amounts consumed by claimant and April that evening would probably result in their intoxication. It is further found that claimant's intoxication was a Page 4 substantial cause of her injuries, her resulting foot im pairment and facial disfigurement. There was little dispute that claimant was drunk and the Lounge manager admitted this knowledge when he ordered her and April to leave the Lounge that morning shortly before the accident. All witnesses agreed that the manager kept track of the number of drinks hustled by the dancers each night. Claimant could barely walk and had no choice but to ride with April, even though her motel room was just across the street. It certainly was not at all unusual for claimant and the other dancers to spend the night elsewhere instead of their own motel rooms. Whether or not April was heading for her home or a party is unknown and probably will never be known. However, April's destination is irrelevant as claimant was a captive passenger in her car. Finally, claimant's judgment was clearly impaired as she entered a car driven by another in toxicated person. April's intoxication was verified by physicians at the request of Omaha police after the accident.uivalent to "loss" of the member. Moses v. National Union C.M. Co., 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u), the industrial commissioner may equitably prorate compensation payable in those cases where the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W. 2d 84 (Iowa 1969). In the case sub judice, it was found that claimant Page 5 suffered a 10 percent permanent loss of use to each of her two feet. Based upon such a finding, claimant is entitled to a total of 30 weeks of permanent partial disability bene fits under Iowa Code section 85.34(2)(n) in addition to the 150 weeks for her disfigurement stipulated in the prehearing report. The parties stipulated as to the extent of claimant's entitlement to healing period benefits. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if he/she has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendant to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, given the parties' stipulations in the prehearing report and the finding of a work injury, claimant is entitled to the requested medical benefits set forth in exhibits 14-1. ORDER 1. Defendant shall pay to claimant one hundred eighty (180) weeks of permanent partial disability benefits at a rate of three hundred sixty-three and 41/100 dollars ($363.41) per week from December 5, 1991. 2. Defendant shall pay to claimant healing period ben efits for the stipulated period of time at the rate of three hundred sixty-three and 41/100 dollars ($363.41) per week. 3. Defendant shall pay the medical expenses listed in the prehearing report, exhibits 14-19. Claimant shall be reimbursed for any of these expenses paid by him. Other wise, defendant shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 4. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendant 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. Defendant 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 May, 1992. ______________________________ LARRY P. WALSHIRE Page 6 DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Sheldon Gallner Attorney at Law 803 3rd Ave P O Box 1588 Council Bluffs IA 51502 Mr Bill Bracker Attorney at Law 501 S Main St Ste 203 Kiel Bldg Council Bluffs IA 51503 1101; 1601 Filed May 29, 1992 Larry P. Walshire before the iowa industrial commissioner ____________________________________________________________ : JACQUELINE FERNANDEZ, : : Claimant, : : vs. : : File No. 981387 2800 CORPORATION, d/b/a : BOTTOMS UP LOUNGE, : : A R B I T R A T I O N Employer, : Defendant. : D E C I S I O N : ___________________________________________________________ 1101 & 1601- Intoxication. Held: Intoxication of a "gogo dancer" which lead to her injuries in an auto accident was found to arise out of and in the course of her employment and is excluded as a defense under Iowa Code section 85.16. The dancers were required to hustle at least two drinks per hour from customers. It was opined that if a bar condones and encourages excessive drinking by employees, then the scope of employment does not end at the bar doorway. It extends until the work related intoxication subsides, or is maintained or increased by the employee with drinking outside of the work environment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : MICHELE LUEHRING, : : Claimant, : : vs. : : File No. 981389 FURNAS ELECTRIC COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Michele Luehring, claimant, against Furnas Electric Company, employer, and Liberty Mutual, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of an occupational disease (asthma) on October 3, 1990, caused by claimant's work environment. This matter came on for hearing before the undersigned deputy industrial commissioner on October 5, 1992, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying were Mary Finn, an industrial hygienist; Melvin Bobo and Amy Desenberg-Wines, vocational rehabilitation consultants. Documentary evidence identified in the record consists of claimant's exhibits 1 through 5 and defendants' exhibits A, B and C. ISSUES Pursuant to the prehearing report and order dated October 5, 1992, the parties have presented the following issues for resolution: 1. Whether claimant's occupational disease is a cause of permanent disability; and 2. The extent of entitlement for weekly compensation for permanent disability. FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence Page 2 contained in the exhibits herein, and makes the following findings: At the hearing, claimant testified that she is 28 years old and completed the twelfth grade of school. Claimant is a certified nursing assistant and worked as a nurse's aide from 1979 to 1982. Other work activity performed by claimant includes wire harness assembler, assembly line inspector, cashier/checker, shift manager/crew trainer, and switch builder. Claimant commenced working for employer in March 1990. She testified that in October 1990, she worked a 40-hour week and earned $5.71 per hour. Claimant was terminated from employment with employer on February 22, 1991, based on doctor's orders. She has not worked since that time and only made a serious job search three months prior to hearing. The pertinent medical evidence of record reveals that claimant was referred by G.N. Fotiadis, M.D., to the University of Iowa Occupational Medicine Clinic on December 6, 1990, for evaluation. Claimant was seen by Pope Moseley, M.D. Claimant related to Dr. Moseley that she began experiencing symptoms of lightheadedness, shortness of breath and productive cough with wheezing in September 1990. On October 3, 1990, she was treated in the emergency room for acute shortness of breath. She related her symptoms of respiratory distress to her work environment. A general physical examination at this time was unremarkable with clear lung sounds and normal spirometry and lung volumes. She was asked to obtain a list of all chemical agents to which she was exposed and to return in two months (exhibit 2, page 1). Claimant was re-evaluated in the Occupational Medicine Clinic on February 7, 1991. At this time, Material Safety Data Sheets were reviewed and it was found that she was exposed to a compound called Super Bond that has a cyanoacrylate in it. Dr. Moseley reported on February 11, 1991, that a Methacholine challenge at time of examination was strongly positive suggesting evidence of asthma. He recommended that she not return to work with employer (ex. 2, p. 2). Based on Dr. Moseley's