BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONERdecisions.iowaworkforce.org/2006/February/Squire, Larry-5014419… · Web viewA hemostat took incredible strength to release

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER______________________________________________________________________

:LARRY J. SQUIRE, :

:Claimant, :

:vs. :

:LARRY SQUIRE, D.D.S., L.J. SQUIRE : File No. 5014419D.D.S., P.C. AND SQUIRE AND :LINK D.D.S., P.C., : A R B I T R A T I O N

:Employer, : D E C I S I O N

:and :

:IMT INSURANCE, :

: Head Note Nos.: 1108.50; 1402.20;Insurance Carrier, : 1402.30; 1402.40; 1803.1; 2201;Defendants. : 2206; 2209; 4000.2

______________________________________________________________________

STATEMENT OF THE CASE

Larry Squire has filed a petition in arbitration seeking workers’ compensation benefits from Larry Squire, D.D.S., L.J. Squire D.D.S., P.C. and Squire and Link D.D.S., P.C., defendant employer, and IMT Insurance, defendant insurance carrier, on account of an injury or injuries he allegedly sustained arising out of and in the course of his employment. This matter was heard by and fully submitted to deputy workers’ compensation commissioner, Vicki L. Seeck, on December 20, 2005, in Davenport, Iowa. At the conclusion of the hearing, the deputy requested a partial transcript of the hearing. The part of the hearing to be transcribed was the testimony of Michael Cullen, M.D. That partial transcript was filed on January 6, 2006. The record consists of claimant’s exhibits 1 through 10; defendants’ exhibits 101 through 114; the testimony of Michael Cullen, M.D., and the testimony of Larry Squire.

Both parties submitted post-hearing briefs which were reviewed by the deputy prior to issuing the decision in this case.

ISSUES

This case presents complicated issues concerning whether the claimant has sustained a cumulative injury or injuries that was or were proximately caused by his employment as a dentist. Not only must it be determined whether the claimant sustained an injury or injuries arising out of and in the course of his employment, but the

SQUIRE V. LARRY SQUIRE, D.D.S., ET AL.Page 2

dates of those alleged injuries must also be determined. There are causation questions concerning permanent disability. There is no agreement on what part or parts of the body have been injured. The defendants have paid permanent partial disability benefits for permanent impairment of the claimant’s right thumb. The claimant argues that he is entitled to penalty benefits pursuant to Iowa Code section 86.13.

Based on the above, the issues are:

1. Whether the claimant sustained an injury or injuries arising out of and in the course of his employment;

2. The date or dates of those injuries;

3. Whether the alleged injuries are a proximate cause of permanent disability;

4. The nature and extent of that permanent disability, if any;

5. The commencement date for the payment of permanent partial disability benefits; and

6. Whether the claimant is entitled to any penalty benefits pursuant to Iowa Code section 86.13.

The parties have stipulated that the claimant gross weekly earnings were $1,868.00 per week and that the claimant was married with three exemptions. The claimant’s rate will depend on the date or dates of the cumulative injury and the appropriate rate will be set forth in the findings of fact.

FINDINGS OF FACT

The deputy workers’ compensation commissioner, having heard the testimony of all the witnesses and having read all the evidence in the record, makes the following findings of fact:

The claimant, Larry Squire, is 55 years old and was born on July 26, 1950. He graduated from high school in 1968 and attended St. Ambrose College (now University) in Davenport, Iowa. He graduated from St. Ambrose in 1972. He attended the college of dentistry at the University of Iowa from 1972 through 1976. He received his license to practice dentistry in 1976 and returned to Davenport.

The claimant described himself as a general dentist. In 1978, he returned to the University of Iowa to teach on a part time basis. In his private practice, which he continued to maintain together with his teaching, he was mostly a solo practitioner. He did on occasion have part time associates. These associates were students who had just graduated from dental school and were working to establish their own practices.

The claimant said that he began to have problems with his right thumb. He is right handed. Due to pain in his right thumb, he had to change the way he did certain


parts of his dental work. He could no longer put his thumb in the loop on top the syringe that was used to give patients a temporary anesthetic prior to dental surgery. He got to the point where he could not use the tools necessary to tamp down the amalgam on a filling. A hemostat took incredible strength to release. This is the device that is used to remove the metal band placed around a tooth that has been filled. The claimant had to grip the hemostat in order to use it and had increasing difficulties with that task due to his right thumb. He could not use scissors.

His left elbow also gave him trouble. He used his left arm to hold the patient’s cheek away from the tongue so that the drills he used would not engage the tongue. The drills were both low and high speed drills. It was important to protect the patient’s cheek and tongue as the drills could do a lot of damage to those parts of the mouth.

He testified that he had difficulties with the posture of his neck. He needed to use eyesight loops that would magnify the work area three times. These loops were little microscope lenses that fit onto his safety glasses. He also had to wear a fiber optic head lamp. The claimant’s actual field of vision was only two inches and he had to hold his head perfectly still for up to one-half hour at a time. He said that he could not change position and did not have the luxury of getting up to change position.

How long a given procedure would last would vary. A filling would take from one-half to one hour and a crown would require one and one-half hours of his time. He also did prosthodontist work, such as removing eight teeth at one time. This procedure would take an entire morning. He estimated that on average he spent 80 percent of his working time “in the chair.” He also had two dental assistants who cleaned patient’s teeth and he checked their work as well. Over the last ten years he would work Mondays through Thursdays from 8:00 a.m. to 5:00 p.m. at his private practice and the University of Iowa on Fridays from 7:00 a.m. to 6:00 p.m. His job at the University of Iowa was as a supervisor.

The claimant first noticed problems with his right thumb over ten years ago, back in the 1980s. In 1999 it “really started coming home.” He said that he self medicated with ibuprofen and Advil. However the pain got progressively worse. He described that situs as at the base of his thumb, near his wrist. Specifically, it was at the metacarpal phalange joint. It was a chronic inflammation that the claimant called a deformity.

Concerning his left elbow, he required a countless number of cortisone injections. He was only able to get two injections a year. The cortisone would help for a few days, but the pain of the injection made him question whether the injection “was worth it.”

