before the iowa workers’ compensation ...decisions.iowaworkforce.org/2006/may/hildebrand,...

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER______________________________________________________________________

:JUDITH A. HILDEBRAND, :

:Claimant, :

:vs. :

: File Nos. 5013745ROUSSELOT, Inc., SKW : 5018900BIOSYSTEMS, INC., f/k/a KEYSTONE :GELATIN, :

: A R B I T R A T I O N Employer, :

: D E C I S I O Nand :

:WAUSAU INSURANCE COMPANY, :

:Insurance Carrier, :

:and :

:SECOND INJURY FUND OF IOWA, : Head Note No.: 1800

:Defendants. :

______________________________________________________________________

STATEMENT OF THE CASE

This is a proceeding in arbitration that was initiated when Judith Hildebrand, claimant, filed her original notice and petition with the Iowa Division of Workers’ Compensation. The petition was filed on August 12, 2004. Claimant alleged she sustained “Repetitive cumulative trauma from working.” (Original Notice and Petition) Claimant alleged the injury occurred to claimant’s “hands, upper extremities and shoulders.” Claimant alleged three injury dates: February 1, 2003, February 28, 2003, and March 11, 2003. Then claimant amended the injury dates to February 11, 2003, February 28, 2003 and March 11, 2003. On May 20, 2005, claimant filed another amended petition. She added the alleged injury dates of June 14, 2004 and June 21, 2004 for the left shoulder. (Amended Original Notice and Petition)

Defendants, the employer and the insurance carrier filed their answer with the Iowa Division of Workers’ Compensation on September 24, 2004. The defendants denied the occurrence of the alleged work injuries on the dates alleged.

HILDEBRAND V. ROUSSELOT, INC., ET AL

The Second Injury Fund of Iowa, hereinafter known as “The Fund,” filed its answer on September 30, 2004. The Fund denied liability for any benefits pursuant to Iowa Code section 85.64.

The hearing administrator set the case for a backup hearing in Davenport, Iowa, on September 7, 2005. The hearing took place on the date scheduled and at the Kahl Building in downtown Davenport.

The undersigned appointed Ms. Cortney A. Kilby as the certified shorthand reporter. She is the official custodian of the records and notes.

Claimant testified on her own behalf. Claimant offered exhibits 1-23. The employer and insurance carrier offered exhibits A-O. All exhibits were admitted subject to claimant’s objection. Mr. Jim Schreiber, Human Resource Manager, at Rousselot, Inc., testified for the employer and insurance carrier. The Fund did not call any witnesses. Nor did the Fund offer any exhibits.

STIPULATIONS

The parties stipulated there was an employer-employee relationship at the time of the alleged work injuries. With respect to the left hand, the employer and insurance carrier stipulated claimant sustained a work related injury on February 28, 2003 that arose out of and in the course of her employment. The same parties stipulated the work injury on February 28, 2003 caused both a temporary and a permanent partial disability to the left hand. The parties also stipulated that prior to the hearing, the employer and insurance carrier paid permanency benefits to claimant. The permanency benefits consisted of 5.7 weeks of compensation at the rate of $386.68 per week. Defendants also paid the medical benefits incurred to treat the left hand in the amount of $14,828.22. No other benefits were paid to claimant.

ISSUES

There are numerous contested matters. The employer and insurance carrier dispute whether claimant sustained an injury to her right hand in 2003. They insist claimant’s claim was not timely filed as mandated by Iowa Code section 85.26. Defendants also deny claimant sustained injuries to her bilateral shoulders as a result of the alleged work injuries. The Fund denies it is liable for any benefits pursuant to the Second Injury Fund Act of Iowa. Claimant alleges she is entitled to certain medical benefits, permanency benefits and to penalty benefits pursuant to Iowa Code section 86.13, as amended. The parties also dispute the various costs involved to litigate the multiple claims.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This deputy after hearing the testimony, after judging the credibility of the witnesses, after reading the evidence and the post-hearing briefs, makes the following findings of fact and conclusions of law:


Claimant is a 63-year-old diabetic woman who resides in Dubuque, Iowa. She is the single mother of three adult children. Claimant graduated from high school in 1960. She attended Clarke College in Dubuque but she did not obtain a degree. She has 72 credit hours toward a degree in home economics. Claimant has no intention to return to college to complete her degree.

Claimant commenced her employment with this employer in 1970 as a lab technician. At the time, claimant was paid $2.00 per hour. Since 1972, claimant has performed the same type of work. In 2003, claimant earned $15.80 per hour. At the time of the hearing, claimant earned $17.54 per hour.

Claimant’s duties are detailed in exhibit 5-1. The duties are reproduced below.

I started working for Rousselot, formerly Keystone Gelatin, in 1970 as a part-time lab tech until 1972, when I became full-time. I feel as though my injury came about as a result of constant hand work. In those years, the employer required me to work many hours, all entailing the features of shaking, torquing, fingering, working at elevated height.

As the demand for the product increased, so did the workload. The duties were split between two people until approximately 1990. Prior to 1990, many years were worked as six-day weeks and 10 to 12 hour days. All work was, and is mostly still, done by hand.

This product requires a high degree of mixing and shaking (dry product) in order to mix with water, to make it dissolve so it can finally be tested, as it is resistant to water.

Shaking – involves grasping a flask, or like container, and shaking dry products in order to make it homogenous. From 1970 to 2002, an additional hour per day was needed, involving fingering with twist ties; working at elevated heights.

Stirring – 2 ½ hours per day, gripping stirring rods, using stirring rods to mix gel with water requires much stirring, stirring vigorously for 1-2 minutes per sample. An automatic stirrer was added in Spring of 2003.

