BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES E. MC BIRNIE, Claimant, File Nos. 692457, 700671 756245, 756247 vs. A P P E A L OSCAR MAYER & COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE Claimant appeals from a review-reopening decision awarding him 25 weeks of permanent partial disability benefits for his right arm and 25 weeks of permanent partial disability for his left arm but denying benefits for a back condition either from a specific injury of March 1983 or from a cumulative injury during August - September 1983. The record on appeal consists of the transcript of the review-reopening hearing and joint exhibits 1 through 26. Neither party filed a brief on appeal. ISSUES This appeal will be considered generally without specified errors. REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the review-reopening decision are appropriate to the issues and evidence. ANALYSIS The analysis of the deputy in conjunction with the issues and evidence presented is adopted. The findings of fact, conclusions of law and order of the deputy in the review-reopening decision dated March 31, 1988 are adopted herein. MC BIRNIE V. OSCAR MAYER & COMPANY Page 2 FINDINGS OF FACT 1. Claimant's conditions in his upper extremities are the result of cumulative traumatic injury and are not disease processes. 2. Claimant had a decompression of the right carpal and ulnar tunnels and of the ulnar nerve at the right elbow on January 18, 1982. Claimant had decompression of the median and ulnar nerves of the left wrist and of the ulnar nerve at the left elbow on March 10, 1982. Claimant had a lateral epicondylitis surgery on April 25, 1983. 3. Claimant performed repetitive movement of his upper extremities on his job; such repetitive movement culminated in his carpal, cubital and ulnar conditions. 4. Claimant's conditions in his upper extremities are evaluated under the schedule and not industrially. 5. Drs. Wirtz, Walker and Grundberg are all respected, board-certified orthopaedic surgeons. 6. Dr. Grundberg is a member of the American Society for Surgery of the Hand. 7. Dr. Grundberg was claimant's treating physician for claimant's extremity problems and performed claimant's right and left surgical releases and his epicondylitis surgery. 8. Drs. Wirtz and Walker examined claimant only and lack additional expertise in hand conditions. 9. Claimant is moderately restricted as to reaching out with one or both arms and as to grasping, holding, turning or handling an object with the fingers. 10. Claimant sought treatment for back spasm on various occasions from 1968 onward. 11. Claimant began work at Oscar Mayer in 1969. 12. It is unclear whether claimant had a specific work incident on March 2, 1983 or experienced pain while performing his regular work duties. 13. Claimant had physical therapy at Dallas County Hospital for a period beginning March 14, 1983 to relieve his back condition. 14. Claimant was off work from April 25, 1983 to August 1, 1983 following his epicondylitis surgery. 15. Claimant's back continued to ache while he was off MC BIRNIE V. OSCAR MAYER & COMPANY Page 3 work. 16. Claimant did exercises and used hot soaks to relieve his condition while he was off work. 17. Claimant returned to work on August 1, 1983. 18. Claimant worked on the Boston butt boning line. 19. Claimant boned butts with weights of from 7 3/4 pounds to 15 pounds. 20. Workers were expected to bone 42 butts per hour. 21. Coworkers assisted claimant in making his production quotas following his extremity surgeries. Claimant was boning approximately 30 percent of quota after claimant's August 1, 1983 work return. 22. The boning area floor has a one-fourth inch per foot slope to the drain. 23. Federal regulations require a one-eighth inch to one-fourth inch slope in meat packing facilities. 24. With proper back use, a one-fourth inch floor slope should not produce back problems. 25. Claimant last worked for Oscar Mayer on Friday, September 9, 1983. 26. Claimant was off work Monday and Tuesday, September 12 and 13, 1983 on account of a sore throat. 27. On Monday, September 12, 1983, claimant was ready to return to work as regards his back. 28. On Tuesday, September 13, 1983, in the afternoon while sitting on his sofa at home, claimant experienced severe back spasm for which he was subsequently hospitalized. 29. Claimant's back spasm at home on September 13, 1983 was remote in time from his work at Oscar Mayer. 30. Dr. Rouse was unfamiliar with claimant's work conditions as claimant described those conditions. 31. At hearing, claimant appeared to exaggerate the difficulties in his work conditions. 32. The hypothetical question placed to Dr. Boulden was inconsistent with claimant's actual job duties and claimant's actual job performance. MC BIRNIE V. OSCAR MAYER & COMPANY Page 4 CONCLUSIONS OF LAW Claimant is entitled to permanent partial disability resulting from his upper extremities conditions of ten percent of the right arm and ten percent of the left arm. Claimant has not established a back condition which arose out of and in the course of his employment, either by way of a specific work injury of March 1983 or by way of a cumulative injury during August - September, 1983. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendant pay claimant permanent partial disability benefits for twenty-five (25) weeks on account of his right arm and for twenty-five (25) weeks on account of his left arm at the rate of two hundred fifty-six and 58/100 dollars ($256.58) per week with those benefits to commence August 1, 1983. That defendant pay accrued amounts in a lump sum. That defendant pay interest pursuant to Iowa Code section 85.30. That defendant pay the costs for the review-reopening proceedings in file numbers 692457 and 700671 pursuant to Division of Industrial Services Rule 343-4.33. That claimant take nothing from proceedings in file numbers 756245 and 756247. That claimant pay the costs for the review-reopening proceedings in file numbers 756245 and 756247 pursuant to Division of Industrial Services Rule 343-4.33. That claimant pay the costs of the appeal including costs of transcription of the review-reopening proceedings. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 26th day of October, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES E. MCBIRNIE, File Nos. 692457, 700671 Claimant, 756245, 756247 vs. R E V I E W OSCAR MAYER & COMPANY, R E 0 P E N I N G Employer, D E C I S I 0 N Self-Insured Defendant. INTRODUCTION These are proceedings in review-reopening brought by the claimant, Charles E. McBirnie, against his self-insured employer, Oscar Mayer & Company, to recover benefits under the Iowa Workers' Compensation Act as a result of injuries sustained or allegedly sustained on July 1, 1979, March 15, 1981, March, 1983, and August 1, 1983 through September 12, 1983, respectively. This matter came on for hearing before the undersigned deputy industrial commissioner at Des Moines, Iowa on June 11, 1987. A first report of injury was filed on January 25, 1982 regarding the July 1, 1979 injury; on April 23, 1982 regarding the March 15, 1981 injury; on April 25, 1985 regarding the March, 1983 alleged injury; and, on April 25, 1985 regarding the August-September, 1983 alleged injury, respectively. The parties stipulated that claimant has been paid 16.25 weeks of benefits as regards the July 1, 1979 injury and 12.5 weeks of benefits as regards the March 15, 1981 injury. The record in this case consists of the testimony of claimant, of Julie Ann McBirnie, of Dan Severns, of Brenda Goeden, of Cecilia O'Brien and of Phil Schumacher as well as of exhibits 1 through 26, all offered jointly. ISSUES Pursuant to the pre-hearing report, the parties stipulated that claimant's rates of weekly compensation are: $256.58 as regards the July 1, 1979 and the March 15, 1981 injuries; $278.09 as regards the March, 1983 injury; and, $260.19 as regards the August-September, 1983 injury. The parties further stipulated that medical costs were fair and reasonable and that claimant did receive injuries which arose out of and in the course of his employment on July 1, 1979 and March 15, 1981. The parties further stipulated that a causal relationship exists between those injuries and temporary total disability or healing period previously paid as outlined above. The parties stipulated that claimant was entitled to five weeks of temporary total or healing period as regards the July 1, 1979 injury and 20 weeks of temporary total or healing period disability benefits as regards the March 15, 1981 injury. They further stipulated that defendant is to receive credit for benefits previously paid as set forth above. The parties stipulated that the commencement date for additional benefits, if any are due for permanent partial disability as regards the July 1, 1979 and March 15, 1981 injuries, is August 1, 1983. As regards the July 1, 1979 and March 15, 1981 injuries, the issue remaining to be decided is the nature and extent of benefit entitlement as to permanent partial disability with the dispute being as to whether claimant is entitled to scheduled member benefits under Chapter 85 or occupational disease benefits to be evaluated industrially under Chapter 85A. As regards the March, 1983 and August-September, 1983 alleged