He first reported problems with his neck to the orthopaedic surgeon he was seeing for his right thumb and left elbow. This surgeon was Richard Ripperger, M.D. He told Dr. Ripperger he had limited mobility in his neck and stiffness. He said it felt like a hot knife in his neck. He used Advil to cope with the pain. His wife also got him some heat patches and a vibrating massager. Dr. Ripperger recommended a Medrol Dosepak, which the claimant described as a heavy duty anti-inflammatory, as a way to get his “neck under control.”


According to the claimant, Dr. Ripperger told him there was no other treatment for his neck, except perhaps surgery. He did not like the idea of surgery and testified that he was “able to cope with what I was doing.” He said he suffered from chronic pain in his neck from 1999 through September 2003. He would get tired at the end of the day. He said that his neck has not gotten better since 1999, but it also has not gotten worse. After he quit practicing dentistry, his neck pain did not seem to be as bad.

The claimant said that he still has pain in his left elbow and that he is “aware of it.” He is “constantly aware” of pain in his right thumb.

The claimant decided to quit practicing dentistry on September 23, 2003. This decision was made because of the pain he was having in his right thumb. He said that he went into work that day and told himself he did not know how much longer he could do this work. He came home that night and decided he would have to make his living elsewhere. He spoke to Dr. Ripperger about this condition in his right thumb and Dr. Ripperger told him that his right thumb was not going to get better and that it would be difficult for the claimant to perform the functions of a dentist. The wear and tear would continue. The claimant decided to take a three month leave of absence and at the end of the three months, he did not feel that he could continue to practice dentistry.

At the time of the hearing the claimant testified that he is involved in a variety of activities. He spends one day a week teaching at the University of Iowa and has been asked to increase that to three days a week. He also has an affiliation with Henry Hammond, which is a firm that is involved with the sale of dental practices. He occasionally serves as an expert in dental malpractice cases and serves as a forensic dentist. He is also just beginning to work as director of practice management at the University of Iowa.

The claimant was asked about his earnings before and after he decided to leave the private practice of dentistry. In 2004, his income was $53,292.00, which represented a combination of his salary from the University of Iowa; expert witness fees; and fees from the brokerage. Had he been able to practice dentistry, he estimated that he would earn from $250,000.00 to $275,000.00 per year, based on what his “healthy” colleagues are making. However, the claimant said that his income in 2002 was affected by his physical problems as he began to refer a lot of procedure and patients to a dentist that was now working with him. In 2003, he earned $115,000.00 from the practice of dentistry.

The claimant was asked what he believed to be the cause of pain complaints. Concerning his right thumb, he is “definitely convinced” it was the repetitive grating, wear and tear on the joint that gradually over time got worse and worse. His left elbow pain was caused by the way he had to suspend his arm. His neck complaints are due to the way he had to hold his neck. He presently takes Mobic, a non-steroidal anti-inflammatory as well as numerous other medications for conditions unrelated to this claim. These other medical conditions do not prevent him from practicing dentistry.


On cross-examination the claimant was asked about treatment he had received for his neck condition. He responded that he saw Dr. Ripperger in 1987 and that he was prescribed Medrol Dosepaks in 1999. Dr. Ripperger did not recommend surgery but did tell the claimant that he thought that “it would evolve into that.” He has never been treated for his neck condition by Richard Roski, M.D. He said that if he needed surgery that Dr. Roski is the physician he would select for that procedure. He, however, had “discarded” that option on his own. He said that he accepted his neck condition and dealt with it. He mentioned his neck pain to his personal physician and it was that physician who prescribed Mobic. He admitted that no physician has restricted him from working due to his neck condition. The last time he received any medical care from any physician for his neck was in October 2003. No future treatment for his neck is recommended at the present time.

The claimant also testified concerning the various disability insurance policies that he took out and the amounts of benefits he is receiving from each policy. Equitable Life is presently paying the $1,200.00 per month until age 65 and then $1,000.00 for life. Great West is paying $830.00 per month until age 65. Of critical importance in this case is that the reason that he is receiving disability insurance payments is on account of his right thumb. He is up for promotion at the University of Iowa and if he promoted to associate professor he will have a salary of $60,000.00 per year. He is also receiving income from a buy/sell agreement of his dental practice. He owns half the building where his old dental practice is located and receives rental income. In 2004, he estimated that his total income from all sources was $126,000.00.

He knows Dr. Ripperger as Dr. Ripperger was a patient of his. Dr. Ripperger is not a friend. He played golf with Dr. Roski in 2001.

He also testified briefly about the buy/sell agreement of his dental practice. In 1998 he hired an associate and he also started to cut back his practice in 1997 or 1998. He said he did this in “order to grow the practice” and keep his new associate busy. He had intended to work until he was in his early sixties. Of interest is that when this associate was hired, there was a pre-arrangement for the associate to buy into the practice.

Michael Cullen, M.D., testified live at the hearing. Before his testimony is recounted, the claimant’s medical records will be reviewed in order to put Dr. Cullen’s testimony in context.

The claimant consulted Richard Ripperger, M.D., an orthopaedic surgeon, on September 23, 1999. Dr. Ripperger wrote as follows:

Dr. Larry Squire is a 49 year old right-handed male dentist who presents for evaluation of neck pain and left upper extremity symptoms of approximately 2 weeks duration. He can’t recall any injury or change in activities associated with the onset of the symptoms. He simply awoke in the morning with these symptoms. Neck pain is located in the left paracervical region and at the superior medial border of the left scapula.


Pain radiates down the left upper extremity along the lateral aspect of the arm and ulnar aspect of the forearm to the little and ring fingers. He has mild tingling in the little and ring fingers. He feels generally weak in the left upper extremity. He has had mild occasional neck pain or ‘muscle pulls’ in the past, but these have resolved after 2-3 days. He has not had associated left upper extremity symptoms. Hyperextending his neck causes increased symptoms in the left upper extremity. Symptoms do not awaken him from sleep at night. . . .