Fingering – at waist high height, opening and closing sample bags sealed with twist ties (constant).

Grasping – spoons, utensils, lab equipment, washing labware, reaching to and from racks for sample bottles for weighing samples

Computer work – can be 1 to 2 hours per day.


These tasks are events all day long and are needed to fulfill the requirements of the job.

(Ex. 5-1)

Claimant testified her job is highly repetitive in nature. She uses her hands to stir, shake, mix, and grip samples. Claimant also operates a keyboard from one to two hours per day.

On January 6, 1992, claimant self-referred to Medical Associates in Dubuque. She was seen by a Dr. Garrity, M.D. (First name unknown.) Claimant complained of pain and numbness in her right thumb and index finger. Claimant also reported shooting pain into the forearm. Dr. Garrity diagnosed claimant with “Possible carpal tunnel.” (Exhibit 13-1) Dr. Garrity prescribed splints. He also referred claimant to Patrick R. Sterrett, M.D, a neurologist. EMG studies were performed. The results of the EMG testing showed:

CLINICAL INTERPRETATION: Abnormal nerve conduction studies of the right median motor and sensory nerve with abnormal F-wave response of the right median motor nerve. These abnormalities correlated with the patient’s clinical history and clinical exam is consistent with a moderately severe right carpal tunnel syndrome. EMG study of the right hand, including those of muscles innervated by the median and ulnar motor nerve were normal.

(Ex. 13-4)

Dr. Sterrett diagnosed claimant with “Moderately severe right carpal tunnel syndrome . . . .” (Ex. 13-2) The neurologist prescribed Anaprox and splints. He informed claimant she should see a neurosurgeon if she did not experience improvement within a month. Claimant did not undergo surgery. She did notify the proper authorities at the plant of her condition.

For the next ten or eleven years, claimant intermittently voiced complaints about her right hand and upper extremity. For example, claimant complained to Ronald A. Iverson, M.D., she had a lesion on the distal portion of the right index finger. (Ex. 14-34) Dr. Iverson diagnosed claimant with a possible small ganglion cyst. (Ex. 14-34) On May 23, 1994, claimant reported to Samuel Sandberg, M.D., she had intermittent right elbow pain. (Ex. G-6) X-rays demonstrated “Very minimal spurring.” (Ex. G-7) Claimant was diagnosed with tendonitis of the right elbow. (Ex. G-6) Claimant returned to the doctor with the same complaints on June 29, 1994. (Ex. G-9) On April 16, 1997, claimant was diagnosed with “mild arthritic symptoms, likely related to arthritic process involving the hands.” Claimant also reported intermittent right shoulder pain. (Ex. H-1) On April 2, 2002, claimant complained of left hand numbness and tingling. (Ex. H-7) Two months later, claimant complained of numbness in her fingertips. (Ex. H-8) On January 20, 2003, claimant complained of numbness in her


fingers and her toes. The physician assumed claimant’s type 2 diabetes mellitus was causing the numbness. (Ex. H-11 and H-12)

Claimant explored conservative measures only. She took some medication including her medication for her diabetes and she learned certain stretching exercises. She underwent no invasive measures. Claimant lost no work time. No work restrictions were imposed. At all times, claimant performed her regular duties as assigned.

On February 11, 2003, claimant self referred to Ronald Sims, M.D., a neurologist in the Dubuque area. Claimant voiced complaints of dysesthesia in the fingers and feet. Claimant explained to her physician she believed she had carpal tunnel syndrome. (Ex. H-13) Dr. Sims diagnosed claimant with:

4. Dysesthesias in the feet and fingers; possible peripheral neuropathy plus bilateral carpal tunnel syndrome.

(Ex. H-13)

In March 2003, Ronald Sims, M.D., recommended another EMG. Dr. Sims concluded after the studies were complete:

1. Bilateral median neuropathy at the wrist.

2. Right ulnar neuropathy at the elbow of minor degree.

3. Right tibial neuropathy of minor degree.

(Ex. 14-65)

On March 11, 2003, Dr. Sims wrote to his patient:

Today you had an EMG and nerve conduction study which demonstrated a problem with the median nerve where it crosses the wrist on both hands. Although this problem does not involve any loss of nerve fibers, some of the nerve fibers are not functioning properly. This condition is probably causing some loss of sensation in your fingers as well as discomfort in the wrist area.

(Ex. H-15)

On the very same day, claimant notified her supervisors of the EMG studies. (Ex. 1-2) The employer and insurance company investigated claimant’s claims for benefits. After a long investigation that took months to complete, the employer and the insurance carrier denied liability for the right hand but accepted liability for the left hand. Defendants concluded the date of injury for the left hand was February 28, 2003. Defendants concluded the date of injury for the right hand was January 6, 1992.


Because liability for the right hand was denied, claimant sought medical treatment on her own. Dr. Sims imposed the following work restrictions for claimant effective April 17, 2003:

I would advise the following work restrictions: Restrict repetitive movements of your hands to one-third of the work day, including fingering, forceful grasping, and torquing motions.

(Ex. 18-6)

Claimant engaged in a workday with reduced hours. The employer compensated claimant for her regular hours despite the reduced hours worked.

Stephen E. Pierotti, M.D., an orthopedic surgeon, diagnosed claimant with bilateral carpal tunnel syndrome. Dr. Pierotti related the bilateral carpal tunnel syndrome to claimant’s employment. (Ex. 15-13)

On November 13, 2003, Dr. Pierotti performed a right carpal tunnel release. Claimant had a very protracted recovery. She missed some work from July 7, 2003 through November 11, 2003 because she had carotid artery surgery. Claimant testified a portion of the missed time was also due to her right hand. Claimant was paid short-term disability benefits. She was off work from November 11, 2003 through April 11, 2004 for her right carpal tunnel surgery. This was a period of 21.586 weeks. Claimant returned to full-duty work on April 12, 2004. Dr. Pierotti advised claimant to use her right hand at work in order to build up strength in the hand.

