Klein v. Furnas Elec. Co., 85-303

• Decision Date: 19 March 1986
• Docket Number: No. 85-303,85-303
• Citation: 384 N.W.2d 370
• Parties: Helen KLEIN, Appellant, v. FURNAS ELECTRIC COMPANY and American Mutual Liability Insurance Company, Appellees.
• Court: Iowa Supreme Court

Page 370

384 N.W.2d 370

Helen KLEIN, Appellant, v. FURNAS ELECTRIC COMPANY and American Mutual Liability Insurance Company, Appellees.

No. 85-303.

Supreme Court of Iowa.

March 19, 1986.

As Amended on Denial of Rehearing

April 14, 1986.

R. Ronald Pogge, of Hopkins & Huebner, P.C., Des Moines, for appellant.

Edward Ronwin, Urbandale, and Michael B. Devine, of Bump & Haesemeyer, P.C., West Des Moines, for appellees.

Considered en banc.

CARTER, Justice.

On this appeal, petitioner, Helen Klein, raises several issues concerning the industrial commissioner's award of workers' compensation benefits for work-related injuries. She contends that the commissioner, at the latest administrative hearing, should have placed the burden upon her employer to show a change of condition subsequent to the findings of disability made at an earlier hearing. She also contends that, in any event, the record fails to support the percentage of industrial disability finally determined to exist by the industrial commissioner, and requires the determination of a greater disability as a matter of law. She further challenges the failure of the industrial commissioner to order her employer to pay interest and penalties for delay in paying medical expenses allowed by the commissioner at an earlier hearing. The district court denied each of these claims. We conclude that the district court was correct in affirming the determination of the industrial commissioner.

Petitioner, born October 23, 1933, was employed by respondent Furnas Electric Company on September 12, 1977, as an assembly worker performing light labor in the manufacture of electrical switches. On that date, she sustained an injury to her right elbow while on the job. This occurred when her arm struck a moving object near the assembly line. A first report of injury was filed on September 14, 1977. Her condition was first diagnosed as tendinitis and later as lateral epicondylitis. She was not released to return to work until January of 1978. She began receiving weekly workers' compensation benefits of $96.57 on October 3, 1977, pursuant to a memorandum of agreement.

Upon her return to work in January of 1978, petitioner was still experiencing pain in the right upper arm and shoulder. In addition, she soon began to notice pain and loss of motion in her left upper arm from the cumulative effects of using an air gun. The latter condition was diagnosed by her physician as carpal tunnel syndrome and required surgery on the left arm in May of 1978.

On February 29, 1980, petitioner filed with the industrial commissioner a combined request for review-reopening of the memorandum of agreement involving the September 12, 1977 injury, and an arbitration petition for determination of compensability to the left upper extremity caused by working with the air gun. She also noted in her request for hearing that she was experiencing work-related emotional disturbance.

On September 2, 1980, a hearing was held before a deputy industrial commissioner at which petitioner, respondent-employer, and respondent-insurance carrier agreed that the two work-related injuries were compensable and requested a determination of the extent of petitioner's permanent disability of the body as a whole and liability of respondent for her medical expenses.

The record at the hearing established that petitioner had not worked since February of 1978. Included were the medical reports of Dr. David B. McClain, claimant's treating physician, the testimony of Dr. Thomas Summers, a neurologist, and Todd Hines, Ph.D., a clinical psychologist. Dr. McClain's medical report dated December 12, 1979, indicated that, in his opinion, petitioner was unable to return to her previous occupation or to any work involving manual labor or the repetitive use of her hands. He determined her functional disability to be twenty-seven percent permanent partial disability of the upper right extremity and twenty-seven percent permanent partial impairment of the upper left extremity. He found that this circumstance coupled with her state of emotional instability at that time rendered her totally disabled on an industrial basis. Dr. McClain expressed the opinion that professional counseling would be of some benefit in correcting this situation.

