before the iowa workers’ compensation …decisions.iowaworkforce.org/2007/february/brecount,...

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER______________________________________________________________________

:SHIRLEY BRECOUNT, :

:Claimant, :

:vs. :

: File Nos. 5014231, 5014232 & 5014233SHAEFFER PEN CORP., :

: A R B I T R A T I O NEmployer, :

: D E C I S I O Nand :

:LIBERTY MUTUAL INSURANCE CO., :

:Insurance Carrier, : HEAD NOTE NOS.: 1108; 1402.20;Defendants. : 1402.40; 1800; 2208

______________________________________________________________________

STATEMENT OF THE CASES

Three petitions for workers’ compensation benefits were initiated when Shirley B. Brecount, claimant, filed three petitions against Shaeffer Pen and its insurance carrier, Liberty Mutual Insurance Company, defendants. The petitions were filed with the Iowa Division of Workers’ Compensation. Files numbered 5014231, 5014232 and 5014233 were filed on January 6, 2005. In file number 501431, claimant alleged she sustained a work-related injury to her body as a whole when she slipped and fell on December 1, 2004. (Original Notice and Petition) In file number 5014233, claimant alleged she sustained a work-related injury to her finger, thumb and shoulder on October 8, 2004. (Original Notice and Petition) In file number 5014232, claimant filed another petition with the Iowa Division of Workers’ Compensation. She alleged she sustained hearing loss and tinnitus as the result of repetitive and cumulative exposure to noise in the workplace. (Original Notice and Petition)

Defendant Shaeffer Pen is a company that was engaged in the manufacture and sale of writing instruments. The plant is located in Fort Madison, Iowa. For purposes of workers’ compensation, Shaeffer Pen is insured by Liberty Mutual Insurance Company, defendant.

Defendants filed their respective answers on February 17, 2005. Defendants denied the occurrence of the work injuries.

BRECOUNT V. SHAEFFER PEN CORP.

The hearing administrator set the dates for hearing. Due to unforeseen circumstances, the cases were rescheduled for January 12, 2007 at 1:00 p.m.

The undersigned appointed Ms. Miranda Kirst as the certified shorthand reporter. She is the official custodian of the records and notes.

Claimant was the sole witness to testify. The parties offered exhibits as evidence in the hearing. All proffered exhibits were admitted. The evidence includes claimant’s exhibits 1-13 and defendants’ exhibits A-D.

The undersigned took administrative notice of file number 1132911. Claimant filed previous claims for workers’ compensation benefits. In file number 1132911, a claim was filed and litigated regarding an injury date of January 16, 1996. Claimant established she sustained a right shoulder injury as well as she suffered from mild bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome while she worked for Shaeffer Pen. Claimant was awarded permanent partial disability in the amount of ten percent by Deputy Larry Walshire. The arbitration decision was appealed. The Workers’ Compensation Commissioner affirmed the decision rendered by the deputy. The decision became final agency action on July 29, 1999. Claimant was paid $13,179.00 in weekly benefits plus interest.

STIPULATIONS

The parties entered into a number of stipulations with respect to the three injury dates. The stipulations are:

1. There was the existence of an employer-employee relationship at the time of the three alleged work injuries;

2. There is no entitlement to temporary or healing period benefits;

3. The commencement date for any permanent partial disability benefits is December 9, 2004;

4. If weekly benefits are awarded, the rate to be used for any weekly benefits is $308.79;

5. Affirmative defenses have been withdrawn by defendants; and

6. The parties are able to agree to the allowable costs to litigate the three claims.

ISSUES

The parties presented the following issues for determination:


1. Whether claimant sustained separate and distinct injuries on October 8, 2004, December 1, 2004 and December 8, 2004;

2. Whether the alleged injuries listed above caused any temporary and/or permanent disability;

3. Whether claimant is entitled to permanent partial disability benefits and, if so, the extent of those benefits;

4. Whether claimant is entitled to medical benefits pursuant to section 85.27 of the Iowa Code;

5. Whether claimant is entitled to be reimbursed for medical expenses she incurred prior to the date of the hearing;

6. Whether Iowa Code section 85.34(7)(a) and (b) is applicable to the cases at hand; and

7. Whether the undersigned deputy workers’ compensation commissioner is able to take judicial notice of file number 1132911 in which claimant was awarded a ten percent permanent partial disability on March 13, 1998.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The undersigned deputy, after reviewing the evidence, and after judging the credibility of the witness, makes the following findings of fact and conclusions of law:

Claimant is a 53 year old married woman who is right hand dominant. She appears older than her stated years. During the hearing, claimant walked in a very slow and deliberate manner. Her attorney had to assist her in and out of the witness chair. Both of claimant’s hands shook in a Parkinson’s like manner. Claimant admitted no physician had ever informed her the shaking symptom was the result of claimant’s employment at Shaeffer Pen.

Claimant worked for Shaeffer Pen for 32 years. Most of claimant’s years of service were spent in the shipping department. Later, claimant transferred to the LPO position where she assembled pens. She held the LPO position for 3 years. As an assembler, claimant operated two machines. Claimant wore protective gloves. At times she wore splints on both wrists. Occasionally, she wore hearing protection. Claimant testified she was not required to wear hearing protection while she was working.