Claimant complained of right shoulder pain to Dr. Pierotti. The surgeon prescribed physical therapy for the shoulder so claimant could strengthen it. (Ex. 15-25) The condition was “apparent tendonitis of her right shoulder. (Ex. 20-6) On July 14, 2004, Dr. Pierotti opined claimant had reached maximum medical improvement. The surgeon determined claimant had a one percent permanent partial impairment rating to the right hand. No permanency rating was provided for the right shoulder.

Since the employer and insurance carrier admitted liability for the left hand and they accepted the injury date as February 28, 2003, they then desired to control the medical care provided to claimant for treatment of her left hand. David S. Field, M.D. was retained to treat claimant’s left carpal tunnel syndrome.

Dr. Field examined claimant on November 20, 2003. He determined claimant had left carpal tunnel syndrome that was probably related to the duties claimant performed at work. (Ex. 20-2) On June 2, 2004, Dr. Field performed a ”left open carpal tunnel release.” (Ex. 20-8) Claimant was off work until June 7, 2004. Claimant was restricted from using her left hand through July 20, 2004. She was advised to wear carpal tunnel gloves.

On June 21, 2004, claimant returned to see Dr. Field for left shoulder complaints. Dr. Field opined the clinical findings were “compatible with mild adhesive capsulitis of


the left shoulder.” (Ex. 20-13) The orthopedic surgeon opined, ”She probably has a shoulder/hand syndrome with a degree of adhesive capsulitis.” (Ex. 20-13) Dr. Field prescribed a home exercise program. Then he prescribed physical therapy and Vioxx. Claimant responded well to the therapy. (Ex. 20-20) Neurotin was also prescribed. Claimant experienced less pain and tingling with the Neurotin. However, the prescription lapsed and was not refilled. Dr. Field opined claimant was able to resume her regular work activities as of August 2, 2004. With respect to her shoulder complaints, Dr. Field opined claimant should perform work at heights that were tolerable. (Ex. 20-21) Dr. Field did not provide a permanent impairment rating for the left shoulder.

In a letter that is dated, September 13, 2004, Dr. Field opined:

Ms. Hildebrand was recently evaluated in our orthopedic clinic on 09/10/04 in followup [sic] relative to her previous left carpal tunnel and subsequent development of adhesive capsulitis of her left shoulder. Her left shoulder has now essentially returned to normal and is functionally doing well. She has some soreness with activity in the palmar area, which is not atypical, and her grip strength is returned to almost a similar level as her right carpal tunnel, which surgery was performed last November. She has slight sensory loss to the distal portion of her median nerve distribution.

Based on her evaluation and assessment at time, she appears to have residual impairment relative to her hand, based on the sensory loss and slight decreased grip strength. This would amount to a 3% hand impairment and a 3% upper extremity impairment due to the nature of her carpal tunnel syndrome.

(Ex. 20-26)

On October 11, 2004, claimant underwent another EMG. Dr. Sims concluded the following:

Conclusions: bilateral median and ulnar neuropathies without significant axon loss. The distal sensory and motor latencies of the median nerve studies are slightly more abnormal now than in March 2003, indicating no improvement of median nerve function in the interim.

(Ex. 14-98)

Dr. Field explained the three percent permanency rating to the upper extremity was the sole result of the carpal tunnel condition. Dr. Field did not provide a permanent impairment rating for the left shoulder.


Claimant desired an independent medical examination pursuant to Iowa Code section 85.39, as amended. She selected Richard F. Neiman, M.D., a neurologist who practices medicine in Iowa City, Iowa. He is an independent medical examiner who is

often selected by claimants. Dr. Neiman related the cause of both the bilateral carpal tunnel condition and the bilateral shoulder condition to claimant’s employment. (Ex. 22-5)

Dr. Neiman detailed his method of evaluation in his report. It is marked as exhibit 22. Dr. Neiman based his evaluation on the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition. (Ex. 22-4) In his report of July 27, 2005, Dr. Neiman opined claimant had a 25.4 percent permanent impairment to the left upper extremity for the left carpal tunnel syndrome; a 25.4 percent permanent impairment to the right upper extremity for the right carpal tunnel syndrome; a 9 percent permanent impairment for the left upper extremity for the left shoulder adhesive capsulitis; and a 4 percent permanent impairment to the right upper extremity for the right shoulder adhesive capsulitis. (Ex. 22-7)

With respect to work restrictions, Dr. Neiman opined:

As far as limitations she will have difficulty with tasks which require repetitive flexion, pronation, supination as far as both hands. Repetitive activities should be minimized. She should be able to change positions from various jobs. She still can perform in her current activity, but certainly has had difficulty with some discomfort doing such.

(Ex. 22-4, 22-5)

The employer and insurance carrier desired another expert’s opinion relative to the cause and extent of claimant’s condition. Eugene Collins, M.D., P.C. was selected to examine claimant for the purpose of rendering another expert opinion. Dr. Collins diagnosed claimant with:

(a) I feel the diagnosis of the patient’s problems are status post-release transverse carpal ligament with some residual subjective sensory deficits;

(b) Adhesive capsulitis in both shoulders, most likely secondary to decrease in activity while recovering from carpal tunnel surgery resulting in stiffness, essentially resolved;

(c) Hypothyroidism long standing;

(d) Diabetes Mellitius with polyneuropathy long standing.

