BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAWRENCE SLECHTA, File Nos.660956 Claimant, 746674 VS. R E V I E W - IOWA BEEF PROCESSORS, INC. R E 0 P E.N I N G Employer, D E C I S I 0 N Self-Insured, Defendant. STATEMENT OF THE CASE These are proceedings in review-reopening brought by Lawrence Slechta, claimant, against Iowa Beef Processors, Inc., self-insured employer, to recover additional benefits under the Iowa Workers' Compensation Act as a result of injuries sustained on January 20, 1981 and December 9, 1981. These matters came on for hearing before the undersigned deputy industrial commissioner on September 1, 1988, and the record was considered fully submitted at the close of the hearing. The record in these cases consists of the testimony of claimant, his wife, Lorraine, and John Kolln; claimant's exhibit's 1 through 3, inclusive; and defendant's exhibits A through E, inclusive. ISSUES The industrial commissioner's file in case No.660956 reveals a memorandum of agreement was filed on February 23, 1981, showing claimant sustained an injury arising out of and in the course of his employment on January 20, 1981, that claimant was paid healing period benefits for a period of 35 weeks totaling $7,813.34 and permanent partial disability benefits totaling $5,558.25 for a 10 percent permanent partial disability to the left arm. Claimant now seeks additional permanent partial disability benefits as a result of this injury. The parties have stipulated claimant's disability as a result of the injury is limited to the left upper extremity.. The industrial commissioner's file in case No.746674 reveals a memorandum of agreement was filed on November 3, 1983, showing claimant sustained an injury arising out of and in the course of his employment on December 9, 1981, that claimant was paid healing period benefits for the period of 16 weeks totaling $3,603.20 and permanent partial disability benefits totaling $8,445.00 for a 15 percent permanent partial disability to the right arm. Claimant now seeks additional permanent partial disability benefits and asserts that his injury extends SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 2 into the shoulder and is thus a body as a whole injury entitling him to a determination of industrial disability. Defendant asserts claimant failed to provide statutory notice of the alleged shoulder injury and that such claim is barred pursuant to Iowa Code sections 85.23 and 85.26. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of his employment on January 20, 1981 to his left upper extremity and, under a memorandum of agreement was paid permanent partial disability benefits for 25 weeks for a 10 percent permanent partial impairment to the left arm. Claimant underwent a carpal tunnel release on February 27, 1981 and was off work for approximately three months. Claimant sustained an injury arising out of and in the course of his employment on December 9, 1981, and under a memorandum of agreement was paid permanent partial disability benefits for 37.5 weeks for a 15 percent permanent partial impairment to the right arm. In December 1981, claimant underwent a re-release of the left carpal tunnel, a release of the right carpal tunnel and an injection of cortisone in the left cubital tunnel. Claimant testified that after this procedure in December 1981, he never got any better and that when he returned to work in the air-knife room he was still hurting. Claimant stated that in 1983, he "could not hardly hold on to the air-knife" and that it was at this time claimant went to the doctor and never returned to work for defendant employer, asserting that when he advised the company he could not do the knife job anymore the personnel manager told him it "looks like you're done." Claimant stated that he could not feel his hands when he was working and that the pain on the right side extended into his shoulder. Claimant testified he "did not do anything" for eighteen months, then secured employment at Wendt Trucking as a mechanic and part-time gravel truck driver and then secured his current employment at John Magnum Truck Service where he is a mechanic. Claimant explained that "a lot of the time" he cannot loosen bolts, cannot torque bolts, and that he has no strength in his arms. Claimant explained he believes he is getting worse, that on the left he experiences pain from the wrist to the elbow, that on the right his shoulder hurts from sitting, and that his fingers on both hands "tingle." Claimant stated he experiences problems every day with his arms, that he has constant pain throughout the day, and that he has a difficult time sleeping. Claimant denied sustaining any injuries since his employment with defendant and maintained that he continues to use wrist splints. On cross-examination, claimant denied ever telling anyone he was leaving his employment with defendant employer because he wanted to collect his "long-term profit sharing." Claimant acknowledged his employment at Wendt and later at Magnum made SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 3 his problems worse and that since he has worked at Magnum there has been a loss of strength in his arms. Claimant stated he lives on a farm with horses and that he raises dogs professionally, and revealed that he engaged in cattle roping in the rodeo from 1983 through 1987. Claimant revealed he did this primarily with his right hand, that the cattle weighed between 300 and 400 pounds, and that in the last year his condition deteriorated so much that he could not rope anymore. Claimant testified he operates a manual transmission tractor and that he uses a chain saw to cut wood to burn for heat (although he at times must rest while doing this work). Claimant could not state with any certainty specifically when the problems with his right shoulder began. Lorraine Slechta, who identified herself as claimant's wife, testified that she first observed claimant had problems with his arms and wrists in 1980 or 1981, that claimant's condition has gotten worse since that time, and that he complains of pain every day and sleeps with his arms over the bed. Mrs. Slechta stated that claimant cannot run a weed eater, mows only for a little while, and may run a chain saw for a short time although she was unable to recall when claimant last was able to run it all the time. John Kolln, who identified himself as engaging in self-employment at Magnum Trucking, testified he was aware of claimant's physical condition with regard to his arms, wrists and hands at the time he first employed claimant and that he agreed claimant could work as he was able. Mr. Kolln described claimant as conscientious and honest and performs his work "good" although at times claimant is "short with things." Mr. Kolln stated he has at times observed claimant's discomfort "maybe every couple of days" and that claimant "quite often" wears wrist splints. Mr. Kolin opined that claimant "catches on fairly quickly" and could probably overhaul a diesel engine by himself. Medical records reveal claimant was examined on September 2, 1983 by John J. Dougherty, M.D., with claimant complaining of pain in both arms. Dr. Dougherty reported: The patient had his first carpal tunnel release by Doctor Fitzgibbon in Omaha, Nebraska, this was prior to the first time I saw him which was 7-21-81. Since then apparently he has had surgery on both carpal tunnels. His most recent operation was on the left by Doctor Crabb in Denison, Iowa, in January of '83. .... He last worked two and a half weeks in August in the knife room but he could not take it. His arms hurt, he says he cannot mow the yard without his arms feeling like they are going to fall off. SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 4 His left little finger aches all the time and he says this also bothers him around the elbow. His right arm aches constantly. He said he tried carrying three cantaloups the other day and his arm ached constantly. His right shoulder bothers him some and he describes this as in the medial aspect of the right scapula. While riding up here his neck got tired and he ached all over and the longer he sits the worse it gets. (Employer's Exhibit A, Pages 1-2) Dr. Dougherty concluded: This patient certainly appears to have a lot of complaints and certainly are not well founded. He certainly has been seen by enough doctors and has had a myelogram. He has had several EMG'S. I do not know the result of the apparent most recent EMG's taken about one month ago. We did have Doctor Nitz do an EMG when I first saw him and it was compatible with bilateral carpal tunnel syndromes. It does appear that he has atrophy of both thenar muculatures, the right is more than that of the left. The question has been raised whether he might have a Raynaud's phenomenon or not. He certainly has a negative Allen sign at this time. It is interesting he is complaining now of his right shoulder more and before it was his left shoulder, when I saw him with questionable mild adhesive capsulitis. He had no definite trigger points that could be injected according to Doctor Palmer. He does not seem to demonstrate any atrophy or fasciculations in his upper extremities and his two arms are the same size. He does present somewhat of a peculiar facies and I am not sure exactly what this means. He does have an increased kyphosis in his back and a little "S" shaped scoliosis which I think could conceivably contribute to some of the periscapular problems he is complaining of. Overall in attempting to assess-the disability on this patient, it is hard to conceive that he is having all the problems he has unless he has some underlying systemic problems that it certainly does not seem to have presented itself and no one has made any such diagnosis. It would be my opinion without knowing the results of the last EMG'S, that apparently I would think he would be entitled to about 15 percent permanent partial disability of his right upper extremity and SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 5 about 10 percent of his left upper extremity. He was hard to evaluate and I think so much of the problem is subjective complaints, that it is hard to actually put a definite figure on this. (Emp. Ex. A, p. 2) On December 30, 1987, some four years later, Dr. Dougherty concluded: [I]n reviewing my records on this patient, it appears that the findings and complaints are just about the same as they were in 1983. He presented today with markedly callused hands, doesn't seem to have any atrophy and he appears to be a muscular individual. I'm not sure he is having all that much difficulty. I wouldn't have anything else to suggest as far as further treatment at this point in time, short of repeating an EMG of both upper extremities. Patient interestingly enough, apparently only has an eighth grade education. I would be interested in knowing what the University of Iowa's thoughts were. I would also like to know what the EMG showed. Certainly doesn't appear to me that this patient is having enough trouble to warrant any further surgery. It appears to me his complaints are just about the same as they were before. As I mentioned, it would be interesting to know what, if any, reports you might have gotton [sic] from the University of Iowa and what the tests they did run showed. As far as any permanent disability, I think he still demonstrates the atrophy bilaterally of the thumb and the thenar muscles. I would feel his disability is 'just about what I have him before; namely 10% left upper extremity, 15 of the right. (Emp. Ex. B (pp. 1-2) In late 1982, claimant was referred to Dwight W. Burney, Jr., M.D., when claimant complained that: [A]fter he works about 2 hours, he begins to get soreness in the upper back, just below the neck and this wail gradually extend to the right shoulder blade, right arm and forearm. He has also had some aching in the right middle finger at times. Also, he has had tingling of the left hand which persists SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 6 and occasionally will awaken at night with pain in the left elbow. (Claimant's Exhibit 2) Dr. Burney noted that outpatient physical therapy did not seem to be helpful to claimant and therefore recommended: "I think we should continue to try to get relief of the symptoms by cervical traction and we have advised that he have a cervical halter and have recumbent cervical traction at home with 7-8# weight, using it for 30 minutes at a time, as often as feasible." (Cl. Ex. 2) Claimant was admitted to Bishop Clarkson Memorial Hospital in December 1982 for "management of back pain in the posterior cervical and upper thoracic regions" and seen by Michael Boharski, M.D., and William R. Palmer, M.D., in consultation. Drs. Boharski and Palmer recorded their impressions as: 1. History of bilateral carpal tunnel status post release with left thenar eminence atrophy. 