before the iowa workers’ compensation commissionerdecisions.iowaworkforce.org/2006/june/nickel,...

BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER_____________________________________________________________________

:PAUL NICKEL, :

:Claimant, :

:vs. :

: File No. 5014678VICTOR MFG., :

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

: D E C I S I O Nand :

:C.N.A. INSURANCE, :

:Insurance Carrier, : HEAD NOTE NOS: 1108; 1402.30Defendants. :

______________________________________________________________________

STATEMENT OF THE CASE

Paul Nickel has filed a petition in arbitration seeking workers’ compensation benefits from Victor Manufacturing, defendant employer and CNA Insurance, defendant insurance carrier, on account of an injury, which he alleges arose out of and in the course of his employment on either June 4, 2004, or June 11, 2004. This case was heard by and fully submitted to deputy workers’ compensation commissioner, Vicki L. Seeck, on March 22, 2006, in Cedar Rapids, Iowa. The record consists of claimant’s exhibits 1-16; defendants’ exhibits A-DD; the testimony of Paul Nickel; the testimony of Vicky Ann Nickel; the testimony of Chuck Boyles; and the testimony of Sandra Sanger.

ISSUES

The parties submitted the following issues for determination:

1. Whether the claimant sustained an injury arising out of and in the course of his employment and, if so, the date of that injury;

2. Whether the alleged injury is a cause of temporary disability and if so, the extent of that temporary disability;

3. Whether the alleged injury is a cause of permanent disability;

4. The extent of claimant’s permanent disability, if any;

NICKEL V. VICTOR MFG.

5. The commencement date for permanent partial disability benefits, if any are awarded;

6. Whether claimant’s claim is barred for failure to give notice pursuant to Iowa Code section 85.26;

7. Whether claimant is entitled to any section 85.27 medical expenses;

8. Whether the claimant is entitled to an independent medical evaluation pursuant to Iowa Code section 85.39;

9. Whether the claimant is entitled to alternate care pursuant to Iowa Code section 85.27;

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

11. Whether the claimant is entitled to taxation of costs, including costs associated with proving requests for admission that were denied by the defendants.

FINDINGS OF FACT

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

The claimant is 57 years old and was born on April 3, 1948. He and his wife, Vicky, have been married for 34 years. He graduated from high school in 1966. He also attended college and has an Associate of Arts degree.

The claimant grew up in Independence, Kansas and his first job was as a stock boy with Hallmark Cards. Prior to being employed by Victor Manufacturing, the claimant held a wide variety of jobs. He worked for GE Credit Corporation for two years closing loans and doing collection work. He worked with his father back in Kansas in the office machine business. He then worked as an insurance agent selling life insurance.

His next employment was with Howard Johnson, where he was an assistant manager. He was eventually promoted to a manager’s position and transferred to Shreveport, Louisiana. After that, he was in business for himself in the buying and selling of commodity products. This business went bankrupt. He then went to work for Rent A Center in Tulsa, Oklahoma. Rent A Center is in the business of leasing home appliances. Initially he was an assistant manager and then was promoted to manager. He was first transferred to Omaha, Nebraska, and then to Des Moines, Iowa to manage a metro store.


After leaving Rent A Center he then worked for Dominos Pizza for approximately two years. In 1986, he went to work for the Des Moines Register in circulation. He was responsible for a group of carriers who delivered the newspaper. His boss at the Des Moines Register left to work for the Cedar Rapids Gazette and the claimant decided to go to Cedar Rapids also. He then worked for the Gazette for nine years as an independent distributor.

According to the claimant, the Gazette built a new production plant and for a period of approximately one and one half years, there were problems that prevented the papers from getting out “in time.” The claimant was unable to deliver the papers to his carriers in a timely manner and as a result he had to deliver the papers himself. He was under contract with the newspaper and when time came to renew the contract, he elected not to do so.

After leaving the Gazette, the claimant heard that Victor Manufacturing, the employer in this case, was hiring and so he applied for a job. He was required to take a pre-employment physical. He was in “good condition.” He indicated on his application that he had previously had asthma and hay fever. He would suffer from hay fever when the pollen count was high in August, September and October. As soon as the first frost occurred, his hay fever went away. He had had no serious problems with asthma since he was 12. He was taking no medications and had no physical restrictions when he was hired.

The claimant testified that the employer makes steel metal fabrication parts for automobile manufacturers. He was hired initially as a production worker. He did that job for two weeks and was then told there was an opening as an SPC Coordinator in the quality department. It was suggested to the claimant that he apply for this position since he had computer experience. The claimant did so and he was hired to do this job, which he likened to a quality control person. This was the job the claimant held until his last day of work in June 2004.

The claimant had numerous job duties, which he described in detail during his testimony. First, he had to insure that the parts that were being manufactured conformed to the specifications of the customer and quality standards that were internationally recognized. Second, he had to make certain that the calibration was correct and that the parts were physically inspected and measured against the standard. Third, he had to determine if the manufacturing process was being done properly. If the process was not proper, he had to determine why and inform management on whether it was operator error, calibration, or a problem with the materials used in the manufacturing process.

The claimant had an office with a computer but he also spent a considerable amount of time on the production floor. Tom Baylor was his supervisor for the first two years and then Brian Schulke took over for him. The claimant testified that when Baylor was his supervisor, he (the claimant) spent 50 percent of his time out in the plant. Under Schulke, this time increased to 70 percent.


The plant used a system called KURT in the quality control process. The claimant described KURT as a statistical control computer station and there were 11 of these stations in constant use in the plant. There were 12 stations in total. They were located in various parts of the plant, but “always” located very close to welding stations and the press. Welding was either done by a person or by a robotic welder.

The manufacturing facility has two floors and the general manager’s office was located at the front of the facility. The claimant had a desk in the quality control office and there were 4-5 other people in the office as well. As indicated previously, the claimant testified that he spent a large amount of time out on the production floor. In particular, he was in charge of all the audits that were performed. He had to physically validate and then put the results of the audit on paper. Audits might be done on such things as steel delivery; dock operations; and maintenance. Every single audit the claimant did required him to be out on the production floor. The claimant explained that if he were to find out that a part was out of tolerance, he needed to do an inspection and this in turn required him to go to a KURT station.

The claimant also was responsible for producing illustrated training manuals. This is a task he assumed after another employee left. He also prepared what he called “process books” which described the way welding, forming and cutting steel were to be done. The process would be photographed out on the floor and then the process would be described in written form. The claimant then had to return to the production area in order to verify that the photographs and the process were correct. Because of all these duties, the claimant estimated that he spent the majority of his time on the production floor.

As he started working on the production floor, he became aware of the fumes that he said were present. He would notice fumes in the light fixtures. He also noticed black carbon all over everything. He said that the presses produced some smoke, but mostly fumes. It was the welding area where smoke was present. The record contains a number of photographs and the claimant pointed out a fan that was depicted in Claimant’s Exhibit 15, page 1. According to the claimant, this fan blew air and weld residue “right toward the production floor.”

The claimant then looked at the remaining photographs which are Claimant’s Exhibit 15 and pointed out places were there was what he called “carbon soot.” Claimant’s Exhibit 15, page 5 was a depiction of the robotic welding area and the claimant pointed out the fire retardant plastic and the “soot” that was on the outside of the plastic. The claimant also indicated that there was haze in the storage area. One shot was taken from the floor looking up and the claimant stated that there was a smoke-like haze present. (Claimant’s Exhibit 15, page10)

For the first year that he worked for the employer, the claimant had no respiratory problems and did not miss a day from work. In his second year, he missed only five days. By his third year, he noticed he was having more trouble breathing. He said that


he began having trouble doing such things as picking up a carton of paper and bringing the carton to the quality control office. He had difficulty going up a flight of stairs.