(Ex. O-2)


Dr. Collins concurred with the impairment ratings that had previously been provided for the right and left hands by doctors selected by both claimant and defendants. Dr. Collins found the shoulders to be within normal limits. (Ex. O-2) The evaluating physician recommended claimant switch positions often and claimant was to avoid activities that caused her pain. (Ex. O-3) Dr. Collins wrote the following with respect to causation:

I feel that Ms. Hildebrand’s right carpal tunnel syndrome was a continuation of her previously diagnosed condition and according to the patient seems to be the case. What concerned her was that her left hand was bothering her and this prompted her to have the EMG’s and discuss the surgical options with her neurologist. There was no essential change or significant worsening in the right wrist which had been treated conservatively over many years. She was purportedly led to believe that if the situation was left alone without surgery this could result in significant deterioration. I believe her shoulder problems were not directly related to the carpal tunnel condition in that she probably had pre-existing propensity to have frozen shoulder or bursitis and after carpal tunnel surgery one can tend to reduce movements of the shoulder which can actually exacerbate such symptoms. I do not believe these were a direct result of the carpal tunnel syndrome or the carpal tunnel surgery perse. [Sic] I do not feel that the automobile accident contributed significantly to any changes in her carpal tunnel diagnosis.

(Ex. O-3)

As far as claimant’s condition was concerned, claimant testified she experienced tingling in her hands. When she engaged in activities, she encountered pain. Claimant estimated her level of pain at 5-7 on a pain scale of 10. She testified her right hand was worse than her left hand. Claimant testified her shoulders “locked” or “froze” when she reached above shoulder level or extended her arms in front of her. Claimant testified her activities were limited because of her hands. Claimant testified she was unable to use vibratory tools or to trim her bushes. She was no longer able to play tennis or to perform yard chores.

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 a 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.

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).

The first issue to address is whether claimant has timely filed her original claim for benefits for her right upper extremity and her right shoulder. Iowa Code section 85.26, as amended, governs the filing of original claims. Section 85.26(1) provides in relevant portion:

1. An original proceeding for benefits under this chapter or chapter 85A, 85 B, or 86, shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed . . . .

The employer and insurance carrier argue claimant’s right carpal tunnel condition and her right shoulder adhesive capsulitis all relate back to the treatment claimant obtained at Medical Associates in Dubuque on January 6, 1992. An EMG test was conducted on January 18, 1992. The nerve conduction study demonstrated moderately severe right carpal tunnel syndrome. Claimant even informed plant authorities of the condition. However, claimant did not pursue a claim for benefits. Defendants maintain


since claimant did not file a claim within two years of January 18, 1992, she is barred from bringing the present claim for her right carpal tunnel and right shoulder conditions.

However, on February 11, 2003, claimant sought medical treatment for a new injury to her right upper extremity and shoulder. She had another EMG on March 11, 2003. The results of the EMG in 2003 were worse than the results of the EMG in 1992. The results in the 2003 EMG concluded there was a median neuropathy at the wrist, there was a right ulnar neuropathy and right fibial neuropathy. The EMG test in 1992 concluded there were only abnormal nerve conduction studies of the right median motor and sensory nerve.

Furthermore, upon inspection of claimant’s medical records, it is clear there were only a few occasions when claimant complained of right wrist complaints between January 1992 and February 2003. In each instance, claimant was treated with conservative measures. The complaints did not impact claimant’s employment. Claimant did not miss work; she completed all tasks assigned to her.

Finally, there were no work restrictions imposed following claimant’s treatment in January 1992. Claimant did not have any work restrictions imposed nor did she miss work prior to the date her EMG studies were conducted on March 11, 2003. Dr. Sims was the first physician to impose work restrictions. He restricted the number of hours claimant worked and he restricted the amount of repetitive activities in which claimant was able to engage. Claimant’s employment was impacted by the February 11, 2003 work injury.

In Herrera v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001), the Iowa Supreme Court delineated the analysis for determining the injury date in a cumulative injury situation. The Court explained:

[A] cumulative injury is manifested when the claimant as a reasonable person, would be plainly aware (1) that he or she suffers from a condition or injury, and (2) that this condition or injury was caused by the claimant’s employment. Upon the occurrence of these two circumstances, the injury is deemed to have occurred. Nonetheless, by virtue of the discovery rule, the statute of limitations does not begin to run until the employee also knows that the physical condition is serious enough to have a permanent adverse impact on the claimant’s employment or the employability, i.e., the claimant knows or should know the ‘nature, seriousness, and probable compensable character” of his injury or condition.”

Herrera, at 288, citing, Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 257 (Iowa 1980).

The statute of limitations in a cumulative injury case, does not begin to run until claimant’s “… physical condition is serious enough to have a permanent adverse impact on the claimant’s employment or employability….” Herrera, at 288, citing, Orr v. Lewis Cent. Sch. Dist., at 257.


It is the determination of the undersigned; claimant did have an injury to her right hand in January 1992. The condition was only temporary in nature and claimant did not miss work. Nor were permanent work restrictions imposed. There was only a temporary condition that did not adversely impact claimant’s employment in any way whatsoever.

Claimant sustained a new work injury to her right upper extremity on February 11, 2003. As of February 11, 2003, claimant knew she suffered from a condition to her right arm. She learned the injury was caused by her employment. She discovered the permanent impact the injury had on her ability to perform her job.

The injury arose out of and in the course of claimant’s employment. The injury was caused by claimant’s employment. This deputy bases the matter of causation on the opinion of the treating physician, Dr. Pieriotti. He had numerous opportunities to observe claimant in the clinic and on the surgical table. Dr. Pierrioti had a myriad of conversations with claimant about her duties at work and how her work adversely affected her right upper extremity and her right shoulder. Causation is established with respect to the right upper extremity and right shoulder.