Dr. Summers indicated that, as a result of her work-related injuries, petitioner had suffered a functional impairment of ten to fifteen percent of the body as a whole and was unable to return to any occupation involving repetitive work of the hands. Dr. Hines testified that, due to job-related depression, claimant was, at the time of the September, 1980 hearing, unable to work. In his opinion, that situation would be permanent in the absence of further treatment. With the benefit of a program of rehabilitation, however, Dr. Hines believed that petitioner showed "good vocational potential."

As a result of the evidence presented at the September 2, 1980 hearing, a deputy industrial commissioner, on December 31, 1980, concluded that "[a]t this point a determination of the extent of claimant's permanent disability would be premature. [C]laimant has not [yet] recuperated from her work-related injuries as contemplated in section 85.34(1)." As a result of these conclusions, the deputy industrial commissioner ordered respondents to pay claimant a running healing period award under section 85.34(1) until such time as she returned to work or it became medically indicated that no further improvement of her condition was anticipated. The deputy commissioner's order also provided that the respondents pay to petitioner certain designated medical expenses and mileage incurred for medical treatment. The medical expenses to be paid totaled $3041.19 and the mileage reimbursement totaled $454.68. No administrative or judicial review was sought with respect to the deputy's December 31, 1980 decision.

On March 16, 1983, respondents filed an application to discontinue paying healing period benefits to petitioner because no further significant improvement from her injuries could be anticipated. A hearing was held in March of 1983, and evidence was received from petitioner, Dr. McClain, Dr. Summers, Dr. Hines, Dr. Peter Wirtz, an orthopedic surgeon, and Dr. Michael Taylor, a psychiatrist. Dr. Hines testified that, since the time of the previous hearing, petitioner had made some progress toward reducing the symptoms of her depression but had prematurely terminated treatment and consequently lost any ground which had been gained. He believed that petitioner was experiencing an intractible anxiety and depression triggered by the physical injuries sustained on the job. He expressed the opinion that she was 100 percent permanently industrially disabled. In contrast, Dr. Taylor testified for respondents that petitioner had no diagnosable mental disorder and no disability attributable to a psychological cause.

Dr. McClain testified that petitioner's complaints of pain in both upper extremities, as well as the cervical spine, continued. He diagnosed her condition as a probable bilateral carpal tunnel syndrome. He found her functional impairment to be unchanged from the time of the prior hearing and continued to believe that claimant was 100 percent totally industrially disabled. Dr. Wirtz, however, testified for respondents that, in his opinion, petitioner did not have a permanent disability from orthopedic causes. Dr. Summers indicated that petitioner's problem was disabling pain from epicondylitis of the right humerus and that further employability would be dependent upon alleviation of that symptom. A pain management specialist testified that an outpatient treatment program might successfully decrease petitioner's level of pain and suffering but was unable to say whether reduction of that symptom would assure her employability.

In reconciling the expert testimony, at the March, 1983 hearing, the deputy industrial commissioner found that maximum recuperation on petitioner's part had been attained by March 16, 1983, and terminated the weekly healing benefits as of that date. It was found that the extent of claimant's permanent industrial disability was sixty percent, a condition which entitled her to 300 weeks of disability payments reduced by benefits paid for permanent partial disability. ¹ It was further determined that the medical expenses awarded in the December 31, 1980 order were still due and owing to petitioner from respondents, that respondents were precluded from relitigating the validity of that award, but that no interest or penalty would be assessed as a result of the late payment thereof. The decision of the deputy was affirmed by the industrial commissioner. The final agency action was affirmed by the district court on judicial review.

I. Whether Industrial Commissioner Incorrectly Determined Extent of Petitioner's Permanent Disability.

Petitioner makes two arguments on appeal concerning the determination by the industrial commissioner of the extent of her permanent total disability. Her first argument asserts that, as a result of the findings which were made by the deputy industrial commissioner following the September, 1977 hearing, the extent of her permanent total disability was established at 100 percent. That circumstance, she urges, placed the burden of proof on respondents at the subsequent hearing to establish the extent to which...