He first consulted a physician at the University of Iowa clinic in Belle Plaine, Iowa. He saw a Dr. Shamsee who diagnosed a “mild asthmatic response.” The claimant was placed on an exercise program but he kept getting worse. He then saw Dr. Lanternier.

According to the claimant he told his supervisor, Brain Schulke, that he was having trouble breathing in June of 2004. He recalls talking to Brian about breathing difficulties on three different occasions, although he did not specify when all of these conversations occurred. He also spoke to Bob Clemons, who he described as an employee advocate, about what chemicals were being used in the plant. He got no feedback from Bob. He does recall going by the press in 2000 and immediately losing his breath. He asked whether sulfur was being used in the plant and was told that it was a miniscule amount – one part to a million.

On his last day of work in June 2004, the claimant was having difficulty breathing and had extreme tightness in his upper throat and chest. He left work at 3:00 pm and went right to Dr. Lanternier’s office. She thought he might have a cardiac problem and he was sent to St. Luke’s Hospital in Cedar Rapids, Iowa. This hospital did not solve his problem. He did not return to work on the advice of Dr. Lanternier.

According to the claimant, Dr. Lanternier told him to avoid fumes “100%.” He did notice some improvement after being away from the production floor. Dr. Lanternier made some adjustments in his medication and referred him to Frederick Gerr, M.D. at the University of Iowa. He made some further adjustments in the claimant’s medication.

The claimant continued treating with Dr. Lanternier. He started getting very depressed and was unable to control his emotions. Dr. Lanternier then began prescribing different anti-depressant medications for the claimant. He began to think about suicide and was then hospitalized. He came under the care of Ali Safdar, M.D., a psychiatrist. Dr. Safdar has not released the claimant to return to work.

The claimant has looked for alternative employment. He checked with Job Service and Iowa vocational rehabilitation. He has been advised to develop a home-based business since he can control his environment. He is hoping to develop a home business that will have a web site and from where he can do some sales. He has been hampered in doing this because he has limited funding for start-up costs. His emotional health is such, however, that it may be unrealistic for him to continue developing this business.

The claimant takes many medications to control his respiratory and emotional problems. These include Ambien; Ativan; Singular; Flonase; Advair; Wellbutrin; and Allegra D, to name a few.


He was asked about an independent medical examination he had with Gerald Matysik, D.O. He said that he spent five minutes with a nurse and took a spirometer test that lasted about 15 minutes. He then spoke with the doctor for 10 minutes at most.

He acknowledged that he has received disability benefits from the employer but that he must pay taxes on that income.

He said he would like to get his asthma under control and to “become emotionally back to where I was.”

On cross-examination, the claimant admitted that there is a family history of chronic obstructive pulmonary disease or COPD, which he said was due to smoking. He agreed that his daughter suffers from exercise-induced asthma. He had severe childhood asthma, which he attributed to allergies to food. He took cortisone when he was a child. The Army rejected him because he had asthma and the Navy would also not allow him to enlist as he had been on cortisone.

The claimant also admitted that he had problems with hay fever in August, September and October and that he took over-the-counter medication. He was hospitalized for pneumonia and he smoked 2-3 packages of cigarettes per day, although he said he probably only actually smoked 1 ½ packs per day. He has always been allergic to sulfur and phosphorus. These substances would cause asthmatic reactions if he were exposed to them.

When he first experienced some difficulty at the plant, he asked Bob Clemons if either of these substances was present at the plant. At first, Clemons said no and then later said that sulfur was present.

The claimant was then asked about his psychiatric problems in high school. The claimant denied that he was suicidal at that time and said his difficulties were due to him leaving home. He said that he did get angry if someone picked on him. He said he was only suffering from mild depression while in school.

He admitted only to what he called “mood swings” while working for the Gazette in 1995. He consulted a Dr. Wellso and admitted that he told Dr. Wellso that he had hay fever and bronchial asthma. Dr. Wellso prescribed Prozac for the claimant, but the claimant refused to take the medication as he had read that this drug could cause deeper depression. An alternative medication was prescribed. The claimant said that he did not renew the medication and was told to return only if he felt the problem was worse.

The claimant was questioned about the bankruptcy of his business. The name of the business was Nickel Transport. He said that he lost 32 million dollars in assets but then added that these were “not actual physical assets.” At one point in time, following the bankruptcy, the Internal Revenue Service placed a tax lien on the claimant for $143,000.00. The claimant testified that this lien was an error and that later on the


Internal Revenue Service changed its mind. This was resolved approximately eight years ago.

The claimant was also involved in litigation with the Cedar Rapids Gazette. Although the case was settled and the claimant was “awarded” $15,000.00, the claimant did not know for certain when that settlement occurred. He was asked whether the settlement date was June 11, 2004, and he testified that date “doesn’t seem right.”

When asked whether he made any complaints about the working environment at Victor Manufacturing, the claimant said that the only complaints he made were to the employee advocate as that was what he had been instructed to do. The claimant’s understanding was that the employee advocate worked under the safety manager and so he never complained to the safety manager. He did not attend safety meetings. He was not aware of postings on the bulletin board concerning air quality.

The claimant was asked whether he played golf on June 10, 2004, and he testified that he does not know if he played golf or not. He agreed that if the golf league records showed a score for that day, that he probably played. He does not recall ever telling anyone on June 11, 2004, that he hurt his neck while playing golf. He does not recall telling his physicians on June 11, 2004, that he had no shortness of breath. He said the physicians who examined him on June 11, 2004, were looking for cardiac problems. He was never told that acid reflux disease can cause an asthma attack.

He does not remember if he played golf before a pulmonary test he took on June 17, 2004. He admitted to playing golf in 2005, but said that his doctor had told him to play and that he had to prove to his doctor that he played seven times.

He adamantly denied that he had determined he would not return to work before June 11, 2004. He only discussed a return to work with Brian Schulke. He did not talk to anyone else about returning to work for the employer. He did go to Kansas in July of 2004, but he denied having an asthmatic attack there. He said that he had a hay fever attack.

He seemed to admit that the employee handbook said that the employer would accommodate restrictions, but he was unwilling to return to work unless he knew how the employer would accommodate his restrictions. He said the employer’s statement that it would accommodate his restrictions was “not verified.”

When asked what he told Dr. Gerr about his work environment, the claimant said he told Dr. Gerr that he had contact with robotic welding fumes that would rise and come back down. He described weld dust as black carbon or perhaps lighter gray.

He denied ever having any psychiatric problems before he worked at Victor Manufacturing. Whatever problems he might have had while still working for the Cedar Rapids Gazette were stress or maybe an emotional problem, but not a psychiatric problem. He finally admitted that he had had financial difficulties since 2001 and that he


had $100,000.00 in liabilities and that there was a second bankruptcy. He denied having marital difficulties or having an extra-marital affair. He did meet a woman over the Internet, playing a game called Diablo II. He did not use his office computer to communicate with her, but he did post her picture on his office computer. He admitted that his mother did pass away, but he does not remember his daughter having any problems.