2. Left medial epicondylitis. 3. Neck discomfort of unclear etiology. X-rays and myelogram appear to rule out any significant cord or spinal abnormality. The pain is not consistently reproduceable (sic] which would indicate specific structural or mechanical lesion, for instance in a ligament or an infraspinatus bursitis. I suspect this is musculoskeletal in nature but again, no clear etiology. (Cl. Ex. 1) Claimant did not return for any follow-up care with either physician. Claimant was evaluated in June 1983 by Harold A. Ladwig, M.D., of Omaha Neurological Clinic. At that time, Dr. Ladwig recorded his impressions as: The patient's history has been that of carpal-tunnel involvement of both upper extremities. Currently he is continuing to have symptoms referrable [sic] to both upper extremities in the region of his hands and in the region of his right shoulder area. It is conceivable that he may have some residual involvement of the median nerve at the wrist. One should also rule out any cervical radiculopathy. He has been shown to have some pathology of the left ulnar nerve at the elbow. SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 7 EMG studies have been requested in order to evaluate his current symptomatology. His EMG was interpreted as follows: There is evidence of continued delay in the distal latency of the right median nerve indicative of pathology at the carpal-tunnel. (Cl. Ex. 2, Item 12) The record does not show claimant saw Dr. Ladwig after June 23, 1983. Claimant was seen in the neurology outpatient clinic on September 4, 1985 by Neill Graff-Radford, M.D. Dr. Graff-Radford reported: "l) Bilateral carpal tunnel syndrome right greater than left. 2) Compression of the left ulnar nerve at the elbow. 3) Myofacial (sic] pain syndrome involving the neck and right shoulder. (Cl. Ex. 1, item 3) The diagnosis rendered was: As you know, Mr.Slechta is a 45 year old man from Denison, Iowa. He presented at the Neurology Clinic with pain in his neck which radiated into the right shoulder as well as pain in both hands. Mr. Slechta previously worked at Iowa Beef Packers and used his hands extensively. He had EMG's consistent with left median nerve compression of carpal tunnel in 1981. He had left carpal tunnel surgery in February of 1981 with no relief of his symptoms. In December of that year he had EMG's done which were again consistent with entrapment at the left wrist and also on the right. He also had significant slowing of the ulnar nerve across the cubital tunnel. He underwent carpal tunnel surgery on the right and additional surgery on the left. He has continued to have problems with swelling in his hands. He also complains of numbness in the right and left ring fingers as well as long fingers. He also complains of numbness in the 5th digit of the left hand at night. Since 1983 he has had problems with posterior neck pain at approximately the C7 level which radiates into the right shoulder. This is brought on by any activity especially using his hands and sitting for prolonged periods. He had C-spine x-ray films in 1981 and 1984 which were normal. He also had a myelogram in December of 1983 which was also normal. He has tried physical therapy and has been to a chiropractor without relief. He is currently taking Clineril and has tried various nonsteroidal anti-inflammatories without relief. The only treatment which he has benefited from was a steroid injection which provided relief from pain for six weeks. SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 8 On physical exam he had slight decrease in lateral flexion bilaterally in the neck, otherwise he had good range of motion in the neck. He had a tender trigger point just lateral to the C7 vertebrae in the trapezius muscle. There was no pain to percussion over the cervical spine. He had thenar wasting bilaterally which was greater on the right than on the left. He had decreased adduction in opposition strength in both thumbs. There was no interosseous wasting. He had a positive Tinel's sign at the median nerve and both wrists and also the left ulnar nerve at the elbow. EMG's were done which confirmed symptoms of bilateral carpal tunnel syndrome right greater than left and left ulnar nerve entrapment at the elbow. Other laboratory studies included a normal CBC, sedimentation rate, 2 hour postprandial glucose, T4, TSH and ANA. Cervical spine films were also obtained and these were normal. (Cl. Ex. 1, Item 3) When claimant was seen again at the neurology outpatient clinic on February 24, 1986, Q. S. Dickens, M.D., found: Physical examination was generally unremarkable except for a scar on both hands from previous carpal tunnel release surgery. Neurologic exam revealed intact cranial nerves. There is wasting of the right thenar eminence. Sensory testing revealed decreased pinprick on the ulnar distribution of the right hand. Reflexes were 2+ and symmetric. Toes were downgoing. Coordination and gait were normal. (Cl. Ex. 1, Item 2) and recommended claimant use wrist splints, a TENS unit and the use of an anti-inflammatory agent. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). In Caterpillar Tractor Company v. Mejorado, 410 N.W.2d 675 (Iowa 1987), the supreme court held that an unsigned memorandum of agreement filed by the employer with the industrial commissioner was not the equivalent of a formal settlement agreement or award of compensation following an evidentiary hearing and therefore, it did not have the binding effect of a formal settlement SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 9 agreement or an award of compensation precluding additional compensation. The court held that the memorandum of agreement settled only the employer-employee employment relationship and the fact that the employee's injury arose out of and in the course of his employment. The memorandum of agreement left open for a review-reopening proceeding the extent of an employee's disability. The court went on to hold that an employee seeking additional benefits in a review-reopening proceeding was not required to prove a change of condition since the filing of the memorandum of agreement with the industrial commissioner but only that the increased disability for which no compensation had been paid was proximately caused by the work-related injury. I. File No. 660956 Claimant seeks additional compensation over and above the 35 weeks of healing period and 10 percent permanent partial disability benefits paid pursuant to the memorandum of agreement. As cited above in Mejorado, claimant need not establish a change of condition since the filing of the memorandum of agreement but must submit proof of disability for which no compensation was paid that is proximately caused by the work injury. The parties have agreed that this injury is limited to claimant's upper left extremity and that the only issue for determination is whether claimant has shown an entitlement to additional permanent partial disability benefits. A thorough examination of all of the evidence presented reveals that there are only two impairment ratings presented relative to the upper left extremity, both of which were provided by Dr. Dougherty. In September 1983, Dr. Dougherty opined that claimant had a 10 percent "permanent partial disability" of the upper left extremity. This opinion did not change when Dr. Dougherty rendered a subsequent opinion in January of 1987. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). Claimant's scheduled disability is thus evaluated by the functional method. Claimant has failed to show he has any SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 10 increased functional disability proximately caused by the injury of January 20, 1981, and therefore shall take nothing further as a result of these proceedings. II. File No. 746674 With regard to this injury, defendant argues that since claimant made no allegation in his petition that the injury to the right upper extremity extended into the shoulder and into the body as a whole claimant cannot now assert such an allegation and, further, that claimant's claim for benefits stemming ' from a right shoulder injury is barred under Iowa Code sections 85.23 and 85.26. It is clear claimant sustained an injury arising out of and in the course of his employment on December 9, 1981, and gave the employer notice of that injury. Statutory requirements dictate claimant must give notice of "an" injury. Claimant clearly has met this requirement. See also Yeager v. Firestone Tire & Rubber Company, 253 Iowa 369, 112 N.W.2d 299 (1961); Robinson v. Department of Transp ., 296 N.W.2d 809 (Iowa 1980); Knipe v. Skelgas Co., 229 Iowa 740, 294 N.W. 880 (1941). Defendant's argument must fail. The primary issue for resolution in this matter is whether claimant's disability extends into the body as a whole or is limited to the upper extremity. If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, (1964). As in the case before, claimant need not establish a change of condition since the filing of the memo but only that he suffers from disability proximately caused by the injury for which no compensation was paid. Mejorado., 410 N.W.2d 675. In 1987, Dr. Dougherty reported that claimant was in essentially the same condition he was in in 1983 and reiterated his opinion that claimant has a permanent partial disability of 15 percent of the upper right extremity. When claimant was seen at Bishop Clarkson Memorial Hospital in December 1982, claimant's neck discomfort was found to be of unclear etiology. Dr. Flood in December of 1983, although mentioning claimant's shoulder, refers directly to the upper extremity. Cervical spine films obtained in October 1985 by Dr. Graff-Radford were normal and no causal connection between claimant's pain syndrome involving the neck and right shoulder and his injury of December 9, 1981 was made. In short, the undersigned must conclude that the greater weight of medical evidence fails to support claimant's contention that his injury extends from the scheduled member into the SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 11 body as a whole. Claimant has failed to establish the requisite causal connection. Therefore, pursuant to Simbro, 332 N.W.2d 886, 887, claimant's disability is evaluated by the functional method. See also Martin, 252 Iowa 128, 133, 106 N.W.2d 95, 98, and Graves, 331 N.W.2d 116. The record shows claimant has received compensation benefits on the basis of 15 percent of the upper right extremity. The greater weight of medical evidence fails to show claimant has any further functional impairment and therefore claimant shall take nothing further as a result of these proceedings. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury on January 20, 1981 which arose out of and in the course of his employment and which affected his left upper extremity. 2. Pursuant to a memorandum of agreement, claimant was paid permanent partial disability benefits based on a 10 percent permanent partial disability to the left arm as a result of the injury of January 20, 1981. 3. In September of 1983, John J. Dougherty, M.D., opined that claimant had a 10 percent permanent partial disability of the upper left extremity and this opinion did not change when Dr. Dougherty rendered a subsequent opinion in January of 1987. 4. Claimant has no further functional disability which has been shown to be causally connected to the injury of January 20, 1981. 