The employer and insurance carrier do not dispute causation with respect to the left upper extremity. Those defendants admit the injury occurred on February 28, 2003. They agree the injury resulted in both a temporary and a permanent condition to the left hand. Defendants do dispute whether claimant’s left shoulder condition is permanent in nature.

Under the Iowa Workers' Compensation Act permanent partial disability is categorized as either to a scheduled member or to the body as a whole. See section 85.34(2). Section 85.34(2)(a)-(t) sets forth specific scheduled injuries and compensation payable for those injuries. The extent of scheduled member disability benefits to which an injured worker is entitled is determined by using the functional method. Functional disability is "limited to the loss of the physiological capacity of the body or body part." Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 15 (Iowa 1993); Sherman v. Pella Corp., 576 N.W.2d 312 (Iowa 1998). Compensation for scheduled injuries is not related to earning capacity. The fact-finder must consider both medical and lay evidence relating to the extent of the functional loss in determining permanent disability resulting from an injury to a scheduled member. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 272-73 (Iowa 1995); Miller v. Lauridsen Foods , Inc. , 525 N.W.2d 417, 420 (Iowa 1994).

Disability located in the wrist is compensated as a disability of the arm. Miranda v. IBP/Tyson Foods, Inc. , File No. 5008521 (App. August 2005). In Miranda, the Iowa Workers’ Compensation Commissioner expressly overruled Elam v. Midland Mfg., II Iowa Industrial Commissioner Report 141 (App. 1981). Miranda is consistent with rule 876 IAC 2.4 and with the manner which disability in other joints is compensated. Disability in any joint is compensated according to the proximal side of the joint, not as a part of the member on the distal side of the joint.


When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. 1982), a torn rotator cuff was found to cause disability to the body as a whole.

Claimant has not met her burden of proof that her bilateral adhesive capsulitis resulted in a permanent condition. Only Dr. Neiman expressed the opinion the bilateral condition was permanent. However, Dr. Neiman examined claimant on one occasion only. He did not examine claimant throughout the course of her treatment for both hands and both shoulders.

The remaining physicians also viewed claimant’s condition as temporary in nature. There were no formal restrictions imposed. Claimant had been advised to use her shoulders but to avoid activities that caused her pain as a cautionary measure. After physical therapy and her home exercise program, claimant’s shoulders returned to normal functioning. Claimant returned to her normal work activities. The bilateral shoulder condition was only temporary in nature.

With respect to the two right upper extremity injuries that resulted from the carpal tunnel condition, there is a vast difference of opinion regarding the appropriate permanent impairment ratings to assess. Dr. Collins concurs with the opinions rendered by Dr. Pieriotti and Dr. Field regarding permanency. Dr. Pieriotti opined the right carpal tunnel syndrome resulted in a 1 percent permanent impairment, Dr. Field found the left carpal tunnel syndrome to have caused a 3 percent permanent impairment. Dr. Neiman opined the right carpal tunnel syndrome resulted in a 25.4 percent impairment to the right upper extremity. Dr. Neiman rated the left carpal tunnel syndrome as a 25.4 percent impairment to the left upper extremity. This deputy finds the ratings to be extremely low or excessively high.

Claimant had been advised to avoid repetitive activities when possible. She returned to full duty employment. Nevertheless, claimant testified, she experienced pain at a level of 5 to 7 on a scale of 10. She encountered tingling also. Claimant testified she is no longer able to operate vibratory tools nor is she able to pick up certain objects with her fingers. Claimant provided credible testimony concerning her condition.

In light of the foregoing, it is the determination of the undersigned, claimant sustained an impairment of 10 percent to the right arm as a result of her work injury on February 11, 2003. Claimant sustained an impairment of 9 percent to her left arm as a result of her work injury on February 28, 2003.

An arm is compensated according to section 85.34(2)(m). It reads:

The loss of two-thirds of that part of an arm between the shoulder joint and the elbow joint shall equal the loss of an arm and the compensation therefore shall be weekly compensation during two hundred fifty weeks.


In light of section 85.34(2)(m), claimant is entitled to 250 weeks x .10 = 25 weeks of permanent partial disability benefits for the right carpal tunnel syndrome. Permanency benefits commenced on April 12, 2004.

Claimant is entitled to 250 weeks x .09 = 22.5 weeks of permanent partial disability benefits for the left carpal tunnel syndrome. Permanency benefits commenced July 7, 2004.

There is an overlap of benefits between the two work injuries. However, double recoveries are not favored in the law. Formerly, many cases under the full responsibility rule have held that a workers’ compensation claimant is entitled to recover for a work injury, and then later recover for a subsequent work injury without apportionment, even though the claimant may have already been compensated through a workers’ compensation action for the first injury. Under the full responsibility rule, in a situation of two successive work-related injuries, the employer was generally held liable for the entire disability resulting from the combination of the prior disability with the present injury. Excel Corp v. Smithart, 654 N.W.2d 891 (Iowa 2002); Celotex Corp. v. Auten, 541 N.W.2d 252 (Iowa 1995). Prior to September 2004, the apportionment rule was not applied to work related condition or injuries. Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258 (Iowa 1995).

Now, there are situations where the Iowa Workers’ Compensation laws do expressly provide for apportionment. Iowa Code section 85.36(9)(c) (2003), as amended, provides a statutory provision for the apportionment of benefits. The section reads in relevant part:

c. In computing the compensation to be paid to any employee who, before the accident for which the employee claims compensation, was disabled and drawing compensation under the provisions of this chapter, the compensation for each subsequent injury shall be apportioned according to the proportion of disability caused by the respective injuries which the employee shall have suffered.

