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
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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.