5. Claimant sustained an injury on December 9, 1981 which arose out of and in the course of his employment. 6. Pursuant to a memorandum of agreement, claimant was paid permanent partial disability benefits on the basis of sustaining a 15 percent permanent partial disability to the right upper extremity as a result of the injury of December 9, 1981. 7. Claimant's injury of December 9, 1981 is a scheduled injury and does not extend into the body as a whole. . 8. Claimant has no further functional disability which is causally connected to the injury of December 9, 1981. SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 12 CONCLUSION OF LAW Therefore,.based on the principles of law previously stated, the following conclusion of law is made: Claimant has failed to show an entitlement to any additional permanent partial disability benefits with regard to the work injuries of January 20, 1981 and December 9, 1981, as claimant has failed to show he sustained any further functional disability causally connected to either injury. ORDER THEREFORE, it is ordered: Claimant shall take nothing further as a result of these proceedings. Paragraph 9 of the hearing assignment order filed in this matter on March 24, 1988 provides: Requirements for Hearing Exhibits. All depositions, discovery materials and medical records or reports which are to be considered by the hearing deputy shall be marked before the hearing and offered as an exhibit at the hearing. No highlighting or underlining of written material shall be permitted. All exhibits, especially medical records and reports, shall be organized by author in chronological form or in such other rational manner. Each page of an exhibit shall be consecutively numbered. Medical and non-medical materials shall not be included in the same exhibit. (Emphasis added.) Pursuant to Division of Industrial Services Rule 343-4.36, costs are assessed against claimant for failure to comply with that provision of the hearing assignment order. Signed and filed this 26th day of September, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER SLECHTA V. IOWA BEEF PROCESSORS, INC. Page 13 Copies to: Mr. Gregory J.-Siemann Attorney at Law 801 North Adams Carroll, IA 51401 Mr. Marlon D. Mormann Attorney at Law P.O. Box 515 Mail #41 Dakota City, NE 68731 5-2403 Filed September 26, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER LAWRENCE SLECHTA, File Nos. 660956 Claimant, 746674 VS. R E V I E W - IOWA BEEF PROCESSORS, INC., R E 0 P E N I N G Employer, D E C I S I 0 N Self-Insured, Defendant. 5-2403 Claimant was paid benefits for injuries under a memorandum of agreement. Claimant failed to show any further disability causally connected to the injury and therefore took nothing from the proceeding. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROY CHAMBERLIN, Claimant, VS. File No. 661698 RALSTON PURINA, A P P E A L Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from a review-reopening decision awarding permanent total disability benefits for the period of his disability. The record on appeal consists of the transcript of the review-reopening hearing and joint exhibits 1 through 20. A ruling by the industrial commissioner filed April 30, 1986 orders that appellant's untimely brief will not receive consideration. ISSUE In accordance with the industrial commissioner's ruling, this appeal will be considered generally without any specified errors to determine its compliance with the law. REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Briefly stated, claimant injured his left shoulder on November 7, 1979 when he slipped and fell while attempting to empty a trash buggy. Claimant's primary treating physician for this injury has been Dennis L. Miller, M.D. Dr. Miller summarizes his course of treatment in a January 1982 letter: I first saw Mr. Chamberlin in March of 1980 at which time he had very limited motion of his shoulder and had considerable discomfort with generalized tenderness. I felt that he had done damage to his rotator cuff and had chronic scarring and inflammation. After a wide variety of conservative care without CHAMBERLIN V. RALSTON PURINA Page 2 significant improvement, on February 12, 1981, a partial acromionectomy and advancement and repair of the rotator cuff of the left shoulder was performed. He had considerable degeneration and tearing of the cuff. He made a satisfactory post op recovery without complication but has persisted in having pain in his shoulder with considerable limitation of motion. As you know he returned to work on July 28, 1981 on a light duty job and has continued on that. (Joint Exhibit 6) With respect to permanent impairment Dr. Miller opines: "Mr. Chamberlin has 33% impairment of his left upper extremity as indicated in my letter of November 9, 1982. This is equivalent to 20% impairment of the body as a whole." (Joint Ex. 10) Dr. Miller restricts claimant to light duty work with no lifting over 25 pounds. Dr. Miller notes that O[i]n addition to the left shoulder, [claimant] has a problem with his right hand with old amputations of all of the digits except his thumb." See Joint exhibit 18. Dr. Miller opines: Because of the combination of the extremely limited function of his right hand due to previous amputations and both pain and severe limitation of range of motion of the left shoulder, I think it is true that this man is permanently disabled from doing gainful employment. I think the condition of the left shoulder is permanent and do not think there is any significant treatment for it. I think he did sustain a repeat tear of his rotator cuff some 4 months after the initial repair. Mr. Chamberlin does take oral anti-inflammatory agents and oral analgesic agents in an effort to reduce his discomfort and pain. Joint Ex. 18) Dr. Miller referred claimant to the orthopaedic department at the University of Iowa Hospitals for a second opinion. Dr. Miller reports that they offered arthroscopic examination of the shoulder to break up adhesions. However, Dr. Miller states that he,is pessimistic about the success of that procedure. Claimant was examined by C. L. Peterson, D.O., on March 13, 1984. Dr. Peterson states his diagnosis as: 1) Degenerative rotator cuff muscles left shoulder; 2) Adhesive capsulitis left shoulder. See Joint exhibit 20. He opines that claimant is totally disabled for any work and does not recommend vocational counseling. He does not expect claimant's condition to change. See Joint exhibit 20. Claimant testified that he is 52 years old with a tenth grade education. Claimant states that he has worked for CHAMBERLIN V. RALSTON PURINA Page 3 defendant Ralston since 1956. Claimant discloses he has not looked for work since he left Ralston. He states that with his pain and limited mobility he does not feel he could handle a job. Claimant testified that he was terminated by Ralston in October 1983 and that the personnel manager told him to apply for total disability. APPLICABLE LAW The supreme court in Caterpillar Tractor Company v. Mejorado, 410 N.W.2d 675 (Iowa 1987) upheld the commissioner's interpretation of Iowa Code sections 86.13 and 86.14(2) stating: In summary, the memorandum of agreement settled only (1) the Caterpillar-Mejorado employment relationship and (2) the fact that Mejorado's injury arose out of and in the course of his employment. Teel v. McCord, 394 N.W.2d 405, 406 n. 1 (Iowa 1986); Beier Glass Co. v. Brundige, 329 N.W.2d 280, 286 (Iowa 1983). Mejorado was not required to prove a change in his condition after filing of the memorandum of agreement, but he was required to prove that increased disability for which no compensation had been paid was proximately caused by the injury. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 352 (Iowa 1980); Langford v. Kellar Excavating & Grading, Inc., 191 N.W.2d 667, 670 (Iowa 1971). Id. at 679. ANALYSIS Contrary to defendants' argument at the hearing, claimant's burden is to establish increased disability proximately caused by his injury for which no compensation has been paid. See Mejorado. The evidence presented by claimant concerning the extent of his disability is undisputed. Claimant is 52 years old with limited education, no special training and work experience involving only manual labor. Claimant's treating physician opines that claimant has 20 percent permanent partial impairment to the body as a whole. Dr. Peterson opines that claimant is totally disabled. Both Drs. Miller and Peterson testified as to claimant's industrial disability. In that regard their testimony is rejected. Only their testimony regarding impairment is considered in this opinion. Ralston has not offered claimant any light duty work and according to claimant has suggested that he apply for total disability. Claimant admits he may be able to perform some light duty work. This does not preclude a finding that he is permanently totally disabled. See Eastman v. Westway Trading Corporation, I Iowa Industrial Commissioner Report 134 (Appeal Decision 1982). Claimant does not need to prove that his physical impairment is 100 percent to prove he is permanently totally disabled. See Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935). The uncontroverted evidence presented establishes that claimant is permanently totally disabled. CHAMBERLIN V. RALSTON PURINA Page 4 The holding in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985) is not applicable. The supreme court in Klein v. Furnas Electric Co., 384 N.W.2d 370 (Iowa 1986) stated: The "odd-lot doctrine," which we approved in Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985), is a procedural device designed to shift the burden of proof with respect to employability to the employer in certain factual situations. We need not determine on the present record whether petitioner's situation fits within the odd-lot doctrine. As we indicated in Armstrong, 382 N.W.2d at 167, claims concerning the applicability of this doctrine must be raised before the industrial commissioner or they will not be considered on judicial review. Id. at 375. At no time throughout this proceeding has claimant raised the issue of applicability of the odd-lot doctrine. FINDINGS OF FACT 1. Claimant was in the employ of Ralston for over 29 1/2 years. 2. Claimant's work history almost entirely consists of employment with Ralston in jobs requiring heavy manual labor with heavy lifting and pushing but not the intricate use of his fingers. 3. In 1966, claimant lost the fingers on his right hand which results in significant physical impairment in the use of his right hand. 4. On November 7, 1979, while performing his work for Ralston, claimant dislocated his left shoulder which eventually resulted in deterioration and tearing off of the rotator cuff and adhesive capsulitis (frozen shoulder). 5. As a result of the work injury of November 1979, claimant underwent a surgical operation termed an acrominonectomy including advancement and repair of the rotator cuff which was not successful in improving claimant's left shoulder condition. 6. The work injury of November 1979 was a cause of 20 percent permanent impairment to claimant's body as a whole. 7. In September 1982, claimant reinjured his left shoulder while at work but the permanent condition of his shoulder was not altered by this incident. 8. As a result of the work injury in November 1979, claimant is now permanently restricted from work involving heavy lifting and pushing or any other work which requires reaching CHAMBERLIN V. RALSTON PURINA Page 5 with his left arm above his shoulder or away from his body or requires twisting movements of the left shoulder or the left side of his torso. 9. Prior to the work injury of November 1979, claimant was able to lift and push heavy objects and he had full use of his left shoulder and arm. 10. After the work injury of November 1979, claimant had difficulty in performing many light duty jobs at Ralston, including sweeping, driving, and dropping coupons but these difficulties stemmed from his shoulder condition, not his right hand impairment. 