recommendation, claimant was notified by employer's personnel manager on March 1, 1991, that her termination with the company was processed on February 22, 1991 (ex. 4, p. 2). On March 12, 1991, Dr. Moseley reported to claimant's attorney that after reviewing the pertinent evidence, he concluded that claimant was exposed to an adhesive containing cyanoacrylate (trade name Super Bonder 416). He stated that: ...The cyanoacrylates are a group of low molecular weight adhesives which polymerize rapidly and form very strong bonds. They are used in a large number of industrial processes primarily in the assembly of small components such as switches. The toxicity from these compounds is of two forms. Page 3 First, cyanoacrylate easily decomposes into formaldehyde and cyanoacetate, so it is an irritant which can cause inflammation of the eyes and membranes of the nose, mouth and throat. For this reason it is recommended that contact with the skin and eyes be avoided and that the vapor not be breathed. (exhibit 2, page 3) On April 16, 1991, claimant was referred to Michael J. Makowsky, M.D., for an independent medical examination. Dr. Makowsky echoed Dr. Moseley's opinion that claimant has documented exposure to cyanoacrylates which resulted in claimant's development of allergic asthma. Dr. Makowsky opined that claimant is capable of being employed in an occupation where cyanoacrylates are not used. He also stated that, "In view of her normal pulmonary function testing, it is very difficult to determine a functional impairment rating using the American Association's `Guidelines to the Evaluation of Permanent Impairment.' (ex. 1, p. 2). On June 24, 1991, Dr. Makowsky reported that, "If we use the AMA guides, she has sustained a zero percent permanent impairment rating." (ex. 1, p. 4). Mary Finn testified that claimant's history of being exposed to a sensitizing pulmonary agent precludes her from working in any industry where she would be exposed to cyanoacrylates. However, she is not precluded from working in chemical free service area occupations. Claimant's vocational expert, Melvin Bobo, identified jobs which claimant would be able to perform such as receptionist, secretary and customer service representative. On May 13, 1991, defendant insurance company employed Lori Hackett, rehabilitation consultant with Resource Opportunities, Inc., to meet with claimant and perform a vocational assessment. On May 31, 1991, Ms. Hackett filed a comprehensive report in which she reviewed claimant's medical, vocational and educational history, motivation, skills and abilities. Using all of the above factors, Ms. Hackett targeted jobs in the Iowa job market which claimant would be able to perform. Such jobs included, among others, cashier/checker, counter supervisor, hospital-admitting clerk, general clerk, bank messenger, telephone operator, receptionist, and office helper (ex. A). A follow-up consultation with claimant was performed by Ms. Hackett on June 4, 1991. Prior to meeting with claimant, Ms. Hackett conducted job development activities in claimant's geographic area and identified two jobs for quality control inspector, a certified nursing assistant job with a local nursing home and positions with Hardee's and Casey's. The jobs paid between $4.50 and $5 an hour. The job leads were given to claimant but she indicated that she preferred to attend school at Iowa Southwest Community College in Creston and study microcomputers. Ms. Hackett Page 4 obtained a financial Pell Grant application for client and referred her to the state vocational rehabilitation and JTPA for assistance with tuition, fees, transportation, and child care. Claimant, although planning for a July wedding, followed through with the assigned tasks. She did manifest concern about losing her medical coverage through the AFDC program should she obtain immediate employment (ex. A). On July 30, 1991, Ms. Hackett reported that claimant had been accepted at the college and was scheduled to register for classes on August 27, 1991. In August 1991, claimant's case was transferred to Amy Desenberg-Wines. Ms. Desenberg-Wines testified at the hearing. She stated that claimant was not found eligible for state vocational rehabilitation services and she recommended to claimant that she appeal this decision. On September 23, 1991, Ms. Desenberg-Wines telephoned claimant regarding her current status and was informed that she was a full-time student and did not need any vocational services at the present time. The vocational consultant told claimant that in view of her circumstances, her vocational file would be closed but she was advised to contact her at any time if she encountered any problems. Claimant testified that she did not complete the program at Southwestern Community College and did not contact either insurance carrier or the vocational consultant regarding her status. Claimant testified that she had a child on January 26, 1992, and did not begin to look for work until July 1992. She submitted a list of 43 businesses in her geographic area where she applied for jobs between July and September 1992. However, she provided no verification or corroboration of contact with the companies listed (ex. 5). CONCLUSIONS OF LAW The first issue to be determined is whether claimant's asthma is an occupational disease under Iowa Code section 85A or an injury under Iowa Code section 85. Iowa Code section 85A.14 provides as followed: No compensation shall be payable under this chapter for any condition of physical or mental ill-being, disability, disablement, or death for which compensation is recoverable on account of injury under the workers' compensation law. Existence of section 85A.14 indicates a legislative intent to preclude recovery under both chapter 85 and chapter 85A for the same injury or condition. Claimant cannot be compensated for both an injury under chapter 85 and an occupational disease under chapter 85A for the same work-related condition. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: Page 5 While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. (Citations omitted.) Likewise a personal injury includes a disease resulting from an injury. ... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. (Citations omitted.) The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. (Emphasis added.) Chapter 85A defines occupational disease in section 85A.8 as follows: Occupational diseases shall be only those diseases which arise out of and in the course of the employee's employment. Such diseases shall have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment. Such disease must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment. Such disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease. The medical evidence in this case clearly demonstrates that claimant developed occupational asthma as a result of Page 6 exposure to cyanoacrylates while working as a switch builder for employer. Dr. Moseley and Dr. Makowsky concur that methacholine challenge testing evidenced that claimant suffers from asthma as a result of exposure to a compound called Super Bond that has a cyanoacrylate in it. Therefore, it is concluded that claimant's asthma is an occupational disease and not an injury and analysis of her claim must be made under Iowa Code section 85A rather than chapter 85. Defendants do not deny that claimant's occupational disease arose out of and in the course of her employment with employer. Defendants also concede that there is a causal relationship between claimant's occupational disease and temporary disability. However, they dispute a causal relationship between claimant's disease and any claimed permanent disability. Dr. Moseley and Dr. Makowsky opine that it is likely that claimant's occupational asthma will persist in that re-exposure to the chemical compounds that initiate it will likely trigger further respiratory problems. Claimant's medical history is consistent with any permanent problems having their basis in her work exposure. Given such, claimant has established the requisite causal relationship between her work injury and claimed permanent disability with such claimed permanent disability found to be likely continued problems with occupational asthma should claimant be re-exposed to the chemical compounds that initiated the disease or other respiratory irritants to which claimant is now sensitized. However, it is also conceivable that claimant continues to aggravate her condition by smoking cigarettes. The next issue to be determined is the extent of claimant's entitlement to permanent partial disability benefits. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 Page 7 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. As noted, claimant has been given no impairment rating. Her only limitation is that she should avoid re-exposure to the chemicals which initially caused her problems and other airway irritants which cause her problems. These restrictions do not appear to cause claimant significant problems in daily living, although they may well impact on the activities in which claimant could engage in an industrial setting. Claimant's industrial hygienist expert specifically stated that claimant could not work in any industrial setting where cyanoacrylates were used in the process. This includes manufacturing and assembling small components such as switches. Claimant, therefore, is precluded from performing her prior work activity with employer. Iowa Code section 85A.4 states: Disablement as that term is used in this chapter is the event or condition where an employee becomes actually incapacitated from performing the employee's work or from earning equal wages in other suitable employment because of an occupational disease as defined in this chapter in the last occupation in which such employee is injuriously exposed to the hazards of such disease. The term disability includes "industrial disability" or loss of earning capacity and not merely physical or functional disability. Frit Industries v. Langenwalter, 443 N.W.2d 88 (Iowa App. 1989). Claimant was born on July 11, 1964. She was 26 years old at the time of her occupational disease and currently 28 years old. Because of her young age, her industrial disability is less serious then it would be for an older worker who is injured at the peak of her earnings career. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989). Claimant completed the twelfth grade of school and training as a certified nurse's assistant. On the Wide Range Achievement Tests, she scored above the twelfth grade level in reading and at the eleventh grade level in arithmetic. A vocational assessment conducted in May 1991 reflected that she has excellent communication skills; skills in working with the public; management experience, including supervising and training employees; experience operating a cash register and handling money; knowledge regarding operating procedures and policies in the fast food Page 8 industry; good eye/hand coordination and hand/finger dexterity; a familiarity with medical terminology; a valid driver's license; and experience in operating a calculator, fax machine and copy machine (ex. A). Fortunately, claimant appears highly qualified for a variety of positions outside of an industrial setting. Claimant has not been employed since October 1990. She has not participated in vocational retraining and has not completed a computer program course. Her motivation to be retrained or re-enter the job market is questionable. Claimant made no serious efforts in this regard until three months prior to the hearing. She indicated a concern about losing her medical benefits under the AFDC program and made no concerted effort to obtain employment during her pregnancy from April 1991 through January 1992. Since claimant has not made a serious effort to be employed, there is a paucity of evidence to determine what claimant can and cannot do within the boundaries of her restrictions and disability. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). An employee making a claim for industrial disability will benefit from a serious attempt to find work in the competitive employment market. It appears that claimant's job search three months prior to hearing were preparatory to litigation rather than an aggressive pursuit and interest to re-enter the job market. Employers are responsible in the reduction in earning capacity caused by the injury. They are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). As previously noted, claimant earned $5.83 per hour in October 1990. Jobs identified by vocational consultants ranged in salary from entry level minimum wage to $5 an hour. Thus, loss of earning capacity is minimal. Based upon the foregoing factors, all of the factors used to determine industrial disability and employing agency expertise, it is determined that claimant has sustained a 25 percent industrial disability. Claimant is entitled to 125 weeks of permanent partial disability benefits at the rate of $147.36 per week commencing February 12, 1991. ORDER THEREFORE, IT IS ORDERED: Defendants pay to claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of one hundred forty-seven and 36/100 dollars ($147.36) per week commencing February 12, 1991. That defendants receive credit for any benefits previously paid. That defendants pay accrued amounts in a lump sum. Page 9 That defendants pay interest pursuant to Iowa Code section 85.30. That defendant pay the costs of this action pursuant to rule 343 IAC 4.33. That defendant file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1992. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steven C. Jayne Attorney at Law 5835 Grand Ave. Des Moines, Iowa 50312 Mr. Helmut Mueller Attorney at Law RR 5 Osceola, Iowa 50213 Mr. Joseph S. Cortese, II Attorney at Law 500 Liberty Bldg Des Moines, Iowa 50309 2203 1803 Filed October 9, 1992 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MICHELE LUEHRING, Claimant, vs. File No. 981389 FURNACE ELECTRIC COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 2203 Claimant's asthma found to be an occupational disease under Iowa Code section chapter 85A rather than an injury compensated under Iowa Code section chapter 85. 