injuries, the issues remaining to be decided are: Whether the injuries arose out of and in the course of claimant's employment; Whether a causal relationship exists between the alleged injuries and claim disability; Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement; and, Whether claimant is entitled to payment of medical costs. Apparently, a Chapter 85B issue remains to be decided in a bifurcated hearing. As regards the July 1, 1979 and March 15, 1981 injuries, claimant contends that the injuries are occupational diseases and that claimant should be compensated for loss of earning capacity as a result of the injuries or, alternately, that claimant is entitled to additional permanent partial disability to scheduled members as a result of the injuries. Defendant asserts that the injuries are to a scheduled member only. As regards the alleged injuries of March, 1983 and August-September, 1983, claimant contends either a specific MCBIRNIE V. OSCAR MAYER & COMPANY Page 3 injury on approximately March 2, 1983 to claimant's back which arose out of and in the course of claimant's employment or cumulative injuries to claimant's back which have caused claimant to be disabled since approximately September 12, 1983. Defendant denies that claimant has injuries or disability to his back and indicates that claimant's low back condition results from a cause or causes totally unconnected to work. Claimant contends and defendant denies that the odd-lot doctrine applies to claimant in this case. The pre-hearing assignment order does not designate the issue of whether claimant is an odd-lot employee under the Guyton doctrine as an issue that was to be tried in this case. Likewise, the pre-hearing conference notes do not designate the odd-lot doctrine as having been discussed at pre-hearing conference. REVIEW OF THE EVIDENCE Claimant was born in March, 1946. He left high school without graduating and obtained a GED in 1985. He has had some prior work experience driving a semi-truck after completing a truck driver training school as well as experience as a welder, greenhouse worker and factory laborer before beginning work at Oscar Mayer in July, 1969. Claimant initially worked at various Oscar Mayer jobs on the kill floor including bagging meat, as well as working at the viscera table, the shaving line and the bung room before beginning work in the boning department in approximately 1972. Claimant has been in the boning department since that time. Claimant testified that he first developed problems with his right hand in approximately 1980 or 1981 for which he saw Robert F. Deranleau, M.D., the company doctor. He reported that Dr. Deranleau referred him to Arnis Grundberg, M.D., who subsequently performed right hand and elbow surgery in early 1982. Dr. Grundberg performed left arm surgery approximately six weeks later. Claimant reported that he was released for light-duty work with a subsequent full-duty work return. Claimant testified that co-workers had to help him meet his production quotas once he was released to full duty and that he subsequently had problems with numbness, tingling and aching of his palms and elbows on the right. He reported similar, but not as severe, left arm complaints. Claimant reported that, on April 25, 1983, an epicondylitis surgery was performed on the right and that he was off work until August, 1983. Claimant testified that he was running approximately "30 percent" on his work return, but that he has not worked at Oscar Mayer since September, 1983. Claimant indicated that he currently has problems with numbness and weakness in his hands as well as elbow aching. He indicated he cannot grasp pencils, door knobs, styrofoam cups or drinking glasses. He reported that he has difficulty picking up coins, sorting dollar bills and turning newspaper and magazine pages. MCBIRNIE V. OSCAR MAYER & COMPANY Page 4 Claimant asserted that he had had upper back problems prior to March, 1983 consisting of pleurisy and muscle spasm between the shoulder blades. He attributed those problems to blading in front of a blower and to reaching across the boning table to grab meat. Claimant did not recall having had muscle spasm in his shoulder in June, 1980. He denied that a hospitalization in August, 1980 was related to low back muscle spasm. Claimant testified that he had slipped on fat in the locker room on approximately July 5, 1979 and had slipped on steps on his way to the Oscar Mayer lunch room in July, 1982, but could not recall having seen Wayne E. Rouse, M.D., for acute low back problems in 1968. In March, 1983, claimant was boning Boston butts. The unprocessed product comes to the worker on a conveyor belt. Claimant variously described the procedure for acquiring product from the belt as involving turning and ducking under an upper level conveyor, reaching and grasping the meat and,then pulling the meat onto the [boning] table. He described the maneuver of turning variously as involving a "twist at the waist" or turning the hips at an angle sideways in order to reach the meat. The product is boned and processed and commercial parts are placed in a plastic, dishpan-like tote which is pushed onto the conveyor. Bones and other debris are placed in a bucket. Claimant reported that more twisting and reaching was required at his work station than would have been required of a worker on the opposite side of the table. Claimant stated that the video of the picnic boning line in evidence shows the opposite side of the line where workers face the meat and, hence, was different from his own work situation. Claimant reported that he was generally third, fourth or fifth in line and that persons nearer to the top of the line, such as he, would generally have a greater quantity of product as well as a better quality of product to debone. Claimant described the average weight of a butt as from 7-15 pounds, stating that seven was probably too low. He reported that sometimes the weights were greater than 20 pounds. Claimant indicated that, on Mondays, butts were stiffer, colder and drier as they had been in the cooler all weekend. Claimant testified that the boning department temperature was from "real cold" to approximately 50 degrees and that he was required to work on a brick floor which was wet and sloped towards the drains. Claimant reported back ache and spasm on March 2, 1983. He reported to first aid and was given muscle relaxants. He subsequently saw Dr. Deranleau on March 7, 1983. The doctor apparently prescribed hot soaks, exercise and, as of March 14, 1983, physical therapy at the Dallas County Hospital. Claimant was taking muscle relaxers for his hands and arms at that time. He testified he really was not worried about his back as he was "scared" about his hands. Claimant was off work from his epicondylital surgery on April 25, 1983 until on August 1, 1983; he reported his back continued to ache during that period, but he did exercises and soaked in a tub for the back ache. Claimant said that, following his work return in August, 1983, his back would bother him by the end of the week. He reported that he was off following the weekend on Monday and Tuesday, September [12 and 13], 1983 as he had a sore throat, although, as far as his MCBIRNIE V. OSCAR MAYER & COMPANY Page 5 back was concerned, he could have returned to work on Monday. Claimant testified that, on Tuesday, while sitting on his couch at home, he developed severe back pain. He was subsequently hospitalized for 18 days with treatment by Dr. Rouse, his family physician for the past 23 years. Claimant reported that Dr. Rouse subsequently referred him to Dr. Grundberg and Robert Gitchell, M.D., as well as Stuart Winston, M.D. Claimant has also seen Peter Wirtz, M.D., and William R. Boulden, M.D., on account of his back. Claimant testified that he told "Kay" that he wanted to see Dr. Grundberg for his back. Claimant testified that his back currently aches continually and that he has worsening muscle spasm. He testified that he was hospitalized for muscle spasm in December, 1986. Claimant reported a "constant weird feeling" in his right leg with complete numbness to the knee at times. Claimant testified that his spasm may become so severe that, if he does not deal with it immediately, he will be in bed for three of four days. Claimant reported he takes Motrin, Tylenol with codeine, an analgesic and two aspirins a day as well as Advil for his back pain. Claimant indicated that his back pain is now worse than it was when he was at the vocational rehabilitation center in Des Moines. Claimant reported that, at hearing, his weight was approximately 200 pounds and that he had weighed around 218 pounds in September, 1983. Claimant reported a conversation with Phil Schumacher, personnel director for Oscar Mayer at Perry, following Dr. Wirtz's deposition of June, 1985. Claimant indicated that he subsequently contacted state vocational rehabilitation. He testified that they sent him home as "they couldn't do anything for me." Claimant agreed that they had suggested pain center treatment; claimant then reported that the vocational rehabilitation personnel told claimant he would not be accepted for pain center treatment after he had dealt with the pain on his own for six months as it was then "too hard to break existing