11. In 1983 Ralston discharged claimant due to the disability caused by the left shoulder condition and recommended that he seek permanent disability benefits as a result of his physical condition. 12. Claimant has suffered a significant loss in actual earnings from the loss of his job at Ralston in 1983. 13. Claimant is 52 years of age, has a tenth grade education, and exhibited below average intelligence at the hearing. 14. Claimant has little potential for successful vocational rehabilitation. 15. Claimant made numerous unsuccessful attempts to return to work at Ralston in light duty jobs but continued to experience shoulder difficulties. 16. Claimant has not sought alternative employment since his termination from Ralston as a result of his reasonable belief that employment is not available to him due to his lack of training and experience in sedentary work and his physical condition. 17. Claimant is permanently totally disabled. 18. Pursuant to the parties' stipulation, claimant's rate of compensation is $208.91 per week. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence that the work injury of November 7, 1979 is a cause of permanent disability. Claimant has established by a preponderance of the evidence entitlement to permanent total disability benefits during the period of his total disability. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: CHAMBERLIN V. RALSTON PURINA Page 6 That defendants shall pay to claimant permanent total disability benefits during the period of his disability at the rate of two hundred eight and 91/100 dollars ($208.91) per week from November 18, 1982. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all weekly benefits previously paid. That defendants shall receive credit for previous payments of benefits under a nonoccupational group insurance plan, if applicable and appropriate under Iowa Code section 85.38(2). That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33 including the transcription of the hearing proceedings. That defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of October, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Lawrence J. Lammers Attorney at Law 701 Kahl Building Davenport, Iowa 52801 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 1302.1-1303-1402.40 1804-4100 Filed October 29, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROY CHAMBERLIN Claimant, VS. File No. 661698 RALSTON PURINA, A P P E A L Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY CO., Insurance Carrier, Defendants. 1302.1 - 1303 - 1402.40 - 1804-4100 The uncontroverted evidence presented established that claimant was permanently totally disabled. As only a memo of agreement was filed previously, claimant did not need to show a change of condition. See Caterpillar Tractor Company v. Mejorado, 410 N.W.2d 675 (Iowa 1987). The holding in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985) was not applicable. At no time did claimant raise an issue of the applicability of the odd-lot doctrine. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MALCOLM A. TAYLOR, Claimant, File Nos. 661860 & 758417 vs A R B I T R A T I O N CATERPILLAR TRACTOR CO., D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Malcolm A. Taylor, claimant, against Caterpillar Tractor Company, employer (hereinafter referred to as CAT), self-insured, defendant, for workers' compensation benefits as a result of alleged injuries on February 10, 1981 and March 29, 1982. On May 4, 1988 a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and his wife Bernice. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report the parties have stipulated to the following matters: 1. On February 10, 1981 claimant received an injury which arose out of and in the course of his employment with CAT; 2. Claimant is entitled to either temporary total disability or healing period benefits from February 10, 1981 through December 30, 1981 as a result of the February 10, 1981 injury. Claimant is claiming temporary total disability and healing period benefits for the period of time extending from March 29, 1982 through April 10, 1982 as a result of an alleged injury on March 29, 1982 and defendant agrees that claimant was off work during this period of time; 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $251.18 for the February 10, 1981 injury and $268.72 for the alleged injury on March 29, 1982; and, 4. With reference to the medical expenses claimant is seeking in this proceeding, the providers of those services would testify as to the reasonableness of their charges and defendant is not offering contrary evidence. TAYLOR V. CATERPILLAR TRACTOR CO. PAGE 2 ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury on March 29, 1982 arising out of and in the course of his employment; II. Whether there is a causal relationship between a work injury and the claimed disability; III. The extent of weekly disability benefits to which claimant is entitled; and, IV. The extent of claimant's entitlement to medical benefits under Iowa Code section 85.27. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant testified that he worked for CAT, from September, 1977 until a general plant wide layoff in June, 1982. He stated that he had first worked on the paint line hanging parts which required repetitive lifting and bending. For approximately one year he worked as a shipping clerk and at the time of the 1981 injury he was a forklift truck operator. The facts surrounding the work injury on February 10, 1981 are not in dispute. Claimant testified that on the date of injury he was ordered by his foreman to assist in removing a canvass covering over a semi truck trailer and in the process was struck in the head by a metal support. Claimant lost consciousness for a period of 20 to 30 minutes and was transported to the plant infirmary under the care of the plant doctor, James Donohue, M.D. Claimant regained consciousness in the infirmary and did not return to work that day. The next day he reported for work but after experiencing dizziness and neck pain he spent most of the day in the infirmary. Five says after the incident he experienced additional dizziness and pain and he reported to the emergency room in a local hospital with additional complaints of nausea and chills. Claimant was diagnosed at that time by his personal physician, V. Warnen Swayze, M.D., as having post-concussion syndrome. X-rays at the time indicated a mild disc narrowing at the C5-6 level of the cervical spine. Dr. Swayze made no specific diagnosis with reference to the back. Claimant was then taken off work by physicians and treated conservatively by Dr. Swayze until March, 1981 for lingering complaints of headache, vertigo and numbness on the left side of the face. Claimant possibly had backaches during this time but Dr. Swayze's office notes were in long hand and the copy submitted by the parties into the evidence was for the most part not legible. On March 27, 1981 claimant was referred by Dr. Swayze to a TAYLOR V. CATERPILLAR TRACTOR CO. PAGE 3 neurosurgeon, Byron Rovine, M.D. Initially, Dr. Rovine stated that claimant's symptoms appear to be the most severe case of post-concussion syndrome that the doctor had ever seen. Claimant was then treated conservatively for the next two months for vague neck pain, light headedness, irritability and visual disturbances. A CT scan of the brain was normal. In May, 1981 the doctor received additional complaints from claimant consisting of hot flashes and nervousness along with increased heart rate. At that time, the doctor began to question the relation of claimant's symptoms to the injury and recommended that Dr. Swayze refer claimant to an internist for future evaluation as to other possible causes of the symptoms. In June, 1981 claimant was evaluated by Edwin Motto, an internist. Dr. Motto concluded after his examination and review of the history that claimant sustained a concussion and a cervical strain from the incident and recommended treatment for the cervical strain and psychometric testing. In August, 1981 claimant was examined by Steven Jarrett, M.D., from the Franciscan Hospital Rehabilitation Center upon complaints of neck and low back pain, dizziness and nausea upon bending and intermittent numbness of all extremities. Dr. Jarrett found that it was difficult to sort out what was going on with claimant and recommended admission for evaluation. Claimant was then admitted for orthopedic and psychological testing to the hospital from September 22, 1981 through October 28, 1981. An orthopedic surgeon, John Sinning, M.D., evaluated claimant on September 29, 1981. Dr. Sinning recommended a physical therapy program to get away from use of the cervical collar." No definite diagnosis was made by Dr. Sinning. Claimant then began a physical therapy program but was considered by the therapist as not cooperative by refusing to perform some of the exercises due to pain complaints and failure to attend sessions. A psychiatrist, P. Campbell, M.D., also evaluated claimant upon a history of inconsistent and contradictory findings and complaints of pain in his head, face, teeth, ears, neck and back and all our extremities along with dizziness and nausea. These symptoms according to claimant became worse with activity and there has been no improvement over the last few months. After examination and psychological testing, Dr. Campbell concluded that claimant had mild psychogenic pain disorder and probably was malingering. Despite the views of Dr. Campbell, the defendant agreed upon claimant's demand that he receive chiropractic adjustments for a period of six weeks. Dr. Sinning had reported that claimant had told him that the chiropractor said that he could cure claimant's back difficulties in six weeks. Claimant then underwent adjustments for cervical, dorsal, lumbar and pelvic "subluxations" from Robert Cunningham, D.C., in the fall and winter of 1981 for the following symptoms: Pins & needles in arms, pins & needles in legs, numbness in fingers, numbness in toes, shortness of breath, fatigue, depression, lights bother eyes, loss of memory, ears ring, buzzing in ears, loss of balance, fainting, diarrhea, feet cold, hands cold, stomach upset, constipation, cold sweats, fever, teeth ache, ears, eyes. After treatment, Dr. Cunningham reported the following as a TAYLOR V. CATERPILLAR TRACTOR CO. PAGE 4 result of his treatment: Remains the same: Headache, neck pain, neck stiff, nervousness, tension, head seems too heavy, pins & needles in legs, feet cold. Improved: Sleeping problems, back pain, irritability, dizziness, pins & needles in arms, numbness in fingers, lights bother eyes, loss of memory, ears ring, stomach upset, constipation, teeth ache, ears, & eyes hurt. Markedly improved or no longer a symptom: Chest pain, numbness in toes, shortness of breath, fatigue, depression, buzzing in ears, loss of balance, fainting, diarrhea, hands cold, cold sweats, fever. Dr. Cunningham in December, 1981 indicated that he needed more time to resolve claimant's complaints. Claimant's benefits and treatment were then ended by defendant based upon the report of Dr. Campbell. Claimant testified that he returned to work on February 7, 1982 upon the release of Dr. Swayze and was placed in a light duty, sedentary job which involved watching a computer screen to 'hook up parts." However, on March 29, 1982, claimant stated that his foreman reassigned him to hang parts on the paint line despite a protest from claimant that he could not physically perform such work. After 20 minutes claimant said that he experienced a recurrence of back pain and temporarily lost consciousness after picking up 50 pounds of parts in each hand. He said that the "lights went.out" and he next then recalls someone talking to him. Again, claimant was taken to the infirmary and received ice packs on his back. Dr. Swayze referred claimant at that time neurologist, Lynn Kramer, M.D. Dr. Kramer found that claimant had no gross neurological deficits but indicated that sometimes post-concussion syndrome does persist but is mostly depression. Dr. Kramer prescribed antidepressant medication called Elavil. X-rays at the time indicated a narrowing of the intervertebral