The claimant does not believe that he can work outside the home. If he goes outside the home, he has no control over whether he comes into contact with perfume or gasoline smells, as an example. He has to be away from the public. He admitted that he can play golf, but he cannot go into the clubhouse and stays outside. He believes that he could make a good living designing web pages, but not without some capitalization for start up costs.

On re-direct examination, the claimant testified that he had stopped smoking in 1992. He does exercise on a bike and on what he called a “gazelle.” He would be willing to work if he could be guaranteed that he would not be exposed to fumes.

Vicky Ann Nickel testified on behalf of the claimant. She is the claimant’s wife and they have been married for 34 years. She has worked for Victor Manufacturing as a production worker for the past five years. She works the third shift from 11:00 p.m. through 7:00 a.m. Her employment commenced in April of 2001.

Mrs. Nickel testified that she noticed her husband was having increased problems with his breathing. He progressed from having seasonal problems to having year round symptoms. He developed chest pains and could not exert himself on a prolonged basis.

She said that there seems to be a haze in the air all the time in the plant. She can smell fumes coming from oils. She has started having some problems with bronchitis and is taking Allegra and using an inhaler. She knows that the person who works on the press is using a mask. Other employees have told her that they use inhalers. There seems to be more bronchitis among the workers. She gets fumes and oils on her clothes and that when she returns from work she needs to change and take a shower. She said there is soot “and stuff” all over the floor and the machines.

She was with her husband when he had his independent medical evaluation with Gerald Matysik, D.O. She said that the exam seemed like it only lasted for 10 minutes and that the exam could not have been much longer than 15 minutes.

Mrs. Nickel was questioned on cross-examination about the photos that she took, which are part of the record as Claimant’s Exhibit 15. She admitted that she did not ask permission to take these photographs and that she did not remember when they were taken. She conceded that no haze is present on many of the photographs and that where haze is present, it is high near the ceiling.


She was also asked about other employees with respiratory problems and she mentioned three employees who have had or presently have pneumonia. She admitted that she does not know the cause of the pneumonias. She has worn a mask at work to see if would help her.

She said that her husband was treated for stress while he was still working for the Gazette. She was not aware of him taking or being prescribed anti-depressants and said that she would have known about those drugs if he had been taking them.

As indicated above, there are two medical conditions that the claimant alleges constitute his injury in this case – asthma and depression. There are many medical records in this case and as a way of organizing the medical evidence, the records concerning the claimant’s asthma will be considered first.

On August 30, 2002, the claimant had a physical with S. Shamsee, M.D. The claimant told Dr. Shamsee that he had a history of asthma and seasonal allergies, but the only complaint on that date was low back pain. (Cl. Ex. 1, p. 1) He continued to see Dr. Shamsee for various health concerns throughout 2002 and 2003. On February 23, 2004, he first saw Natalie Lanternier, M.D. with a complaint of chest tightness. (Cl. Ex. 1, p. 5) Dr. Lanternier thought the chest pain was secondary to asthma versus angina and prescribed Flovent and albuterol. (Cl. Ex. 1, p. 5) On May 21, 2004, the claimant reported “marked improvement” of his chest tightness after starting those two medications. (Cl. Ex. 1, p. 6)

On June 11, 2004, the claimant saw Dr. Lanternier with a 13-hour history of acute onset left-sided chest pain with SOB. (Cl. Ex. 1, p. 7) She referred the claimant to St. Luke’s Hospital in Cedar Rapids. He was seen there by Adarsh Bhan, M.D. Dr. Bhan took the following history:

This patient is a 56-year-old male with risk factors of hypertension who presented with an episode of chest pain. He apparently woke up early this morning around 0145 with low left lateral chest discomfort. This was described as being sharp in nature and radiating to the lower chest wall region with no radiation to the back, arm, precordium or jaws. It was associated with diaphoresis. No nausea or vomiting. Not shortness of breath, palpitations, or dizziness, or syncopal episodes. It was associated with some tenderness. Improved in the upright position and with walking around. Worse in the supine position. Chest discomfort persisted all day. . . .

He does have a history of bronchial asthma which has been worse in the last three months necessitating regular use of bronchodilator therapy. Associated with symptoms of bronchospasm and wheezing, he has noticed some chest discomfort which would be transient and improve. The nature of the discomfort today was more unusual with persistence and in the absence of any significant shortness of breath.


At baseline he works in an automobile place, exposed to sulfur and involved in welding. He believes this has been making him more short of breath. Going up and down the stairs also does given him shortness of breath with some wheezing although no definite chest pain.

(Cl. Ex. 2, p. 1)

On examination, Dr. Bhan found the claimant’s lungs clear to auscultation and that bilateral clear entry was present. (Cl. Ex. 2, p. 3) No rales or wheezing were detected. (Cl. Ex. 2, p. 3) The assessment was atypical chest pain. (Cl. Ex. 2, p. 3)

The claimant returned to see Dr. Lanternier on June 18, 2004. She took the following history:

56-year-old male who is here for CC chest pain. I saw him one week ago and recommended that he be evaluated for r/o MI at St. Luke’s Hospital. He did so and was r/o for MI. He also had a stress test, treadmill test that was negative. He also had PFT done yesterday which were WNL. HE continues with intermittent SOB and continual intermittent waxing and waning left sided chest pain with movement and deep inspiration. He particularly notes some SOB when he is at work and inhales smoke and fumes. He notes that he gets quite winded and has to leave the area and it take approximately 20 minutes to catch his breath. This is clearly exacerbated by the smoke and fume inhalation and better when he leaves the area. He notes some mild heart racing when he gets SOB but is otherwise w/o palpitations, PND, orthopnea, syncope, near syncope, decreased exercise tolerance or swelling of the extremities. He will occasionally have gasping for air during the night as he has OSA. This is chronic and unchanged. He denies other concerns today. He has had no significant changes other than the above in his past medical hx, social hx, or family hx.

(Cl. Ex. 1, p. 8)

Dr. Lanternier wrote that she suspected the claimant’s chest pain was secondary to a muscle strain as well as costochondritis as well as a component of asthma exacerbation. (Cl. Ex. 1, p. 8) She encouraged the claimant to avoid areas of fumes and smoke as much as possible at work as certainly this is contributing to symptomatology with his asthma and chest pain. (Cl. Ex. 1, p. 8) Concerning the claimant’s shortness of breath, she felt this was “multifactorial related to smoke and fume inhalation, asthma, muscle strain and costochondritis. (Cl. Ex. 1, p. 8)

The claimant was markedly improved on June 25, 2004. (Cl. Ex. 1, p. 9) Of interest is that the claimant had two episodes of chest pain and shortness of breath when he was on the phone with some co-workers and got upset. (Cl. Ex. 1, p. 9) On July 1, 2004, Dr. Lanternier noted that the claimant had done quite well without the


occupational exposures and with the increase in steroid of a prednisone burst. (Cl. Ex. 1, p. 10)

The next visit with Dr. Lanternier was on July 29, 2004. The claimant reported an episode of shortness of breath after helping his mother pull weeds. (Cl. Ex. 1, p. 11) This was diagnosed as secondary to an asthma exacerbation with some type of allergen outside. (Cl. Ex. 1, p. 11)

On August 9, 2004, Dr. Lanternier prepared a handwritten note that indicated that the claimant should not under any circumstances be exposed to fumes at his current employment as he has well documented severe asthma when he is exposed. (Cl. Ex. 1, p. 12) The claimant reported chest pain on August 13, 1004, after talking to his attorney and his lawyer. (Cl. Ex. 1, p. 13) On August 20, 2004, Dr. Lanternier wrote another note that the claimant was under her care for severe asthma and was currently unable to work at Victor Manufacturing. (Cl. Ex. 1, p. 14)

Dr. Lanternier’s major concern on August 26, 2004, was the claimant’s stress and anxiety. (Cl. Ex. 1, p. 15) There were more complaints of chest tightness, wheezing and shortness of breath on September 23, 2004, but no specific eliciting or aggravating factor. (Cl. Ex. 1, p. 16)

The claimant was evaluated at University of Iowa Hospitals and Clinics on October 6, 2004 by Frederic Gerr, M.D. Dr. Gerr took the following history:

This is a 56-year-old male with a many year history of asthma presented to the Occupational Medicine Clinic on October 6, 2004, complaining of increasing frequency of asthmatic episodes for the past two years while at work. The patient’s symptoms include shortness of breath and audible wheezing with nonproductive cough. Mr. Nickel states that he has had asthma all of his life, but that it had not previously hindered him from activity.

