File Number: 5000468

Claimant	Employer/Defendant	Insurance Carrier
TERRI MITCHELL	BURNS PHILP FOOD, INC./ TONE BROTHERS	ZENITH INSURANCE COMPANY

Summary

1402.60, 2503, 3700

A licensed health care provider, who selects and actually provides care and issues charges for the care, by doing so manifests the provider's professional opinion that care and charges were reasonable. "Actions speak louder than words.” The professional standards apply to health care professionals and providing unreasonable care or charges would likely violate those standards. The circumstances create an inference that, if unrebutted, is sufficient to establish the issue but that can be challenged and overcome by appropriate evidence on the issue.

2203

Occupational disease differs from injury in a number of ways including the triggering event being disablement rather than injury, and the possibility of obtaining benefits for times before the date of disablement.

Decision:

Pursuant to Iowa Code sections 86.24 and 17A.15 I affirm and adopt as final agency action those portions of the proposed decision in this matter that relate to issues properly raised on intra-agency appeal with the following additional analysis:

The claim in this case is for occupational disease under chapter 85A. Confusion and inappropriate use of terminology commonly occur when the case deals with occupational disease. Even though section 85.61.4(b) specifically excludes occupational disease from the definition of injury, latex allergy contracted by a health care worker, a classic, textbook example of an occupational disease, has been held to be compensable as an injury. St. Luke’s Hospital v. Gray, 604 N.W.2d 646 (Iowa 2000).

Use of the term “date of injury” is inappropriate when dealing with an occupational disease because there is no “injury.” The triggering term in cases of occupational disease is “disablement,” meaning incapacity from performing the work or from earning equal wages in other employment. Section 85A.4. Disablement can be temporary or permanent. Permanent disablement does not occur if the employee is off work for a period of treatment and recuperation but is then able to return to the same work. Occupational diseases, by their inherent nature, develop gradually over a period of time. The symptoms may wax and wane. The disease may be present, diagnosed and treated for a considerable period of time before permanent disablement occurs. It is only when permanent disablement occurs that compensation for permanent partial disability can be awarded. An employee is not compelled to file an action until permanent disablement occurs. In fact, a petition seeking permanent partial disability that is filed while the employee remains in the same employment is premature. The statute recognizes that no legitimate purpose is served by litigating a claim for permanent partial disability while the employee is still employed in the same employment, without loss of earnings, and while the potential exists for the employment to cause the disease and extent of disability to progress.

Another example of how chapter 85A differs from chapter 85 is in section 85A.8 where the first paragraph ties benefit entitlement to becoming disabled but the second paragraph allows benefits to be claimed and paid before the employee becomes disabled. The statutory arrangement contemplates that more than one claim may be made for the same disease depending upon the progression of the disease. If this were a claim for injury an award for healing period compensation or other benefits incurred prior to the date of injury would be irregular. This is not a claim for injury, however, and an award of medical benefits and healing period prior to the date of disablement is appropriate. So long as the employment continues, the claim remains viable. Section 85A.10. A defense under section 86.26 or 85A.18 was not raised in this case in an effort to bar a recovery for the healing period or section 85.27 benefits that were incurred more than two years prior to the date of disablement or the date of filing the petition. Accordingly, this decision does not address whether the petition for those benefits was filed in a timely manner.

The medical benefits were properly awarded. Since an objection was not explained in defendants’ post hearing brief as defense counsel represented at hearing (Transcript, pages 5-8), the basis for the objection is unclear and the objection was properly overruled. It was stipulated in the hearing report that the providers of the care would testify that the care was reasonable and that the charges for the care are reasonable. The evidence shows overwhelmingly that a clear causal connection exists. The medical expenses were properly awarded. Further, the medical care and charges are not hypothetical. The care and resulting charges were actually administered by licensed health care providers in the practice of their profession. Medical professionals are bound by professional standards of competency and ethics. Knowingly providing care that was unreasonable would likely violate those standards. Proper conduct is inferred unless evidence to show the contrary exists. The saying “actions speak louder than words” is applicable to this situation. Selecting and providing a particular course of care is a clear manifestation of the provider’s professional opinion that the care actually administered was reasonable. The same is true of the charges made for that care. Kleinman v. BMS Contract Services, Ltd., No. 1019099 (App. September 8, 1995), Friday v. Domino’s Pizza, No. 1283800 (Arb. April 24, 2002).

The evidence of permanent loss of earning capacity is ample. The claimant developed a chronic condition. She continues to require medical care and use prescribed medication. Her work environments are limited. The jobs available to her are not shown to offer a rate of pay comparable to the rate she enjoyed with the employer. The award is correct.

Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript.

Signed and filed this 21st day of November, 2003.





_______________________________________
MICHAEL G. TRIER
WORKERS’ COMPENSATION COMMISSIONER

Copies To:

Mr. Jason D. Neifert
Attorney at Law
6611 University Ave Unit 200
Des Moines IA 50311-1655

Mr. Harry W. Dahl
Attorney at Law
974 73rd Street STE 16
Des Moines IA 50312-1090