Claimant has had a long history of problems with her upper extremities, shoulders, cervical spine and lumbar spine. On November 1, 1995, Charles F. Eddingfield, M.D., examined claimant for the purpose of an independent medical evaluation. Dr. Eddingfield examined claimant for a work-related injury to the right wrist and hand. Dr. Eddingfield opined claimant had a 14 percent permanent impairment for


a right tear of the lunotriquetral ligament. (Exhibit C-3) Dr. Eddingfield also based his rating on a loss of grip strength. (Exhibit 9, page 90)

Dr. Eddingfield next found claimant had mild bilateral carpal tunnel syndrome and cubital tunnel syndrome. The evaluating physician also found bursitis in the right shoulder. Dr. Eddingfield attributed the problems to repetitive trauma in the work place.

In a report of Dr. Eddingfield’s that is dated September 29, 1997, Dr. Eddingfield opined:

. . . Therefore, I used Table 31 for the average grip strength loss and I found her to have a 12% final estimated whole person impairment in each hand because of her loss of grip strength. I also found her to have the 3% final estimated whole person impairment due to the loss of range of motion of the right shoulder. This is in all the accompanying material.

I am of the opinion that she does have the final estimated whole person impairment of 27% and I am of the opinion that this is as a result of the repetitive trauma that she has had to her upper extremities, over the years, while working for the Sheaffer [sic] Pen Company.

(Ex. C-2)

Dr. Eddingfield again examined claimant on October 14, 2003. The medical evaluator rated claimant for a bone spur on the cervical spine with radicular pain that was worse on the left side. Dr. Eddingfield also evaluated claimant for “bilateral carpal and cubital tunnel syndrome and beginning Dupuytren’s contracture of the right hand.” (Ex. 9, p. 90) The independent medical evaluator wrote in his report of the same date:

In November or December 2001 she re-injured her hands because the machine that she was operating had been sped up by the company and she was having to do a lot more repetitive motion and was having pain in her hands. Then on approximately February 20, 2002 she was lifting a box and did injure her left wrist. She did see Dr. Kannenberg about this who did obtain x-rays of her wrist but did not find any fractures. Dr. Kannenberg did return her to work but she continued to have pain in the left wrist. Then on July 25, 2002 she was complaining about pain because of the repetitive motion that she was having operating the machine that had been sped up in November and December 2001 and was continuing to have to do that and her hands were bothering her. Then on approximately September 25, 2002 she did see Dr. Kannenberg and she did have a complaint at that time of pain in her left wrist because she started a new job and was having to use her wrist and fingers and she continued to have lots of pain.

(Ex. C-3)


Later in the same report, Dr. Eddingfield wrote:

. . . I did find her to have an increased final estimated whole person impairment of 16% since I last examined her on September 29, 2997. I am of the opinion that she has this increased final estimated whole person impairment of 16% as a result of the repetitive and cumulative injuries that she has had over the years as she has been working for the Schaefer [sic] Pen Company and has worsened. I think that she did have a final estimated whole person impairment of 27% due to the previous injuries of January 16, 1996 and is now worse with her right upper extremity. Also I think that she has had aggravations to her left arm on February 20, 2002 when she lifted and injured her left wrist and has continued to use the left arm in a repetitive manner and it has worsened and also due to the repetitive manner and it has worsened and also due to the repetitive trauma that she has had to her upper extremities on July 25, 2002 and on September 25, 2002 as she used her hands and was working to use the machines. I think that she has worsened over the years and I am of the opinion that all of her above problems are due to the continued repetitive injuries that she has had to her upper extremities.

(Ex. C-5)

Claimant had a prior arbitration hearing in file number 1132911. The date of the injury was January 16, 1996. An arbitration decision was filed on March 13, 1998. Claimant was awarded 50 weeks of benefits for permanent partial disability.

Claimant testified on October 8, 2004 she worked in the LOP position and she operated an assembly machine. She wore protective gloves; her right glove became lodged inside the machine. The machine ripped the glove. Claimant testified she grabbed the glove with both of her hands but the glove kept spinning. According to claimant’s direct testimony, she sustained a laceration to the middle finger of her right hand and she tore her fingernail. There was an indentation in the fingernail. Claimant testified the machine twisted both of her hands. She sustained no lost time. Claimant testified she pulled something in her left shoulder. She thought she had a sprain. Claimant testified she “messed up her left thumb.” According to claimant, her left thumb was very painful with sharp pains.

Claimant testified her bilateral arm pain had not subsided. During the hearing, claimant wore splints on her arms. She explained she wore the splints most of the time. Claimant admitted no work restrictions were imposed. During cross examination, claimant explained that approximately two months after she voluntarily terminated her employment, her right arm began to shake.

Claimant testified she fell on ice in the company parking lot on December 1, 2004. Claimant was arriving for her shift. Claimant missed no time from work and she did not seek treatment until December 8, 2004. Then she sought emergency care at


the Fort Madison Community Hospital. Claimant complained of a headache. She wanted her blood pressure checked. She had a high blood pressure reading. (Ex. 6, p. 60) Claimant did not complain of spinal or shoulder problems. Claimant reported when she fell on the icy parking lot, she hurt her neck and she had experienced headaches since her fall. Claimant was diagnosed with hypertension.