His [sic] states he was quite physically active until about two years ago. Prior to that time, his symptoms were related mainly to hayfever and occurred during the fall/winter months of September and October. The symptoms were controlled with over-the-counter medications such has [sic] Primatene Mist and Allerest. His current symptoms occur year-round.

The patient began working at Victor Manufacturing just over four years ago. Victor is a fabrication facility at which a considerable amount of welding is performed. He works as an “SPC (Stastical [sic] Process Control) coordinator” and is engaged in quality control activities for the plant. He spends the majority of his day walking around the plant monitoring quality and, thus, is in constant contact with robotic welding machines and their associated fumes. He reported that the workplace is often contaminated with visible airborne smoke from the welding


processes. The patient states that he did not pay attention to his increasing symptoms until two years ago. At that time, he started having more frequent episodes of SOB while at work and was out of work at least once per week as a result of them.

(Cl. Ex. 3, p. 1)

Dr. Gerr conducted an examination and administered pulmonary function tests. He interpreted those tests as showing obstruction reversed by the administration of bronchodilators. (Cl. Ex. 3, p. 3) His diagnosis was asthma exacerbated by occupational exposures. (Cl. Ex. 3, p. 3)

The claimant continued to treat with Dr. Lanternier. On November 29, 2004, the claimant reported symptoms of depression. (Cl. Ex. 1, p. 19) At this time, Dr. Lanternier thought that the claimant’s shortness of breath was due to emotional stress. (Cl. Ex. 1, p. 19) She continued to follow the claimant for his many physical complaints and prescribed medication for his asthma. On July 22, 2005, Dr. Lanternier noted that a pulmonary function test that was done that day was consistent with obstructive airway disease with improvement post bronchodilators and this test was markedly improved since February of 2005. (Defendants’ Exhibit P, page 139) The claimant reported worsening of his asthma since “he has talked with lawyers.” (Def. Ex. P, p. 140)

The claimant had an independent medical evaluation with Gerard Matysik, D.O. on August 25, 2005. In his report, which was dictated on September 1, 2005, he indicated that he had reviewed the claimant’s recent and past medical records. (Def. Ex. W, p. 200) Dr. Matysik took the following history:

The patient admits to being a 57-year-old former 1 ½ -pack-per-day smoker for a 26-year period with smoking cessation in 1992. The patient notes that he had been employed at Victor Manufacturing for several years before developing subjective complaints of shortness of breath and chest pain beginning in February of 2004.

(Def. Ex. W, p. 200)

The patient offers a history of “severe asthma” since childhood associated with environmental allergies. The patient appeared to suffer with hay fever and typically only experienced allergy symptoms when his hay fever symptoms became active. The patient indicates that he had never been hospitalized at any point in his life for asthma or his allergy symptoms. The patient’s symptoms appeared to occur primarily in the fall, and the patient experienced some improvement with less symptomatology in the early teenage years.

The patient notes that he has developed an extreme sensitivity to odors and fumes. The sensitivity apparently did not prevent him from smoking rather heavily for a


number of years. The patient apparently only required p.r.n. use of inhaled therapy in the past. (Def. Ex. W, p. 200)

Dr. Matysik conducted a physical examination and also asked the claimant to undergo spirometry. His impression was mild obstructive lung disease. (Def. Ex. W, p. 202)

In a second report, Dr. Matysik opined that the claimant had “mild asthma symptoms at worst based on history, examination and pulmonary function testing.” (Def. Ex. W, p. 205) His underlying asthma may have potentially aggravated by reflux, depression and to a lesser degree, obstructive sleep apnea. (Def. Ex. W, p. 205) Concerning the relationship between the claimant’s asthma and his work, Dr. Matysik stated as follows:

The patient’s preexisting asthma would appear to have temporarily been aggravated by exposure to irritants in the work place although notably the patient has not been re-exposed to the latter after conventional treatment which has since been reduced. It appears to have improved the patient’s clinical status. There does not appear to be any permanent injury to the patient with respect to lung function given his recent normal baseline spirometry.

. . . .

As referred above, Mr. Nickel appears to have normal lung function at baseline. As such, the latter would not prevent the patient from returning to full employment. Conceivably, the patient could return to work at Victor Manufacturing since he’s been placed on appropriate inhaled therapy which would likely to be beneficial to maintaining normal lung function. . . .

. . . .

Mr. Nickel appears to have suffered with asthma, hayfever, and reflux intrinsically and not due to his employment at Victor Manufacturing.

(Def. Ex. W, pp. 205-206)

Dr. Matysik’s report was sent to Dr. Gerr for comment and specific questions were directed to Dr. Gerr by the claimant’s counsel. Dr. Gerr opined that the claimant has an occupationally exacerbated asthma, which is the term used for an individual who has preexisting asthma who experiences exacerbation of the disease as a consequence of exposures in the workplace. (Cl. Ex. 3, p. 9) He said that persons who have been exposed to welding fumes have increased rates of asthma when compared to persons who do not have such exposures. (Cl. Ex. 3, p. 9) He disagreed with Dr. Matysik on whether the claimant’s asthma was temporarily aggravated by exposure to irritants in the workplace. Dr. Gerr opined that the claimant’s aggravation was not temporary, but


rather, based on the claimant’s report, a “fixed worsening of his breathing.” (Cl. Ex. 3, p. 9)

The defendants also obtained an evaluation from Mark Thoman, M.D. Dr. Thoman was retained to evaluate the claimant’s work place and his report dated November 8, 2005, indicates that he reviewed the claimant’s medical records; certain Material Safety Data Sheets; and quality control and air quality documents. He also conducted an onsite visit to the plant. As a result of his on-site visit, Dr. Thoman noted that the claimant worked predominately in a temperature and air controlled environment and there was no testing that indicated a significant chemical hazard in the work place. (Def. Ex. Y, pp. 215-216) He also determined that no other employees had similar signs or symptoms as did the claimant, not even those workers that operated the robotic welding machines. (Def. Ex. Y, p. 216) Dr. Thoman concluded:

Mr. Nickel, to a reasonable degree of medical probability or certainty has a myriad of medical problems. The asthmatic condition he claims caused him to be disabled existed previously. His very long history of heavy smoking in addition to other medical conditions are the primary reasons for his present state of health and are not related to his work place exposure at Victor Manufacturing.

I have read and concur with the report of Dr. Gerard Matysik.