1803 Twenty-six-year-old claimant with no impairment rating, precluded from performing her past work activity as a switch builder, whose only restriction is to avoid exposure to cyanoacrylates which are used in many industrial processes, was awarded 25 percent permanent partial disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GERRY L. BAILEY, : : Claimant, : File Nos. 872775 : 872776 vs. : 872778 : 936530 AALFS MANUFACTURING COMPANY, : 981393 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : THE HARTFORD and AETNA : CASUALTY & SURETY COMPANY, : : Insurance Carriers, : Defendants. : ____________________________________________________________ statement of the case These matters were consolidated by an order filed June 5, 1990. File number 872775 is a proceeding in arbitration upon claimant's petition filed May 9, 1988. Gerry L. Bailey contends she suffered a work injury through cumulative trauma to the left arm on October 24, 1987, and seeks benefits under the Iowa Workers' Compensation Act from employer Aalfs Manufacturing Company and its then insurer, The Hartford Insurance Company. File number 872776 is also a proceeding in arbitration alleging a cumulative injury to the left arm of February 19, 1988. File number 872778 is similarly a petition in arbitration alleging a cumulative injury to the right arm of April 4, 1988 and seeking benefits from Aalfs and its then insurer, Aetna Casualty & Surety Company. File number 936530 is upon an arbitration petition filed April 13, 1990 and alleges cumulative injuries to the right arm, shoulder and neck on March 27, 1989. This petition also seeks benefits from Aalfs and Aetna. These matters came on for hearing in Sioux City, Iowa, on September 11, 1990. The record consists of joint exhibits 1 through 46 and 48 through 87, claimant's exhibit 88 and the testimony of the following witnesses: claimant, James Bailey, Adelle Mack, Leila Mathesen and Melanie Nieman. issues It is stipulated by all parties that Hartford provided insurance coverage for Aalfs Manufacturing from March 31, 1987 through March 30, 1988 and that Aetna Casualty & Surety provided insurance coverage commencing March 31, 1988. In file number 872775, the parties have stipulated that Page 2 all requested medical benefits under Iowa Code section 85.27 have been or will be paid by defendants. Issues presented for resolution include: 1. Whether an employment relationship existed between claimant and Aalfs Manufacturing Company on October 24, 1987; 2. Whether claimant on that date sustained an injury arising out of and in the course of that employment; 3. Whether there exists a causal relationship between the claimed injury and temporary or permanent disability; 4. The nature and extent of claimant's disability, if any; 5. The rate of compensation; 6. Whether claimant is entitled to penalty benefits under Iowa Code section 86.13; and, 7. Whether defendants should pay the costs of a medical examination by Dr. Luse under Iowa Code section 85.39. In file number 872776, the parties have stipulated that an employment relationship existed between claimant and Aalfs on February 19, 1988, that claimant sustained an injury arising out of and in the course of her employment on that date, that the injury caused temporary disability as set forth in joint exhibit 28, that the injury caused a scheduled member disability equivalent to two percent of the left arm with a commencement date for benefits of October 9, 1988 (paid by defendants on September 5, 1990), that all requested medical benefits have been or will be paid by defendants, and that defendants paid healing period or temporary disability benefits as per claimant's entitlement. Issues presented for resolution include: 1. The rate of weekly compensation; and, 2. Whether claimant is entitled to penalty benefits. In file numbers 872778 and 936530, the parties have stipulated that an employment relationship existed at all times relevant and that certain benefits were voluntarily paid prior to hearing. Issues presented for resolution include: 1. Whether claimant sustained injuries on April 7, 1988 and/or March 27, 1989, arising out of and in the course of her employment with Aalfs Manufacturing Company; 2. Whether there exists a causal relationship between either injury and any resulting temporary or permanent disability; Page 3 3. The nature and extent of claimant's disability, if any; 4. The rate of weekly compensation with respect to each asserted injury; and, 5. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds: Gerry L. Bailey, 40 years of age at hearing, is a right-handed 1968 high school graduate, but was not a good student. Thereafter, she worked for approximately two years in a factory assembly job, leaving that work when she became pregnant. In approximately 1978, claimant undertook training (beauty school followed by an apprenticeship) to be a cosmetologist, eventually obtaining a license in another state. However, although she worked briefly for two beauty parlors, she opted not to pursue that career on a full-time basis, remaining home to care for her children until September, 1986. At that time, she took a position hanging wallpaper for a construction company, remaining so employed until January, 1987, when she was laid off for the season. Claimant began work with Aalfs Manufacturing Company, a manufacturer of blue jeans, on May 12, 1987. She held positions in assembly (sewing) and repair until quitting the work on June 8, 1989. In a decision dated June 26, 1989, Job Service of Iowa found that she had left that work upon the advice of a physician due to medical problems arising out of and in connection with the work. No disqualification for job insurance benefits was imposed. Claimant received job insurance benefits for several months, certifying for each week that she was "able and available" for work. On cross-examination, she conceded that these certifications were untrue, thus establishing that claimant is willing to lie in her pursuit of benefits from a sister agency. This seriously affects her credibility as a witness. Claimant has not worked since leaving Aalfs, except for some insignificant clerical work for a contract labor business known as Manpower. Other than that, she has not sought employment since she discontinued receiving unemployment insurance benefits, apparently in September, 1989. Educationally, claimant also completed a six-week adult education course in microsoft systems in 1988, and part of (but not finishing) a word processing course in 1989. Prior to commencing employment with Aalfs, claimant underwent female surgery and suffered from ulcers, but was entirely recovered. She suffered falls at age 12, in 1978 Page 4 and again in 1986. She struck her head on the first two occasions, but without permanent damage. In 1986, she sustained injury to the left shoulder and neck, but claims to have completely recovered. While working for Thompson's Construction in 1986, claimant suffered swelling of the hands diagnosed as tendonitis. During 1987 and 1988 (the record is silent as to 1989), claimant was married and resided with her husband (James Bailey) and her 13-year-old daughter. In addition, her married 17-year-old daughter lived with the family, along with a 17-year-old husband and one child, claimant's grandson. On October 24, 1987, when claimant first reported injury, she was employed in a position described as cord left/fly. This sewing job required reaching to the left side and behind for material, which stressed the left arm and shoulder. Claimant reported symptoms of weakness and pain in the left wrist and forearm (and also knee). She was referred to Richard L. Budensiek, D.O., who diagnosed carpal tunnel syndrome of the left wrist and medial collateral ligament strain of the knee, checked on a form as related to work. On October 30, Dr. Budensiek apparently also diagnosed strain to the right knee related to work. Claimant was treated with splints for her hand and at least one knee and advised to slow down her pace to 70 percent (she worked an incentive job in which her production level was recorded). Claimant missed no work at this time and testified that arm symptoms resolved. By February 19, 1988, when claimant reported a second injury, symptoms had recurred. In addition to complaints of numbness in the thumb, soreness in the wrist and knotted muscles in the forearm, claimant testified to shoulder and neck complaints along with headaches. She was again referred to Dr. Budensiek. His findings of February 19 include positive Phalen's and Tinel's signs in the left wrist and tenderness in the cervical spine on the left. Diagnosis was of carpal tunnel syndrome and possible cervical radiculopathy, seen as work