On December 9, 2004, claimant voluntarily terminated her employment relationship with the company. She entered into an Agreement and General Release with the company. The company paid severance benefits to claimant pursuant to Article 10 of the Closing Agreement by and between Shaeffer Pen Corporation, Shaeffer Manufacturing Co., and LLC and the International Union, United Automobile Aerospace and Agricultural Implement Workers of America, U.A.W. Local No. 1551 relating to the permanent closing of the Shaeffer operations in Ft. Madison, Iowa. Claimant freely elected to accept her payments in a lump sum settlement rather than to take her severance package with payments pursuant to salary continuation. Because claimant elected to accept a lump sum payment rather than to have salary continuation, her health insurance benefits were terminated.

On December 20, 2004, claimant presented to her personal chiropractor, Robert H. Brockman, D.C. Claimant complained of back and neck pain with stiffness, headaches, left shoulder pain, left hip pain, and right knee pain, numbness in her legs and difficulties sleeping. (Ex. 5, p. 56) Dr. Brockman diagnosed claimant with “an acute sprain to the lumbopelvic spine, complicated by cervical involvement. These sprains are accompanied by ligamentous instability, myofascitis and localized evidence of nerve root irritation.” (Ex. 5, p. 57) Dr. Brockman examined claimant on six occasions. At the completion of the six visits, Dr. Brockman assessed claimant’s condition as being 40 percent better than on the day of the first treatment. (Ex. 5, p. 57)

Claimant applied for unemployment insurance benefits in 2005. She asserted she was ready, willing and able to work. Claimant collected the maximum benefits allowable. In order to receive her benefits, claimant had to apply for two jobs per week.

On July 18, 2005, claimant reported to J. Kannenberg, M.D. Claimant voiced complaints of hypertension, low back pain and hot flashes. (Ex. 6, p. 72) Dr. Kannenberg prescribed Ultram 50 mg. The company sent claimant to see Dr. Kannenberg for treatment.

Dr. Kannenberg referred claimant to Mitchell H. Paul, M.D. The initial examination with Dr. Paul occurred on July 26, 2005. According to Dr. Paul’s notes for the day, claimant reported the following:

Shirley comes in today. She is a 52 year-old female referred by Dr. Kannenberg. The patient reports severe low back pain. She also reports pain associated with both of her UEs and both LEs. She apparently slipped on some ice December 1, 2004. Since that time she has had severe pain, numbness and tingling bilaterally as well as bilateral


shoulder pain. She describes the left shoulder and neck as being much more painful than the right side. She also describes severe sensitivity and pain around the left hip region and difficulty sleeping at night. She states she never had any xrays prior to December 9th at which time she had lumbosacral films done.

(Ex. 2, p. 42)

Dr. Mitchell diagnosed claimant with “bilateral spondylolysis at the L5-S1 level; also some degenerative disc narrowing is noted as well.” Dr. Mitchell indicated in the same report:

Pain out of proportion to what one would anticipate based upon an injury that took place greater than a year ago, although on clinical examination the patient definitely has tenderness to palpation along the spinous process particularly at the lumbosacral junction. As stated, her symptoms appear to be out of proportion to what one would anticipate an injury of this date.

(Ex. 2, p. 42)

On July 29, 2005, claimant presented herself to the Fort Madison Community Hospital. Claimant underwent a MRI of the lumbar spine. Paul Skopec. M.D., interpreted the results of the MRI. Dr. Skopec’s impressions were:

1) Lumbar MRI shows degenerative disc changes primarily at L4-L5 and L5-S1. Disc bulging with facet arthropathy contributes to moderate acquired central spinal stenosis at L4-L5.

2) Suspected Angular tear with broad-based central and slightly right-sided disc protrusion at L5-S1 without significant canal compromise.

3) Slightly prominent epidural fat in the lower lumbar canal contributing to some degree of epidural lipomatosis and mild central canal crowding.

(Ex. 2, p. 45)

Dr. Mitchell ordered physical therapy for the relief of low back pain. Claimant participated in the therapy. Claimant returned to Dr. Mitchell for follow up care on August 9, 2005. At the time, claimant complained of left hip pain and discomfort in the low back. (Ex. 2, p. 41) Claimant did not complain of bilateral upper extremity pain. Dr. Paul then injected the greater trochanteric bursal with Kenalog. (Ex. 2, p. 41)

Nearly one month later, claimant returned to the office of Dr. Paul. Claimant complained of left hip pain, muscle spasms in the low back, and muscle spasms in the


bilateral calves. Claimant did not complain of bilateral upper extremity pain. (Ex. 2, p. 40) Dr. Paul recommended repeat epidural injections. Claimant declined. She wanted prescription muscle relaxants. Dr. Mitchell prescribed Flexeril 10 mg. (Ex. 2, p. 40)

Dr. Mitchell ordered magnetic resonance imaging of the bilateral hips. John D. Paiva, M.D., interpreted the tests as:

1) Normal MRI of the right hip.