patterns.O Claimant agreed that vocational rehabilitation personnel had told him he may have been depressed. Claimant asserted that he had had a pretty mild depression and was "mad" and "real disappointed." Claimant testified that he is currently receiving Social Security disability benefits and that, at time of hearing, had recently been recertified as eligible. Claimant reported that Dr. Walker's examination had lasted approximately 5.5 hours and had included both the taking of measurements and grip and strength testing. Julie Ann McBirnie, claimant's wife of 23 years, substantiated claimant's testimony as regards his life activity restrictions and continuing problems with muscle spasm. Phil Schumacher testified that claimant was terminated at Oscar Mayer under a clause in the union contract stating that any absence in excess of 18 months would result in termination of employment. Schumacher testified that Oscar Mayer has a policy against rehiring previous employees. He reported that, for that reason, claimant would not be rehired at Oscar Mayer if he did apply for work, although the plant has hired persons with claimant's kinds of conditions. He indicated there are pork plants other than Oscar Mayer in Iowa. MCBIRNIE V. OSCAR MAYER & COMPANY Page 6 Mr. Schumacher reported that exhibit 2 is a video tape of a long shot of the picnic boning conveyor line. He reported that, in the current operation, Boston butts are not asided into totes and therefore a video of the picnic line was made as it was identical to the layout of the butt line and was very similar to the 1983 butt boning procedure. Mr. Schumacher testified that picnic boning pieces are somewhat heavier than butt boning pieces. The video was viewed by the undersigned. Schumacher indicated that the plant floor drops one-fourth inch in elevation per foot towards the drains as required by federal regulation. Schumacher indicated that, on February 7, 1983, a notice of the Perry Oscar Mayer plant closing was posted. The plant has been able to stay open on two different occasions subsequent to that posting. Schumacher indicated that OSHA has not issued a citation relative to claimant's complaint regarding the plant's boning operation. Mr. Schumacher assumed that Dr. DeranleauOs services in March, 1983, as well as the services for physical therapy at Dallas County Hospital were paid as a workers, compensation claim. Mr. Schumacher reported that the company doctor would make the determination as to whether prescription drugs should be given an employee; the employee would decide whether they needed their hands wrapped. Mr. Schumacher reported that there are currently a total of 10 inside-out ham boners at the Oscar Mayer plant. He indicated the job description provided defense counsel and Dr. Bolden accurately described their present duties and that, in addition, they would train individuals on new methods of boning, apparently piece boning, with less than 50% of their time spent on actual inside-outside ham boning. Schumacher reported that the patch skin and bone picnics job is still available at Oscar Mayer, but reported that the job does not exist as described in the April 18, 1972 job description in that the duties of taking off the patch skin and blood clots, bruises and hair roots is now performed by individuals other than the picnic boners. He reported that the service boning conveyors, or electric truck job, is not available as described in that, while the physical demands remain the same, a common service pool of workers for both picnics and hams is no longer used as the two operations are now performed on different floors. He reported that the job of service line boning no longer exists. Schumacher reported that piece ham boning has been performed at Oscar Mayer from approximately May or June, 1983. Schumacher recalled a conversation with claimant of June, 1985 in which claimant told Schumacher claimant was going to come back to work as Dr. Wirtz had indicated in a deposition that claimant was capable of returning to work with no restrictions. Schumacher reported that he advised claimant that claimant was off work under the care of Dr. Rouse and that claimant could not return to work until he had a written release from Dr. Rouse. Schumacher testified that temperatures in the area where MCBIRNIE V. OSCAR MAYER & COMPANY Page 7 hams are boned would be under 50 degrees, but would "bump up pretty close to that.O He indicated that the floor in the area is wet from time to time throughout the day and that there are cooling units on the sides of the floor which can create drafts, although he was uncertain that there would be drafts in individual work stations. Schumacher opined that, of approximately 150 boners in the plant, approximately 20 have in excess of 15 years seniority. Dan Severns is a supervisor in industrial engineering at the Oscar Mayer plant in Perry. He has had prior work experience as an industrial engineer and has attended ergonomics and other related seminars. Mr. Severns indicated he was familiar with the butt boning operation in 1983. Severns reported that 85% of rough butts were from light hogs weighing approximately 7 3/4 pounds and 15% were from heavy hogs weighing approximately 11 1/2 to 12 pounds with the heaviest weights being approximately 16 pounds. Severns reported that, in the boning operation, the bone, gristle and skin are discarded and the boneless butt, the blade meat and the plate fat are reserved in the tote. He indicated that the net weight in a tote would be approximately 85% of the total weight from the table. The tote standard is boneless meat from seven butts or approximately 40 pounds. Once the tote is filled, the worker turns slightly to the left and pushes the tote up a 22 degree incline onto another conveyor. The work standard for light butts would be 42 units per hour with seven butts in a tote. Therefore, Severns testified that a worker would deal with slightly over six totes per hour with hie totes per day totalling 6 plus multiplied by 7.67 hours. Severns reported that, when claimant was boning, the operation was a rough butt boning operation, whereas now the operation is a Boston butt boning operation. He explained that Boston butts are now not placed in the tote, but remain on the conveyor. Severns was unaware of the number of knife cuts required, but indicated it was possibly as high as 50, although he was uncertain as to whether it would have been between 50 and 75. Severns agreed that the greatest number of cuts would be required for the leanest of the three grades of butts boned. Severns reported that occasionally a worker would need to reach across the four foot wide conveyor to get a product as the product would be beyond the conveyor's center, even though the attempt was to have the product at the center. Severns indicated he was confused as to claimant's statement that turning [fully] in the work station was not possible. An 18-inch space exists between the cut board and the back of the next work station. He indicated a worker should be able to turn within that space and [time] should have been allowed for turning when boning job standards were established. Severns reported that the jobs of boning hams inside out, of patch skin boning, of service boning conveyor and of operating electric truck now exist at Oscar Mayer although minor method changes have taken place since 1983. He reported that the physical demands from such jobs remain basically the same as in 1983, however. Severns reported that service loin boning is one of the more physical jobs in the plant and reported that there is no longer a loin boning operation at Oscar Mayer. Severns indicated that jobs at Oscar Mayer are coded by points to indicate the pay scale for such jobs with a lower point total MCBIRNIE V. OSCAR MAYER & COMPANY Page 8 indicating the job requires less force or physical demand. Ranges are from A for the lightest jobs to D for the heaviest jobs. Boning Boston butts is a code A job. Boning hams inside out is a code B job. Brenda Goeden testified that she is a vocational rehabilitation specialist with a masters degree in personnel and counseling with an emphasis on job development and placement. She identified exhibit 22 as a VOCOMP output analysis. She described VOCOMP as a tool used to produce a listing of various jobs a worker can physically perform. The jobs supplied from VOCOMP are based upon the profile supplied, including the individual's work history, interests, aptitude, behavioral patterns from his work history, vocational training, education and physical capacities or restrictions. Ms. Goeden reported that a labor market survey would be done if a worker expressed an interest in a job title supplied through the VOCOMP analysis system. Ms. Goeden reported that the data supplied the VOCOMP computer for claimant included Dr. Grundberg's restrictions. She reported that average GATB scores were supplied the computer and that vocational training and education was limited to 12 months. Ms. Goeden reported that a total of 68 jobs were supplied through the VOCOMP analysis. It was not determined whether those jobs were available in the locale. Not all jobs required training that could be completed within 12 months. Ms. Goeden agreed that all jobs might include some