related. Claimant missed work as set forth in joint exhibit 28, and her entitlement to healing period or temporary total disability with respect to this injury is not in dispute. Radiographic examination of the cervical spine on February 22 by M. Sandler, M.D., showed marked reversal of the normal lordosis as a result of either muscle spasm or simply the viewing position, but no evidence of fracture, dislocation, arthritis or other abnormality was seen. On February 19, 22 and 26 and March and 4, Dr. Budensiek restricted use of claimant's left hand and arm. Dr. Budensiek's diagnoses varied from cervical and thoracic myositis to cervical radiculopathy and carpal tunnel syndrome and tendonitis of the wrist. In each case, he opined on printed forms that the injury was work related. By April 4, Steven F. Gordon, M.D., (of the same office, Morningside Family Practice, P.C.) diagnosed carpal tunnel syndrome only, but both hands were splinted. Dr. Budensiek's report of April 7 included a diagnosed strain to the medial collateral ligament of the right knee, but on April 15, John N. Redwine, D.O., (of the Page 5 same office) diagnosed thoracic myositis, carpal tunnel syndrome of the left wrist and spasm of the trapezius, all cited as work related. By April 20, claimant was taken off work for two weeks by Dr. Budensiek, but the diagnosis was limited to carpal tunnel syndrome. Chart notes from Morningside Family Practice, P.C., dated February 19, 1988 reflect that claimant presented with recurrence of left arm pain. Phalen's and Tinel's signs were positive on the left. Claimant showed tenderness over the paravertebral musculature of the cervical spine, especially on the left. A standard calendar shows that February 19, 1988 fell on a Friday. Claimant was to return to the office on Monday for a possible return to work on Tuesday, which implies that claimant was off work on Monday, February 22. Chart notes of that date prepared by Dr. Redwine reflect that Tinel's and Phalen's were now negative, although he assessed overuse syndrome of the left arm with possible carpal tunnel syndrome. Claimant was released to light duty for the next week, starting February 23. On February 26, a Friday, range of motion of the neck was normal, but Dr. Budensiek reported tenderness around the rhomboid and trapezius bilaterally, leading to his assessment of trapezius and rhomboid myositis. Claimant was to return on the following Tuesday (March 1) for possible return to work the following day. Attendance records show notation "10" for February 29; the key shows this refers to "work injury/illness." Dr. Budensiek continued claimant off work as of March 1 based on an assessment of cervical and thoracic myositis and carpal tunnel syndrome. Accordingly, it is noted that claimant first lost work upon a doctor's advice due to symptoms extending beyond the left arm on February 29, 1988, while Aalfs was insured by Hartford. Claimant was seen at Morningside Family Practice on several more occasions before undergoing a carpal tunnel release on May 2, 1988. Dr. Budensiek notes cervical radiculopathy and CTS (carpal tunnel syndrome) on March 21, carpal tunnel syndrome and medial collateral ligament strain to the right knee on April 7 (range of motion of the neck was then normal) and thoracic myositis, trapezius muscle spasm and carpal tunnel syndrome on April 15. On that date, claimant reported pain in the neck radiating to the scalp, and pain in the shoulder and arm. Claimant was referred by Dr. Budensiek for surgery to John J. Dougherty, M.D. Surgery was performed on May 2, 1988. Dr. Dougherty considered claimant's recuperation to be a difficult problem, indicating that her symptoms far outweighed objective signs. In fact, on June 16, he expressed distrust of claimant's honesty ("I think she is basically doing better than she leads me to believe."). On September 13, 1988, Dr. Dougherty wrote that EMG showed no evidence of cervical radiculopathy and noted that he had released claimant to return to work on August 1. He also noted that claimant had not had complaints of the right wrist. On the left side, he believed her to have sustained approximately a two percent permanent impairment of the arm. This letter was mailed to Aetna, although Hartford was the carrier liable on the claim (872776). No permanent Page 6 restrictions were imposed. Although Dr. Dougherty later indicated that claimant made no complaints of right-sided upper extremity symptoms, his chart notes of April 28, 1988 reflect such complaints, and particularly that, if she were to be off work for the left hand, the right hand might also improve. Claimant went through a work hardening program and eventually returned to full productivity. However, in February, 1989, her left hand became swollen and pain developed in the forearm, upper arm, shoulder and neck. In addition, claimant's right hand began periodically going numb. Claimant returned to Morningside Family Practice on February 17 and was seen by Dr. Gordon. His notes reflect complaints of pain in the left elbow, wrist and shoulder. Assessment was of left lateral epicondylitis and left biceps tendonitis. No complaints of right arm symptoms were noted. The same was true on February 28 and March 7. On March 15, complaints were of pain in the left arm, forearm and left trapezius. Assessment was of overuse syndrome with myositis and epicondylitis on the left side. Again, there were no complaints of right-sided symptomatology. On March 28, 1989 (one day after the injury alleged in 936530), pain was described as continuing unabated through the entire left upper extremity. Dr. Gordon noted that there was "no spot throughout the entire left upper extremity which is not tender." Assessment was of left upper extremity pain; unknown etiology. Differential diagnosis: "Includes functional problem as well as reflex sympathetic dystrophy." Claimant was restricted from work with the left arm. On May 8, Dr. Gordon described "functional pain versus musculoskeletal pain" and suggested that claimant's sociological problems might be impinging on her work. On May 16, claimant was released to return part-time, up to three hours per day. After that, claimant was restricted from work with the left hand. On workers' compensation forms dated February 22 and March 29, Dr. Gordon indicated his belief that left arm symptoms, etiology known or unknown, were causally related to work. Claimant was next seen by Kevin Liudahl, M.D., apparently on Dr. Gordon's referral. On April 24, 1989, chart notes reflect that claimant gave history of gradual insidious recurrence of left upper extremity complaints. Pain was reported in the posterior aspect of the shoulder, posterior humerus, posterior elbow and radial forearm down into the wrist. Claimant described the pain as different from that she had previously experienced. Claimant further complained of posterior neck and shoulder complaints bilaterally, worse on the left. These were described as mostly related to kneeling forward over bench activities at work, and were markedly relieved with claimant off work the past six weeks. Physical examination revealed diffuse posterior bilateral paracervical spinous muscle tenderness, but good range of motion in the cervical spine. Claimant had moderate tenderness over the trapezius muscles bilaterally, worse on the left. Impression was of trapezius syndrome, left shoulder and pillar syndrome, left hand Page 7 status post-carpal tunnel release. "Probably with considerable amount of functional overlay." Claimant was released on a return as needed basis, as Dr. Liudahl had no further therapy to add. Claimant returned to