interspace at L4-5 in claimant's low back probably due to degeneration. Neither Dr. Kramer nor Dr. Swayze made any specific diagnoses with relation to this x-ray report. Dr. Kramer recommended that claimant remain off for two weeks following this episode. Claimant was off work then from March 29, 1982 through April 10, 1982. Subsequently, claimant worked for CAT until his layoff in June, 1982. Claimant said that he received, on a daily basis, ice packs and pills from the plant nurse between April and June, 1982. After leaving CAT, claimant worked as a boiler tender and assistant to a millwright for a period of time. He explained that he had to lift pipes in this work and such activity resulted in recurrence of back pain for which he received treatment from the Veterans Administrative Hospital in July, 1983. Claimant then worked as a shipping clerk for a few months and also for a company called Litco installing insulation and performing some touch-up painting and sweeping duties. In May, 1985 claimant relocated to the State of Michigan and now works as a foreman at a wage of $9.00 per hour. Claimant said that this job is sedentary and does not actually involve heavy physical work. At hearing claimant stated that he continues to have dizzy spells, muscle spasms in the back, lower back pain, a lot of neck TAYLOR V. CATERPILLAR TRACTOR CO. PAGE 5 pain, tiredness, inability to lift over 5 pounds and trouble with prolonged sitting and standing. Claimant last received medical treatment in May of 1985 and stated that he is not currently taking any medication. He also has complaints of memory and hearing loss. He further states that he has vision problems with his left eye but admits that the problem is insignificant because he lost most of the sight in his left eye from a BB gun accident when he was 11 years old. Claimant's wife testified that none of these complaints predated the February, 1981 injury. A "disability certificate" dated February 24, 1982 from Dr. Swayze states that claimant was incapacitated under the doctor's care from February 10, 1981 through March 24, 1982 and "partial disability" from March 25, 1982 through June 24, 1982. At the bottom of this certificate Dr. Swayze added the words "NO LIFTING." There is no further explanation of this disability certificate in the record. Claimant's testimony during the hearing was inconsistent and his demeanor failed to give an impression that he was candid and truthful. Claimant stated at hearing that his confused state of mind and loss of memory is the result of the work injury in this case. APPLICABLE LAW AND ANALYSIS I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active of dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited herein. In the case sub judice, claimant asserts that he received a second aggravation injury on March 29, 1982. Despite his lack of credibility, the fact that he was lifting in excess of the restrictions imposed by Dr. Swayze appears to be uncontroverted in the record. Dr. Kramer's views support claimant's contention that it was work related as a lingering post-concussion syndrome. Consequently, a work injury in the form of an aggravation of the prior injury will be found. II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1960); TAYLOR V. CATERPILLAR TRACTOR CO. PAGE 6 McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to snow causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). TAYLOR V. CATERPILLAR TRACTOR CO. PAGE 7 In the case at bar, the preponderance of the evidence demonstrates that claimant has some sort of continuing problems with his head, neck and back but there is little support in the record for claimant's contentions that these conditions are worked related. Claimant simply has no physician that backs up his claims. Defendant relies on the views of Dr. Campbell and later Dr. Rovine that claimant has no organic problems stemming from the 1981 injury. Dr. Campbell finds that claimant is actually malingering. Claimant appears to rely on the views of Dr. Swayze but Dr. Swayze's views are unclear. Dr. Swayze's disability certificate ends partial disability in June of 1982 and imposes no further restrictions. Admittedly, he has the words "no lifting" on the certificate but there is no explanation as to whether this was a temporary or permanent restriction. Dr. Kramer only prescribes anti-depressant medication. The VA Hospital notes indicate only a degenerative disc problem and fails to identity any cause for this problem. No physician has rated claimant's permanent impairment or opined that any impairment was due to the 1981 or 1982 injuries. Claimant's chiropractor refused to give claimant a rating because he disagreed with Dr. Swayze' views that claimant should return to work. We are essentially left with only claimant's views that all of the many and varied problems that he experiences are due to his work at CAT. As indicated previously, claimant's testimony was highly conflicting and confusing and for that reason could not be given much weight. However, claimant is entitled to temporary total disability benefits for the injury of May 29, 1982 given the views of Dr. Kramer that he should be off for two weeks. The parties stipulated that claimant was off work for this period of time and temporary total disability benefits will be awarded accordingly. II. Pursuant to Iowa Code section 85.27 claimant is entitled to the expenses for reasonable medical treatment of a work injury. However, claimant is entitled to an order of reimbursement only for those expenses which he has actually previously paid. Krohn v. State, 420 N.W.2d 463 (Iowa 1988). The record shows that defendant authorized six weeks of chiropractic treatment which would have ended on Saturday, December 5, 1981. Charges for treatment up to that point in time was $420 and given the parties' stipulation, this amount is found to be reasonable. Charges by the chiropractor after that time including medical mileage expenses to that treatment were not authorized and cannot be awarded. Defendant has admitted to liability for the February, 1981 work injury and had the right to choose the care under Iowa Code section 85.27. Due to the findings of a work injury on March 29, 1982, claimant is entitled to treatment for this injury from Dr. Swayze and Dr. Kramer. These expenses shall be ordered paid as set forth below. FINDINGS OF FACT 1. On March 29, 1982 claimant suffered an injury in the form of an aggravation of a post-concussion syndrome which arose out of and in the course of employment with CAT. TAYLOR V. CATERPILLAR TRACTOR CO. PAGE 8 2. As stipulated, claimant received a work injury on February 10, 1981 consisting of a brain concussion with post-concussion syndrome resulting in dizziness, headache, nausea and upper and lower back strain. 3. As stipulated, as a result of the February 10, 1981 injury, claimant was off work for treatment of this work injury until December 30, 1981 at which time he reached maximum healing. 4. The work injury of March 29, 1982 was a cause of a period of disability from work beginning on March 29, 1982 through April 10, 1982 at which time claimant returned to work. 5. The medical expenses listed below in paragraph two of the order section of this decision, which were a portion of the requested expenses in the prehearing report, are fair and reasonable and were incurred for claimant's reasonable and necessary treatment of his work injuries herein. Claimant failed to show that the injuries of February 10, 1981 and/or March 29, 1982 were a cause of permanent impairment or disability. Although claimant has lingering problems, insufficient evidence exists to support the claim that these symptoms are related to either work injury in this case. Claimant was not found to be credible due to confusing and conflicting testimony and his demeanor at hearing. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to the temporary total disability and medical benefits as awarded below. ORDER 1. Defendant shall pay to claimant temporary total disability benefits from March 29, 1982 through April 10, 1982 at the rate of two hundred sixty-eight and 72/100 dollars ($268.72) per week. 2. Defendant shall pay to claimant the following medical expenses: Muscatine General Hospital $111.00 Lynn Krame, M.D. 110.00 V. Warnen Swayze, M.D. 17.00 These payments shall be made directly to the medical provider unless they have been previously paid by claimant in which case the payment shall be made directly to the claimant. 3. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 4. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. TAYLOR V. CATERPILLAR TRACTOR CO. PAGE 9 6. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 31st day of August, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert H. DeKock Attorney at Law Suite 103, Hotel Muscatine 101 W. Mississippi Dr. Muscatine, Iowa 52761 Mr. Larry L. Shepler Attorney at Law Executive Square, STE 102 400 Main St. Davenport, Iowa 52801 BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ GREGG A. TALLMAN, Claimant, VS. File No. 662627 AMERICAN CAN COMPANY, A P P E A L Employer, R U L I N G and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ Claimant appeals from a ruling which sustained defendants' motion for summary judgment. Both sides have filed briefs. On February 17, 1981 claimant received an injury arising out of and in the course of his employment with defendant employer. On August 5, 1986 a commutation of all further benefits was filed and approved by this agency. Section 85.47, Code of Iowa states: When the commutation is ordered, the industrial commissioner shall fix the lump sum to be paid at an amount which will equal the total sum of the probable future payments capitalized at their present value and upon the basis of interest at the rate provided in section 535.3 for court judgments and decrees. Upon the payment of such amount the employer shall be discharged from all further liability on account of the injury or death, and be entitled to a duly executed release, upon filing which the liability of the employer under any agreement, award, finding, or judgment shall be discharged of record. The claimant is no longer entitled to benefits under the Act. The ruling of the deputy sustaining defendants' motion for summary judgment is correct. WHEREFORE, the ruling of the deputy is affirmed. TALLMAN V. AMERICAN CAN COMPANY Page 2 THEREFORE, it is ordered: That defendants' motion for summary judgment is sustained with the result that this contested case proceeding is terminated. That all costs are taxed to claimant. Signed and filed this 29th day of October, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Gregg A. Tallman 1436 22nd Street Des Moines, Iowa 50311 CERTIFIED MAIL Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Avenue Des Moines, Iowa 50312 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT E. COOPER, Claimant, File No. 662918 vs. A R B I T R A T I O N GORE CREEK DISTRIBUTING COMPANY, D E C I S I O N Employer, and F I L E D ST. PAUL INSURANCE, JAN 11 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Robert E. Cooper, claimant, against Gore Creek Distributing Company, employer, and St. Paul Insurance, insurance carrier, to recover benefits for an alleged injury occurring on or about May 4, 1981. This matter was to come on for hearing January 9, 1989 in Des Moines, Iowa, at 8:30 a.m. The undersigned was present. Neither claimant nor defendants appeared. Claimant failed to present any evidence in support of the allegations found in his original notice and petition. Neither an agreement for settlement nor a request for continuance are on file with the industrial commissioner. Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). WHEREFORE, lt is found l. Neither claimant nor defendants appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. Neither an agreement for settlement nor a request for continuance are on file with the industrial commissioner. 