(Def. Ex. Y, p. 216)

The claimant’s attorney sent Dr. Thoman’s report to Dr. Gerr for comment and asked Dr. Gerr a series of questions. Dr. Gerr did not feel that it was valid to compare the claimant’s complaints with the non-complaints of other workers. (Cl. Ex. 3, p. 10) He said that people with asthma are more easily harmed by airborne irritants than those who do not have asthma. (Cl. Ex. 3, p. 10) He did not feel that the claimant’s smoking had anything to do with his asthma but rather it was the occupational exposure to welding fumes that was the cause of his symptomatic worsening and the cause of his increasing use of asthma medication while at Victor. (Cl. Ex. 3, p. 10) He then added:

Because welding fume is well known to cause asthma among exposed workers, I believe that Mr. Nickel’s asthma was aggravated by welding fume in his workplace. Based on the persistent worsening of his symptoms and that fact that he began using and continued using asthma medication on a daily basis while employed at Victor, I also believe that Mr. Nickel’s occupationally-aggravated asthma is permanent. Persons with asthma are known to be more susceptible to the adverse effects of airborne respiratory hazards. Thus, Mr. Nickel was at greater risk of both temporary and permanent harm from welding fume than were other, non-asthmatic, employees. Furthermore, levels of exposure considered safe for non-asthmatic workers are often not safe for asthmatic workers.


(Cl. Ex. 3, p. 11)

Both Dr. Matysik and Dr. Thoman were deposed and their depositions are part of the record in this case. Dr. Matysik was deposed on January 17, 2006. Dr. Matysik was asked whether fumes or odors bother some people with asthma and he made the following point:

Q. Do fumes or odors bother some people with asthma?

A. They may. And I think it’s an important point, important to discern whether you’re talking about a fume or an odor as being just an irritant versus a trigger, because not—certainly not all irritants are necessarily triggers.

I have many patients that say that, you know, they have some degree of difficulty walking down the grocery aisle where all the detergents are, and that may create them some degree of mild distress or increased shortness of breath, although that in itself may not actually trigger an asthmatic attack.

So as a pulmonologist, to me, that’s an irritant rather than a trigger, whereas a trigger would actually induce an asthmatic attack.

(Ex. BB, p. 12, lines 10-25)

He was also asked about the results of the claimant’s pulmonary function testing and in response, he said that the testing showed that the claimant had mild airflow obstruction. (Def. Ex. BB, p. 23) He was asked about the effect such a condition would have on an individual’s daily life activities and he responded that with reasonable control, there would not be any degree of limitation in the patient’s ability to perform routine activities. (Def. Ex. BB, p. 24) He testified that the claimant could return to full employment at Victor Manufacturing. (Def. Ex. BB, p. 32)

On cross-examination, Dr. Matysik testified that he disagreed with Dr. Gerr that there was a permanent exacerbation of the claimant’s condition as a result of his environmental exposure. (Def. Ex. BB, p. 54) It was Dr. Matysik’s opinion that there was no physiologic evidence that there was further impairment of the claimant’s lung function. (Def. Ex. BB, p. 54)

Dr. Thoman was deposed on January 20, 2006. In his opinion, the condition that the claimant claims was caused because of his employment was not related to any toxicants or any inhalant agents that were in the environment at Victor Manufacturing. (Def. Ex. CC, p. 19) Dr. Thoman explained that the agents to which the claimant was exposed are not “biologically plausibly consistent with the kinds of problems he had and exhibited, and particularly after leaving Victor in June of 2004.” (Def. Ex. CC, p. 19) He was also asked about Dr. Gerr’s opinions and his testimony was as follows:

Q. And I’m going to ask you, with regard to the opinions of Dr. Gerr, do you agree or disagree with his conclusion that Mr. Nickel suffered from


occupational asthma which was aggravated by his work environment at Victor Manufacturing?

A. I respectfully disagree with Dr. Gerr.

Q. And have you stated previously all of your opinions why you disagree with that, or can you summarize them for us?

A. Yes. I believe, based on the information he had, it would seem that he talked about in the early—in his early documents he talked about temporally related, and, that is, you know, the time was an indication; but it appeared to me that based on his review, at no time did I ever see any wheezing that he noted in the examinations he made, nor any other physicians over the years, though it was confirmed that he did have a long history of asthma.

On the other hand, I don’t believe he made a site visit. I don’t know whether he had some of the information that I had access to. I would hope that he would have, but it appeared to be mostly on history, and Mr. Nickel’s history that he had problems when he went to work.

And I think that may have been at least the working diagnosis, if not the final opinion, of Dr. Gerr that he did have occupational asthma, which I do not agree with.

(Ex. CC, pp. 21 and 22)

During cross-examination, Dr. Thoman agreed that one of the most important factors in his opinion was the fact that there were no other complaints from other workers. (Def. Ex. CC, p. 64) He agreed that it was possible that irritants in the workplace aggravated the claimant’s preexisting asthmatic condition. (Def. Ex. CC, p. 83)

Turning now to the claimant’s depression, the medical records show that the claimant was evaluated on July 28, 1995, by Charles G. Wellso, M.D. who was affiliated with the Cedar Centre Psychiatric Group in Cedar Rapids, Iowa. The claimant had been referred to Dr. Wellso by Praful Patel, M.D. for psychiatric evaluation, as there was a question whether the claimant was reacting to stress or perhaps depression. (Def. Ex. N, p. 99) The claimant reported a number of symptoms such as dysphoria and persistent diminished energy. (Def. Ex. N, p. 99)

The claimant told Dr. Wellso that he had a difficult childhood, which included severe respiratory and visual problems. (Def. Ex. N, p. 100) He was physically abused by his older brother and had a difficult relationship with both of his parents. (Cl. Ex. N, p. 100) He left home at age 17 and worked at a variety of jobs. (Def. Ex. N, p. 101) He lost several millions of dollars in 1981-1982. (Def. Ex. N, p. 101)


According to the medical history taken by Dr. Wellso, the claimant reported that he had hay fever and some other allergies. He also had bronchial asthma that “is presently untreated and a problem.” (Def. Ex. N, p. 101)

Dr. Wellso concluded that the claimant’s symptoms did not conform to a classical picture of depression, but that he may have atypical depression. (Def. Ex. N, p. 102) He advised a clinical trial of Fluoxetine. (Def. Ex. N, p. 102)

Dr. Lanternier’s notes, as previously documented, show that she was concerned about the claimant’s anxiety and depression. On October 4, 2004, she recommended stress modification but added that the claimant did not want to take any medication for anxiety. (Cl. Ex. 1, p. 17) On November 29, 2004 she thought the claimant had marked depressive symptoms and prescribed Lexapro. (Cl. Ex. 1, p. 19)

The claimant contacted the Abbe Center for Community Mental Health in Cedar Rapids, Iowa and was first seen there on January 13, 2005. Karen Penick, a licensed social worker, took the following history:

Paul states he has had depression for a long time. He just has not been formally treated for it. He states the onset of the most recent episode was 06/11/04. States at that time he had come home from work and he was experiencing chest pain and having difficulty breathing. He has a history of asthma. States he went to the hospital where he was admitted for a day. He was discharged and had had multiple tests since that time to find out exactly what his health problem is. States he went on family medical leave which lasted up to November. States after that he applied for temporary disability which he received for 2 months and then he states it was terminated. . . .

Paul states he has become extremely depressed about his current situation. He is barely able to afford the attorneys and he has gone from having a high level income to having to file for bankruptcy.