(Claimant’s Exhibit 1, pages 1-2)

Dr. Ripperger took x-rays which showed mild to moderate degenerative changes in the lower cervical spine, especially at the C6-7 level. (Cl. Ex. 1, p. 2) The diagnosis was left upper extremity symptoms and neck pain on the basis of cervical spine degenerative arthritis with associated cervical spinal nerve irritation, most likely C8. (Cl. Ex. 1, p. 2) Activity restrictions and a Medrol Dosepak were recommended. (Cl. Ex. 1, p. 2)

On October 7, 1999, the claimant returned to see Dr. Ripperger and reported significant improvement, but still significant pain involving the left upper extremity and a weak sensation. (Cl. Ex. 1, p. 2) More improvement was reported on October 20, 1999. Dr. Ripperger found mild restriction of cervical spine range of motion. The upper extremities were normal. (Cl. Ex. 1, p. 3)

Dr. Ripperger next saw the claimant on August 17, 2001. The claimant’s complaint at this time was left elbow pain of approximately four to six weeks duration. (Cl. Ex. 1, p. 3) The claimant could not recall any major injury associated with the onset of symptoms. (Cl. Ex. 1, p. 3) Dr. Ripperger diagnosed left tennis elbow and gave the claimant a cortisone injection. (Cl. Ex. 1, p. 3) A repeat injection was given on September 6, 2001. (Cl. Ex. 1, p. 4)

The claimant had a physical at River Valley Health Care on May 22, 2002. One of the symptoms he reported to the physician who did this exam was left elbow tendonitis. (Cl. Ex. 2, p. 8) No treatment is recorded for this condition. (Cl. Ex. 2, p. 8)

On June 7, 2002, the claimant returned to see Dr. Ripperger, again with complaints of left elbow pain. This time, his pain had developed approximately six weeks ago after starting to play golf. (Cl. Ex. 1, p. 4) This time Dr. Ripperger indicated that claimant had some element of tennis elbow. (Cl. Ex. 1, p. 4) The majority of the claimant’s symptoms were attributable to synovial impingement or ulnohumeral impaction at the site of maximum tenderness. (Cl. Ex. 1, p. 4) A cortisone shot was administered by Dr. Ripperger. (Cl. Ex. 1, p. 4)

The claimant had a follow up visit on July 19, 2002. Although the claimant had improved, he still had pain at the lateral aspect of the left elbow when playing golf or riding his bike. (Cl. Ex. 1, p. 4) The diagnosis was tennis elbow and another cortisone injection was given. (Cl. Ex. 1, pp. 4-5) On February 21, 2003, the claimant returned


again, still complaining of elbow pain; this time the pain was lateral pain. (Cl. Ex. 1, p. 5) The diagnosis was synovial impingement or irritation and a cortisone injection was given. (Cl. Ex. 1, p. 5)

On August 15, 2003, the claimant returned to see Dr. Ripperger and this time he complained of right thumb base pain. Dr. Ripperger wrote as follows:

Dr. Squire is a 53 year old right-handed male dentist who presents for evaluation of right thumb base pain. His chief complaint is pain. Pain is located at the MCT level. It is increased with pinching or gripping. Symptoms have been present for approximately 5-6 months. He has noted crepitus in the right thumb base area with pinching for approximately a 5 year period of time. Pain varies from mild to moderately severe. It occasionally awakens him from sleep at night. There is no associated numbness or tingling. Even light pinching activities currently are bothering him such as brushing his teeth, writing, shaving, or pulling up his pants. He especially has difficulty with firm use of his dental instruments or when giving injections.

(Cl. Ex. 1, p. 6)

Dr. Ripperger did an exam and found moderate osteoarthritis at both thumb bases, with the right thumb worse than the left thumb. (Cl. Ex. 1, p. 6) This diagnosis was confirmed by radiographic study. (Cl. Ex. 1, p. 6) The diagnosis was right thumb base symptoms on the basis of MCT joint instability and associated osteoarthritis. (Cl. Ex. 1, p. 6) A cortisone injection was given and the claimant was given a thumbshell splint and samples of Celebrex. (Cl. Ex. 1, p. 6) The claimant had no relief from this injection and a second one was given on August 28, 2003. (Cl. Ex. 1, p. 7)

The claimant had a follow up visit on September 23, 2003. Dr. Ripperger wrote as follows:

Dr. Squire returns for follow-up evaluation of right hand and for evaluation of left medial elbow pain. He has had no significant relief of right thumb base pain. The pain is increased with anything more than very light use of the upper extremity. He is unable to use a syringe for an injection or to firmly manipulate tools as required in his occupation as a dentist. He has some difficulty currently even writing or holding a cup because of thumb base pain. He has noted swelling and crepitus at the right thumb base as well.

Dr. Squire also complains of left medial elbow pain of approximately 2 weeks duration. This pain is sharp to aching in character and is increased with pinching or gripping.

(Cl. Ex. 1, p. 8)


Dr. Ripperger diagnosed right thumb base pain on the basis of osteoarthritis and left medial tennis elbow. (Cl. Ex. 1, p. 8) Then Dr. Ripperger stated that the claimant had decided to retire from practice because of his thumb base condition. (Cl. Ex. 1, p. 8)

The claimant had another physical on October 1, 2003, this time at Genesis Health Group. The name of the doctor is illegible. The claimant told his doctor that he had severe osteoarthritis of the base of right thumb and had had two cortisone injections in the right thumb. (Cl. Ex. 2, p. 9) The note then states: “Other than that things are fine.” (Cl. Ex. 2, p. 9) There is also a notation that in the past the claimant has some back pains and neck and shoulder discomfort. (Cl. Ex. 2, p. 9)

On October 14, 2003, Dr. Ripperger’s notes contain the following:

This note is to clarify the conditions regarding Dr. Squire’s retirement. Dr. Squire is retiring from his dental practice because pain symptoms in the right thumb base area, secondary to his arthritic condition, are too severe to allow him to effectively use the right hand for the regular use as required in his occupation as a dentist.

(Cl. Ex. 1, p. 9)

Handwritten notes thereafter indicate that disability forms were completed and mailed to insurance companies. (Cl. Ex. 1, p. 9)

In a report of sorts dated December 18, 2003, Dr. Ripperger indicated that the claimant’s right hand and thumb instability and pain were caused or aggravated by his repetitive work activities as a dentist and that the right hand and thumb condition and limitations prevented him from performing his occupation as of September 23, 2003. (Cl. Ex. 1, p. 10)

On January 15, 2004, the claimant saw Dr. Ripperger for left elbow pain. The diagnosis was left medial tennis elbow and a cortisone injection was given. (Cl. Ex. 1, p. 11)

The claimant had a functional capacity evaluation on March 8, 2004 and March 9, 2004, at Progressive Rehabilitation Associates in Iowa City, Iowa. In the section of the report concerning client history, the claimant told the evaluator that he had difficulty performing any activity with his right hand that required gripping or pinching. (Cl. Ex. 6, p. 6)