2) Abnormal signal in the posterior aspect of the left femoral head; I suspect this reflects subchondral cyst formation related to osteoarthritis, although an atypical avascular necrosis cannot be totally excluded.

3) Large Complex fluid collection in the right perirectal region, which is worrisome for a perirectal abscess.

(Ex. 8, p. 82)

Claimant testified her headaches have persisted. She advised the undersigned, she is unable to walk because of her back. She explained it hurts her to bend at the waist. She said she needs help to stand. Claimant testified her legs hurt; her left hip hurts and she needed assistance to get up from a chair. Claimant indicated she has had muscle spasms in her legs since she terminated her employment. She cannot explain why her muscles cramp. Claimant reported she experiences difficulties at the top of her left thigh. She explained it is hard for her to walk to the bathroom. Claimant said her back condition has limited her ability to work. She stated she is unable to perform factory work. Claimant acknowledged no physician had imposed restrictions because of her spinal condition. She also acknowledged no surgery had been recommended for her spine.

Dr. Eddingfield, M.D., examined claimant on October 27, 2005 for the purpose of rendering an independent medical examination. Dr. Eddingfield summarized his evaluation for the purpose of supplying an impairment rating in the final paragraph of his report of October 27, 2005. Dr. Eddingfield opined:

I therefore did use the combines values chart to combine the 13% impairment due to the DRE’s of her lumbosacral spine, the 8% impairment due to the DRE’s of her cervical spine, the 7% impairment due to both shoulders, and 5% impairment due to the tinnitus and the 3% final estimated whole person permanent impairment due to the bilateral trochanteric bursitis and found her to have a final estimated whole person permanent impairment of 32%. I am of sure that she has had a considerable amount of problems although I am not impressed that she does have a full 32% final estimated whole person permanent impairment as a result of all of these injuries. I am of the opinion that she has a final


estimated whole person permanent impairment of 20% due to the injuries that have occurred to her since the last time I have seen her. She has never had an evaluation of her cervical or lumbosacral spines, her hearing, or her hips previously which I think should be done. Her shoulders appear to me, since I last evaluated her, to have worsened. Therefore I am of the opinion that she has this increase in her final estimated whole person permanent impairment of 20% over and above the previous evaluations that I have done for her as a result of the repetitive and cumulative trauma that she has had to her upper extremities over the years while working for Schaeffer Pen Company with the major injury occurring on October 8, 2004, to her lumbosacral spine and worsening of her cervical spine, and the bilateral trochanteric bursitis as a result of the injury that occurred to her on the December1, 2004 when she fell and struck her head. Finally, I think that she very definitely has the 5% impairment due to the tinnitus as a result of the repetitive and cumulative exposure to loud noise over the years as she has worked for Schaeffer Pen Company, beginning more especially on December 8, 2004.

(Ex. 9, pp. 93-94)

Claimant was referred to R. Tinguely, M.D., at Fort Madison Physicians and Surgeons for the purpose of rendering an opinion regarding the large fluid collection in the right peri-rectal region. Dr. Tinguely examined claimant on December 28, 2005. Claimant informed Dr. Tinguely, “she fell a year ago striking her head and back and sacrum area. She’s noticed this swelling in the right gluteal fold for almost 10 months.” (Ex. 8, p. 77) Dr. Tinguely diagnosed claimant with: “Fluid collection right perirectal area which may be secondary or related to her fall and may be an old organized hematoma. Other etiologies still to be investigated.” (Ex. 8, p. 77)

A CT guided aspiration was performed by Stephen P. Murphy, M.D., on January 10, 2006. The aspiration was deemed successful. No complications were encountered. (Ex. 8, p. 80) Claimant testified she had a second aspiration when the fluid collection reappeared. Claimant testified she is able to sit. She neglected to mention how the fluid collection on her right perirectal region affected her ability to hold employment in the competitive labor market.

Defendants desired an independent medical opinion from a board certified neurologist. Claimant was referred to Michael L. Cullen, M.D. Dr. Cullen examined claimant on March 2, 2006. Dr. Cullen summarized his findings in his report of July 7, 2006. Dr. Cullen opined:

Summary: The patient reports industrial incidents occurring 10/08/04, and 12/01/04. The incident of 10/08/2004 historically was referable to the right hand, wrist and forearm. It was a singular incident yet the patient has diffuse symptomatology referable to both upper extremities. One would interpret the circumstance as a sprain amidst a chronic group of


symptoms. The patient has both joint and myofascial findings, out of proportion to what one would anticipate and at times non physiologic in nature. The patient sought no significant medical assistance and continued to work thereafter.

In addition, she had a slip and fall 12/01/2004 and has physical evidence of trochanteric bursitis, a common condition. She discontinued her employment and at this juncture is pursuing education. Her employment at the Shaeffer Pen Co. primarily involved the upper extremities and I would have to believe that the rigors of school attendance as far as her hip and low back are concerned are equal to that necessitated by employment at the Shaeffer Pen Co.