Dr. Liudahl on May 30 with the same complaints. Significant stiffness in the neck was found on examination, although range of motion was full. Claimant had significant tightness and tenderness of the shoulder elevator muscles, although with full range of motion. Probable diagnosis was of polymyalgia rheumatica. Claimant was seen again on June 6, with complaints, examination and diagnosis unchanged. Dr. Liudahl noted that polymyalgia rheumatica is ordinarily treated with a long-term dose of oral steroids, and that patients normally respond quite well to the medication. He anticipated that claimant would be able to return to her line of work within the next month. Chart notes further indicate: "The exact etiology of these conditions is difficult to determine. I believe that in this particular case it is very closely in time and duration related to activities, thus it must be considered related to her work." Dr. Liudahl has not provided an impairment rating or imposed permanent restrictions, presumably because he anticipated full recovery. Claimant was also seen by her family physician, David J. Hoelting, M.D. She did not seek or receive authorization for this care, which includes a physical therapy bill in the amount of $30.00 for which reimbursement is now sought. On June 7, 1989, Dr. Hoelting recommended that because of continued problems with the neck and shoulder, claimant should seek different work. Claimant was also seen by Robert A. Durnin, M.D., a physical medicine specialist. On March 14, 1988, Dr. Durnin wrote that claimant complained of left-sided neck pain referring as far as the trapezius and shoulder tip for the past three weeks and of pain radiating down the right upper extremity to the wrist or palm. His probable diagnosis was of cervical disc degeneration, probably at C4-5, probable early lumbar disc degeneration, carpal tunnel syndrome on the left and depression. On the same date, he filled out a form indicating the injury (carpal tunnel syndrome and cervical disc) was work related. However, on March 22, Dr. Durnin wrote that claimant's neck discomfort and pain down the arm had resolved following traction. Claimant was also seen for evaluation by Pat Luse, D.C., in June 1990. Dr. Luse diagnosed chronic cervical sprain, right wrist tendonitis, suspected right carpal tunnel syndrome and status post-left carpal tunnel syndrome surgery. He found the cervical spine not subject to an impairment rating (presumably because he found full range of motion), a 2 percent impairment to the left upper extremity (the same as Dr. Dougherty) and a 14 percent impairment to the right upper extremity, although he believed this should be confirmed by EMG. As to causal nexus, Dr. Luse wrote: Page 8 It is my opinion, based on the available information, that Gerry Bailey did receive an injury as the result of her work injuries. The subjective complaints were consistent with the objective findings. Dr. Luse suggested restrictions against repetitive motion work with either upper extremity. Electromyography was done by Joel T. Cotton, M.D., on August 31, 1990. His impression was of mild to moderate right distal median neuropathy as seen clinically in mild to moderate right carpal tunnel syndrome. conclusions of law All of claimant's alleged injuries are repetitive motion or cumulative type injuries. The pleadings are greatly in disarray in terms of what injuries claimant sustained on which dates and what relief is sought from which insurance carrier. With respect to cumulative injuries, Iowa has adopted the rule that such injuries occur for workers' compensation purposes at such time as the employee can no longer work because of pain or physical inability. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Consider then claimant's complaints in terms of when she was no longer able to work. Cases number 872775 and 872776 seek relief based on claimed impairment to the left arm. Defendants deny that an employment relationship existed between claimant and Aalfs on October 24, 1987, but claimant has met her burden of proof on this issue in that her uncontradicted testimony establishes that the employment relationship (which is admitted in the other three cases) commenced on May 12, 1987. However, although claimant complained of left arm symptoms to Dr. Budensiek on that date, she was not taken off work and no restrictions were imposed. Claimant has failed to establish a compensable work injury of October 24, 1987. However, claimant did complain further of left-sided arm pain along with cervical complaints on February 19, 1988, and was at that time taken off work. In case number 872776, claimant, Aalfs and Hartford have stipulated that an injury arising out of and in the course of employment was sustained and caused permanent and temporary disability, the extent of each being stipulated. On the basis of the prehearing report entered into by the parties, the only issues remaining include the rate of compensation and entitlement to penalty benefits. It was agreed that claimant has been compensated for her temporary disability as set forth in exhibit 28 and that her permanent disability is two percent of the arm, which is consistent with the opinions of Drs. Dougherty and Luse. The dispute as to the rate of compensation relates to whether or not claimant is entitled to claim her married child, son-in-law or grandson as exemptions. The proper rate of compensation is generally 80 percent of the Page 9 employee's "average weekly spendable earnings." Iowa Code section 85.37. Spendable weekly earnings are gross weekly earnings less payroll taxes. Iowa Code section 85.61(11). Iowa Code section 85.61(10) defines "payroll taxes" as an amount, determined by tables adopted by the commissioner, equivalent to the amount which would be withheld pursuant to withholding tables of the Internal Revenue Code as though the employee had elected to claim the maximum number of exemptions to which entitled. Therefore, claimant's entitlement to the exemptions in dispute depends upon interpretations of the Internal Revenue Code of 1954. This writer does not now and has never claimed to be a competent tax attorney. Claimant did not choose to introduce evidence of federal law in this respect, nor has she requested that official notice be taken of any federal statute, rule or case. If claimant has not actually waived this rather unusual claim by her failure to do so, she has at least failed to meet her burden of proof on the issue. Her rate in these cases where at issue shall be determined on the basis of entitlement to three exemptions (claimant, her husband and 13-year-old child). In case number 872776, the parties stipulated to gross weekly earnings of $191.41 and a marital status of married. The Guide to Iowa Workers' Compensation Claim Handling effective July 1, 1987 shows that an individual so situated is entitled to a rate of $134.12. Defendants made certain payments at the rate of $137.40 (based, incorrectly, on four exemptions) pursuant to claimant's stipulated entitlement. However, this does not end inquiry with respect to case number 872776. Claimant also makes complaint of cervical, shoulder and right arm problems. Dr. Budensiek's notes of February 19, 1988 reflect that claimant was taken off work at that time in part due to what he at that time assessed as possible cervical radiculopathy. Under McKeever Custom Cabinets, if claimant has established entitlement to benefits based upon her cervical problems, the injury date is February 19, 1988. However, this presents procedural complications. The Hartford was the insurance carrier at risk on February 19, 1988. Both of the petitions