BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD MATHIESON, Claimant, VS. File No. 494274 EBASCO SERVICES, A P P E A L Employer, D E C I S I 0 N and UNITED STATES FIDELITY AND GUARANTY Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from a remand decision denying payment of medical expenses. On April 17, 1986 claimant filed a petition for judicial review of the industrial commissioner's decision. On October 7, 1986 the district court for Woodbury County dismissed claimant's petition and remanded the matter to the industrial commissioner for further proceedings. The industrial commissioner remanded the case to the hearing deputy. The record on appeal consists of the transcript of the hearing in this matter; claimant's exhibits 1 through 11; and defendants' exhibit A. ISSUES Claimant states the following issues on appeal: 1. Whether the deputy erred in not allowing the claimant to submit additional evidence to explain the "intent of the parties" and the reasons behind the SS 85.35 settlement with open medical benefits. 2. Whether the deputy erred in concluding that claimant failed to prove by a preponderance of the evidence that there was a causal relationship between the medical expenses incurred by him and his compensable injury of February 24, 1978. REVIEW OF THE EVIDENCE The remand decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Claimant entered into a compromise settlement agreement pursuant to Iowa Code section 85.35 which was approved by this MATHIESON V. EBASCO SERVICES Page 2 agency on April 10, 1981. The order approving this settlement states the disputed issue which was settled: "THAT there is evidence of a bona fide dispute or justiciable controversy existing between the parties as to whether all of the claimantOs present industrial disability is causally related to the work injury of February 24, 1978 and the claimant alleged inability to perform gainful employment." (Claimant's Exhibit 1) The application for order authorizing a compromise settlement states in part: The claimant and the defendants represent and state to the Industrial Commissioner that there is a bona fide dispute or justiciable [sic] controversy existing as to whether all of the claimant's present industrial disability is causally related to the work injury of February 24, 1978 and whether there is a causal relationship between the work injury of February 24, 1978 and the claimant's alleged inability to perform gainful employment. In support hereof see the medical reports submitted herewith and by this reference made a part hereof. The parties agree that the defendants will furnish all future reasonable and necessary medical treatment under Section 85.27 which treatment must result from the compensable injury of February 24, 1978. The parties further agree that such treatment shall be performed by or at the direction of a doctor selected by the defendants, or in the event of a disagreement, by a doctor determined upon application to the Iowa Industrial Commissioner. .... It is further agreed that this settlement is subject to the approval of the Industrial Commissioner or one of his Deputies, and when said settlement is approved, it is agreed that the same shall be res judicata to the facts herein. (Cl. Ex. 2) APPLICABLE LAW AND ANALYSIS The prior decision regarding additional evidence shall not be reversed. In the appeal decision filed on March 14, 1986 the industrial commissioner discusses the effect of the settlement agreement in this case: Defendants would contend the disability resulted from matters extraneous to the injury and that a bona fide dispute exists that claimant's injury caused his total disability. As evidence they attached two medical reports. The only evidence which could support an allegation of a bona fide dispute that there were MATHIESON V. EBASCO SERVICES Page 3 matters extraneous to the injury producing disability is the tenuous statement "that there has been some significant psychological overlay of symptoms." Evidence that the settlement was intended to be nothing more than an agreement for settlement is language in the application indicating "claimant shall bear the burden of persuading the Industrial Commissioner that a full commutation is in the claimant's best interests." A commutation (section 85.45) is inconsistent with a special case settlement (section 85.35). In a commutation, benefits payable are acknowledged as related to the injury and the period during which compensation is payable can be definitely determined. In a special case settlement any payment made is denied as being related to a compensable injury. Although others might have viewed it differently, the application for compromise settlement was approved on behalf of the agency as showing evidence of a bona fide dispute and that approval is not here being challenged. What is being asked is the effect of the order approving the application. The deputy ruled quite properly that a settlement under section 85.35 is not subject to review-reopening. The statute specifically provides that approval shall be binding on the parties and a final bar to further rights for workers' compensation. The claimant insists that the matter of continuing medical