She has MRI findings of a degenerative condition without any meaningful correlation between her physical complaints and the radiographic results. Hence, I would opine that the MRI findings are incidental.

In response to the questions posed in your letter of 01/12/2006, I would respond as follows:

1. Sprain referable to the right upper extremity and blunt trauma referable to the low back. Both of the aforementioned situations should have been self limited and essentially asymptomatic at this juncture.

2. The current diagnosis is related to her injuries at the Shaeffer Pen Co. but her complaints at this juncture are not. The alleged injuries did not result in any functional disability as defined by the AMA Guides to Permanent Impairment, Fifth Edition.

3. The patient suffered functional disability prior to 10/08/2004 and/or 12/01/2004 and this represented a myofascial pain syndrome. I can find no scientific indication that it is related to her employment at the Shaeffer Pen Co.

4. There is no indication from the record that she suffered injuries after 10/08/2004 and/or 12/01/2004, that aggravated her prior complaints.

5. I would not recommend any work restrictions for Ms. Brecount.

(Ex. 11, pp. 153-154)

Claimant alleged she sustained a third work injury involving hearing loss and tinnitus. She stated she does not hear very well and she sits close to someone in order to hear the conversation. Claimant testified she had worked in the plant for 32 years without the benefit of ear protection. Claimant described the work environment as loud with different machines creating unique noises. Claimant explained she worked very


close to a machine that produced a “whistling noise.” She reported when she operated an air hose, there was a “whirling noise.” Claimant stated she could hear the whistling across the room from the machine. Claimant admitted she has had no treatment for any hearing loss. She also acknowledged no doctor has ever informed her that her hearing loss is work related.

At the hearing, claimant explained she has constant ear ringing. According to her testimony, the ringing in her ears will not cease. Claimant described the ringing sound as similar to the sound of a faint buzzer. Claimant also testified the ringing resembles the sounds crickets make in the evening. She said “the ringing in her ears takes over and she can’t hear.” The company provided audiometric testing for claimant in the years 1999, (baseline established for claimant), 2000, 2001, 2003 and 2005.

A representative of the Enviromed Corp. performed the audiometric testing in 2005. The results of the 2005 test in comparison to the baseline audiometric testing results were interpreted by Richard L. Stepkin, MS, an audiologist. Mr. Stepkin wrote:

Your results show a slight change in hearing when compared to your Original or Last Revised Baseline test. This change is not significant according to OSHA criteria. Annual hearing testing is recommended.

Since your last hearing test, you indicated the following: difficulty hearing (both ears) * ringing in the ears (both ears) * taking daily medications * recreational noise outside of work * Hearing protection is not always worn when working in noisy areas.

You previously reported the following: hunting or shooting

You have had no reports about the following: ear infection * ear surgery * previous employment noise exposure * military service.

(Ex. 12, p. 155)

In anticipation of the litigation, counsel for claimant set an appointment for claimant with audiologist, Susan K. Pickford, M.A. Ms. Pickford is an audiologist who specializes in clinical and diagnostic audiology. Ms. Pickford evaluated claimant on September 14, 2005. The audiologist authored a report that is dated, September 23, 2005. In a very brief report, Ms. Pickford opined:

Results revealed a mild to moderate sensorineural hearing loss at 4000-8000 Hz, left and a mild loss at 8000 Hz, right. Initially, the puretone averages were not in agreement with the speech reception thresholds, bilaterally and appeared to be suprathreshold. After reinstruction, puretone testing was obtained and then the puretone averages and speech reception thresholds were in agreement, bilaterally. Word discrimination percentages were 96%, bilaterally. Impedance testing revealed normal tympanograms with absent acoustic reflexes except at


1000 Hz ipsilaterally, right. Using the AAO-1979 formula for percent hearing loss there was 0% hearing loss. According to OSHA guidelines there was not a significant threshold shift regarding baseline hearing thresholds provided.

It is recommended that Ms. Brecount seek otologic consultation regarding the asymmetrical nature of her hearing loss. She should also wear hearing protection when in work and/or recreational noise.

(Ex. 13, p. 159)

After the report of Dr. Pickford was generated, defendants referred claimant to Bruce L. Plakke, Ph.D., an audiologist with Iowa Hearing Clinics in Waterloo. Firstly, Dr. Plakke, reviewed the audiometric testing that had been conducted by the company. Dr. Plakke interpreted the testing to show:

. . . Review of Ms. Brecount’s five annual audiograms began with her first audiogram done May 1999. At that time, her audiogram showed normal hearing sensitivity through the low and mid-frequencies with a moderate high frequency sloping hearing loss. The loss was worse in the left ear for the high frequencies. Examination of her audiograms, done June 00, October 01, January 03 and April 05 showed her hearing loss progressed gradually in the higher frequencies until her last audiogram done in April 05. The April 05 audiogram shows considerably more hearing loss in the low and mid-frequencies as well as more hearing loss in the higher frequencies. The hearing loss in the low and mid-frequencies is not consistent with noise-induced hearing loss but it is consistent with conductive hearing loss.