Paul states he also has some longstanding feelings of rejection stemming from childhood issues and recent events related to his job have revived and exacerbated these feelings.

(Cl. Ex. 5, p. 1)

Penick diagnosed major depressive disorder, recurrent (severe) and recommended medication and individual therapy. (Cl. Ex. 5, p. 3)

Penick thought the claimant was still significantly depressed when she saw him next on January 20, 2005. (Cl. Ex. 5, p. 7) She recommended that he go to the emergency room, which he declined to do. (Cl. Ex. 5, p. 7) On January 21, 2005, the claimant saw Ali Safdar, M.D., who decided to change the claimant’s medication. (Cl. Ex. 5, p. 10)


The claimant was admitted for in-patient psychiatric treatment at University of Iowa Hospitals and Clinics on February 3, 2005. He was described as having exacerbation of depressive symptoms with suicidal ideation. (Cl. Ex. 4, p. 1) A lengthy history was taken from the claimant. He reported multiple financial stressors and that he had been unable to work since June 11, 2004, due to occupational exacerbation of asthma. (Cl. Ex. 4, p. 1) He had debt of $100,000.00. (Cl. Ex. 4, p. 1) He went bankrupt in 1982. (Cl. Ex. 4, p. 1) He said that a son was born prematurely and died one month after birth and that over the last eight months, “he has had increasing guilt related to the death of their son as well as increasing feeling of guilt and feelings of shame related to molestation by his twin sisters from a young age until 2nd grade.” (Cl. Ex. 4, p. 1) The claimant recounted seeing a psychologist at age 17 and that he had depressive symptoms in 1979 until 1982. (Cl. Ex. 4, p. 1) He also had a head injury as a child when he was hit with a baseball bat and an industrial accident in 1982. (Cl. Ex. 4, p. 1)

A physical and mental status exam was done and the following assessment was made:

This is a 56-year-old male with a history of physical, emotional, and sexual abuse, and multiple financial stressors. He is currently unable to work at his previous employment due to exacerbation of preexisting asthma. He has multiple financial stressors, including a decrease of his income from $8000 a month to $2000 a month, a previous history of filing for bankruptcy. He has multiple creditors and legal cases pending. Despite these difficulties, he has been able to learn HTML and Java computer languages and design several web pages. Depressive symptoms are worse at night and have progressed to the point of suicidal ideation with a plan, but no intent by his report. He denies any family history of depression of [sic] anxiety and his previous episode of depression was related to multiple financial stressors as well. At that time, he was able to use positive thinking and distraction to overcome the depressive symptoms. He has shown a partial response to Lexapro and Wellbutrin, as well as psychotherapy.

(Cl. Ex. 4, pp. 2-3)

The Axis I diagnosis was major depressive disorder, recurrent, severe, without psychotic features. (Cl. Ex. 4, p. 3)

On February 6, 2005, while he was still hospitalized, the claimant told one of his physicians that his mother had died, but that he did not want to go to the funeral since he did not wish to see abusive family members. (Def. Ex. P, p. 108)

The claimant was discharged to partial hospitalization on February 10, 2005. (Cl. Ex. 4, p. 7) During that time, the claimant reported that his primary stress was related to financial and work issues as well as marital issues, which he identified as


chronic and ongoing. (Cl. Ex. 4, p. 8) In a note dated February 21, 2005, he also expressed his frustration with his spouse over her unwillingness to accept an emotionally intimate relationship he had developed with a woman he met through the Internet. (Def. Ex. P, p. 110) He was still feeling sad and frustrated over this situation on February 22, 2005, describing his need both to be married and to maintain the romantic relationship with the other woman. (Def. Ex. P, p. 114) More marital concerns were expressed on February 23, 2005. (Def. Ex. P, p. 116)

The claimant was re-admitted to University of Iowa Hospitals and Clinics on March 18, 2005. This was due to passive death with suicidal and homicidal ideation. (Cl. Ex. 4, p. 10) He had recently filed for his second bankruptcy. (Cl. Ex. 4, p. 10) According to the history taken that day, the claimant had had difficulties with depression for many years. (Cl. Ex. 4, p. 10) The Axis I diagnosis was major depressive disorder with recurrent episodes, severe. (Cl. Ex. 4, p. 11) He was treated with electro-shock therapy. (CL. Ex. 4, p. 17) In an interview with the claimant and his wife, there was an indication that the primary stressor was financial and that creditors are “hounding them.” (Cl. Ex. 4, p. 19) He was discharged on March 30, 2005. (CL. Ex. 4, p. 21)

The claimant saw Penick again on April 14, 2005, and he reported that the ECT treatment he had received in Iowa City was “very helpful.” (Cl. Ex. 5, p. 14) The claimant was reported as extremely depressed on September 13, 2005. (Cl. Ex. 5, p. 16) Penick went out to see the claimant’s wife, who was sitting in the car, and she agreed to take him to an emergency room. (CL. Ex. 5, p. 16)

The claimant was taken to University of Iowa Hospitals and Clinics on September 13, 2005. (Def. Ex. P, p. 122) The following history was taken:

Paul Nickel is a 57 year old male from Belle Plaine, IA who was admitted to 2JPW on 9/13/05 for suicidal ideation. This is a voluntary admission. The patient has a diagnosis of Major depressive disorder, severe; asthma; COPD; reflux and hypertension. The night before his admission he took extra Trazodone with the intention to end his life. His biggest stressor is financial problems because he has to file for bankruptcy, he had to do this before when he lost his business. He endorses several symptoms of depression including isolation from others and not wanting to interact with anyone. He has been thinking of different ways to end his life even while his [sic] in the hospital.

(Def. Ex. P, p. 122)

The claimant had another admission on October 27, 2005 and was discharged on November 8, 2005. His major concern was financial issues. (Def. Ex. P, p. 125) The Axis I diagnosis was major depressive disorder, severe, recurrent, with psychotic features. (Def. Ex. P, p. 126) He saw Penick later that day and she reported him as being significantly improved as far as mood. (Cl. Ex. 5, p. 20)


On November 22, 2005, the claimant reported that he was distressed over the idea of having to work outside the home and be out on a regular basis, as this seemed to exacerbate his asthma. (Cl. Ex. 5, p. 22) Penick was concerned that the claimant was decompensating. (Cl. Ex. 5, p. 22) He was still expressing a lot of depression on December 13, 2005. (Cl. Ex. 5, p. 24) The claimant told Penick that he had been sending out résumés but that he was concerned about being around the public or any fumes. (Cl. Ex. 5, p. 24) On December 27, 2005, he told Penick that every time he was out in public, his asthma was exacerbated. (Cl. Ex. 5, p. 26)

Dr. Safdar, one of the claimant’s psychiatrists, authored a report concerning the claimant’s mental health problems. He stated:

As you are aware, Paul has been under my care at the Abbe Center for Community Mental Health for some time. He was under my care at St. Luke’s Hospital recently. He was hospitalized because he was feeling extremely depressed, anxious, and reporting suicidal thoughts. His diagnoses are Major Depressive Disorder and Anxiety Disorder. He has been taking several different medications. His prognosis in my opinion is only fair. In my opinion, his condition has been materially aggravated by his physical health problems, the stress that he has been under, his inability to work and make a living, etc.