care related to the acknowledged injury is reviewable as it was specifically retained. In order for this argument to be consistent with section 85.35 the settlement must be viewed as having been considering two matters:--(l) a compensable injury of February 24, 1978 and (2) a condition unrelated to the injury which was causing or contributing to claimant's disability. Under such circumstances the first matter would be subject to review-reopening and the second matter would not. In this case the question is whether or not the medical expenses for which claimant seeks reimbursement are related to the acknowledged compensable injury of February 24, 1978. Although it is not clear from the special case settlement what medical expenses would be considered related to the compensable injury and which would not, it would appear the only conditions providing evidence of an alleged bona fide dispute are the psychological symptoms. It would appear therefore the terms of the settlement included continuing medical benefits related to claimant's physical symptoms but not his psychological symptoms. This, however, is to be determined in a subsequent hearing. (Appeal decision, pages 3-4) The deputy on remand found that the medical expenses for MATHIESON V. EBASCO SERVICES Page 4 which claimant seeks payment are not related to the compensable injury of February 24, 1978. The greater weight of evidence supports the finding that the expenses for which claimant seeks payment are for treatment of claimant's depression resulting from his inability to find gainful employment. The commissioner, in the prior appeal decision, opined that the terms of the settlement provided for continuing medical benefits for claimant's physical symptoms only. In his remand decision the deputy also found that the terms of the settlement agreement clearly provided for continuing medical benefits for physical symptoms only. Contrary to claimant's argument,the undersigned finds that the terms of the settlement agreement are unambiguous and require no additional evidence for interpretation. In construction of written contracts, the cardinal principle is that the intent of the parties must control; and except in cases of ambiguity, this is determined by what the contract itself says. Iowa R.App.P. (14)(f)(14); see also Chariton Feed and Grain, Inc. v. Harder, 369 N.W.2d 777, 785 (Iowa 1985). The order approving the settlement and application for order approving the settlement state that a bona fide dispute exists as to whether claimant's inability to find gainful employment was causally related to his injury on February 24, 1978. Those documents also state that defendants will pay for claimant's medical expenses related to the compensable injury. The medical reports attached to the application for settlement present no dispute as to claimant's physical impairment. The findings of fact, conclusions of law, and order of the deputy are adopted herein. FINDINGS OF FACT 1. On February 24, 1978 claimant suffered an injury arising out of and in the course of his employment. 2. On or about April 10, 1981 claimant entered into a compromise special case settlement which provided, inter alia, that there was a bona fide dispute as to whether claimant's inability to find gainful employment was causally related to his injury. 3. The compromise special case settlement entered into by claimant provided that defendants would continue to provide medical treatment for the compensable injury of February 24, 1978. 4. Subsequent to approval of the compromise special case settlement, claimant incurred medical expenses to treat depression which was causally related to his inability to find gainful employment. CONCLUSION OF LAW Claimant has failed to prove by a preponderance of the evidence that there is a causal relationship between the medical expenses incurred by him and his compensable injury of February 24, 1978. MATHIESON V. EBASCO SERVICES Page 5 WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That claimant shall pay all costs of this action. Signed and filed this 28th day of April, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Plaza Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 Mr. Philip D. Furlong Attorney at Law 401 Commerce Building Sioux City, Iowa 51101 2500; 3302; 3700 Filed 4-28-88 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD MATHIESON, Claimant, File No. 494274 VS. EBASCO SERVICES, A P P E A L Employer, D E C I S I 0 N and UNITED STATES FIDELITY AND GUARANTY, Insurance Carrier, Defendants. 2500 Claimant's petition for payment of medical expenses was denied because he failed to establish a causal relationship between the medical expenses and his compensable injury. 3302 The medical expenses were found to be for treatment of depression which was actually related to his inability to find gainful employment. Claimant had entered into a special case settlement which provided that there was a bona fide dispute as to whether claimant's inability to find gainful employment was causally related to his injury. 3700 Claimant was not allowed to introduce additional evidence regarding the intent of the parties to the special case settlement. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MARK LYNCH, Claimant, File No. 496574 VS. D E C I S I 0 N IOWA TURKEY EXPRESS, 0 N Employer, M E D I C A L and B E N E F I T S AID INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ INTRODUCTION This is a proceeding for medical benefits and for subrogation brought by the claimant, Mark Lynch, against his employer, Iowa Turkey Express, and its insurance carrier, Aid Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained April 30, 1978. This matter was submitted on a stipulated record on April 28, 1987. A first report of injury was filed May 18, 1979. The record in this matter consists of the stipulation, as well as of claimant's exhibits 1 through 14, and defendants' exhibits 1 through 9, each as identified on the respective exhibit lists submitted. ISSUES The issues to be decided are: 1) Whether claimant is entitled to payment of certain medical expenses as causally related to the work injury; as authorized; as fair and reasonable; and as reasonable and necessary medical care; and 2) Whether section 85.22 entitles defendants to credit for $9,000 claimant received from a third party. REVIEW OF THE EVIDENCE The parties stipulated that if Horst Blumer M.D., John Dougherty, M.D., and James Walston, M.D., were called to testify on behalf of claimant, those doctors would testify that medical services rendered to claimant were reasonable and necessary and the charges made for such services were fair and reasonable. The parties stipulated that if Alexander Kleider, M.D., a neurosurgeon, and Jim Maroc, M.D., of the Iowa Foundation for Medical Care, testified on behalf of employer and insurance carrier, those physicians would testify that only one neurosurgeon was needed to perform the cervical laminectomies and fusion performed on or about November 30, 1984 and,that the services of Doctors Dougherty and Walston were not necessary. Those physicians would further testify that the fair and reasonable charge for performance of such surgery, including follow-up care is $2,500. The parties also stipulated that a representative of the employer and insurance carrier would testify that claimant did not, prior to incurring medical benefits in question, request that the employer provide medical benefits to the employee and that such medical benefits were not authorized by the employer or insurance carrier. A newspaper account of the April 30, 1978 injury indicates that a car struck the tractor-trailer claimant was driving. The truck subsequently jackknifed and rolled over at least once. The driver of the car, a Fred Spick, was treated at a hospital and released. Claimant was reported as not injured. On May 23, 1978, J. A. Walston, M.D., reported claimant's objective findings of stiffness and right leg pain and weakness, and diagnosed a bruised leg and cervical myositis. Claimant returned to work on May 15, 1978. Claimant's answers to the second set of interrogatories indicate that claimant has made a claim against Fred Spick for damages on account of injuries allegedly sustained in the April 30, 1978 accident, and that a settlement with a recovery of $9,000 was reached. A medical report of Horst C. Blume, M.D., of April 16, 1985 reports that claimant was seen with neck, shoulder, and arm pain on October 20, 1984. on referral from John Dougherty, M.D., a myelogram of the cervical spine evidenced a ruptured disc at C5-6 and C6-7 with cervical surgery on November 30, 1984. An extruded ruptured disc at C5-6 on the right as well as a ruptured disc at C6-7 bilaterally, particularly on the right, was encountered as well as posterior spur formation at the level of C5-6. The ruptured discs were removed, nerve roots decompressed bilaterally, and interbodial fusion was carried out at the C5-6 interspace. Dr. Blume opined that, within a reasonable medical certainty, upon reviewing the history and findings attained, that claimant's injury to the cervical spine and the resulting abnormalities were directly related to the accident in April 1979 [sic]. On October 12, 1984, John J. Dougherty, M.D., reported he had examined claimant on October 9, 1984 regarding his neck and opined that claimant had a degenerated disc and may very well have a cervical disc syndrome. On September 24, 1979, Dr. Dougherty reported that lateral x-rays of claimant's cervical spine suggested some narrowing at C5/6; AP views of the cervical spine apparently demonstrated narrowing of Luschka's joints at C5/6. The doctor then recommended traction of ten pounds for fifteen to twenty minutes several times a day, and reported that he did not feel a myelogram was necessary. He indicated that while claimant "has a little disc space" he did not feel that claimant needed "an operation." On July 3, 1979, Dr. Dougherty had diagnosed one of claimant's conditions as previous cercival ligamentous and muscular sprain, superimposed on what appears to be an early degenerated disc at C5-6 and questionable slight increased motion at 6/7 with possible discogenic pain. LYNCH V. IOWA TURKEY EXPRESS Page 3 On March 6, 1985, James H. Walston, M.D., reported that he had examined claimant on September 24, 1984 with pain in the chest, shoulder and back. Claimant was again seen on