seeking relief against Aalfs and The Hartford allege only impairment to the left arm. In fact, claimant entered into a stipulation to the effect that her entitlement to permanent impairment is one of two percent of that arm. In an action of questionable propriety, claimant then filed a post-hearing brief professing disinterest as to how industrial disability should be apportioned between insurance carriers and invited this agency to disregard her stipulation and pleadings. Nonetheless, it is held that defendant Hartford will not be prejudiced by considering the issues, since all cases have been consolidated for hearing, because limitations seems not to be a potential issue (the petition was filed within three years of the last date of weekly payments, shown on a form 2A contained in the administrative file to have commenced on April 27, 1988, that filing being hereby officially noticed under Iowa Code section 17A.14(4) without affording the parties an opportunity to contest the fact because fairness does not require that opportunity) and because the relevant Page 10 medical reports and chart notes have long been available to Aalfs and Hartford, so surprise cannot legitimately be claimed. However, this holding is not intended as precedent for not holding parties to their pre-trial stipulations. The agency has previously held that stipulations may be disregarded if the record shows facts to be otherwise. De Heer v. Clarklift of Des Moines, file number 804325 (App. Decn., May 12, 1989). That said, this writer finds himself unconvinced that claimant has established that permanent cervical problems, if any, are causally related to her employment. It will be recalled that claimant sustained neck and left shoulder problems in 1986, well before her employment with Aalfs began. It has been determined that she is not a credible witness. Drs. Liudahl, Dougherty and Gordon have all commented upon the fact that claimant's reported symptoms far outweigh objective signs, using expressions such as "functional" or "functional overlay," which medical practitioners commonly employ to refer to symptomatology that cannot be explained by objective examination or that is due to unrelated causes such as psychological factors or even considerations of secondary gain. It is unclear what the physical nature of claimant's cervical complaints is. Various physicians have offered diagnoses ranging from cervical sprain to cervical radiculopathy to polymyalgia rheumatica. Dr. Luse expresses an opinion as to causal nexus, but that opinion is so vague as to be largely without meaning, especially as to cervical sprain (which he finds unratable in terms of impairment). Dr. Durnin checked a form to indicate that cervical problems keeping claimant off work were related to the work, but this does not address the issue of permanent disability, as opposed to a temporary aggravation of an admittedly preexisting problem. It is, of course, claimant's burden of establishing by a preponderance of the evidence that her cervical disability is causally related to the injury on which she bases her claim. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). That question is essentially within the domain of expert testimony, Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960), although that evidence must be considered with all other evidence in the record bearing on the issue. Burt. Given the totality of the record on this issue, it is held that claimant has failed to establish by a preponderance of the evidence that her cervical complaints constitute a permanent disability causally related to her work with Aalfs in general or the injury of February 19, 1988 in specific. These comments apply also to claim number 936530, in which relief is sought based on right arm, shoulder and neck complaints based on an alleged injury date of March 27, 1989. Claimant also alleges (872778) that she sustained an injury to the right arm on April 4, 1988. It is her burden to establish that this injury arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). The record as to this injury is fairly sparse. However, it does not appear that claimant Page 11 ever missed work due to right arm symptoms until she actually quit her job upon the recommendation of Dr. Hoelting. Thus, if there is a compensable injury to the right arm, it occurred on June 8, 1989. Claimant's complaints of right-sided symptomatology are of long standing, dating back to Dr. Dougherty on April 28, 1988. Only one physician has expressed an opinion as to whether those symptoms are causally related to the work, that being Dr. Luse. Although his opinion as to causation is lacking in clarity, it should be considered in the context of rating the right arm. This seems also a cumulative injury, and it has not been shown to preexist claimant's employment with Aalfs. Dr. Luse's impression was also confirmed by the EMG performed by Dr. Cotton. It is therefore held that claimant has met her burden in proving an injury to the right arm arising out of and in the course of employment, causally related to her permanent impairment. Claimant has sustained a 14 percent impairment to the right upper extremity, an entitlement equivalent to 35 weeks. There is no showing of entitlement to healing period benefits. The parties stipulated to a rate of $134.33 with respect to the alleged injury of March 27, 1989, the closest alleged injury in point of time and the best evidence in the record as to the appropriate rate of compensation. order THEREFORE, IT IS ORDERED: In file number 872775, claimant shall take nothing. In file number 872776, claimant has been paid benefits in excess of her entitlement and shall take nothing further. In file number 872778, claimant shall take nothing. In file number 936530, claimant shall take nothing. In file number 981393: This division shall establish a separate file number and litigated file (claim number 981393) pertaining to claimant's right arm injury of June 8, 1989. Defendants Aalfs Manufacturing and Aetna shall file a first report of injury as to that file within thirty (30) days of the filing hereof. Those defendants shall also pay unto claimant thirty-five (35) weeks of permanent partial disability at the stipulated rate of one hundred thirty-four and 33/100 dollars ($134.33) per week commencing June 8, 1989 and totalling four thousand seven hundred one and 55/100 dollars ($4,701.55). All accrued weekly benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants Aalfs Manufacturing and Aetna shall file Page 12 claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. With respect to each contested case considered herein: Each party shall be responsible for its own costs pursuant to rule 343 IAC 4.33. Defendants Hartford and Aetna shall each be responsible for fifty percent (50%) of Dr. Luse's evaluation fee under Iowa Code section 85.39. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 Mr. James M. Cosgrove Mr. James P. Comstock Attorneys at Law 1109 Badgerow Building P.O. Box 1828 Sioux City, Iowa 51102 5-2701 Filed April 27, 1993 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JEFFREY W. BLANCHARD, : : File No. 981470 Claimant, : : vs. : MEMORANDOM OF : ROY'S AUTO SERVICE, : DECISION ON : Employer, : ALTERNATE : and : MEDICAL CARE : UNION INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2701 Deputy authorized claimant to have back surgery to be paid for by defendants. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JEFFREY W. BLANCHARD, : : File No. 981470 Claimant, : : vs. : MEMORANDOM OF : ROY'S AUTO SERVICE, : DECISION ON : Employer, : ALTERNATE : and : MEDICAL CARE : UNION INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ An original notice and petition was filed on April 16, 1993 under rule 343 IAC 4.48. April 28, 1993 was the date set for a telephonic hearing. By agreement due to conflict, the parties agreed to have this heard at 10:00 a.m. April 27, 1993. All parties were given proper notice. This alternate medical care petition was filed because of the claimant's dispute with medical care he was being given which arose out of a work injury on March 18, 1991. The entire hearing was recorded via an audio tape. The detailed decision was dictated into the record on the day of the hearing and will not be reproduced in typewritten form unless there is an appeal by the parties at which time the procedures under the administrative code are to be followed. Any rights of appeal will run from the date of the decision dictated into the record, namely, April 27, 1993, and this memorandum is solely for the purpose of the agency file. Final agency action was delegated to the undersigned and any appeal would be per 17A.19. The deputy ordered that claimant's petition for alternate medical care is approved. The decision was rendered on April 27, 1993. Claimant is authorized to have back surgery paid for by defendants. Signed and filed this ____ day of April, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Page 2 Copies to: Mr Joseph S Cortese II Attorney at Law 500 Liberty Bldg Des Moines IA 50309 Mr Robert S Kinsey III Attorney at Law 480 6th St P O Box 209 Waukee IA 50263 Page 1 before the iowa industrial commissioner ____________________________________________________________ : DEBORAH BUCK LOVELADY, : : File No. 981523 Claimant, : : A L T E R N A T E vs. : : C A R E MERCY HOSPITAL, : : D E C I S I O N Employer, : : and : : RELIANCE, : : Insurance carrier, : Defendants. : ___________________________________________________________ This is a proceeding before the Iowa Industrial Commissioner upon a petition for alternate medical care pursuant to Iowa Code section 85.27 filed on December 15, 1992 by claimant, Deborah Buck Lovelady, against Mercy Hospital, employer, invoking summary procedures set forth in rule 343 IAC 4.48. A telephone conference hearing commenced on December 28, 1992 at 8:30 a.m. The hearing was recorded by audio tape. Claimant participated personally with her attorney Jacob Peters. Defendants appeared through their attorney Mel Hanson and a representative of the adjusting firm Sedgwick James. At hearing the caption was amended to reflect Reliance as the appropriate insurance carrier in this matter. Upon inquiry it was found that liability for an injury on April 8, 1991 was admitted by defendants. Both parties have faxed written exhibits which were all considered in this decision. Both parties were allowed to submit additional evidence until 12:00 noon on December 28, 1992 in the interest of justice. Only claimant testified. Pursuant to written delegation of authority dated December 16, 1992, the decision of the undersigned deputy commissioner will be the final agency decision in this matter. Page 2 findings of fact Having reviewed the written evidence before and during this telephonic hearing; having heard the testimony of claimant and the statements of counsel, this deputy indus trial commissioner makes the following Findings of Fact: First, with reference to notice of these proceedings, defendants assert orally that there has been no such notice. Proof of service signed by claimant's attorney set forth on the petition indicates mailing by certified mail on December 11, 1992. Proof of service is on file indicating service on December 12, 1992. It is found that service of process of certified mail was accomplished on December 12, 1992 and personal jurisdiction exists over defendants. Also, notice of the telephone hearing was sent to Mercy Hospital by this agency on December 16, 1992. On or about April 8, 1991, claimant, a registered nurse, suffered an injury which arose out of and in the course of his employment with Mercy Hospital. The injury was to claimant's back which was incurred while lifting a patient. As a result of the work injury, claimant was pro vided medical care by defendants. This care consisted ini tially of treatment by her family physician. Care was later transferred at defendants' request to Behrouz Rassekh, M.D., an orthopedic surgeon who treated claimant conservatively over the next several months. Subsequently, claimant's care was transferred to Bernard Kratochvil, M.D., another ortho pedic surgeon. In February 1992, Dr. Kratochvil opined that claimant reached maximum healing and rated her permanent partial impairment at five percent. At the request of claimant, claimant was evaluated by Patrick W. Bowman, M.D., in June 1992 who feels that claimant should undergo surgery to repair a damaged vertebral disk as he believes claimant has not reached maximum healing. Dr. Bowman identifies this disk abnormality as the source of claimant's disabling pain. This surgery was scheduled for September 16, 1992. Prior to the scheduled date of surgery, claimant was evaluated by another orthopedic surgeon, Anil Agarwal, M.D., who rejects a surgery and recommends only continued conser vative care. Based upon this view, Mercy's insurer has refused to authorize and pay for surgery. Claimant's care has now been returned to Dr. Kratochvil who, according to claimant, believes that the surgery option is a decision which should be made by claimant, not by her employer or insurer. Care has not been transferred to Dr. Agarwal. Therefore, it is found that the treatment offered by defendants is not reasonably suited to treat the injury without undue inconvenience to the claimant and that the alternate care requested should be granted. This finding is based upon Dr. Bowman's expert opinion and claimant's credi ble testimony that Dr. Rassekh, claimant's current physi cian, believes that the Bowman surgery option is a decision Page 3 best left to claimant. conclusions of law This is a proceeding brought under Iowa Code section 85.27 as amended by House File 2250 of the 74th General Assembly of the State of Iowa. This code section provides in part that the employer is obligated to furnish reasonable medical services and supplies to treat an injured worker and the employer has the right to choose the care. However, the treatment must be provided promptly and the treatment must be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee is dissatis fied with the care offered by the employer, Iowa Code sec tion 85.27 provides that the employee must communicate the basis of such dissatisfaction to the employer and if the injured worker and the employer cannot agree on alternate care, the industrial commissioner may allow and order such other care. As claimant is seeking relief in this case, claimant bears the burden of proof to show by a preponderance of the evidence that the offered medical treatment i ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jacob John Peters Attorney at Law 233 Pearl Street P O Box 1078 Council Bluffs, Iowa 51502 Mr. Melvin C. Hansen Attorney at Law 800 Exchange Building 1905 Harney Street Omaha, Nebraska 68102-2314 2501 Filed December 29, 1992 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : DEBORAH BUCK LOVELADY, : : File No. 981523 Claimant, : : A L T E R N A T E vs. : : C A R E MERCY HOSPITAL, : : D E C I S I O N Employer, : : and : : RELIANCE, : : Insurance carrier, : Defendants. : ___________________________________________________________ 2501 - Alternate care proceeding Surgical option awarded as authorized physician stated that such decisions should be made by patient, not insurers.