His pain was localized to his right thumb and “some pain on the medical [sic] aspect of both his elbows that was intermittent in nature.” (Cl. Ex. 6, p. 6) In the physical examination report, the evaluator stated that the claimant “presents only with right hand limitations, otherwise moves efficently [sic] and no limitations noted in gait or posture.” (Cl. Ex. 6, p. 7) Neck range of motion and strength was normal. (Cl. Ex. 6, p. 7) The therapist concluded that the claimant had significantly weaker right hand grip and pinch strengths when compared with the left hand. (Cl. Ex. 6, p. 14)


The record contains another report from Dr. Ripperger. This report is dated June 23, 2004. Dr. Ripperger reiterated his opinion that the claimant had pain in his right thumb base that was due to “his arthritic condition.” (Cl. Ex. 1, p. 12) He also stated that the claimant’s occupation as a dentist aggravated, if not caused, his degenerative joint disease condition. (Cl. Ex. 1, p. 12)

The claimant had a physical on January 1, 2005. A musculoskeletal exam was done that was normal. (Cl. Ex. 2, p. 10)

Yet another report was authored by Dr. Ripperger on January 31, 2005. This report contained the following:

I am responding to your letter dated 1/14/2005 regarding Larry Squire. I have reviewed Dr. Squire’s clinical records. I have briefly reviewed Dr. Cullen’s letter. I am not willing to serve as an expert witness, other than as it pertains to my evaluation and treatment of Dr. Squire. In a previous correspondence to you dated 12/18/2003, I stated that it was my opinion that Dr. Squire’s right hand and thumb base symptoms were caused or aggravated by his repetitive work activities as a dentist. I also believe that his right elbow symptoms were caused by and/or aggravated by his activities as a dentist. I am not able to state with any degree of medical certainty that his cervical spine degenerative arthritis condition and symptoms are associated with his dental activities.

(Cl. Ex. 1, p. 13)

The claimant was last evaluated by Dr. Ripperger on August 19, 2005, at the request of Disability Management Services. (Cl. Ex. 1, p. 14) Dr. Ripperger recorded complaints of pain at the right thumb base and the left elbow. (Cl. Ex. 1, p. 14) His diagnosis was right thumb base symptoms on the basis of osteoarthritis and left medial elbow symptoms on the basis of tennis elbow. (Cl. Ex. 1, p. 14) No treatment was recommended. (Cl. Ex. 1, p. 14)

The claimant had an evaluation with Michael L. Cullen, M.D., a board certified neurologist, on August 2, 2004 and August 11, 2004. This evaluation was arranged by the claimant’s attorney. According to Dr. Cullen, the claimant had complaints of cervical pain, bilateral thumb pain and left elbow pain. (Cl. Ex. 4, p. 4) The claimant also told Dr. Cullen that he practiced dentistry “full time with a typical posture involving flexion of the neck using optical magnification with head tilting to the right.” (Cl. Ex. 4, p. 4) The claimant also told Dr. Cullen that he had had chronic stiffness of the neck and had used a heating pad long stand before he sought a medical consultation. (Cl. Ex. 4, p. 4)

After an examination, Dr. Cullen offered the following opinion:

Dr. Squire is a 54-year old gentleman with a lengthy engagement in the active practice of dentistry. His description of functional activities of his profession are consistent with my personal observations. This would include postural liabilities (i.e. cervical) and repetitive activities (hands and


forearms). The literature notes that the average dentist practices dental operatory activities six hours per day. The literature is further supportive of musculoskeletal disorders in dental professionals which would be beyond that normally anticipated. The literature is contradictory regarding increased frequency of carpal tunnel syndrome among the dental professionals but for the most part does support an increased incidence in this type of occupational related condition.

With the aforementioned in mind, I would offer the opinion that Dr. Larry Squires suffers from cervical spondylitic/degenerative joint disease with associated myofacial [sic] symptomology, a tendonitis condition referable to the left elbow and bilateral thumb symptoms of an osteoarthritic nature. Accordingly, I would further opine that his activities as a dentist either caused or aggravated these conditions.

(Cl. Ex. 4, p. 7)

The claimant had an independent medical evaluation with Douglas W. Brenton, M.D. on August 17, 2005. The evaluation was arranged by defense counsel. Dr. Brenton reviewed medical records from Dr. Cullen; Dr. Ripperger; Progressive Rehabilitation Associates and Dr. Harold Miller, who Dr. Brenton identified as the claimant’s primary care physician. (Defendants’ Ex. 110, p. 1) The claimant told Dr. Brenton that he had ongoing difficulties with his right thumb and a perpetually stiff neck. (Def. Ex. 110, p. 3) According to the claimant this was due to the posture he maintained when doing dental work. (Def. Ex. 110, p. 3) He described this posture as leaning forward and to the left when working. (Def. Ex. 110, p. 3) He also had continuing difficulty off-and-on with pain in the left medial epicondylar region. (Def. Ex. 110, p. 3) Dr. Brenton indicated, however, that despite no significant pain for greater than six months, the area remains tender to light palpation. (Def. Ex. 110, p. 3)

Dr. Brenton conducted a physical exam and opined that the claimant suffered from degenerative arthritis of the right first carpometacarpal joint; cervical spondylosis; and chronic relapsing medial and lateral epicondylitis, predominantly on the left side. (Def. Ex. 110, pp. 4-5) He found no evidence of a neurologic disorder. (Def. Ex. 110, p. 5) Regarding the cause of the claimant’s cervical spondylosis, Dr. Brenton offered the following opinion:

I am not convinced that merely maintaining a fixed position for long periods of time causes or accelerates degenerative arthritis in the cervical spine. Certainly there is not a great deal of mechanical strain on the cervical spine when it is not in motion. I believe maintenance of a fixed neck position for a prolonged period could cause some transient muscular aching.

(Def. Ex. 110, p. 5)


On November 4, 2005, the claimant was evaluated by Richard Roski, M.D. Dr. Roski is affiliated with Quad City Neurosurgical, P.C. in Davenport, Iowa. According to his curriculum vitae, Dr. Roski is board certified in neurological surgery. (Cl. Ex. 8, p. 2) The claimant’s chief complaints were neck pain and right thumb pain, left elbow off and on pain. The history given by the claimant is as follows:

The patient is a 53 year old Caucasian male seen for evaluation of neck pain and right thumb pain, left elbow off and on pain. He describes onset of right thumb pain as 1985 with worsening over the years such that he was no longer to continue practicing as a dentist by 2003. He has ligament transplant recommendation from Ripperger. He has some chronic neck pain as well as off and on left elbow pain. He has tried a variety of NSAIDS and has seen several physicians regarding this problem. He is currently not working in his dental occupation but is teaching dental students at UIHC.