Several years ago, The Iowa Supreme Court discussed section 85.36(9)(c) in the case, Mycogen Seeds v. Sands, 686 N.W.2d 457 (Iowa 2004). In Mycogen, Chief Justice Lavorato reiterated the principle set out in Excel Corp., at 899-900. The Chief Justice wrote section 85.36(9)(c) was included as a subsection because “The intent of this statute is to prevent overlapping or stacking of disabilities.”

The Chief Justice continued in Mycogen at 466:

Thus, if an employee is incapacitated to work, because of a compensable injury to work and is temporary total disability, temporary partial disability, permanent partial disability, healing period or permanent total disability benefits and again suffers a compensable injury, the statute applies. The statute applies even though the employee is not receiving


but is entitled to receive such benefits at the time of the second injury. See Excel, 654 N.W.2d at 899.

Thus, when a first injury produces a period of permanent partial disability, and a second injury occurs which results in a period of temporary total disability, temporary partial disability or healing period benefits, and the periods of entitlement overlap, the compensation from the first injury is not apportioned with the temporary benefits from the second injury under Iowa Code section 85.36(9)(c). Both are payable at the same time since the two types of benefits differ and compensate different disabilities. Temporary benefits compensate lost wages, while permanent partial disability benefits compensates lost earning capacity. Stoverv, OBECO, Inc., File Nos., 1186495, 1179875, 1169222 (App. April 8, 2003); Mycogen at 467-468.

Nevertheless, when a first injury produces a period of permanent partial disability, and a second injury produces a period of permanent partial disability, apportionment under Iowa Code section 85.36(9)(c) is mandated. Both periods of entitlement compensate the same type of disability, lost earning capacity. Consequently, apportionment is required to prevent double recovery.

Therefore, under Iowa Code section 85.36(9)(c), the compensation for each subsequent injury shall be apportioned according to the proportion of disability caused by the respective injuries. It is quite common for the two injuries to have separate weekly benefit rates. Due to prior agency precedent, permanency benefits from the first injury will be paid at the rate set for the first injury from the commencement date for permanency benefits, up to the date when the benefits for the two injuries overlap. During the period of overlap, benefits will be paid at the higher of the two rates proportioned between the two injuries in proportion to the amount of permanent disability caused by each injury. From the end of the overlap period to the end of entitlement for the second injury, benefits will be paid according to the rate established for the second injury. See Reeves v. Drake University, File No. 1177868, et al (App. February 2004); Redmon v. Krause Gentle Corp., File No. 5002614 (App. March 2004).

In the instant case, the commencement date for permanent partial disability benefits for the right upper extremity is April 12, 2004. Permanency benefits are due from April 12, 2004. The commencement date for permanent partial disability benefits for the left upper extremity is September 13, 2004. Claimant will be paid her appropriate weekly benefit rate for each week there is an overlap of benefits. One half of the weekly benefits will be allocated to the first work injury and one half of the weekly benefits will be allocated to the second injury. Such apportionment shall continue until there is no longer an overlap period. Then, the balance of payments due for the second injury will be paid at the appropriate rate until the weekly benefits for the second injury have been paid in full.

The next issue to address is the issue of healing period benefits.


Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, Iowa App 312 N.W.2d 60 (1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).

Claimant is entitled to healing period benefits for the right carpal tunnel syndrome from November 11, 2003 through April 11, 2004. Claimant was released to return to work on April 12, 2004. This is a period of 21.586 weeks.

Claimant is entitled to healing period benefits for the left carpal tunnel syndrome from June 2, 2004, the date of her left carpal tunnel release, through June 7, 2004, the date, Dr. Field released claimant to return to work. This is a period of five days. Claimant is entitled to healing period benefits for .714 weeks of healing period benefits.

The next issue to discuss is the issue of the proper weekly benefit rate to which claimant is entitled.

Section 85.36 states the basis of compensation is the weekly earnings of the employee at the time of the injury. The section defines weekly earnings as the gross salary, wages, or earnings to which an employee would have been entitled had the employee worked the customary hours for the full pay period in which injured as the employer regularly required for the work or employment. The various subsections of section 85.36 set forth methods of computing weekly earnings depending upon the type of earnings and employment.

If the employee is paid on a daily or hourly basis or by output, weekly earnings are computed by dividing by 13 the earnings over the 13-week period immediately preceding the injury. Any week that does not fairly reflect the employee’s customary earnings that fairly represent the employee’s customary earnings, however. Section 85.36(6).

Claimant detailed the weeks she used to calculate her weekly benefit rate for the injury dates of February 11, 2003 and February 28, 2003. She detailed her calculations on page 3 of exhibit 7. Claimant explained why she did not include certain weeks; they were short weeks. The deputy is confident claimant’s calculations best reflect claimant’s gross weekly wages and her proper benefit rate. Claimant’s gross weekly wage is $680.59 per week. Her weekly benefit rate as a single person is $408.14 per week. All benefits should be compensated at this rate.

The next issue to address is the matter of medical benefits pursuant to Iowa Code section 85.27, as amended.


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-Reopening October 1975).

Claimant is seeking the payment of medical bills for treatment of the right upper extremity. The bills are in the amount of $12,584.46. John Deere Health Insurance paid a portion of the bills. The health insurance is provided as a benefit by the employer. Defendants are entitled to a credit for any benefits paid by the health insurance carrier since the insurance was part of the benefit package.

The employer and its workers’ compensation insurance carrier are responsible for the entire amount of the medical bills. The health insurance carrier is to be reimbursed for amounts it paid on behalf of claimant. Claimant is to be paid for any amounts she paid out of her own pocket. Likewise, the employer and its workers’ compensation insurance carrier are liable for the medical bills incurred to treat the left upper extremity.