Next, Dr. Plakke engaged in an audiological examination of claimant. Dr. Plakke opined the results of his examination showed claimant did not have a permanent impairment relative to any hearing loss. The audiologist opined:

Pure tone testing showed a mild mixed hearing loss in her right ear. Her left ear was a mild-to-moderate mixed hearing loss. Speech threshold testing did not agree with the pure tone averages, which suggests strongly that there could be a non-organic component to her responses. Ms. Brecount’s verbal responses to speech were also strongly indicative of possible non-organic hearing loss. While I believe there is a probable non-organic component to her hearing loss it is irrelevant based upon the type of hearing loss she presents.

Mixed hearing loss means there are two causes making up Ms. Brecount’s total hearing loss. Noise-induced hearing loss would show up in the sensorineural hearing loss component. Outer or middle ear causes show up in the conductive component of the hearing loss.


Together they make up the entire hearing loss. The sensorineural component of her hearing loss is shown by the brackets in the upper part of the audiogram. As can be seen, the brackets fall within normal limits at all but one frequency. Ms. Brecount has 0% of binaural hearing impairment when calculated according to the Iowa Workers’ Compensation Commission formula for the sensorineural portion of her hearing loss.

It is my opinion that, within reasonable audiological certainty, Ms. Brecount did not suffered [sic] any noise-induced hearing loss from working at Schaffer [sic] Pen Company. It is my opinion that Schaffer [sic] Pen Company did not expose Ms. Brecount to noise levels for long enough durations and intensities to have been a significant contributing factor to her hearing loss nor to have caused any percent of occupational hearing loss nor to have caused any percent of occupational hearing loss as defined by Iowa Code Chapter 85 B.

(Ex. 10, p. 131)

Dr. Plakke authored a second report. It is dated March 25, 2006. In the supplemental report, Dr. Plakke addressed the tinnitus claim. (Ex. A-1) The audiologist wrote in relevant portion:

During my examination, I asked Mrs. Brecount about her tinnitus. She could not report when it began. She did describe it as a constant ringing, but she also added that it “sometimes sounds like crickets”. I asked if her tinnitus was typical today and she said it was the same today as most days. I specifically asked her if her tinnitus interfered with her life. She said it did not interfere, just that it was irritating.

Since Mrs. Brecount was not filing a claim for tinnitus at the time of my evaluation, I did not perform any measures to attempt to identify the loudness or frequency of her tinnitus. There is limited guidance on assessment and rating of tinnitus. The AMA proposes one of the most recognized and often used methods of rating tinnitus impairment. The AMA Guides for the Evaluation of Permanent Impairment (fifth addition) [sic] allows a maximum of 5 percent more impairment rating is added for tinnitus to the already calculated percentage hearing loss. However, in section 11.2a the guide states: “add up to 5% for tinnitus in the presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of daily living.” In my interview with Mrs. Brecount, I found that her tinnitus did not affect her ability to perform activities of daily living. Therefore, I believe Mrs. Brecount does not meet the criteria that the tinnitus affects her ability to perform daily activities of living and she


therefore has no percent of impairment from the tinnitus. She has no percent of binaural hearing impairment, as stated in my earlier letter.

(Ex. A-1 & 2)

The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 6.14(6).

The claimant has the burden of proving by of preponderance of the evidence that the alleged injury actually occurred and that it both arose out of and in the course of the employment. Quaker Oats Co. v. Ciha, 552 N.W.2d 143 (Iowa 1996); Miedema v. Dial Corp., 551 N.W.2d 309 (Iowa 1996). The words “arising out of” referred to the cause or source of the injury. The words “in the course of” refer to the time, place, and circumstances of the injury. 2800 Corp. v. Fernandez, 528 N.W.2d 124 (Iowa 1995). An injury arises out of the employment when a causal relationship exists between the injury and the employment. Miedema, 551 N.W.2d 309. The injury must be a rational consequence of a hazard connected with the employment and not merely incidental to the employment. Koehler Electric v. Wills, 608 N.W.2d 1 (Iowa 2000); Miedema, 551 N.W. 2d 309. An injury occurs “in the course of” employment when it happens within a period of employment at a place where the employee reasonably may be when performing employment duties and while the employee is fulfilling those duties or doing an activity incidental to them. Ciha, 552 N.W.2d 143.

With respect to the claim for loss of hearing and the tinnitus claim, there is little medical or audiological evidence to establish claimant has a loss of hearing related to her employment at Shaeffer Pen Co. Claimant introduced absolutely no evidence as to decibel levels within the plant. Likewise, there is little medical evidence to establish the tinnitus claim (ringing of the ears) is related to claimant’s employment. Two audiologists determined claimant had no hearing loss attributable to her work environment. Even Ms. Pickford, the audiologist, who was selected by claimant’s counsel, determined there was no work-related hearing loss. Only Dr. Eddingfield opined there was the requisite causation to establish a permanent disability. However, the testimony of Dr. Eddingfield is discounted. Dr. Eddingfield was trained as a general surgeon. He has no apparent expertise in hearing loss. His opinion does not carry the same weight as do the opinions of the two audiologists. Claimant has no work restrictions attributable to either her hearing loss or to her tinnitus. Since there is no medical causation to support claimant’s claim, claimant takes nothing in the way of benefits for her claims of hearing loss and tinnitus in file number 5014232.