(Cl. Ex. 7, p. 1)

When Dr. Roski examined the claimant’s spine, he found diffuse neck tenderness and increased pain with neck rotation. (Cl. Ex. 7, p. 2) His impression was right thumb arthritis and cervical arthritis. (Cl. Ex. 7, p. 2)

On November 4, 2005, Dr. Roski wrote a report concerning his evaluation of the claimant. In part that report stated as follows:

His cervical changes would most certainly be related to his work activity. The chronic, unbalanced stress that was put on his cervical spine from his position during work would certainly be the most likely cause for his cervical spine developing degenerative arthritic changes. . . . I strongly concur that the degenerative arthritic changes in his lower neck, arthritic changes at his thumb base and his development of bilateral carpal tunnel syndrome are the result of his work over many years as a dentist. His present restrictions would include not using his right hand for fine manipulations.

According to the AMA Guide to Evaluation Permanent Impairment, 5th Ed., he would rate at 13% impairment of the whole person for his thumb and 8% impairment of the whole person for his neck.

(Cl. Ex. 7, pp. 3-4)

Dr. Roski signed a letter from defense counsel that he agreed that his impairment of 13 percent of the whole person for the claimant’s right thumb translated into a 23 to 24 percent impairment of the right hand and in turn a 51 to 61 percent impairment of the right thumb. (Cl. Ex. 7, p. 5)


On December 15, 2005, Dr. Roski agreed with statement from claimant’s counsel that the claimant’s x-rays confirmed his opinions concerning the cause of the claimant’s neck condition and that he agreed with Dr. Cullen’s findings.

The claimant was re-evaluated by Dr. Cullen on September 30, 2005. According to Dr. Cullen’s report dated November 30, 2005, the claimant had no change in his symptoms. (Cl. Ex. 4, p. 9) He then listed a number of medical references to musculoskeletal disorders in dentistry. (Cl. Ex. 4, pp. 9-10) He added that any reviewer who is familiar with the practice of dentistry should know that the “areas of symptom involvement for Dr. Squire constitute postural, repetitive stress, and cumulative trauma liabilities, especially in the predisposed individual.” (Cl. Ex. 4, p. 10)

As indicated previously, Dr. Cullen testified at trial and at this juncture his trial testimony will be reviewed. He indicated that the overall medical condition that the claimant has is “a combination of a degenerative condition, which was either accelerated or contributed to by a repetitive trauma or cumulative trauma experience.” (Transcript p. 6) With specific reference to the claimant’s right thumb, he described it as a “wear and tear phenomena.” (Trans. p. 17) In Dr. Cullen’s opinion, this wear and tear phenomena was caused or materially aggravated by his work activity. (Trans. p. 17)

Dr. Cullen used the same “wear and tear” phrase to describe the claimant’s cervical condition. He stated that it was his opinion that the claimant “suffers from a degenerative or wear and tear condition of the cervical spine that was either caused by or materially aggravated by his practice as a dentist.” (Trans. p. 22) He later compared holding up one’s head to swinging a hammer all day and that with repetition and time there is a “wear and tear phenomena.” (Trans. p. 28)

On cross examination, Dr. Cullen admitted that he had no medical records which documented medical treatment or complaints about neck pain from September 1999 through August 2004. (Trans. p. 34) He was also asked what assumptions he made about how long the claimant held a position that the doctor considered to contribute to his neck condition. (Trans. p. 41) Dr. Cullen agreed that the claimant would not be in a static posture for six hours and that he would have the opportunity to move. (Trans. p. 41)

Dr. Cullen testified that it was not unusual for a person of the claimant’s age to have a degenerative neck condition. (Trans. p. 46) When asked about the claimant’s ability to work, he said that the claimant’s neck condition with the accompanying pain and limited range of motion, would be “inhibitory.” (Trans. p. 46) He added that these conditions would not absolutely restrict him from practicing dentistry. (Trans. p. 47) When asked whether postural stress was applicable to an unlimited number of jobs, Dr. Cullen said: “I’m sure you could argue that.” (Trans. p. 51)

On re-direct examination, Dr. Cullen stated that there was a difference between doing computer work and dentistry in that a computer operator would be able to avert his or her eyes and turning one way or another. (Trans. p. 53) In his opinion, doing a


dental procedure or having a dental practice would be more stressful on the cervical spine. (Trans. p. 53)

On re-cross examination, Dr. Cullen admitted that the claimant’s degenerative condition in his cervical spine was a condition that gets worse over time without further repetitive trauma or cumulative trauma. (Trans. p. 54) There was also nothing preventing the claimant from moving his head around or stretching during the procedures. (Trans. p. 54)

The final medical evaluation in the file comes from Martin S. Rosenfeld, D.O., an orthopaedic surgeon who evaluated the claimant on December 2, 2005. Dr. Rosenfeld reviewed the records of Dr. Cullen; Dr. Ripperger; Progressive Rehab; Dr. Harold Miller; and Dr. Douglas Brenton. (Def. Ex. 111, p. 1) Dr. Rosenfeld conducted a physical examination of the claimant’s neck and upper extremity. Dr. Rosenfeld did not offer any opinions about the claimant’s neck, but he did have opinions concerning the claimant’s elbow and basal thumb arthritis. These opinions are as follows:

In regards to the elbow, I feel that he has an extensor tendinitis, radiohumeral synovitis with left side being more resistant to treatment than the right and the lateral side has been much worse than the medial side of the elbow. I find no evidence that there would be any work related activities that caused this problem to develop. There is a significant incidence of epicondylitis in patients with shoulder impingement and I think that in this case his epicondylitis has preceded his shoulder problems. The shoulder problems seem to be starting and since he is a type II diabetic, I would expect him to be developing some shoulder problems in the not too distant future but again this is not related causally or materially to his work as a dentist.