reaching, handling, fingering or feeling. Ms. Goeden reported that was not considered significant as Dr. Grundberg had only moderately restricted claimant as MCBIRNIE V. OSCAR MAYER & COMPANY Page 9 regards those activities. She agreed that a labor market survey would be required to determine the feasibility of any given job for claimant. Cecilia O'Brien, R.N., testified that she is a vocational rehabilitation specialist with Intracorp and has been such since July, 1986. Her prior work experience includes five and one-half years as a Swift Independent Packing Company plant nurse. Ms. O'Brien testified that in that job she had worked with meat packing workers as regards job modification and employee restrictions or job transfers on account of employee restrictions. Ms. O'Brien reported she had contacted Oscar Mayer and had visited the plant as well as having visited with Drs. Grundberg and Boulden. She reported she was aware of Dr. Grundberg's restrictions on claimant and reported that Dr. Boulden had placed no back or hand restrictions on claimant. Ms. O'Brien opined that claimant should not do a knife job given the symptoms that he has and his problems with dexterity, feeling and grasping. She reported that Dr. Grundberg's weight limit should also be considered and that claimant should work in a warm as opposed to a cold environment. Ms. O'Brien reported that packing plant jobs she might consider for claimant included stun and shackle hogs as that involved grasping large objects and not fine motor skills, driving hogs, cutting the feet off hogs and yard worker. She reported that he could possibly work as a day janitor or work pushing hogs into a cooler, although she would have to check with Dr. Grundberg to see whether any weight limits apply to pushing or pulling. She reported that, in driving hogs, some individuals use slappers, some use electric prods and others simply "holler" at the hog. She was unaware of whether Oscar Mayer allowed workers latitude as to the method in which the workers performed the job or whether they required the use of a particular tool. Ms. O'Brien agreed she had not viewed any of the jobs described as performed at Oscar Mayer or reviewed the Oscar Mayer job descriptions regarding any of the jobs. Ms. O'Brien testified that, while working at Swift, she had been aware of workers with both carpal tunnel and ulnar tunnel who had been hired by Swift. She reported that bilateral carpal, cubital and ulnar surgeries and epicondylitis surgery would not necessary preclude employment although, as plant nurse, she would have advised that the person would have trouble if placed in a knife job. Ms. O'Brien reported that, as plant nurse, if a job applicant had had back spasm or other indication of back problems, she would have sent them to the company doctor for x-rays. Ms. O'Brien opined that the ability to spell is not indicative of intelligence. Kay Stokely, who has a Bachelor of Science degree in nursing from the University of Iowa, testified she has been employed by Oscar Mayer since 1969. Nursing notes relative to claimant were discussed. An entry for June 2, 1980 reflects that claimant called stating he would be under a doctor's care for one or two weeks on account of massive muscle spasms in the neck, arms, chest and back. The note states "not work connected." A note of October 28, 1981 reflects that claimant came to the first aid station on that date reporting a sore left arm and that an ACE bandage was applied to the arm. A note of March 4, 1983 reports that "lower back better, both shoulders sore. ... Analgesic was administered.O An entry of March 28, 1983 indicates "right MCBIRNIE V. OSCAR MAYER & COMPANY Page 10 elbow, cannot fully extend. Will see Dr. Grundberg April 5 at 3:00. Back okay." After claimant's work return of August 1, 1983, the balance of the entries do not report back pain. She reported that entries of August 2, 1983, August 3, 1983, August 4, 1983, August 9, 1983, August 18, 1983, August 19, 1983, August 23, 1983 and September 9, 1983 related to claimant's arm which she characterized as including the wrist. Ms. Stokely indicated that her entry on claimant's employee attendance card for September 12, 1983 indicated that claimant had called and reported he would be under a doctor's care all week for sore throat and back. An entry of September 15, 1983 indicates that claimant had called and stated he would be in the hospital the rest of the week for back muscle spasm. Ms. Stokely indicated that in August, 1983, claimant was administered analgesic twice and Darvon once. She reported that she supposed that medication taken for arm or wrist pain would also affect back pain for a few hours. Ms. Stokely stated that no physician had advised her that claimant was off work for a work-related injury in September, 1983. Patricia Massengill had had 20 years of experience working in the Dallas County Hospital and has worked at Oscar Mayer for 21 years. She apparently is not a licensed practical nurse, but has gained experience primarily from on-the-job training rather than from formal education. Ms. Massengill examined the first aid station nurse's notes for her entries relative to claimant. On September 28, 1981, claimant wanted his wrist wrapped. On March 2, 1983, claimant had a sore lower back with "twisting in the middle of the back" for which he was given analgesic. On March 14, 1983 claimant's back was no better; claimant saw Robert Deranleau, M.D., the company doctor. Ms. Massengill had not seen claimant after March 14, 1983. Upon examining a "white card", she reported that she had made a notation on August 15, 1983 of "Pulled muscles in back", however. She reported a similar notation for August 16, 1983. Neither notation referenced a work injury. on September 12, 1983, and September 13, 1983, claimant phoned and reported a sore throat. Thomas W. Bower is a physical therapist. Bower reported claimant had full range of motion of the hands and wrists and that, under AMA guides, he would have no range of motion impairment. He reported that he understood two previous EMG's done postsurgically were normal and that, on that basis, he would assume the nerves were functioning normally and not contributing to any further impairment. Claimant's grip strength was recorded through use of a dynamometer which measures force or torque registered at five different positions. Generally, minimal grip strength is generated at the first and fifth positions with maximum torque generated at the mid position or the third position of the dynamometer. Such should produce a bell-shaped curve. Bower reported that claimant's dynamometer test was inconsistent in that it did not truly show a bell-shaped curve once grip strength values were plotted. Bower reported that claimant's pinch grasp test also yielded questionable values in that a wide variance of values existed. He reported that, in that test, the individual is asked to pinch another dynamometer between the index finger and thumb over three successive trials. Usually, there is a 5-10% difference between each successive trial. In claimant's case, there was a 40% variability on one MCBIRNIE V. OSCAR MAYER & COMPANY Page 11 side and a 30% variability on the other side. Bower testified that the dynamometer should give a valid result regardless of whether the individual had a strong grip or a weak grip. On cross-examination, Mr. Bower indicated he was unaware that claimant had cubital ulnar surgeries on both hands or that claimant had had epicondylitis surgery. Bower indicated he does perform physical impairment ratings of backs and that, if claimant had flexion of 30 degrees of the lumbar spine, that would represent a 6% (impairment) and extension of 15 degrees would represent a 1-2% (impairment). He reported that there was no impairment for lateral flexion right and left of 30 degrees. Mr. Bower related that Dr. Grundberg had performed claimant's left carpal, ulnar and cubital surgeries after an EMG of 1981 was interpreted as normal. He further agreed that, in evaluating disability from the nerves, sensory deficit, pain, discomfort and loss of strength are all taken into account even though several of those are not measurable objectively. William R. Boulden, M.D., is a diplomat of the American Board of Orthopaedic Surgery and a fellow of the American Academy of Orthopaedic Surgeons. Dr. Boulden stated that, after examining claimant initially on September 15, 1986, he believed claimant had myofascial pain that his work may or may not have produced. The working diagnosis was of degenerative changes of the lumbar spine present since at least 1983. The doctor opined that most of [the changes] were soft tissue irritation with maybe some irritation of the degenerative changes in claimant's back. He reported that these should have been a temporary situation if properly treated and (if claimant were) properly advised and counseled in the proper use of his back in the future. Dr. Boulden indicated that claimant should be instructed on proper biomechanical use of his spine; instructed on proper low back exercise to keep his back more supple, lose and not prone to aggravation; and "making sure that his work site did not have jobs that were detrimental to performing proper biomechanical use of the spine." Dr. Boulden reported