(Cl. Ex. 5, p. 31)

Dr. Lanternier also wrote a report concerning the claimant’s depression. In her view, as the claimant’s exposure to fumes continued and the claimant began to have more asthmatic symptoms, he began to have significant depressive symptoms. She stated: “His inability to work and symptomatology of his asthma with exacerbation from occupational exposures have been the root and continue to be the root of his depression.” (Cl. Ex. 1, p. 30)

Charles Boyles testified on behalf of the defendants. He is the general manager of Victor Manufacturing and has held that job for 15 years. According to Boyles, Victor Manufacturing primarily does metal stamping and spot welding. Robots are used to move welding parts and to do some spot welding.

Boyles works in the front office. He said that after this workers’ compensation claim was filed, he investigated the amount of time that the claimant would be working on the production floor. He found out that the claimant would be outside his office for only two hours a day. Marvin Mundt, another employee, confirmed this fact.

Boyles was asked about the photographs that were taken by the claimant’s wife, allegedly on a Sunday night. In particular he was asked about the haze that is shown around the light fixtures. He said that there had been no production since second shift the Friday before and that haze does not remain in the plant over the weekend.


According to Boyles, the facility has 180,000 square feet of manufacturing and warehouse space. The ceiling varies in height from 15 to 22 feet at eave height. The airflow system is designed to move 60,000 cubic feet of air per minute. There is also an air scrubber system. Welding fumes go out the front of the facility and fresh is brought in. Exhaust fans take the air to the outside. There is a total change of the air in the facility every 28 minutes.

Boyles then explained that spot welding is done with hydraulic pressure and what actually expels from the welding process is melted steel. This melted steel does not float in the air and immediately falls to the ground. The maintenance area of the plant does not have welding areas. There are two exhaust fans in the main weld area as well as air filtration and scrubbers. There are also two exhaust fans in the big bay area that contains the 2000 press. The heating and air conditioning for the offices is separate from the rest of the plant.

There has been a lot of environmental testing at the plant. In order to produce items for Ford, the plant had to purchase new equipment. Boyles said that the employer needed assurance concerning the air quality of the plant. Testing is done on an annual basis under worse possible conditions, such as the middle of winter all the doors are closed. Old filters are used in the testing. The tests have shown that the air quality of the plant is under 10 percent of what OSHA says is acceptable air quality.

He also testified briefly concerning the visit of Dr. Thoman. He said that Dr. Thoman was allowed complete access to the plant and was permitted to talk to the employees. Dr. Thoman told him that he thought it was a clean plant and one of the best manufacturing environments he (Dr. Thoman) had seen.

It is the employer’s policy to get an employee back to work as soon as possible with whatever restrictions that employee may have. Concerning the claimant, Boyles said he told Sandy Sanger, the human resources manager, the claimant should be offered a return to work totally away from the air flow in the plant.

He was then asked why two fans had been installed in the break area and he said that the fans were put there to blow away cigarette smoke coming from the employees’ smoking area.

Boyles then testified that oil is used in the plant in the stamping process, but it is poured onto a felt roller and applied to the product. Oil is not sprayed at any time in the manufacturing process.

The claimant’s last day of work was June 10, 2004. Boyles was told by his accountant that the claimant had settled a lawsuit on June 10, 2004, and so Boyles’ assumption was that the claimant decided to quit. He testified that the claimant took home some personal tools that same day and it looked to him like the claimant was cleaning out his desk. He denied ever terminating the claimant. He would have


continued to employ the claimant and accommodate his restrictions. He has not personally talked to the claimant since he left.

On cross-examination, Boyles was asked about an employee evaluation that was done on the claimant by Brian Schulke dated July 16, 2004. Boyles admitted that there was nothing in that evaluation that indicated the claimant was not coming back. Boyles also testified that he did not recall having a conversation with the claimant about his symptoms. He insisted that the fans put in front of the smoking area were not placed there as a result of Boyles having had bypass surgery, but were rather installed to blow away cigarette smoke.

When asked about a report done by CNA insurance, Boyles agreed that the report said there were employees making complaints about the plant’s atmosphere. Boyles was also quizzed about the standards used to evaluate air quality on both cross-examination and redirect examination. The standards used by OSHA go back to studies done in the 1950s and 1960s, but air quality was also tested under American Hygienist standards.

Sandra Sanger testified on behalf of the employer. She is the human resources person for the employer and knows the claimant. His last day of work was June 10, 2004. After that day, she was uncertain why he was off work. She tried to call several times and said there was no answer and that there was no answering machine. She talked to Brian Schulke, the claimant’s immediate supervisor, and Schulke said that the claimant did not say why he was gone or when he would be back. She did send the claimant a letter telling the claimant that it was his responsibility to call in and that should he have any restrictions, they would be accommodated. The responsibility of the claimant to call the employer was spelled out in the employee handbook.

Sanger also talked to the claimant’s wife. Mrs. Nickel told Sanger that the claimant was taking tests and that nothing had been established for certain concerning his physical condition. Sanger gave “disability papers” to Mrs. Nickel. These papers were submitted directly to UNUM by the claimant. Although short-term disability benefits were paid for a while, UNUM eventually decided to terminate those benefits. Sanger had no part of that decision. The claimant was also on FMLA.

The first knowledge that Sanger had about a workers’ compensation claim was when she was contacted by the claimant’s attorney. She received a letter from the claimant’s attorney dated December 7, 2004. (Def. Ex. M1, p. 95) The claimant was continued as an employee. He made no attempt to return to work.

On cross-examination, Sanger said she telephoned the claimant in early July 2004. She believes that she tried two times, but did not make any more attempts. The letter she wrote to the claimant in August of 2004 was to let him know that he had certain responsibilities to contact the employer concerning his absence. On re-direct examination, she stated that it was the employer’s corporate counsel who communicated with the claimant’s other lawyer, Kay Johannsen, that the claimant could


have accommodated duty. The claimant was kept on the employer’s roll until January 1, 2006.

The claimant testified on rebuttal that he did not take his personal tools home on June 10, 2004, but that his wife took them home several weeks later. He said he was in regular contact with his supervisor, Brian Schulke. He said that if Sanger had called him in July 2004, there were two answering machines that would have picked up plus his son was home and would have answered the phone. He never saw any plan that would have told him how his restrictions would have been accommodated.

The record contains a report dated February 2, 2004, directed to Chuck Boyles from CNA Risk Control. (Def. Ex. J, p. 65) An industrial hygiene report had been done and according to the letter, “all five selected employees’ airborne welding concentrations were below the referenced occupational health guidelines and regulatory limits.” (Def. Ex. J, p. 65) In the body of the report, there was a finding that none of the airborne fume samples exceeded the permissible exposure limits of IOSHA and the American Conference of Governmental Industrial Hygienists’ Threshold Limit Values. (Def. Ex. J, p. 68) These tests were conducted during wintertime when the highest exposure would be present. (Def. Ex. J, p. 68)

The claimant’s attendance record for the years 2002, 2003 and 2004 is part of the evidence in this case. He missed no work on account of illness in 2002, 2003 or 2004. (Def. Ex. A, pp. 41-43)

The record in this case contains many other pieces of evidence, all of which were thoroughly reviewed by the deputy even though there may not specific comment on all of these records in this decision.

CONCLUSIONS OF LAW

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

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 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).

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).

The first issue to be determined is whether the claimant has sustained an injury arising out of and the course of his employment. The evidence on this issue, both lay and medical, is extremely complex and divergent. The claimant claims in his brief that he suffered a permanent exacerbation of preexisting asthma due to his work at Victor Manufacturing. This exacerbation was allegedly caused by smoke and fume inhalation, particularly the smoke and fumes from welding.