Dr. Field prescribed Neurontin for claimant. The evidence indicates the Neurontin assisted claimant with her pain. However, the prescription lapsed. Defendants shall reschedule another appointment with Dr. Field for the purpose of determining whether another prescription of Neurontin is appropriate. Defendants are liable for the prescription charges, if any, to treat the upper extremities.

Claimant is requesting penalty benefits pursuant to Iowa Code section 86.13. Specifically, claimant is requesting penalty benefits because defendants paid no benefits on behalf of the right upper extremity and defendants paid claimant for the left upper extremity but the benefits were paid at an incorrect rate and they were paid in an untimely fashion.

In Christensen v. Snap-on Tools Corp., 554 N.W.2d 254 (Iowa 1996), and Robbennolt v. Snap-on Tools Corp., 555 N.W.2d 229 (Iowa 1996), the supreme court said:

Based on the plain language of section 86.13, we hold an employee is entitled to penalty benefits if there has been a delay in payment unless the employer proves a reasonable cause or excuse. A reasonable cause or excuse exists if either (1) the delay was necessary for the insurer to investigate the claim or (2) the employer had a reasonable basis to contest the employee’s entitlement to benefits. A “reasonable basis” for denial of the claim exists if the claim is “fairly debatable.”


Christensen, 554 N.W.2d at 260.

The supreme court has stated:

(1) If the employer has a reason for the delay and conveys that reason to the employee contemporaneously with the beginning of the delay, no penalty will be imposed if the reason is of such character that a reasonable fact-finder could conclude that it is a "reasonable or probable cause or excuse" under Iowa Code section 86.13. In that case, we will defer to the decision of the commissioner. See Christensen, 554 N.W.2d at 260 (substantial evidence found to support commissioner’s finding of legitimate reason for delay pending receipt of medical report); Robbennolt, 555 N.W.2d at 236.

(2) If no reason is given for the delay or if the “reason” is not one that a reasonable fact-finder could accept, we will hold that no such cause or excuse exists and remand to the commissioner for the sole purpose of assessing penalties under section 86.13. See Christensen, 554 N.W.2d at 261.

(3) Reasonable causes or excuses include (a) a delay for the employer to investigate the claim, Christensen, 554 N.W.2d at 260; Kiesecker v. Webster City Custom Meats, Inc., 528 N.W.2d at 109, 111 (Iowa 1995); or (b) the employer had a reasonable basis to contest the claimthe “fairly debatable” basis for delay. See Christensen, 554 N.W.2d at 260 (holding two-month delay to obtain employer’s own medical report reasonable under the circumstances).

(4) For the purpose of applying section 86.13, the benefits that are underpaid as well as late-paid benefits are subject to penalties, unless the employer establishes reasonable and probable cause or excuse. Robbennolt, 555 N.W.2d at 237 (underpayment resulting from application of wrong wage base; in absence of excuse, commissioner required to apply penalty).

If we were to construe [section 86.13] to permit the avoidance of penalty if any amount of compensation benefits are paid, the purpose of the penalty statute would be frustrated. For these reasons, we conclude section 86.13 is applicable when payment of compensation is not timely . . . or when the full amount of compensation is not paid.

Id.

(5) For purposes of determining whether there has been a delay, payments are “made” when (a) the check addressed to a claimant is


mailed (Robbennolt, 555 N.W.2d at 236; Kiesecker, 528 N.W.2d at 112), or (b) the check is delivered personally to the claimant by the employer or its workers’ compensation insurer. Robbennolt, 555 N.W.2d at 235.

(6) In determining the amount of penalty, the commissioner is to consider factors such as the length of the delay, the number of delays, the information available to the employer regarding the employee’s injury and wages, and the employer’s past record of penalties. Robbennolt, 555 N.W.2d at 238.

(7) An employer’s bare assertion that a claim is “fairly debatable” does not make it so. A fair reading of Christensen and Robbennolt, makes it clear that the employer must assert facts upon which the commissioner could reasonably find that the claim was “fairly debatable.” See Christensen, 554 N.W.2d at 260.

Meyers v. Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996).

Weekly compensation payments are due at the end of the compensation week. Robbennolt, 555 N.W.2d 229, 235.

Penalty is not imposed for delayed interest payments. Davidson v. Bruce, 593 N.W.2d 833, 840 (Iowa 1999).

When an employee’s claim for benefits is fairly debatable based on a good faith dispute over the employee’s factual or legal entitlement to benefits, an award of penalty benefits is not appropriate under the statute. Whether the issue was fairly debatable turns on whether there was a disputed factual dispute that, if resolved in favor of the employer, would have supported the employer's denial of compensability. Gilbert v. USF Holland, Inc., 637 N.W.2d 194 (Iowa 2001).

In the instant case, it was unreasonable for defendants to deny claimant’s claim for right carpal tunnel syndrome. The question of liability was not fairly debatable, given the totality of the circumstances. Claimant had worked for the company for over 30 years. During the entire period, claimant had performed the same job. She had performed all duties assigned. Her job required repetitive grasping and gripping. She had to employ many fine finger movements. The job also required claimant to operate a keyboard for two hours per day. It only stands to reason claimant’s hand problems were related to her employment.

The same argument holds true for the left upper extremity. While defendants did eventually accept liability for the left carpal tunnel syndrome, their determination of liability only occurred after continual prodding from claimant’s counsel. Then defendants paid claimant at an inaccurate weekly benefit rate. It is the determination of the undersigned, defendants shall pay unto claimant $8,000.00 as penalty benefits pursuant to section 86.13.


The next issue to address is the issue of benefits from The Fund.

Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg, or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury.

The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Iowa Practice, Workers’ Compensation, Lawyer and Higgs, section 17-1 (2006).

The Fund is responsible for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries. Section 85.64. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990); Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970).