In regards to his basal thumb arthritis, there is certainly no evidence of suggestion that his work caused his basal thumb arthritis. Basal thumb arthritis is the most common arthritis of the hand and it is most often a primary arthritis meaning that there is no specific underlying cause and we know that it is progressive. I think that his work certainly causes his arthritis to flare just like bicycle riding and golf caused his arthritis to flare. I do not believe this is a material aggravation of degenerative arthritis but rather a flare associated with use of his hands for whatever reason. I certainly would agree that he is unable to perform his occupation as a dentist because of the pain that is caused by using his hand but I believe that is a disability question and is not related to whether his arthritis was caused or materially aggravated by his dental position.

(Def. Ex. 111, p. 4)

Dr. Rosenfeld reiterated that he did not believe that the claimant’s dental occupation either caused or materially aggravated his left elbow lateral epicondylitis or basal thumb arthritis. (Def. Ex. 111, p. 4)


He added an addendum to his report concerning a rating of the claimant’s thumb problem. In his opinion the claimant had a 20 percent upper extremity rating, with 25 percent of that amount being attributable to his work. That meant that the total physical impairment to the upper extremity would be 5 percent as a result of his dental practice. (Def. Ex. 111, p. 5)

The record also contains financial records concerning the claimant such as the agreement relating to the sale of his dental practice and income tax returns. All of these records were reviewed by the deputy as was every piece of evidence submitted by the parties. As will be seen in the conclusions of law, these financial records have no bearing on the decision and thus are not summarized in detail as was the case with claimant’s testimony; the testimony of Dr. Cullen; and the medical records.

CONCLUSIONS OF LAW

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 Elec. 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).

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.

When the injury develops gradually over time, the cumulative injury rule applies. The date of injury for cumulative injury purposes is the date on which the disability manifests. Manifestation is best characterized as that date on which both the fact of injury and the causal relationship of the injury to the claimant’s employment would be plainly apparent to a reasonable person. The date of manifestation inherently is a fact based determination. The fact-finder is entitled to substantial latitude in making this determination and may consider a variety of factors, none of which is necessarily dispositive in establishing a manifestation date. Among others, the factors may include missing work when the condition prevents performing the job, or receiving significant medical care for the condition. For time limitation purposes, the discovery rule then becomes pertinent so the statute of limitations does not begin to run until the employee, as a reasonable person, knows or should know, that the cumulative injury condition is serious enough to have a permanent, adverse impact on his or her employment. Herrera v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001); Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992); McKeever Custom Cabinets v. Smith, 379 N.W. 2d 368 (Iowa 1985).

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).

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).

If weekly compensation benefits are not fully paid when due, section 86.13 requires that additional benefits be awarded unless the employer shows reasonable cause or excuse for the delay or denial. Robbennolt v. Snap-on Tools Corp., 555 N.W.2d 229 (Iowa 1996). Delay attributable to the time required to perform a reasonable investigation is not unreasonable. Kiesecker v. Webster City Meats, Inc., 528 N.W.2d 109 (Iowa 1995). It is not unreasonable to deny a claim when a good faith issue of law or fact makes the employer’s liability fairly debatable. An issue of law is fairly debatable if viable arguments exist in favor of each party. Covia v. Robinson, 507 N.W.2d 411 (Iowa 1993). An issue of fact is fairly debatable if substantial evidence exists which would support a finding favorable to the employer. Gilbert v. USF Holland, Inc., 637 N.W.2d 194 (Iowa 2001). A bare assertion that a claim is fairly debatable is insufficient. If the employer fails to show reasonable cause or excuse for the delay or denial it is mandatory to impose a penalty in an amount up to fifty percent of the amount unreasonably delayed or denied. Christensen v. Snap-on Tools Corp., 554 N.W.2d 254 (Iowa 1996). The factors to be considered in determining the amount of the penalty include the length of the delay, the number of delays, the information available to the employer and the employer’s past record of penalties. Robbennolt, 555 N.W.2d at 238.

This case presents extremely complex issues of law and fact, together with few stipulations between the parties on these same issues. Based on the brief filed by the claimant in this case, it appears that the claimant is seeking workers’ compensation benefits on account of an injury or injuries to three parts of the body: the right thumb, the left elbow, and the neck. In general, the argument is that it is the practice of dentistry that has caused the claimant to have whatever medical difficulties he has in these three areas of the body. The claimant suggests three different dates of injury that might be used: August 15, 2003; September 23, 2003; and September 13, 2004. Although there are several possible analytical frameworks that could be used to evaluate the evidence in this case, the one that makes the most sense is to consider each part of the body that the claimant alleges to have been injured as the result of


practicing dentistry. Again, these three areas are the right thumb, the left elbow, and the neck.

By way of beginning that analysis, some general observations need to be made about what constitutes a personal injury under Iowa Workers’ Compensation law. The Iowa Supreme Court has held that a personal injury 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, including cumulative trauma. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000). In McKeever, the Iowa Supreme Court first considered the issue of whether cumulative injury was an injury under Iowa Workers’ Compensation law. The Court held that the definition of injury included cumulative injury. Id. at 374. The claimant in McKeever was a cabinetmaker whose work involved considerable hammering and vibrations from pneumatic and electrical tools such as sanders. Id. at 369. The hammering and use of vibrating tools were, in effect, traumas that gradually led to the claimant’s inability to no longer work as a cabinetmaker. The presence of trauma, therefore, is a crucial element in determining whether there is a personal injury. The Court has indicated that 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. St. Luke’s Hosp., 604 N.W.2d 650.

In 3-55 Larson’s Workers’ Compensation Law Section 55.02 the authors indicate that one of the best general definitions of “injury” is as follows:

In common speech the word ‘injury,’ as applied to a personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain or a lessened facility of the nature use of any bodily activity or capability.

The authors went on to state, however, that the court that offered this very broad definition of injury made clear that injury did not encompass ordinary wear and tear. Id.

In McKeever at 373, the Supreme Court listed a number of jurisdictions that had previously found liability to exist for disability which gradually came about over a period of time. In looking at this list, each case involved a series of traumas such as heavy lifting; repeated turning and twisting of plastic molding; jarring of hands by air hammer and long hours standing on a concrete floor. Id. Ordinary wear and tear, therefore, does not constitute trauma, which in turn must be shown in order to make a case for cumulative injury. The ordinary dictionary definition of trauma is: “a wound, especially one produced by sudden physical injury.” American Heritage Dictionary, Second College Edition. A medical dictionary definition of trauma is: “a physical injury or wound caused by external force or violence.” Taber’s Cyclopedic Medical Dictionary, Edition 19. These two dictionary definitions of trauma are in keeping with the Iowa Supreme Court’s holding that in order for there to be an injury, there must be some kind of external force present.