4. Claimant failed to present any evidence to support allegations of a compensable work injury. THEREFORE, it is concluded: Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the course of his employment. THEREFORE, it is ordered: Claimant take nothing from this proceeding. Costs are taxed to the claimant. Division of Industrial Services Rule 343-4.33. Signed and filed this 11th day of January, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Paul C. Thune Attorney at Law 218 6th Ave Ste 300 P.O. Box 9130 Des Moines, IA 50306 Mr. William D. Scherle Attorney at Law 803 Fleming Bldg Des Moines, IA 50309 1400; 1402 Filed January 11, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT E. COOPER, Claimant, File No. 662918 vs. A R B I T R A T I O N GORE CREEK DISTRIBUTING COMPANY, D E C I S I O N Employer, and ST. PAUL INSURANCE, Insurance Carrier, Defendants. 1400; 1402 Neither claimant nor counsel appeared at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CARL W. CLIFTON, Claimant, FILE NO. 663073 VS. R E V I E W - PROCESS PIPING COMPANY, R E 0 P E N I N G Employer, D E C I S I O N and AETNA CASUALTY & SURETY, Insurance Carrier, Defendants. INTRODUCTION This is a review-reopening proceeding from a memorandum of agreement filed March 13, 1981 dealing with an injury of February 18, 1981. Claimant, Carl W. Clifton, seeks further benefits in the nature of payment of disputed medical expenses; additional compensation for temporary total disability or healing period; and compensation for permanent disability. The case was heard at Burlington, Iowa on November 4, 1986 and was fully submitted upon conclusion of the hearing. The record in the proceeding consists of testimony from Carl W. Clifton (claimant) and Pauline Clifton (claimant's wife). The record also contains claimant's exhibits 1 through 8 and 12 through 22. Defendants' exhibits A and B were received into evidence. Claimant's exhibits 9, 10 and 11 and defendants' exhibit C were offered but were not received into evidence and remain with the file as an offer of proof only. Consistent with the memorandum of agreement having been filed, the parties stipulated in the prehearing report that an employer/employee relationship existed between claimant and Process Piping Company on February 18, 1981 and that Clifton sustained an injury on that date which arose out of and in the course of his employment. The parties stipulated that in the event of an award claimant's weekly rate of compensation is $318.09. It was further stipulated that with regard to the medical expenses for which claimant seeks payment, the fees charged for the services that were rendered were reasonable and that the providers of the services would testify that the services were reasonable and necessary treatment for the alleged work injury. The parties stipulated that two weeks of weekly compensation has been paid. The issues to be determined are claimant's entitlement to compensation for temporary total disability or healing period; claimant's entitlement to compensation for permanent partial disability; and claimant's entitlement to recover costs of CLIFTON V. PROCESS PIPING COMPANY Page 2 medical treatment under section 85.27 of the Code. Defendants urged that the expenses incurred by claimant were unauthorized. A primary issue in the case is whether or not the problems for which claimant seeks compensation have a causal connection with the injury that occurred on February 18, 1981. SUMMARY OF EVIDENCE The following is a brief summary of pertinent evidence. All evidence received at the hearing was considered when deciding the case. Carl W. Clifton is a 64 year old married man who commenced his apprenticeship as a pipe fitter and plumber in 1950 and in became a journeyman in 1955. He testified that he has worked the trade continually since that time. Prior to the time he entered his trade he had served 10 years in the army where he attained the rank of staff sergeant and worked primarily in the field of telephone and telegraph communications and cable splicing. His education is limited to the sixth grade. Claimant characterized the term "plumbing" as dealing with residential work involving light pipes and fittings. He characterized "pipe fitting" as industrial work involving heavy pipe that carries steam, hydraulics or other fluids. Clifton stated that the work varies between light and heavy depending upon the weight of the pipe that is involved and the amount of pulling, straining and crawling about that is required on the particular job. He feels that a considerable amount of use of his back and physical strength is part of his trade. Clifton testified that due to the pain he presently experiences in his back he is unable to pull, lift, strain, use wrenches, work with his hands over his head, crawl on floors, climb stairs or ladders, walk on inclines or even place himself into position to work under a typical residential kitchen sink. He feels that he is completely unable to work in his trade. Clifton testified that on February 18, 1981, he was working as a pipe fitter at the Arco Chemical Plant in Fort Madison, Iowa running two-inch diameter threaded galvanized pipe: At one point in the day claimant was standing on a sawhorse using two wrenches to turn an elbow to the appropriate angle where it would align with the next piece of pipe to be installed. Clifton testified that the elbow had already been tightened in a pipe vise and was quite tight. He testified that he was in a position where he was reaching out and pulling on both wrenches at the same time. He stated that he pulled as hard as he could, felt pain in his right side and groin and fell to the floor. Claimant testified that the pain subsided somewhat after he had rested for 10 or 15 minutes. He stated that the incident occurred near the end of the day and was not reported immediately. He stated that while riding home after work his back was sore. While eating supper that evening claimant found himself unable to swallow and felt a sensation that he described as like a knot in his esophagus. He stated that the sensation went away but that when he tried to eat again it recurred. Clifton CLIFTON V. PROCESS PIPING COMPANY Page 3 testified that he walked into his front room and fell to his knees. He feared that he was having a heart attack. He was taken to the St. Mary Hospital Emergency Room in Quincy, Illinois. The emergency room records show that claimant complained of the onset of pain in his right lower quadrant during the afternoon which had let up by suppertime when he experienced pain in the epigastric area. He related a history of a hiatal hernia. He voiced no complaints regarding his back and the notes of the physical examination report no tenderness of the spine was observed (Claimant's Exhibit 21). Claimant testified that on the following day he sought care from Frank T. Brenner, M.D., and was treated with Tylenol 3 and advised to rest in bed for two weeks. Claimant stated that his back and right hip were bothering him. He stated that Dr. Brenner recommended an additional two weeks when the condition did not improve. Exhibit 21, a report from Dr. Brenner dated February 24, 1981, indicates that claimant complained of pain in the right side and that the doctor diagnosed the condition as a muscle stain of the right low quadrant. The report is dated February 24, 1981 and indicates that the date of first treatment was February 23, 1981 (Cl. Ex. 20 & 21). Dr. Brenner retired and claimant was referred to Bruce W. Johnson, M.D. Dr. Johnson saw claimant on June 16, 1981 were claimant voiced complaints of pulled muscles in his abdomen . and back. Dr. Johnson interpreted an x-ray report taken at that time as showing arthritis and spondylosis. Dr. Johnson explained to claimant that spondylosis is often a congenital condition which the doctor felt was probably aggravated by claimant's work. The doctor recommended physical therapy (Cl. Ex. 17 & 19). Claimant testified that he chose to go to an osteopathic physician, Charles M. Eaton, D.O., upon the recommendation of his son rather than to enter into the physical therapy recommended by Dr. Johnson. He testified that he was having continual pain in his lower back and right side which he described as a burning sensation in the lower groin. He stated that he was unable to work at that time and had not been released to return to work by any physician. In a report dated June 30, 1981, Dr. Eaton indicated that claimant exhibited severe muscle spasm in his entire right side and that his right sacroiliac had slipped forward. He felt there was a definite connection between the injury of February 18, 1981 and his findings. Dr. Eaton stated that he had been treating claimant with osteopathic manipulation and had observed some improvement (Cl. Ex. 18). In a report dated April 27, 1982, Dr. Eaton diagnosed claimant's condition as torn ligaments and muscles. He stated that when he first treated claimant the symptoms included sciatic neuritis as well as muscle spasm and low back pain. The report indicates that claimant returned to light work on July 27, 1981 and had been able to perform light work but that any heavy work precipitated immediate pain and muscle spasm in the right low back area. Dr. Eaton indicated that the prognosis for a return to normal work could not be determined at that time (Cl. Ex. 16). Claimant testified that the treatment he received from Dr. Eaton gave him some relief but that the pain in his back CLIFTON V. PROCESS PIPING COMPANY Page 4 returned. He stated that Dr. Eaton released him to return to light duty work on July 3, 1981. Claimant testified that he had been paid only two weeks of workers' compensation and that it then stopped. Claimant stated that he had no direct contact with Aetna Insurance Company as he had an attorney in June, 1981. Claimant testified that the insurance carrier had not directed him to obtain his treatment from any particular doctor and that he had not requested that the insurance carrier send him to a physician for any of his complaints. Claimant did return to work with William Gould, a Quincy, Illinois plumbing contractor. He obtained the job through the union hall. Claimant stated that it was a small job and that he was assigned to help weld pipe and install air lines. He testified that he was unable to perform full duty but that the other workers knew of his condition and helped him. When the job ended claimant was laid off and then obtained another job through the union hall. He described it as one which involved working with copper and plastic but that he was again unable to do a full load of work and that the other workers made accommodations for him. He obtained a third job with State Mechanical Contractors and then resumed work for Gould where he remained employed through the end of 1981. Claimant testified that in all of these jobs he was unable to carry a full load of the work and was never able to resume the type of work he had performed prior to February 18, 1981. Claimant stated that on December 29, 1981 he hurt himself while working at Gould. He described the injury as one which injured his shoulder but did not involve his back. He stated that he received at least three weeks of workers' compensation checks and a disability settlement in the amount of $6,682.37 from Gould's insurance carrier. He stated that he received treatment for that injury from Kent W. Barber, M.D. Claimant testified that he has not worked since the day of that injury, namely December 29, 1981. He stated that he has also not looked for work since December 29, 1981. Claimant felt that he had recovered completely from the shoulder injury. Claimant was referred to Jerry L. Jochims, M.D., for an examination. Claimant stated that Dr. Jochims took no x-rays but discovered a hernia and recommended surgery. Claimant denied that anything had happened after February 18, 1981 to cause the hernia or to injure his back. Dr. Jochims felt that claimant's symptoms were related to the right inguinal hernia which he found and recommended surgical treatment (Defendants' Ex. A). Dr. Jochims was also of the opinion that the hernia was directly related to the incident of February 18, 1981 (Def. Ex. A, Cl.Ex. 15). Dr. Jochims concluded that there was nothing wrong with claimant's back although