that he had reviewed a video tape of the deboning process at Oscar Mayer and had not seen anything that was physically demanding concerning the back other than that he would recommended claimant have a five-gallon bucket or plastic milk carton underneath his table in order that he could alternate from standing on both feet at once as to not aggravate his back. The doctor opined that if the floor had a quarter-inch drop per foot, that should not present a problem for claimant's back if he learns how to use his back properly through proper education. The doctor reviewed the job descriptions and physical demands of the jobs of bone hams inside-out, patch skin and bone picnics, service boning conveyors and electric truck and reported that there were no physical demands which claimant's back could not tolerate or working conditions which his back could not tolerate under those particular jobs. The doctor apparently had some reservation about the job of service loin boning as it involves very large weights (apparently lifting approximately 100 pounds). The doctor opined that claimant's back could tolerate both the physical demands and working conditions for the descriptions on exhibits 9 and 10, both designated bone loins. Dr. Boulden opined that, per evaluation of Mr. Bower, claimant's grip strength tests varied too greatly from the MCBIRNIE V. OSCAR MAYER & COMPANY Page 12 standard deviation to show whether claimant had any objective grip strength weakness. The doctor reported that he and Mr. Bower were unable to make a permanent partial impairment rating on claimant based on his normal motion, normal EMG'S, and inconsistent grip strength tests as according to AMA guidelines claimant did not qualify (for permanent impairment). Dr. Boulden reported that he would prophylactically restrict anyone who had had carpal tunnel surgery from repetitive bending of the wrists and from use of vibratory power equipment. Dr. Boulden opined that claimant should probably be able to cut meat using a non-vibratory electric wizard knife that is not as physically demanding on the wrist or hand. He reported that a job consisting of sorting different boxes and dumping them into larger tubs or containers did not require repetitive physical bending of the wrists. The doctor recommended the use of a soft-handled knife in order not to irritate any fibrous tissue about the scar area. The doctor opined that claimant would have no problem with his hands in doing any of the jobs outlined above other than, as regards boning hams inside-out, claimant's knife should have at least a cushion grip handle and that, if possible, claimant should use a wizard rather than a deboner knife. Claimant should wear a wrist splint for all jobs. Dr. Boulden indicated that claimant did not relate he had sustained a back injury at work on March 2, 1983 for which the company physician had treated him. Dr. Boulden opined that something may have occurred around March 2, 1983 to claimantOs back, but he stated that findings on physical examination referencing to pain in the lower back since March 2 were not out of the ordinary. The doctor opined that claimant's history of returning to work until approximately mid-April, 1983 and then being off for approximately 14 weeks on account of his arm surgery and then returning to work in August, 1983 with additional back problems after his return to work and eventual hospitalization did not necessarily indicate that something was occurring in his back that was more than a muscle strain in that, had claimant not had full rehabilitation prior to being off work for 14 weeks and if he did nothing during that period for rehabilitation of his back, then "[w]ith the underlying degenerative changes, that would fit along with what you described in his symptomatology." (Deposition page 26, lines 7-9). The doctor reported that he did not know what type of work claimant was performing in March, 1983. The following discussion then took place: Q. If he was boning butts, which he estimated weighed 10 to 25 pounds, and if the speed of the chain was approximately 50 per hour, and he would bone perhaps 430 to 450 during an eight-hour day, and if you would consider that the weight that he would be handling would be approximately three ton during that period of time, and he was standing on an uneven brick floor with a slope, and you have a temperature between 40 and 50 degrees, and the job required twisting for each bone, each butt that he boned, would that be the type of job that would aggravate this underlying degenerative condition? A. It's possible. First of all, I don't understand MCBIRNIE V. OSCAR MAYER & COMPANY Page 13 the job at all. It would be hard for me to conceive that he bones out 50 butts an hour. That would be almost a butt a minute. Maybe he is good, but that's almost impossible if we are talking about boning out a butt, we are talking about the large shank or ham side of the butt. Number two, requires him to twist, I'm not aware that there was any job there that was twisting. Obviously if he twisted without moving his feet, he could be taught properly how to move his legs and his back. I am saying if what you have told me is absolutely true, then, yes it could. Dr. Boulden later opined that it is possible for degenerative disc disease to be accelerated with improper back usage. Dr. Boulden reported that he did not really know what Dr. Winston was referring to when he indicated upon examining claimant in 1984 that claimant suffered a chronic, recurrent lumbosacral strain, obesity and chronic pain syndrome. Dr. Boulden reported that Dr. Gitchell's impression that claimant had degenerative disc disease with minimal nerve root irritation and weak abdominals as far as supporting his back was more consistent with what he found regarding claimant. Dr. Boulden did not recommend pain center treatment for claimant as claimant's pain source has not been identified yet and "[I]f it is something that MCBIRNIE V. OSCAR MAYER & COMPANY Page 14 is treatable, obviously the pain center has no benefit at all.O Dr. Boulden also reported that claimant upon questioning did not seem to be that incapacitated with his pain. The doctor agreed that, with respect to the carpal tunnel, cubital tunnel and ulnar nerve problems for which claimant was treated, that without protection there was a higher instance of reoccurrence where an individual has previously had surgery and then returns to the same type of work. Dr. Boulden indicated that bilateral (positive) Tinel's and positive Phalen's would not indicate clinical findings of carpal tunnel because they are subjective tests. He reported that he would not operate unless EMG changes (consistent with) carpal tunnel syndrome were found. Dr. Boulden opined that grip strength would be important. John R. Walker, M.D., is a board-certified orthopaedic surgeon who has practiced in the Waterloo area for over 37 years. Dr. Walker opined that claimant's permanent impairment combined of the lumbosacral and sacroiliac would equal 18% if he could Oproperly get at least the sacroiliac in some kind of shape with treatment.O Dr. Walker had rated the right arm at 32% of the arm and the left arm at 24% of the arm. The doctor felt that claimant had very little loss of abduction or adduction, but had no measurement in degrees as to those left wrist motions. Claimant had lost the last ten degrees of full extension of the right elbow. Pronation and supination of the right elbow were normal. Claimant had no shoulder problems. Claimant's abduction and adduction of the wrist joint on the right were normal throughout. Flexion and extension of the left elbow joint were normal. Rotation of the left elbow joint was normal and claimant's shoulders on both the right and the left were normal. Dr. Walker reported that claimant had about 60 degrees of forward flexion of the thoracolumbar spine. He reported that claimant did not have any loss of extension and felt that claimant could have forced himself to a fairly good range of motion. The doctor stated that he remembered, but had not recorded, that claimant had pain or a positive straight leg raising test at 30 degrees. Dr. Walker opined that claimant does not have a disc problem, but had chronic, painful sacroiliac sprain giving telalgic radiation into the thigh and groin on the right side. Dr. Walker opined that he had assigned claimant 32% (permanent partial impairment) of the right arm which, under the AMA guides, he translated into 19% of the body as a whole; had assigned claimant 24% [permanent impairment] of the left arm and translated that to 14% of the body as a whole; and had assigned claimant 18% of the body as a whole for the back. He reported that he then added the whole body percentages (of impairment) to achieve the figure 51% whole (person impairment). Dr. Walker agreed that, under the AMA guides, the figures would have been combined rather than added. He also agreed that the combination of impairment could very well be 42% (permanent partial impairment of the body as a whole). Dr. Walker opined that an incident on March 2, 1983 when claimant was pulling meat off the line and twisted his back and felt immediate low back pain caused the pain he described as occurring in the sacroiliac joint. Dr. Walker recommended that he treat claimant