A review of the expert medical testimony in this case underlines the need for precision when evaluating a claim of occupational asthma. That is, the meaning of certain phrases used by experts and in reports has to be clearly understood. Dr. Gerr specifically opined that the claimant has an occupationally exacerbated asthma, which he said is one type of work-related asthma. According to Dr. Gerr, occupationally exacerbated asthma is the term used for an individual who has preexisting asthma who experiences exacerbation of the disease as a consequence of exposures in the workplace. The word exacerbation, in turn, means worsening. A worsening can be either temporary or fixed. If it is a fixed worsening, it is a permanent worsening.

Dr. Matysik testified in his deposition that asthma is intrinsic or extrinsic. Extrinsic asthma is a term that generally applies to patients that have more environmentally-induced symptoms. Intrinsic asthma means that there is no specific identifier. He then offered what is an extremely important distinction between an irritant


and a trigger. When asked whether fume or odors bother some people with asthma, he said it is important to discern whether one is talking about a fume or odor being an irritant or a trigger because certainly not all irritants are necessarily triggers. An asthma patient may have some degree of mild distress or increased shortness of breath while being exposed to a fume or odor whereas a trigger would actually induce an asthmatic attack.

The medical evidence quite clearly shows that the claimant has asthma and has had asthma all of his life. Although the claimant alleges in his brief that he outgrew the asthma he had as a child, that allegation is at odds with what the claimant told Dr. Wellso in 1995. The claimant has not given a truly consistent history on what symptoms he experienced; when he experienced them; and how he treated those symptoms. There was at least a period of time when he self-medicated and he also indicated that he suffered from what he called hay fever. Using Dr. Matysik’s definitions, the claimant had intrinsic asthma. This asthma was severe when the claimant was a child and by his report to Dr. Wellso in 1995, was poorly controlled at that time.

Dr. Gerr, too, believes that the claimant had preexisting asthma. Where he and Dr. Maysik disagree is on whether the conditions of the claimant’s employment exacerbated, i.e., worsened that asthma, and whether the exacerbation was permanent. Dr. Gerr’s opinion that the conditions of the claimant’s employment did worsen his asthma is almost totally dependent on the claimant’s history. Dr. Gerr seems to have accepted at face value that the claimant had exposure to welding fumes at Victor Manufacturing and that it was these welding fumes that caused the claimant’s condition to worsen. By worsen, Dr. Gerr means that the claimant’s breathing worsened and he was required to treat his asthma on a more frequent basis.

Unlike Dr. Gerr, Dr. Matysik looked at a much larger picture when evaluating the cause and effect relationship between the workplace environment and the claimant’s asthmatic condition. This testimony is critical:

I also questioned and I felt that perhaps some of his seemingly work-related asthma symptoms may very well be a reflection of some of these other nonspecific triggers that may be impacting on his asthma control and there really wasn’t necessarily a cause-and-effect relationship between his work exposures and his asthmatic condition, but it was more so a reflection of some of these other nonspecific triggers.

(Def. Ex. BB, p. 33)

Dr. Lanternier, who was the claimant’s primary treating physician for his asthma, likewise thought his shortness of breath and chest pain were caused by multiple factors.

As Dr. Gerr’s opinion is primarily based on what the claimant told him about his work environment, the claimant’s credibility is necessarily at issue and there are many


reasons why the claimant’s representations to Dr. Gerr are not credible. First, if the claimant was truly experiencing increasing asthmatic symptoms as a result of exposure to fumes at the workplace, one would have expected that he would have reported that fact to Dr. Shamsee and to Dr. Lanternier. The claimant never said anything to Dr. Lanternier about fumes or odors at the workplace until AFTER he stopped working. The very first mention in her records of smoke and fumes being at all a factor in his symptoms is on June 18, 2004. Second, the claimant testified that he was taking increasing time off work because of his symptoms and yet there is nothing in the employer’s attendance records that corroborate this testimony. Third, the claimant testified that he was on the manufacturing floor as much as six hours a day, leaving the impression that he was almost constantly exposed to weld fumes. The credible testimony of Chuck Boyles is that the claimant did not work a majority of his time on the floor, but was rather in an office that was climate controlled and serviced by a different air system than that used in the plant. Fourth, the industrial hygiene studies showed that when the air quality was measured right at the welding stations, the air quality met all recognized standards. Even if the claimant was unusually susceptible to welding fumes, he was not a welder. He was on the floor of the plant where the air was constantly filtered and recycled with outside air. Fifth, the claimant could not identify what substances bothered him except to say fumes and odors and smoke. However, Dr. Thoman looked at all the possible triggers for asthma that were in the plant and concluded that it was not biologically possible for these agents to cause the claimant’s symptoms. Boyles testified that weld residue does not hang in the air, but immediately drops to the ground.

Dr. Lanternier’s records show that the claimant’s complaints of shortness of breath were often identified with stressful situations. The claimant clearly had much stress and anxiety in his life, particularly concerning financial matters as he was $100,000.00 in debt. The claimant argues that his financial difficulties were the result of him being unable to work due to his asthma, but it is not credible that this massive debt was accumulated after he stopped working at Victor Manufacturing. To the extent, then, that stress was a factor in the claimant’s asthmatic condition, as Dr. Lanternier believed, the stress was not due to the claimant’s employment or the environment at Victor Manufacturing.

In short, Dr. Gerr’s opinion that the claimant had occupationally exacerbated asthma is rejected because he did not have an accurate history from the claimant, particularly as it pertains to the work environment at Victor Manufacturing. Dr. Thoman who had the benefit of an on-site visit with complete access to all the pertinent records, was in a better position to determine whether the claimant’s work environment played a substantial role in the claimant’s asthmatic condition. Dr. Matysik’s opinion is likewise more credible as he took into account all of the factors present in the claimant’s condition and explored in depth the alleged cause and effect relationship between work exposures and the claimant’s asthmatic condition.

In his brief, the claimant argues that even Dr. Matysik agrees that the claimant’s asthma was exacerbated by the work environment. If Dr. Matysik’s report and his


testimony in his deposition is reviewed in its entirety, it is clear that Dr. Matysik makes the crucial distinction set forth previously, namely, that there is a difference between an irritant and a trigger. The highest level to which the credible evidence in this case rises is that the most that occurred at work was that the claimant may be have been irritated by things in his work environment. There is no credible evidence that this irritation led to full-blown asthmatic attacks that in turn led to permanent damage. Rather, the greater weight of the credible evidence is that the claimant’s asthma progressed due to many factors and that the workplace environment played little, if any, role in that progression.

The claimant has failed to sustain his burden of proof that he had an injury arising out of and in the course of his employment. All other issues are rendered moot.

ORDER

IT IS THEREFORE ORDERED:

That claimant shall take nothing from these proceedings.

Each party shall pay their own costs.

Signed and filed this ____7th_____ day of June, 2006.

________________________ VICKI L. SEECK DEPUTY WORKERS’ COMPENSATION COMMISSIONER

Copies to:

Mr. Robert R. RushAttorney at LawPO Box 637Cedar Rapids, IA 52406-0637

Ms. Dorothy L. KelleyAttorney at Law505 – 5th AVE., STE 808Des Moines, IA 50309-2317

VLS/pjs

before the iowa workers’ compensation commissionerdecisions.iowaworkforce.org/2006/june/nickel,...

Documents