he was aware that x-rays previously taken had showed spondylosis. Dr. Jochims offered to arrange surgical care for the hernia (Def. Ex. A). The date of the examination was September 7, 1982. Claimant testified that he had no insurance and waited until October, 1983 to have the hernia repaired when the Illinois Public Aid Department agreed to fund it. The surgery was CLIFTON V. PROCESS PIPING COMPANY Page 5 performed by David B. Drennan, M.D. Claimant testified that the surgery cleared up the pain he had experienced in his groin and that he recuperated for two weeks after the surgery and was then released. In claimant's exhibit 14, Dr. Drennan indicated that claimant underwent hernia repair surgery on October 28, 1983, that he should avoid lifting for eight weeks following the surgery, and that.there should be no permanent disability. Claimant related that he received some care from James A. Shaw, D.C., Quincy, Illinois, for which he incurred expenses in the amount of $1,202.00 for which he has not been repaid. He stated that the adjustments helped at the time but that the pain came back and that at times the treatments seemed to make his pain worse. Claimant testified that he is unable to do activities around their home or generally engage in activities that he performed prior to February 18, 1981. He related that in early May of 1986, he attempted to assist in using a sledge hammer to break concrete in his yard and experienced a severe exacerbation of his back pain. He described the pain as similar to what he felt on February 18, 1981. Claimant stated that he sought medical care under the direction of Robert J. Tiffin, M.D., and was treated with medication but did not improve. He stated that he was eventually hospitalized. Claimant related that his condition had been fairly stable and that when he went to the emergency room he told the attending physician that he had been doing reasonably well up to that time. Claimant testified that in 1978 he received workers' compensation for an incident where he stepped off a truck and injured his leg and ankle. He stated that the incident had not injured his back or groin and that when he recovered he was able to work in his trade. Claimant recalled an incident in 1971 or 1972 when he experienced back pain after moving bathtubs and sought medical treatment. He stated that the condition cleared up in a few days. Claimant testified that he had never experienced pain or discomfort of the degree that he experienced on February 18, 1981 and that all of his prior injuries had been relatively minor and had not kept him off work for more than three or four days. Claimant testified that he still has pain in his back that extends below the beltline and down his right leg. He stated that it has not changed a bit since 1981. Claimant related that he took early social security retirement at age 62. He stated that he had given up trying to work in 1982. Claimant disagreed with exhibit 21 where it indicated that he was first seen on February 23 and returned to work on March 2, 1981. He felt that Dr. Brenner's own illness, retirement and death had caused confusion to appear in the records. Pauline Clifton, claimant's spouse, was present in the hearing room while claimant testified and generally she agreed with his testimony. She testified that prior to February 18, 1981, claimant had been in good health, expressed no complaints of back or groin problems and worked whenever work within his CLIFTON V. PROCESS PIPING COMPANY Page 6 trade was available. Mrs. Clifton testified that claimant is no longer able to dance, bowl, perform repair work around their home, drive for more than approximately 30 minutes, or sit for extended periods of time. She stated that during a normal day he spends a great deal of time laying down. Mrs. Clifton stated that when claimant worked during late 1981, he was very tired in the evenings and often would go directly to bed without eating. Mrs. Clifton stated that claimant had recovered fully from the December, 1981 shoulder injury at some point in time in early 1982, approximately two or three months after the injury occurred. Defendants' exhibit B is a collection of records and reports dealing with the back problems claimant encountered in early 1986. When Dr. Tiffin first began his involvement with claimant he felt that x-rays taken on May 16, 1986, were interpreted as showing an old compression deformity of the third lumbar vertebra with a five millimeter osteophyte that was encroaching on the spinal canal. A CT scan confirmed the existence of the osteophyte but found no disc herniation (Ex. B, page 7). In exhibit B at page 2, Dr. Tiffin discusses claimant's problem. He suggests that either the osteophyte was not present on February 18, 1981, and that it is the result of a reactive arthritis type of process resulting from that injury or, the other possibility is that the osteophyte was already present in 1981 as a result of prior arthritic changes and that the injury that occurred was similar to the one that occurred in May, 1986. He was unable to state which scenario was the more likely. None of he other x-rays referred to in the record note a compression fracture or an osteophyte. Claimant seeks payment of the following medical expenses: Department of Public Aid, State of Illinois $1,671.35 James A. Shaw, D.C. 1,202.00 The Brown Drug Company 53.70 Earel & Buss Drugs 17.74 Riley's Drug Store 10.85 Charles M. Eaton, D.O. 390.00 Bruce W. Johnson, M.D. 14.00 St. Mary Hospital 138.60 TOTAL $3,498.24 APPLICABLE LAW AND ANALYSIS The memorandum of agreement filed in this case conclusively establishes that an employer/employee relationship existed and that the claimant did sustain an injury which arose out of and in the course of his employment Trenhaile v. Quaker Oats Co., 228 Iowa 711, 292 N.W. 799 (1940). It does not, however, establish CLIFTON V. PROCESS PIPING COMPANY Page 7 the nature or extent of disability. Freeman v. Luppes Transport Company, Inc., 227 N.W.2d 143 (Iowa 1975). It is not necessary to show a change of condition in order to review the adequacy of the payments made under the memorandum of agreement. Majorado v. Caterpillar Tractor Co., 1-1 State of Iowa-Industrial Commissioner Decision 168 (1984). The only occurrence of injury asserted by claimant is the injury he sustained while attempting to align pipe. There is no evidence in the record of claimant sustaining any other injury on February 18, 1981. When claimant was seen at the emergency room on February 18, 1981, the history includes report of pain in the right lower quadrant and the physical examination indicates what is reported as slight epigastric tenderness in the abdomen. Dr. Brenner diagnosed claimant's condition as a muscle strain in the right low quadrant. The report indicated that when it was made, February 24, 1981, the doctor expected that claimant would be able to resume work on March 2, 1981. Claimant did not return to work. Exhibit 20, which bears the date of March 2, 1981, leaves blank the space following questions 7, 8, 9 and 10 which deal with the time when the claimant would be able to return to work. At question 13 the form indicates that claimant was improving slowly. The form shows that claimant had an office visit on March 3, 1981. It is therefore clear that Dr. BrennerOs initial expectation of a return to work on March 2, 1981 was incorrect and had been changed. Weekly compensation therefore extends beyond March 2, 1981. The next evidence in the record from a medical practitioner comes from Bruce W. Johnson, M.D., in his report of CLIFTON V. PROCESS PIPING COMPANY Page 8 June 19, 1981 (Ex. 19). Claimant indicated that he had been under conservative treatment following the time when Dr. Brenner to him off work. Dr. Brenner's records that are in evidence give no indication of what type of treatment was utilized during the three months following March 2, 1981. There is likewise no concrete medical evidence which conflicts with claimant's description of his treatment. Dr. Johnson found claimant to exhibit tenderness in the right lower quadrant that extended into his lower back. He felt that claimant had arthritis and spondylosis which had been aggravated by claimant's work and were responsible for claimant's pain. Dr. Eaton examined claimant in June, 1981, and observed muscle spasm. He felt that there was a definite connection between the injury of February 18, 1981 and the condition for which he treated claimant (Ex. 18). Although there appear to be no records in evidence which show the precise date that any physician released claimant to return to work, he did make an actual return to work on July 27, 1981. Accordingly, claimant's first healing period ended on July 26, 1981. Claimant worked until the last part of December, 1981, when he injured his shoulder. Claimant apparently did little in the way of seeking medical care until he was examined by Jerry L. Jochims, M.D., on September 7, 1982. Dr. Jochims, an orthopedic surgeon, felt that claimant's symptoms were related to a hernia and not to anything that was wrong in claimant's back. Dr. Jochims felt that the hernia was causally related to the accident of February 18, 1981. He suggested that claimant seek surgical treatment and if there was any problem in obtaining treatment, that claimant seek assistance from him. Claimant went approximately a year thereafter before he arranged treatment for the hernia through the Illinois Department of Public Aid and David B. Drennan, M.D. Claimant never requested assistance from Dr. Jochims. The surgery was performed October 28, 1983 and, according to claimant's testimony and indications from Dr. Drennan (Ex. 14), there is little, if any, permanent disability resulting from the hernia. The report indicates that claimant was restricted from lifting for eight weeks following the surgery which was performed on October 28, 1983. Additional healing period which runs from October 28, 1983 through December 22, 1983 is allowed. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 18, 1981 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). Claimant's description of his injury involved a complaint of pain in the right lower quadrant of his body. Dr. Brenner diagnosed an injury of the right lower quadrant. Dr. Johnson observed tenderness in the right lower quadrant. Dr., Jochims diagnosed the hernia and felt that it was related to the accident that claimant had described (Ex. 15). An activity of the type which claimant described as producing the injury is certainly the CLIFTON V. PROCESS PIPING COMPANY Page 9 type of straining which could be expected to produce a hernia. In view of the prompt, continuing complaints, early medical diagnoses (albeit incorrect), the diagnosis and opinion regarding proximate cause from Dr. Jochims, the surgical treatment which apparently confirmed the hernia diagnosis and repaired the defect, and claimant's testimony that the surgery resolved that portion of his complaints all fit together to establish that claimant did suffer the hernia on February 18, 1981 in the accident which he described. After the hernia was repaired, claimant was seen on one occasion by Kent W. Barber, M.D. Dr. Barber interpreted x-rays taken November 7, 1983, as showing borderline narrowing of the L-4 interspace with minimal chronic degenerative arthrosis and equivocal narrowing of the L4, L5 interspace (Ex. 13). Dr. Barber stated that claimant obviously did have some sensory loss of his right sciatic nerve which presumable followed either the back injury in 1972 or the one which had occurred two years earlier (Ex. 12). There is nothing in the record to indicate that claimant had sought any medical care after he saw Dr. Barber until early 1986 when he suffered an excerbation while attempting to break concrete with a sledge hammer. He apparently had been getting along reasonably well up until that incident (Ex. B). Radiographic studies have shown the existence of an old compression deformity in the third lumbar vertebra with an osteophyte that encroaches on the spinal canal but they do not show any disc herniation. Dr. Tiffin was unable