to try to make claimant feel better, but stated that, when he had last seen claimant in March, 1986, claimant had reached maximum medical recuperation. The doctor opined that, without further treatment, he would not release claimant to MCBIRNIE V. OSCAR MAYER & COMPANY Page 15 return to gainful employment. Dr. Walker opined that further treatment for claimant's "upper extremity" would fail and that claimant could not return to his previous work he did before, given his present impairments of his arms. The doctor opined that repetitive use of the wrists and elbows had produced claimant's upper extremity conditions. He opined that the condition should be considered an injury rather than a disease. A. B. Grundberg, M.D., is a member of the American Society for Surgery of the Hand and of the Academy of Orthopaedic Surgeons. The doctor first saw claimant on July 10, 1981 with complaints of pain in the right upper extremities and numbness and tingling. His final diagnosis regarding claimant was a compression of the median nerve at the wrist and compression of the ulnar nerve at the right elbow as well as probable thoracic outlet syndrome. On January 18, 1982, Dr. Grundberg did a decompression of the right carpal and ulnar tunnels and the ulnar nerve at the right elbow. He reported that claimant received only partial relief from that surgery and continued to have trouble until he had last seen claimant on January 28, 1986. On April 25, 1983, Dr. Grundberg performed a lateral epicondylitis of the right elbow as claimant was having discomfort in that area. The doctor determined that claimant had a compression of the median and ulnar nerves of the left wrist and the ulnar nerve at the left elbow and decompressed those on March 10, 1982. He reported that claimant was improved following that surgery, but did not recover altogether and was still having trouble when last seen on January 28, 1986. Dr. Grundberg opined that, under the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment, claimant had a 10% impairment of his right upper extremity and a 10% impairment of his left upper extremity. Dr. Grundberg opined that claimant's complaints about loss of strength in his hands would be consistent with the diagnosis he had made and with the surgery performed. The doctor indicated he would expect a person that does physical labor to have a normal grip strength of about 80-85 pounds, while claimant has a grip strength of approximately 70 (pounds) in each hand. The doctor opined that claimantOs grip strength could decrease with repetitive work activity and that such would be consistent with the type of problem he has. The doctor opined that he sees more of "these problems" in the meat packing industry than in some other industries because of the hard, repetitive nature of that work. The doctor stated that lateral epicondylitis usually does not leave any permanent impairment. The doctor reported that claimant mentioned low back pain only on October 18, 1983 and May 11, 1984. Peter D. Wirtz, M.D., is a member of the American Board of Orthopedic Surgery and the America Academy of Orthopedic Surgeons. The doctor first examined claimant on June 6, 1984. In a deposition of June 20, 1985, Dr. Wirtz reported that a Dr. Socarras performed an electromyographic study on October 8, 1984 and opined that no abnormality existed as far as conduction studies or electromyographic evaluation. Dr. Wirtz opined that, based upon loss of five degrees of right elbow motion, claimant had a three percent impairment of the right upper extremity, but did not have other permanent physical impairment. The doctor subsequently evaluated claimant on May 1, 1985. He opined that, MCBIRNIE V. OSCAR MAYER & COMPANY Page 16 other than his elbow impairment, claimant had no orthopedic findings that would indicate an impairment of his body. Dr. Wirtz opined that he would not recommend additional treatment orthopedically for claimant. He opined that, based on his examination of May 1, 1985, claimant has no activity restrictions. The doctor reported that he was familiar with the physical requirements of boning at Oscar Mayer and reported that claimant was physically fit to perform the duties of a boner as described by defense counsel. He further opined that the physical activity required for doing boning work would not aggravate and cause musculoskeletal strain in the back. Following an extended hypothetical question concerning claimant's symptoms and various evaluations, Dr. Wirtz opined that claimant's September 13, 1983 episode of back spasm at home would be a substantial factor in any disability or symptoms that he would have had after that date. The doctor further opined that, if claimant on October 15, 1983, while riding in a car, had a "flare-up" of his back, that flare-up would be a causative factor in any signs and symptoms of the back or legs after that date. Dr. Wirtz opined that claimant would benefit from treatment at the Mercy Hospital Pain Center. Dr. Wirtz opined that he would nOt have performed surgery based upon findings on electromyographic study in 1981. He stressed that nerve surgery [in the upper extremity] should be done on objective findings and, that if the electromyographic study did not indicate permanent damage, he did not feel surgery would benefit a patient any more than non-surgical treatment. Dr. Wirtz stated, regarding his rating of claimant's back, that he used the AMA guides as a guideline only and that, with claimant's straight leg raising in a sitting position normal, the loss of 10 degrees of full flexion while standing may be due to voluntary restriction of bending. On cross-examination, Dr. Wirtz stated a possibility exists that boning hams could possibly produce an acute lumbar strain. The doctor stated that, upon neurological examination of August 6, 1984, claimant had decreased feeling over the index and fifth fingers of both hands, worse on the right, and that the claimant had a TinelOs sign on the ulnar nerve, right and left, to the fifth fingers. The doctor opined that claimant was capable of doing boning table work. The doctor stated that he did not advise claimant in May, 1985 that he should not go back to work at Oscar Mayer and that he did not recall advising claimant in May, 1985 that he should pursue vocational rehabilitation, but reported that such would be appropriate advice. The doctor also stated he did not advise claimant in May, 1985 that he should obtain a TENS Unit and use it for possible relief of his back symptoms, but reported that such may benefit claimant. In a deposition of June 19, 1986, Dr. Wirtz stated that he had seen claimant on February 13, 1986 and that claimant then had indicated he had been evaluated in the Ames area and was on Social Security because of multiple problems. Claimant's symptoms included lower backache off to the right side as well as right elbow stiffness and bilateral hand numbness. Examination of the lower back did not reveal muscle spasm. Claimant was able to flex his back 30 degrees while standing, extension of his back was 15 degrees and lateral flexion was 30 degrees right, 30 MCBIRNIE V. OSCAR MAYER & COMPANY Page 17 degrees left. Straight leg raising in the sitting position was 90 degrees on the right and 90 degrees on the left; supine position was 40 degrees on the left, 40 degrees on the right with backache. Knee jerks were 2 on the right and 2 on the left and ankle jerks were 0 on the left and 0 on the right. On examination of the big toe, extensor hallicus longus, revealed five over five and no sensory deficit was noted in the lower extremities. Flexion of the patient's knees and flexion of the hips gave pain in the back area. Examination of the hand showed claimant had decreased feeling over the thumb, index, long and ring fingers of both hands, worse on the right than on the left. Claimant had Tinel sign on the forearm just proximal to the carpal tunnel release scar which radiates to the long finger and to the elbow. The left median nerve did not have a Tinel sign. The Tinel at the elbow was positive on the right with radiation to the shoulder and, on the left, was negative. Laterally, the right elbow had a well-healed scar. The range of motion of the right elbow was 15 degrees to 140 degrees whereas the left was 0 degrees to 140 degrees. Dr. Wirtz again stated that claimant's only physical impairment was an elbow loss of motion of 15 degrees equaling a three percent impairment of the right upper extremity under the AMA guides. Dr. Wirtz reported that Marvin M. Hurd, M.D., performed an electromyographic study on claimant to evaluate the upper extremity on October 8, 1984 and concluded that the study revealed no abnormalities in either upper extremity. Dr. Wirtz reported that Dr. Hurd's study indicated that claimant's neurological surgery left him with no permanent impairment. Dr. Wirtz reported that Dr. Hurd evaluated by way of conduction studies the right median, right ulnar at the wrist, the left median, the left ulnar at the wrist, the right ulnar and the left ulnar at the elbow and that the nerve conduction studies were normal. Dr. Wirtz opined that the location of claimant's symptoms in the right lower back area in the muscular area around the pelvis would not be indicative of a sacroiliac strain. Likewise, the