September 26, 1984 with much worse pain than previously and with pain radiating down the right arm with some numbness and tingling. Dr. Walston opined that claimant suffered a disc lesion which was probably injured originally in the truck accident from five or six years ago and had just become really bad in the last three or four months, requiring surgery that was done. Medical bills submitted include a bill of Dr. Walston for services from September 24, 1984 through December 20, 1984 in the amount of $1,380. The bill includes a hospital care charge of $130 and a surgical assistant charge of $1,100, as well as charges for six office calls during that period. Also submitted is a Woodbury Anesthesia Group bill for services of November 30, 1984 of $625. A bill of Dr. Horst Blume for services from October 22, 1984 through February 18, 1985 for $3,987 includes charges for a neurological consultation of October 22, 1984 and for an additional history and neurological reexamination/reevaluation of November 29, 1984; a $3,000 charge for surgery performed November 30, 1984; a $105 charge for three hospital visits from December 1, 1984 through December 3, 1984; as well as additional charges for office visits during that period; and charges for therapy with stereo dynamic interferential currents to the cervical spine bilaterally. Also included are bills from Marian Health Center from October 20, 1984 through October 22, 1984 in the amount of $1,274.50. Claimant was admitted to the Marian Health Center for cervical myelogram by Dr. Dougherty on October 20, 1984. A bill of Marian Health Center from November 29, 1984 through December 3, 1984 totals $3,075. A bill of Dr. Dougherty from October 9, 1984 through October 22, 1984 totals. $2,240. A charge on the Dougherty bill for November 30, 1984 indicates arthrodesis/disc, 2 levels $1,500. Also submitted is a March 14, 1985 bill of Marian Health Center indicating OP service for claimant of that date with the service charges totaling $34.25. A letter from the insurance carrier to claimant's counsel of November 20, 1984 states: If Mr. Lynch is having problems related to our injury, Dr. John Dougherty was already authorized. I do not want you to get the impression that we are presently agreeing that any current examinations or treatment is authorized by our office, however, because we certainly have no idea what his work or personal history has been since 1978. Of course, the time has long expired on any weekly benefits. The balance of the evidence was reviewed in the disposition of this matter. APPLICABLE LAW AND ANALYSIS We first address the medical payment question. Section 85.27 requires defendants to provide claimant reasonable and necessary medical care for all compensable LYNCH V. IOWA TURKEY EXPRESS Page 4 injuries. Hence, to be entitled to costs of his cervical fusion claimant must establish that his cervical disc herniations were causally related to his original 1978 injury. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 30, 1978-is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of a physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; the arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Agency may disregard uncontroverted medical testimony; it may do so only after stating substantial reasons for not deferring to the evidence, however. Sondag, 220 N.W.2d 903. An expert's opinion based on an incomplete history is not necessarily binding on the commissioner but must be weighed with other facts and circumstances. Musselman, 261 Iowa 352, 360, 154 N.W.2d 128, 133. Doctors Blume, Dougherty, and Walston all opine that claimant's ruptured cervical disc relate back to his original April 30, 1978 injury. Each of these physicians was involved in LYNCH V. IOWA TURKEY EXPRESS Page 5 treating claimant for the cervical condition in 1984. None appear to have treated claimant on an ongoing basis from the 1978 injury. Dr. Dougherty diagnosed claimant's condition in July 1979 as a previous cervical ligamentous and muscular impairment, superimposed on an apparent early degenerated disc at C5-6 and questionable slight increased motion at 6/7 with possible discogenic pain. He did not then feel myeolgraphic studies or surgery were necessary. We have no lay information as to what claimant's activities were from 1978 through 1984. The medical records in evidence do not demonstrate that Doctors Blume, Dougherty, or Walston questioned claimant as to his activities in that period or even considered possible intervening activities in opining that claimant's cervical condition in 1984 related back to his April 1978 injury. Without such, we do not accept their opinions regarding a causal relationship between the April 1978 work injury and claimant's 1984 cervical disc herniations. Hence, claimant has not carried his burden of showing the requisite causal relationship. We note, however, that even had claimant proved the causation issue, his care after November 20, 1984 was nonauthorized as evidenced in the insurer's letter to his counsel of that date. As care rendered was also of a nonemergency nature, claimant would not be entitled to payment for such care. As regards the section 85.22 issue, section 