to state whether the osteophyte, which appears to be the source of claimant's sciatic nerve problem, was in existence on February 18, 1981. He apparently feels that the osteophyte was either a reactive arthritis type of process that resulted from the 1981 injury or, on the other hand, the osteophyte was possibly in existence previously and that the injury of February 18, 1981 produced nerve impingement and pain with loss of function. He suggests that radiologic exams be reviewed in order to determine the previous presence or absence of the osteophyte (Ex. B, p. 2). No such comparison or review appears to have been accomplished. Nothing in the record refers to a compression fracture or osteophyte prior to the 1986 radiographic studies. The injury producing activity which claimant described consisted primarily of pulling with one arm while pushing with the other. That type of activity would not normally be expected to produce a disc injury in the lower back and the diagnostic studies which have been performed indicate that there is no disc injury in claimant's lower spine. The nerve root impingement in this case appears to result from an osteophyte. In June, 1981, Dr. Johnson found claimant to be affected by arthritis and spondylosis. Stedman's Medical Dictionary, 24th Edition, defines spondylosis as vertebral ankylosis. It also states that the term is often applied nonspecifically to any lesion of the spine of a degenerative nature. The same reference defines ankylosis as stiffening or fixation of a joint as a result of a disease process, with fibrous or bony union across the joint. Dr. Johnson characterized spondylosis as a congenital condition which means that it preexisted February 18, 1981. Radiographic studies were conducted under the direction of Dr. Barber in 1983. Up to this point in time there was no reference to the existence of an osteophyte although degeneration in claimant's lower lumbar spine CLIFTON V. PROCESS PIPING COMPANY Page 10 was noted. The conditions noted by Dr. Barber and Dr. Johnson are not dissimilar even though the descriptive words employed by each of them are not identical. It was not until the 1986 incident that the osteophyte and compression fracture were identified. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is 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, 815 ( It is found that claimant had an ongoing degenerative process in his spine that was aggravated in the injury that occurred on February 18, 1981. Claimant did, however, return to work, albeit with complaints of discomfort, and he continued to work until a subsequent injury struck him. Claimant has failed to prove that the injury of February 18, 1981 produced any permanent disability or any permanent change in the course of the preexisting degenerative condition in his spine. It is therefore found and concluded that the injury claimant sustained on February 18, 1981 was a hernia and a temporary aggravation of a preexisting degenerative condition in his spine. The combination of those two conditions resulting from the injury entitles claimant to temporary total disability compensation from February 19, 1981 through July 26, 1981, a span of 22 4/7 is found that claimant made no further significant weeks. It improvement, and that none was medically indicated, subsequent to July 26, 1981, until he entered the hospital for surgery on October 28, 1983. Claimant is entitled to additional temporary total disability running from October 28, 1983 through December 22, 1983 due to the correction of the hernia, a span of eight weeks. Claimant is entitled to recover the expenses of care for both conditions up to July 26, 1981 and for the hernia subsequent thereto. He is not entitled to recover expenses of care for his back condition that were incurred subsequent to 1981., The employer is responsible for payment of claimant's expenses at St. Mary Hospital incurred on February 18, 1981 and June 16, 1981. Conducting reasonable diagnostic tests is part of providing reasonable medical care, even though the tests may ultimately show the complaints to not be related to the work injury. Pote v. Mickow Corp., 694639 (Review-Reopening Decn. June 17, 1986). The same reasoning makes the employer responsible for claimant's expenses with Bruce W. Johnson, M.D. and Charles M. Eaton, D.O. Dr. Eaton's charges continue on through December 18, 1981. It was not unreasonable for claimant to continue seeing Dr. Eaton following his return to work since he was still having complaints. Claimant is not responsible for the medical practitioners' failure to promptly diagnose the hernia condition. Exhibit 5 is for a prescription for an expectorant for a cough. Such is not shown to have any bearing to claimant's industrial CLIFTON V. PROCESS PIPING COMPANY Page 11 injury. The bills from The Brown Drug Company, Earel & Buss Drugs and the other charge from Riley's are unable to be connected to the industrial injury. Of the charges shown on exhibit 1, the charges to Blessing Hospital for October 27 and 31, 1983 are found to be related to the hernia and are therefore the responsibility of the defendants. The charges from Dr. Drennan are likewise found to be related to the hernia and the responsibility of the defendants. The payments made to Dr. Barber have not been shown to be related to the industrial injury and are therefore not the responsibility of the employer. In summary, defendants are responsible for payment of the following expenses: Blessing Hospital $1,346.35 David B. Drennan, M.D. 258.00 Charles M. Eaton, D.O. 390.00 Bruce W. Johnson, M.D. 14.00 St. Mary Hospital 138.60 Total $2,146.95 FINDINGS OF FACT 1. Carl W. Clifton sustained a hernia on February 18, 1981 when he strained while attempting to align pipe. The hernia condition was not promptly diagnosed. In that same incident he also aggravated a preexisting degenerative condition in his spine. 2. Following the injury claimant was unable to engage in employment substantially similar to that he had engaged in at the time of injury from February 19, 1981 until July 27, 1981 when he returned to work. 3. Claimant suffered another injury with a different employer in late December, 1981, and has not thereafter returned to gainful employment. 4. The surgical treatment of the hernia left no permanent physical impairment or permanent disability. 5. The aggravation of claimant's preexisting degenerative spinal condition, that occurred on February 18, 1981, had no further effect upon claimant following the end of December, 1981. The problems which claimant continues to have with his spine have not been shown to be related to the February 18, 1981 injury. To the contrary, it appears most likely that they are a part of the ongoing degenerative process which preexisted February 18, 1981. 6. The medical expenses claimant incurred at Blessing Hospital, with Dr. Drennan, Dr. Eaton, Dr. Johnson and St. Mary Hospital were all fair and reasonable charges rendered for services that were provided to claimant as reasonable and necessary treatment for the injuries he sustained on February 18, 1981. 7. The employer did not designate a treating physician. CLIFTON V. PROCESS PIPING COMPANY Page 12 8. The assessment made by Dr. Jochims, an orthopedic surgeon, is adopted over conflicting opinions regarding claimant's back. CONCLUSIONS OF LAW Claimant is entitled to receive compensation for temporary total disability commencing February 19, 1981 and running through July 26, 1981 and also commencing October 28, 1983 and running through December 22, 1983. Claimant failed to show that he suffered any permanent physical impairment or permanent impairment of his earning capacity as a result of the injuries sustained on February 18, 1981. The injury of February 18, 1981 was a proximate cause of a hernia and a temporary aggravation of a preexisting degenerative condition in claimant's spine. Claimant is not entitled to receive any compensation for permanent disability based upon the injury sustained on February 18, 1981. Where the employer fails to designate or select an authorized physician, it cannot later complain that the care selected by the employee was unauthorized. Claimant is entitled CLIFTON V. PROCESS PIPING COMPANY Page 13 to recover $2,146.95 in section 85.27 benefits. ORDER IT IS THEREFORE ORDERED that defendants pay claimant thirty and four-sevenths (30 4/7) weeks of compensation for temporary total disability at the rate of three hundred eighteen and 09/100 dollars ($318.09) per week with twenty-two and four-sevenths (22 4/7) weeks thereof payable commencing February 19, 1981 and with eight (8) weeks thereof payable commencing October 28, 1983. IT IS FURTHER ORDERED that defendants shall receive credit for the two (2) weeks previously paid. All past due amounts are to be paid to claimant in a lump sum together with interest pursuant to section 85.30. IT IS FURTHER ORDERED that defendants pay claimant two thousand one hundred forty-six and 95/100 dollars ($2,146.95) under section 85.27 of the Code. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendants. IT IS FURTHER ORDERED that defendants shall file claim activity reports as requested by this agency. Signed and filed this 10th day of February, 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. William Bauer Attorney at Law Sixth Floor, Burlington Bldg. P. 0. Box 517 Burlington, Iowa 52601 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg. Davenport, Iowa 52801 1402.10; 1402.30; 1801 1803; 2206; 2501; 2503 Filed February 10, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER CARL W. CLIFTON, Claimant, FILE NO. 663073 VS. R E V I E W - PROCESS PIPING COMPANY, R E 0 P E N I N G Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY, Insurance Carrier, Defendants. 1402.10; 1402.30; 1801; 1803; 2206; 2501; 2503 Sixty-four year old claimant was found to have suffered a hernia and to have aggravated a preexisting degenerative condition in his spine. The aggravation of his back was found to be temporary because there was no medical evidence that clearly showed a causal relationship. The employer was not held responsible for paying TTD between periods of active treatment. Claimant failed to prove that continuing back problems were related to the work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALLEN DOUGLAS HELMERS, Claimant, VS. File No. 664580 ALTRUCK FREIGHT SYSTEMS a/k/a PACIFIC CARRIERS, A P P E A L Employer, D E C I S I O N and TRANSPORT INDEMNITY INSURANCE, Insurance Carrier, Defendants. INTRODUCTION Pursuant to an order entered May 20, 1987, the undersigned was appointed to enter a final agency decision in this matter. Defendants appeal from a proposed agency order of October 27, 1986 denying their application to set aside a final agency decision filed August 21, 1986. The record consists of the appendix and briefs of the parties. ISSUE The issue on appeal is whether the defendants are entitled to a hearing on the merits as regards their motion to set aside their default. ANALYSIS The deputy's ruling correctly points out that this agency has no contested case before it and the inapplicability of R.C.P 236 following a final agency decision. A review of the briefs further supports the deputy's order. WHEREFORE the proposed order is adopted as the final agency order. Costs are taxed to the defendants. Signed and filed this 29th day of June, 1987. HELMERS V. ALTRUCK FREIGHT SYSTEMS Page 2 STEVEN E. ORT DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. W.H. Gilliam Attorney at Law 1600 West Fourth Street Waterloo, Iowa 50701 Mr. Thomas C. Farr Attorney at Law Suite 300, Fleming Building 218 Sixth Avenue Des Moines, Iowa 50309 2906 Filed June 29, 1987 Appeal Decision STEVEN E. ORT BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALLEN DOUGLAS HELMERS, Claimant, VS. File No. 664580 ALTRUCK FREIGHT SYSTEMS a/k/a PACIFIC CARRIERS, A P P E A L Employer, D E C I S I 0 N and TRANSPORT INDEMNITY INSURANCE, Insurance Carrier, Defendants. 2906 Defendants appealed an order denying a motion to set aside a default more than 20 days after deputy's hearing decision. Deputy's decision affirmed.