doctor indicated that x-rays of May 1, 1985 and August 6, 1985 were not indicative of a problem with sacroiliac strain. Dr. Wirtz indicated that claimant did not have symptoms in the inguinal area of the body and that he saw no possibility of a herniated disc in claimant's low back. Dr. Wirtz indicated he had reviewed Dr. walker's letters and that they did not alter his opinions or conclusions. On cross-examination, Dr. Wirtz opined that, assuming 150 degrees is normal, claimant lacks 10 degrees of flexion and lacks 10 degrees of extension, which would be a 25 degree loss of motion equal to three percent based,upon lack of extension and three percent based upon loss of 10 degrees of flexion. He agreed that, on the left extremity, assuming normal to be 150 degrees, claimant would have a three percent impairment of the extremity because of loss of flexion. Dr. Wirtz stated that only abnormal findings were mentioned in his report and clinical notes. Dr. Wirtz reported that he evaluated claimant's back for disability in accordance with the AMA guides. The doctor reported that, on February 13, claimant's flexion was to 30 degrees forward with his legs straight while standing and that, MCBIRNIE V. OSCAR MAYER & COMPANY Page 18 if such correlated with other ranges of motions, claimant would have an impairment. The doctor stated that he would agree with the AMA guides and give a physical impairment of six percent for such flexion O[i]f the restriction of motion at thirty degrees was based on a back condition..." The doctor reported that, under the AMA guides, extension to 15 degrees would represent between a one and two percent impairment. The doctor agreed that claimant's lateral flexion on gross measurement was 30 over 30. He then stated he had used the AMA guides for evaluating claimant's physical impairment upon the measurement recordings only as "an overview as to the motions." The doctor explained that he did not use the AMA guides portion pertaining to nerves in determining physical impairment of claimant's median and ulnar nerve because claimant's EMG was normal. The doctor reported with respect to claimant's positive Tinel sign that, on the right side, the median nerve was percussed in the forearm just on the elbow side of the wrist and just on the elbow side of the scar and that claimant had radiation to the elbow which is not correct. He stated that claimant also described a radiation to the long finger which is correct, but that radiation both ways is not common. The doctor stated that the left median nerve of the wrist did not have a Tinel sign and that the Tinel sign at the elbow on the right over the ulnar nerve radiated to the shoulder, which is not appropriate, whereas,on the left there was no Tinel sign. The doctor described the Tinel sign as a physical examination technique that relies upon the patient on a subjective basis as MCBIRNIE V. OSCAR MAYER & COMPANY Page 19 to what is wrong with the patient. He reported that, in claimant's' case, without a positive EMG, he felt it had little reliability. Dr. Wirtz reported that his assumption was that 140 degrees of flexion was normal for claimant and that 15 degrees of loss of extension was an abnormality. He agreed he had not given a rating for any loss of flexion. Wayne E. Rouse, M.D., is a board-certified family practitioner. Dr. Rouse initially indicated that he had no medical records showing he had treated claimant for back difficulties prior to 1983, but later reported that he had seen claimant for acute lumbosacral muscle spasm on January 12, 1968. Dr. Rouse hospitalized claimant between September 13, and October 1, 1983 for recurrent spasm of the lumbosacral area requiring medication and physical therapy. Dr. Rouse indicated that, from October, 1983 through May, 1984, claimant had probable muscle spasm, limitation of back motion, and at times positive straight leg raising. Dr. Rouse opined that there was a causal relationship between the condition for which he saw claimant in September, 1983 and the incidents as related in exhibits 1 and 2 of Dr. Rouse's deposition. Exhibit 1 is an outpatient admission report of March 7, 1983 which states: "3/2/83 pulling meat off line twisted back.O Exhibit 2 is hand-written notes. A note of March 7, 1983 states: "pain in lower back since 3/2." Dr. Rouse indicated he had not placed any specific weight lifting limitations on claimant. He later indicated that he advised claimant to not lift over 25 pounds. He reported that he had advised claimant to perform exercises for back stretching and strengthening and to walk to tolerance as a form of exercise. The doctor stated that he had advised claimant to not return to work at Oscar Mayer because he felt that claimant's job, as described to him, would aggravate claimant's condition. The doctor reported his understanding of the job as involving standing on an uneven surface, twisting of claimant's back and working in a cold, moist and damp environment. He opined that those conditions could be condusive to aggravating chronic, recurrent back strain and spasm. Dr. Rouse indicated that claimant is five feet eleven inches tall and that the ideal weight for a large framed individual of claimant's height and age would be between 175-185 pounds. He reported that, as of April 6, 1987 claimant weighed 205 pounds. Dr. Rouse felt that a sloped floor and moving meat could cause a back problem, but agreed it would be difficult to ascertain what slope would cause an injury. He reported that he had never been to Oscar Mayer's plant and that he had not seen any video tapes of the sort of work claimant had done. Dr. Rouse reported that, in responding to the earlier hypothetical question regarding claimant, he had felt that claimant had lost the symptoms in his low back while off work. Dr. Rouse indicated that claimant had informed him that claimant stood in position working on a line as a boner and that that gave him problems. The doctor reported he was not familiar with the sort of work a boner does. Dr. Rouse reported that, in his April 9, 1985 letter, he had assumed that the opinions of Dr. Gitchell and Dr. Winston, given November, 1983 and June, 1984, respectively, were still extant. He subsequently explained that he did not have correspondence concerning any follow-up visit with Dr. Gitchell and that, therefore, in the April, 1985 letter, he was referring to his own clinical notes regarding claimant and indicating that claimant was still having MCBIRNIE V. OSCAR MAYER & COMPANY Page 20 difficulty. He therefore felt claimant should not return to work. Dr. Rouse reported his clinical notes indicate that, on January 12, 1968 claimant was treated with acute lumbosacral muscle spasm, was rechecked on January 19, 1968 and returned to work on January 22, 1968. He reported that, in 1976, claimant complained of back pain, but the clinical condition found was pleurisy with muscle spasm. Dr. Rouse indicated he had not detected any muscle atrophy in claimant. Deposition exhibit 1 is a copy of a Dallas County Hospital emergency outpatient record indicating an admission date of March 7, 1983 and reporting spine strain, indicating that on March 2, 1983 "pulling meat off line twisted back.O Page two of exhibit 1, handwritten medical notes of September 27, 1982, March 7, 1983, and March 14, 1983 report back pain, initially pain on the right side of the back under the shoulder blade. The March 7 note reports pain in the lower back since March 2. It also reports that pain is across the back with sharp pain in the middle at the level of L5. The March 14, 1983 note reports that claimant is still tender as above. Deposition exhibit 2 is physical therapy records indicating that initial treatment was on March 14, 1983 through Dr. Deranleau. Illness and accident records for claimant reveal that claimant has had a past pattern of absenteeism for which he had received written warnings and that claimant had had two prior back pain complaint investigations while at Oscar Mayer, one occurring when he slipped on a stair and the other occurring when he slipped on loose shower in the menOs locker room. Joint exhibit 19 indicates that claimant received a service pin on July 28, 1974 and on July 28, 1979 as well as a notation of a 15-year service pin awarded to Charles McBirnie, undated. Oscar Mayer awarded all pins. Joint exhibit 20 is a copy of a newspaper article entitled "Workers complain about hand numbness.O The article contains an allegation by an unidentified Oscar Mayer worker that the condition (of carpal tunnel syndrome) started showing up after production requirements were raised at the (Oscar Mayer) plant. Page 3 of joint exhibit 20 is another article by the same reporter entitled "Oscar cited for health hazard." The article states that the Iowa Occupational Safety and Health Agency had issued a citation to the Oscar Mayer plant as well as imposed a $4,000 fine following an inspection wherein the agency found that ham boning employees had been exposed to "undue repetitive motion trauma. This trauma was caused due to repeated hand and wrist exertions causing, aggravating or precipitating the carpal tunnel syndrome, tendonitis, ganglion cysts, numbness and tingling of the hands, and sprains and strains of the hands, wrists, arms and shoulders.O Defendants' exhibit 