The next file to address is claimant’s claim for injuries allegedly sustained to her right middle finger, her left thumb, both hands, both arms and her left shoulder. The claims relate to the incident that occurred on October 8, 2004. The evidence supports a finding that claimant sustained a laceration to her right middle finger and she sustained an indentation of the fingernail on the same finger. Proper first aid was administered to the finger. That was the only treatment that was necessary. Claimant sustained no lost


time from the injury. No temporary benefits are due to claimant. There is no evidence to support the conclusion, a permanent condition resulted to the right middle finger.

Following the incident on October 8, 2004, claimant did not request medical care from members of management. If claimant had experienced such markedly painful left thumb, left shoulder or bilateral hands and arms, it stands to reason, she would have complained to someone within the plant. There is no evidence to establish she complained of medical difficulties while she remained employed at the plant. Claimant did not produce any witnesses to corroborate her testimony. No one came forth to testify claimant had complained of these problems at or near the time of the incident. No records were offered to show claimant had requested medical care or the company refused such a request.

On December 8, 2004, claimant self-referred to the Fort Madison Community Hospital. She complained of headaches but she voiced no upper extremity or shoulder problems. (Ex. 6, p. 60) Claimant indicated she injured her neck when she fell on ice and hurt her cervical spine. (Ex. 6, p. 65) The emergency room physician found claimant’s blood pressure to be above the range that is considered normal. The physician also noted “depression.” (Ex. 6, p. 60) Claimant explained to the emergency room personnel, “I don’t want to see a doctor.” Blood pressure medication was prescribed.

Claimant did not complain to any medical provider of left shoulder problems until December 20, 2004. The initial left shoulder complaint was made ten and one half weeks after the incident had occurred on October 8, 2004. By that time, claimant had already voluntarily terminated her employment with Shaeffer Pen Company.

Additionally, there is claimant’s testimony that is questionable. During her hearing, she voiced problems with the left shoulder but she testified she caught her right glove and hand in the assembly machine. Claimant testified she twisted both upper extremities. It is hard to conceive how the left shoulder would be injured when she caught her right glove. The left shoulder complaints were inconsistent with the events that occurred. Claimant injured her right middle finger. The shoulder and upper extremity complaints were not made contemporaneously with the incident. Claimant had no work restrictions imposed. Claimant takes nothing in the form of benefits for her left shoulder, left thumb or upper extremities because of the laceration claimant sustained to her right middle finger on October 8, 2004.

The final discussion centers on file number 5014231. Claimant alleges she sustained injuries to her cervical and lumbar spine and to her left hip as a result of her slip and fall in the company owned parking lot on December 1, 2004. The parking lot was maintained by the company for use by its employees. Claimant testified the employees were required to park their cars in the lot. There were winter conditions prevailing at the time. Claimant testified she was proceeding to work when she slipped on the icy pavement. She testified the lot was not properly treated with sand and salt.


When claimant fell, she struck her entire body on the pavement. Claimant reported the incident immediately.

According to her testimony, she had pain that persisted. She testified she saw Dr. Kannenberg on December 9, 2004. The records for that medical visit were not submitted to the undersigned for consideration. Nevertheless, it is the determination of the undersigned; claimant sustained a work-related injury on December 1, 2004 when she slipped and fell. Claimant has met her burden of proof.

Iowa Code section 85.33 provides that an employee is entitled to temporary total disability weekly compensation benefits until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged in at the time of his work injury, whichever occurs first.

Temporary total disability does not necessarily contemplate that all residuals from an injury be completely healed and returned to normal. It is only when the evidence shows that because of the effects of the injury, gainful employment cannot be pursued. McDonald v. Wilson Foods Corp., Thirty-fourth Biennial Rep., Iowa Industrial Comm/r 197, 199 (App 1979).

Even though claimant fell, she sustained no lost time from work. She is not entitled to temporary benefits for the injury that occurred on December 1, 2004.

The next issue to address is whether claimant sustained any permanency because of her fall on December 1, 2004.

The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. George A. Hormel & Co. v. Jordan, 569 N.W.2d 148 (Iowa 1997); Frye v. Smith-Doyle Contractors, 569 N.W.2d 154 (Iowa App. 1997); Sanchez v. Blue Bird Midwest, 554 N.W.2d 283 (Iowa App. 1996).

The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Supportive lay testimony may be used to buttress the expert testimony and, therefore, is also relevant and material to the causation question. The weight to be given to an expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts the expert relied upon as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); IBP Inc. v. Harpole, 621 N.W.2d 410 (Iowa 2001); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995). Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994). Unrebutted expert medical


testimony cannot be summarily rejected. Poula v. Siouxland Wall & Ceiling, Inc., 516 N.W.2d 910 (Iowa App. 1994).