In the present case, the Fund is liable for benefits. There have been two separate injuries to each arm. Each injury has resulted in a loss of use of the arm,

There is a 10 percent permanent disability of the right arm. The disability equates to 25 weeks. This qualifies as a first injury. There is a 9 percent permanent disability of the left arm. The disability equates to a loss of 22.5 weeks. This qualifies as a second injury. There is a permanent disability in the amount of 47.5 weeks for which the employer and insurance carrier are responsible.

It must now be determined whether claimant has sustained an industrial loss as a result of the combined effect of the two separate scheduled member injuries.

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, 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. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Olson v.


Goodyear Serv. 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 63 years old. She has worked for this employer for nearly 36 years. It does not appear claimant is interested in seeking other employment. Retraining is highly unlikely, given claimant’s age. Claimant is to avoid repetitive activities. Defendant employer is able to accommodate claimant in the workplace. Claimant performs the same job that she has performed since 1972. Claimant now earns more money per hour than she earned in 2003. Claimant earns $17.54 per hour. It is extremely doubtful that in the competitive labor market, claimant, with her condition, will find suitable employment at the same rate of pay as claimant now earns.

It is the determination of the undersigned; claimant has a 15 percent industrial disability. This equates to 75 weeks of permanent partial disability benefits. The Fund shall take credit for the 47.5 weeks of benefits for which the employer and insurance carrier are liable. The Fund is liable for 27.5 weeks of benefits at the rate of $408.14 per week. Said benefits shall commence at the conclusion of the permanency benefits paid to claimant for the right and left carpal tunnel syndrome.

ORDER

THEREFORE, IT IS ORDERED:

With respect to the injury on February 11, 2003, defendants employer and insurance carrier shall pay unto claimant, twenty-five (25) weeks of permanent partial disability benefits at the stipulated weekly benefit rate of four hundred eight and 14/100 dollars ($408.14) per week and commencing from April 12, 2004.

With respect to the injury on February 11, 2003, defendants employer and insurance carrier shall pay unto claimant twenty-one point five eight six (21.586) weeks of healing period benefits at the rate of four hundred eight and 14/100 dollars ($408.14) per week.

With respect to the injury on February 28, 2003, defendants employer and insurance carrier shall pay unto claimant twenty-two point five (22.5) weeks of permanent partial disability benefits at the rate of four hundred eight and 14/100 dollars ($408.14) per week and commencing from September 13, 2004.

With respect to the injury on February 28, 2003, defendants employer and insurance carrier shall pay unto claimant, point seven one four (.714) weeks of healing period benefits at the rate of four hundred eight and 14/100 dollars ($408.14) per week.


Where there is an overlap of benefits, claimant shall be paid four hundred eight and 14/100 dollars ($408.14) per week for each week there is an overlap of benefits; one half of the weekly benefits will be allocated to the February 11, 2003 work injury and one half of the weekly benefits will be allocated to the second injury and such apportionment shall continue until there is no longer an overlap period.

Defendants, employer and insurance carrier, shall take credit for all benefits previously paid to claimant, including the net amount of long and short-term disability benefits, the employer previously paid to claimant.

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

In arbitration proceedings, interest accrues on unpaid permanent disability benefits from the onset of permanent disability. Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); Benson v. Good Samaritan Ctr., Ruling on Rehearing, October 18, 1989.

Claimant is ordered to file a separate original notice and petition, together with the sixty-five ($65.00) filing fee, for the injury date of February 28, 2003.

Defendant employer and insurance carrier shall file a first report of injury for the date of February 28, 2003.

The Second Injury Fund of Iowa shall pay unto claimant, twenty-seven point five (27.5) weeks of Iowa Code section 85.64 benefits pursuant to the Second Injury Fund Act and said benefits shall be paid at the rate of four hundred eight and 14/100 dollars ($408.14) per week and said benefits shall only commence following the payment of all permanency benefits by the employer and insurance carrier.

Interest accrues on unpaid Second Injury Fund benefits from the date of the decision. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990).

Defendants, employer and insurance carrier, shall also pay unto claimant eight thousand and 00/100 dollars ($8,000.00) in penalty benefits pursuant to Iowa Code section 86.13, as amended.

Interest on the penalty benefits shall accrue from the date of the filing of this decision.

Defendants are liable for Iowa Code section 85.27 medical benefits, including the cost of prescription drugs necessary to treat the upper extremities.

Pursuant to Iowa Code section 85.27, defendants’ employer and insurance carrier are liable for the costs to treat the upper extremities. The employer and insurance carrier shall take credit for the benefits paid by John Deere Health Insurance Company and shall reimburse the health insurance carrier for benefits it paid.


Additionally, defendants, employer and insurance carrier, shall reimburse claimant for any out of pocket medical expenditures.

Defendants, employer and insurance carrier, shall file first reports of injury for the injury dates February 11, 2003 and February 28, 2003, if not previously filed.

Defendants shall file all other requisite reports in a timely manner.

All other alleged dates of injury are hereby dismissed.

Costs, as allowed by law are assessed to defendants but the Second Injury Fund of Iowa shall only be responsible for the costs the Fund incurred.

Signed and filed this _5 th _ day of May, 2006.

________________________ MICHELLE A. MCGOVERN

DEPUTY WORKERS’ COMPENSATION COMMISSIONER

Copies to:

Mr. Edward J. CervantesAttorney at Law2208 E. 52nd St., Ste. 3Davenport, IA 52807-2726

Mr. Matthew E. ThurberAttorney at Law12120 Shamrock Plz, Ste. 200Omaha, NE 68154-3539

Ms. Kristin W. EnsignC/O Asst. Attorney GeneralHoover Bldg.Des Moines, IA 50319-0001

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