The mere presence of an injury is not sufficient as the claimant must still show that the injury arose out of and in the course of his employment and that the injury is causally connected to whatever permanent disability is present. The question is whether the injury is a proximate cause of the claimant’s injury. Musselman v. Central Telephone Co., 261 Iowa 352,154 N.W.2d 128, 132 (1967).

With these rules in mind, the first claim to be considered involves the claimant’s right thumb. The physicians who have evaluated the claimant and the physician who has treated the claimant, Dr. Ripperger, agree that the claimant suffers from an arthritic condition in the base of his right thumb. Dr. Ripperger used the word “osteoarthritis.” Dr. Ripperger, who treated the claimant over an extended period of time, and was familiar with the claimant’s occupation, opined that the claimant’s dental work either caused or aggravated the claimant’s right thumb condition. In reviewing Dr. Ripperger’s medical records concerning treatment of the right thumb, the claimant attributed those problems to tasks specifically associated with dentistry. These reports to his physician were confirmed by the claimant’s testimony at the hearing. Repeated use of a syringe, a drill, and other hand tools in dental care fall within the definition of trauma and cumulative trauma that constitutes an injury under Iowa Workers’ Compensation law.

Dr. Cullen and Dr. Roski likewise state that the claimant’s employment either caused or aggravated the claimant’s right thumb condition. Dr. Rosenfeld disagrees, saying that the type of arthritis from which the claimant suffers is most often a primary arthritis meaning that there is no specific underlying cause. It is also a condition that is progressive. Dr. Rosenfeld argued that the claimant’s work caused the arthritis to flare just as other activities such as bicycle riding and golfing caused his arthritis to flare. Dr. Rosenfeld, as an orthopaedic surgeon, has excellent credentials for offering this opinion. However, the orthopaedic surgeon with the most complete knowledge of the claimant’s condition has opined that the claimant’s right thumb arthritis is causally connected to his employment. Based, therefore, on his training and experience as an orthopaedic surgeon and his extensive knowledge of the claimant’s condition as his primary treating physician, Dr. Ripperger’s opinion on causation is accepted. Dr. Ripperger’s opinion is supported by the testimony of the claimant on when and how his right thumb condition developed.

The date of injury for a cumulative injury is the date on which the disability manifests. The date of manifestation is, according to the Supreme Court, an inherently fact-based determination. In this case, the facts show that the claimant quit working on September 23, 2003, because of pain in his right thumb. The only reason that claimant quit working on that date was pain in his right thumb. No other reason was given by the claimant and it is the only reason that was ever given to his disability insurance carrier. Based on this undisputed evidence, the date of claimant’s injury to his right thumb is September 23, 2003. It is also the date for the commencement of permanent partial disability benefits as claimant had no lost time on account of this injury.

To this point, the situs of the claimant’s injury has been referred to as the right thumb. The actual diagnosis is arthritis of the right first carpometacarpal joint. The CMC joint is located at the proximal end of the metacarpus where it attaches to the


trapezium bone in the carpus. It is located proximal to the metacarpal joint and is well into the base of the hand near the crease of the wrist. The actual situs of the claimant’s permanent impairment is the right hand, not the right thumb. See Anson v. IBP, Inc. and Second Injury Fund of Iowa, File Nos. 5003174 and 5003175 (App. March 25, 2005). Dr. Ripperger, when referring to the claimant’s right thumb problem, indicated that the problem was with the claimant’s right thumb and right hand. The claimant’s testimony at hearing likewise supports the conclusion that the extent of this injury is to the right hand and is not limited to the right thumb.

The only impairment rating in the record that specifically addresses the right hand is from Dr. Roski. Although Dr. Rosenfeld gives an impairment rating of 25 percent of the right upper extremity and attributes 5 percent of that impairment to claimant’s employment, he does not convert this rating to the hand, which is the situs of claimant’s permanent disability. This leaves Dr. Roski’s rating of 23 to 24 percent of the right hand. Dr. Ripperger is never asked to rate the claimant’s hand. Based on a consideration of all the medical evidence and the testimony of the claimant, it is determined that the claimant’s permanent disability as a result of his right hand injury is 24 percent of the right hand. This is equal to 45.6 weeks of permanent partial disability. Claimant’s rate for an injury of September 23, 2003, is $1,042.00, which is the maximum rate.

The next possible injury is to the claimant’s left elbow. Although the claimant has had a number of different diagnoses for his left elbow problem, it may be generally described as left epicondylar pain or perhaps in some cases left tennis elbow. Dr. Ripperger has treated the claimant for this condition as well. It is his opinion that the claimant’s “right” elbow symptoms were caused by and/or aggravated by his activities as a dentist. Dr. Ripperger’s use of the word “right” appears to be a scrivener’s error. Like Dr. Ripperger, Dr. Rosenfeld has excellent credentials to offer an opinion concerning causation of this medical problem. He is of the opinion that there is no evidence to support a conclusion that claimant’s elbow problems are work related.

In reviewing the notes of Dr. Ripperger concerning this condition, claimant was first treated for left elbow pain on August 17, 2001. No specific incident was mentioned that caused the pain to begin, but it was present with lifting, pinching, gripping and playing golf. Thereafter, the claimant continued to see Dr. Ripperger and receive treatment for left elbow pain. The pain appears to be intermittent and relieved by cortisone injections. Dr. Rosenfeld noted tenderness at the left elbow when he examined the claimant and pain with motion.

As is the case with the right hand, the opinion of Dr. Ripperger that the claimant’s left elbow problems were caused or aggravated by claimant’s occupation as a dentist will be accepted. Determining a date of injury is much more difficult as claimant has never been disabled in the sense of being unable to work because of this condition. As indicated above, the date of claimant’s first treatment for left elbow and the diagnosis of that condition is August 17, 2001. August 17, 2001, is the date of injury. There is no evidence in the record that the claimant has any permanent impairment because of this


condition and therefore the claimant is not entitled to any permanent partial disability benefits for his left elbow injury.