A personal injury contemplated by the workers’ compensation law means an injury, the impairment of health or a disease resulting from an injury which comes about, not through the natural building up and tearing down of the human body, but because of trauma. The injury must be something that acts extraneously to the natural processes of nature and thereby impairs the health, interrupts or otherwise destroys or damages a part or all of the body. Although many injuries have a traumatic onset, there is no requirement for a special incident or an unusual occurrence. Injuries which result from cumulative trauma are compensable. Increased disability from a prior injury, even if brought about by further work, does not constitute a new injury, however. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000); Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999); Dunlavey v. Economy Fire and Cas. Co., 526 N.W.2d 845 (Iowa 1995); McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). An occupational disease covered by chapter 85A is specifically excluded from the definition of personal injury. Iowa Code section 85.61(4)(b); Iowa Code section 85A.8; Iowa Code section 85A.14.

While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially 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 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961).

With respect to claimant’s spine, Dr. Mitchell diagnosed claimant with “bilateral spondylolysis at the L5-S1 level; also some degenerative disc narrowing is noted as well.” Claimant had suffered from pre-existing spinal pain. Claimant was also diagnosed with osteoarthritis of the left hip and trochanter bursitis. Dr. Paul imposed no work restrictions. Claimant was treated conservatively. No one recommended surgical intervention.

No physician established the requisite causal connection of the peri-rectal fluid collection to claimant’s fall. At best, Dr. Tinguely stated the fluid collection could be related to a fall. He did not state it was probable the fall caused the peri-rectal fluid collection. Claimant takes nothing in the form of benefits for the peri-rectal fluid collection. The peri-rectal fluid collection was not work related.

Dr. Eddingfield causally connected claimant’s spine and hip condition to her fall on December 1, 2004. Dr. Eddingfield provided an ambiguous opinion regarding whether permanency resulted. Claimant testified the cervical and lumbar spine and the trochanteric bursitis of the left hip intensified following her fall. She indicated she was unable to walk unassisted.


Dr. Eddingfield opined there was a permanent condition. He provided a permanency rating of 32 percent but Dr. Eddingfield believed the actual impairment rating was 20 percent over any ratings he had previously rendered. (Ex. 9, p. 93) However, Dr. Eddingfield did not impose any work restrictions for claimant, nor did the physician recommend any surgical intervention.

Dr. Cullen determined no permanent condition resulted from the slip and fall. He imposed no work restrictions for the spine and the hip. Dr. Cullen opined claimant’s fall did not aggravate her pre-existing conditions.

It is the determination of the undersigned; claimant sustained a material aggravation to her spine and hip as a result of her fall. The undersigned accepts the opinion of Dr. Eddingfield over Dr. Cullen because Dr. Eddingfield had the opportunity to examine claimant over the course of 11 years. The physician had seen claimant both before and after the slip and fall. He was more familiar with claimant’s entire medical profile than was Dr. Cullen who did not have the same opportunities to examine claimant over the course of the previous decade. Claimant sustained a permanent partial disability.

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 R. Co., 219 Iowa 587, 593 258 N.W. 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. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (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.

Claimant is an older worker. She voluntarily terminated her employment with Shaeffer Pen on December 9, 2004. The termination was pursuant to a contractual agreement with the company for severance pay. She is not working presently. The company has ceased its operation. Claimant is retraining to be a medical assistant. Claimant testified her back condition has limited her ability to work. Claimant testified she is unable to handle the physical demands of factory work. She explained walking is especially difficult. Claimant has 18 months before she will graduate. Currently,


claimant is a full-time student. Because she is a full-time student, she is not interested in obtaining gainful employment until after her graduation. It is the determination of this deputy; claimant is entitled to an additional 5 percent permanent partial disability in excess of the 10 percent permanent disability previously awarded to claimant in file number 1132911. Claimant is entitled to 25 weeks of permanent partial disability benefits at the stipulated weekly benefit rate of $308.79 per week and commencing from December 9, 2004.

The final issue for resolution deals with medical benefits pursuant to Iowa Code section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975).

Defendants are liable for the medical expenditures necessary to treat the lumbar spine and the left hip. Those specific bills are detailed in claimant’s itemized list of medical expenditures. Defendants are not liable for other medical expenditures such as for treatment for the removal of the peri-rectal fluid collection.

ORDER

THEREFORE, IT IS ORDERED:

In file number 5014232, claimant takes nothing.

In file number 5014233, claimant takes nothing further.

In file number 5014231, defendants shall pay unto claimant an additional 25 weeks of permanent partial disability benefits at the stipulated weekly benefit rate of $308.79 per week and commencing from December 9, 2004.

In file number 5014231, defendants are liable for the medical expenses claimant incurred to treat the spine and the left hip condition.

Accrued benefits shall be paid in a lump sum, together with interest as allowed by law.

Allowable costs are assessed to defendants.


Defendants shall file all requisite reports in a timely manner.

Signed and filed this _____23rd_____ day of February, 2007.

________________________ MICHELLE A. MCGOVERN

DEPUTY WORKERS’ COMPENSATION COMMISSIONER

Copies to:

James P. HoffmanAttorney at LawPO Box 1087Keokuk, IA 52632-1087

Peter J. ThillAttorney at LawSte. 600, 111 E. 3rd St.Davenport, IA 52801-1524

MAM/tjr

before the iowa workers’ compensation …decisions.iowaworkforce.org/2007/february/brecount,...

Documents