85.22 through subsection (1), Code of Iowa 1977, provides: When an employee receives an injury or incurs an occupational disease for which compensation is. payable under this chapter, chapter 85A, and which injury or occupational disease is caused under circumstances creating a legal liability against some person, other than his employer or any employee of such employer as provided in section 85.20 to pay damages, the employee, or his dependent, or the trustee of such dependent, may take proceedings against his employer for compensation, and the employee or, in case of death, his legal representative may also maintain an action against such third party for damages. When an injured employee or his legal representative brings an action against such third party, a copy of the original notice shall be served upon the employer by the plaintiff, not less than ten days before the trial of the case, but a failure to give such notice shall not prejudice the rights of the employer, and the following rights and duties shall ensue: 1. If compensation is paid the employee or dependent or the trustee of such dependent under this chapter, the employer by whom the same was paid, or his insurer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made, with legal interest, except for such attorney fees as may be allowed, by the district court, to the injured employee's or his personal representative's attorney, and shall have a lien on the claim for such recovery and the judgment thereon for the compensation for which he is liable. In order to continue and LYNCH V. IOWA TURKEY EXPRESS Page 6 preserve the lien, the employer or insurer shall, within thirty days after receiving notice of such suit from the employee, file, in the office of the clerk of the court where the action is brought, notice of the lien. Defendants would appear to have a lien against claimant's recovery from the third party Spick, provided defendants properly perfected their lien as provided in subsection 1 of section 85.22. No evidence of such perfection through notice to the clerk of court was provided. Hence, claimant's payment of the recovery amount cannot be ordered. If defendants did perfect their lien, the parties are encouraged to work together to resolve this matter. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant sustained an injury which arose out of and in the course of his employment on April 30, 1978 when tho tractor-trailer he was driving was involved in a motor vehicle accident with a car driven by Fred Spick. Claimant's injuries in that accident were diagnosed as of May 23, 1978 as a bruised leg and cervical myositis. As of July 3, 1979, Dr. Dougherty diagnosed claimant as having a previous cervical ligamentous and muscle sprain, superimposed on an apparent early degenerated disc at C5-6 and questionable slight increased motion at 6/8 with possible discogenic pain. As of September 24, 1979, Dr. Dougherty did not believe either myelographic studies or surgery was necessary. Claimant apparently did not seek further medical care for his cervical condition until Fall 1984. Claimant's medical histories do not reveal his work or life activities from September 1979 through October 1984. Other evidence in the record does not reveal claimant's life or work activities from September 1979 through October 1984. Life or work activities other than claimant's April 1978 motor vehicle accident could have produced claimant's herniated cervical discs. Claimant received a recovery of $9,000 in a third party action against Fred Spick. Defendants did not demonstrate they perfected their lien against that recovery as provided in section 85.22(l). CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: LYNCH V. IOWA TURKEY EXPRESS Page 7 Claimant is not entitled to payment of medical costs incurred on account of treatment of his cervical disc herniations diagnosed in October 1984. Defendants have not demonstrated entitlement to a lien against the proceeds in claimant's third party action against Mr. Spick. ORDER THEREFORE, IT IS ORDERED: Claimant taken nothing further from this proceeding. Claimant pay costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 17th day of July, 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steve Hamilton LYNCH V. IOWA TURKEY EXPRESS Page 8 Attorney at Law P.O. Box 188 606 Ontario Street Storm Lake, Iowa 50588 Mr. E. S. Bikakis Attorney at Law 340 Insurance Centre 507 7th Street Sioux City, Iowa 51101 1108.50; 2500; 3400 Filed 7-17-87 Helen Jean Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MARK LYNCH, Claimant, File No. 496574 VS. D E C I S I 0 N IOWA TURKEY EXPRESS, 0 N Employer, M E D I C A L and B E N E F I T S AID INSURANCE COMPANY Insurance Carrier, Defendants. _________________________________________________________________ 1108.50; 2500; 3400 Claimant failed to establish causal connection between April 30, 1978 work-related auto accident and need for cervical surgery in 1984. Second defendants would have had subrogation rights relative to claimant's third party settlement but for the fact that defendants had not demonstrated they had perfected their lien against the third party recovery as provided in section 85.22(l).