The final alleged injury is to the claimant’s neck. Claimant has a degenerative arthritic condition in his neck that he believes was caused by holding his head in a static position while doing dental procedures. Dr. Cullen and Dr. Roski have offered opinions that the claimant’s occupation either caused or materially aggravated the degenerative condition in the claimant’s neck. Dr. Brenton has stated that claimant’s degenerative neck condition was not caused by his occupation and that any pain the claimant experienced in his neck as a result of doing dental procedures represented transient muscular aching. Dr. Ripperger, the only physician who has actually treated the claimant, has stated that he cannot say with any degree of medical certainty that the claimant’s degenerative neck condition is a result of his occupation as a dentist.

In his testimony at hearing, Dr. Cullen testified that the “trauma” that led to the claimant’s cervical neck condition is what he termed a “chronic postural liability.” He went on to describe this as a wear and tear phenomena. He said there was no difference between swinging a hammer all day and holding up your head. Dr. Roski simply adopts Dr. Cullen’s opinion without any additional analysis. Dr. Rosenfeld, on the other hand, points out that there is not a great deal of mechanical strain on the cervical spine when it is not in motion.

In reviewing cases where cumulative trauma has been deemed a personal injury under Iowa Workers’ Compensation law, there is usually some type of mechanical strain present or to use the words of the Supreme Court, “an act extraneous to the process of nature.” Dr. Cullen’s example of swinging a hammer is a perfect illustration of this point. Swinging a hammer may strain the hand, fingers, elbow or shoulder and is an example of an act that is extraneous to the process of nature. Holding one’s head up and moving it is something that every human being does in virtually every activity of human life. It is not a process extraneous to the process of nature. Dr. Brenton’s view that holding one’s head in a fixed position does not cause a mechanical strain on the cervical spine is more credible than the opinions of Dr. Cullen and Dr. Roski. Dr. Cullen agreed that the type of cervical condition in the claimant’s spine is one that can get worse in and of itself with age and without any further repetitive trauma or cumulative trauma. The condition in the claimant’s cervical spine is more credibly explained by age and the natural processes of nature and is not an injury as defined by Iowa Workers’ Compensation law.

Even if the degenerative condition in the claimant’s spine somehow qualifies as an injury, the preponderance of the credible medical evidence in this case is that the claimant’s employment was not a proximate cause of this condition. Dr. Ripperger, the physician who has treated the claimant for this condition, could not say with any degree of medical certainty that the claimant’s occupation was the cause of his cervical spine condition. Dr. Ripperger took no history that the claimant associated his pain with his work activities. In fact, the claimant could not identify any cause for the onset of this pain when he first visited Dr. Ripperger, a physician he held in high esteem. The claimant was a very candid and cooperative patient and it is unlikely that he would have


failed to mention this to Dr. Ripperger as the doctor clearly took a history from the claimant on when this condition in his neck began. The claimant had every incentive to provide a complete and accurate history to Dr. Ripperger and he probably did when he saw him in 1999. The fact that the claimant himself failed to make any connection between his neck pain and his work at the outset of treatment is strong evidence that there is no causal connection between the two.

It is also significant that the claimant did not have any treatment for his neck problems after his treatment with Dr. Ripperger in 1999, although he did testify he takes Mobic as prescribed by his family physician. Based on a review of the medical records and considering fully the testimony of the claimant, there is no substantial evidence that his neck pain was debilitating. The greater weight of the evidence in this case is that the claimant retired from dentistry due to his right thumb and hand and that his neck pain played no role in his decision.

It is therefore determined that the claimant did not sustain an injury arising out of and in the course of his employment with respect to his neck. His employment was not a proximate cause of his neck condition and therefore the claimant is not entitled to any workers’ compensation benefits for that condition.

The final issue to be determined is if the claimant is entitled to any penalty benefits pursuant to Iowa Code section 86.13. The only claim that could potentially qualify for penalty benefits is to the claimant’s right hand. The only benefits to which the penalty claim could attach are permanent partial disability benefits for impairment of the claimant’s right hand. The first impairment rating concerning the claimant’s right hand comes from Dr. Roski on November 4, 2005 and the second from Dr. Rosenfeld comes on December 2, 2005. Of critical importance is that Dr. Rosenfeld also opines that the arthritic condition in the claimant’s right thumb is not causally connected to his employment. Although the defendants are voluntary paying permanent partial disability benefits for a right thumb injury, the claimant’s entitlement to any permanent partial disability benefits is fairly debatable. Even if the claim itself were not fairly debatable, permanent partial disability benefits were paid promptly and any delay is not unreasonable. The claimant is not entitled to any section 86.13 penalty benefits.

The final issue in this case concerns taxable costs. The claimant seeks to tax as costs the total sum of $2,617.68. Defendants object to the costs associated with obtaining the physicians’ reports as set forth on the claimant’s statement of costs.

876 IAC 4.33(86) states that taxable costs include the reasonable costs of obtaining no more than two doctor’s or practitioner’s reports. This cost has been fixed by the agency at $150.00 per report. Therefore, the claimant is entitled to a total of $300.00 in taxable costs as it pertains to the doctors’ reports. The total taxable costs are $433.93.


ORDER

IT IS THEREFORE ORDERED:

1. That defendants, Larry Squire, D.D.S., L.J. Squire D.D.S, P.C. and Squire and Link D.D.S., P.C. and IMT Insurance shall pay to the claimant forty-five point six (45.6) weeks of permanent partial disability benefits at a rate of one thousand forty-two and 00/100 dollars ($1,042.00) commencing on September 23, 2003;

2. That the defendants shall receive credit for any weekly benefits that have been previously paid to the claimant;

3. That the defendants shall pay interest as provided in Iowa Code section 85.30;

4. That all accrued benefits shall be paid to claimant in a lump sum;

5. The sum of four hundred thirty-three and 93/100 dollars ($433.93) is taxed as costs to the defendants;

6. The defendants shall file subsequent reports of injury as required by this agency.

Signed and filed this _____7 th _____ day of February, 2006.

________________________ VICKI L. SEECK

DEPUTY WORKERS’ COMPENSATION COMMISSIONER

Copies to:

Craig A. LevienAttorney at Law111 E. 3rd St., Ste. 600Davenport, IA 52801-1596

Rene Charles LapierreAttorney at LawPO Box 327Sioux City, IA 51102-0327

VLS/srs

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BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONERdecisions.iowaworkforce.org/2006/February/Squire, Larry-5014419… · Web viewA hemostat took incredible strength to release