1 is a computer printout of jobs prepared by Vocomp Output Analysis. Defendants' exhibit 2 is an International Rehabilitation Associates Inc. Vocomp report concerning claimant. The reporter MCBIRNIE V. OSCAR MAYER & COMPANY Page 21 states that, in considering claimant's physical restrictions, considered jobs were light, defined as lifting or carrying 20 pounds and/or frequent walking and standing. The job title search was also limited to jobs which typically did not involve stooping, kneeling and crawling, reaching, using the hands and using the fingers. Jobs were selected which had at maximum a specific vocational preparation time of 12 months as well. Vocational possibilities listed included miller wet process, Wad compressor operator adjuster, bulk plant operator, steep tender, honey processor, chiller tender, second operator mill tender, quality control technician, concreting supervisor, and cabin equipment supervisor. Defendants' exhibit 3 is an International Rehabilitation Associates report of specialist Cecilia O'Brien concerning the disability of carpal tunnel regarding claimant. Beyond the carpal tunnel and the notation of the 10% rating to the upper extremity on both left and right per Dr. Grundberg, the specialist also notes claimant's 1983 hospitalization for acute back spasms. The report states that claimant refused to answer questions pertaining to his finances, stating it was none of Oscar Mayer's business and that claimant was unwilling to delineate job ideas or interests indicating that "the state people said 'he was unemployable'.O The report also contains the following O...attorney for claimant, then stated that this specialist was placing his client in an awkward position because he was on social security. He could not afford to support his family or [sic] less than that and this specialist could not guarantee him a wage equal to or greater than what he was now receiving,..." Joint exhibit 24 is a stipulation of the parties that claimant's disability is caused by repetitive use of hands, wrists and elbows and that such use is more common in a meat packing plant than outside of claimant's occupation. Joint exhibit 1 is medical reports relative to claimant. A November 11, 1986 report of William R. Boulden, M.D., reports that the doctor has reviewed claimant's 1983 films and that early degenerative changes were present at that time. The doctor further states that he would not rate claimant's back because claimant had preexisting degenerative changes. An October 2, 1986 report of Dr. Boulden reports that the CT Scan shows degenerative disc disease at L4-5, some at L5-Sl with some minor foraminal stenosis secondary to the degenerative process. There was no evidence of any herniated disc. On September 15, 1986, Dr. Boulden found claimant's hand very tender in the right epicondylar region over a well-healed incision. Claimant had full flexion, pronation and supination. He had pain extending to neutral degrees. He had bilateral TinelOs of both wrists and a positive Phalen's at both wrists. AllenOs test was normal and there was no Thenar muscle wasting. The doctor reported that claimant had two "MGs" since carpal tunnel release and that both were normal. On examination of claimant's back, claimant had left and right lateral bending of 30 degrees in each plane with extension of 30 degrees. Claimant had a lot of low back pain with forward flexion and right posterior thigh pain. Straight leg raising on the right caused posterior right thigh pain to the knee, negative on the left. Great toe extensors were 4/5 on the MCBIRNIE V. OSCAR MAYER & COMPANY Page 22 right as compared to the left. Deep tendon reflexes were equal and symmetrical in the knees and ankles. An October 18, 1985 Individual Written Rehabilitation Program Closure Addendum, signed by Tim Grasey as counselor, reports that claimant's file is being closed as a result of the evaluation. The reported states "The pain factor and loss of sensation of the hands, make it unlikely you can work competitively. Since our services would not improve chances of employment you are ineligible for services. If things improve you can reapply." An October 1, 1985 report of Gerald Bennett, counselor, states that from the beginning the counselor's impression was that claimant felt evaluation and vocational planning were quite futile. The reporter characterizes claimant as a rather typical, middle aged worker who has been disabled from doing the physical work that he has performed basically all of his life. He characterizes this as a rather overwhelming situation in that many of these workers enjoy their work and really do not plan to do anything other than what they have been doing, perhaps for decades. He states that claimant appears to be very much in that position. The reporter states that the staff overall felt claimant was not employable at that time and the counselor states that perhaps involvement in a pain clinic to help him adjust to the distress that he frequently knows might be a more profitable route for claimant. The reporter notes that the staff felt there might be a depression component in claimant's lack of ability to concentrate and discuss vocational planning. He notes that some staff members felt claimant could benefit from counseling regarding the way he feels about himself and his vocational future. He states it was suggested to claimant a number of times that, if he is able to make a better adjustment to his discomfort and stated pain, he might want to consider reevaluation at a later date. A June 24, 1985 report of James A. Hardinger, D.O., reports an impression of low back pain secondary to unstable low back and paresthesias of both upper extremities secondary to old carpal tunnel syndrome and ulnar nerve compression. He reports that reflexes in claimant's lower extremities were normal with circulation and neurofunction in both lower extremities appearing normal. Claimant had very poor lower back mobility. He had a straight leg raising test positive at 30 degrees on both the right and left side. Hip abduction and adduction caused discomfort on both sides. Claimant was able to attain 90 degrees of flexion at both hip joints, but had very poor forward flexion, possibly less than 90 degrees at his waist, also with restricted rotation. In a July 17, 1985 report, John R. Walker, M.D., stated that, at that time, "subsequent and because of and only following the injuries that he has suffered at the Oscar Mayer Company," claimant has the following persistent complaints: 1. Constant pain in the posterior lateral aspect of the right elbow which radiates down from the lateral epicondyle to the dorsum of the wrist into the forearm; 2. Cannot extend his arms completely with all ranges of motion painful, particularly if they are repetitive; MCBIRNIE V. OSCAR MAYER & COMPANY Page 23 3. Grip in the right hand is weak and elbow aches and, when resting the elbow on the table, it is tender to touch; 4. An aching of the palm of the right hand with a tingling sensation especially involving the right thumb, the second, third and fourth fingers as well. Claimant has a loss of strength and grip and does not have good proprioception and cannot feel well and cannot pick up small items such as coins or stamps without actually looking at them. The doctor reports he has apparently lost some tactful sensation and also has difficulty in turning pages of a book or handling paper money; 5. In the left elbow, arm, hand and fingers, claimant has the same complaints as on the right, except not as severe. He notes that claimant does not have the lateral, epicondylar pain nor the anterior arm pain. He notes that claimant feels the range of elbow motion on the left is normal; 6. In the lumbosacral area, Dr. Walker reports claimant notes pain and aching in the midline which radiates especially to the right sacroiliac area. He notes that the pain is made worse by sitting and standing for any length of time and that all twisting, bending or lifting makes the pain increase; 7. Severe right sciatic notch pain with sitting particularly and only in the right leg, thigh and buttock. Claimant has numbness on the right, anterior thigh, completely MCBIRNIE V. OSCAR MAYER & COMPANY Page 24 noted when sitting only. Claimant has some posterior thigh pain through the posterior aspect of the knee with the knee becoming stiff. Dr. Walker states that claimant has to help his hip flex by grabbing his pant leg and lifting his leg. Dr. Walker reports that AP and lateral views of claimantOs elbows are within normal limits as are AP and lateral views of the forearms and wrists. He reports that AP and lateral views and right, left, oblique views and spot views of the lumbar spine reveal a spina bifida occulta of S-1. Sacroiliac joints appear to be within normal limits. The doctor opines that he did not believe there was any particular narrowing of the fifth lumbar disc and that the disc spaces were within normal limits. Dr. Walker opined that claimant had lost elbow motion and had certainly lost a great deal of tactile sensation as well as stereognosis involving the fingers and thumbs of both hands. He characterized this as residuals of his median and ulnar nerve problems and surgical decompressions and residuals following the decompressions. Dr. Walker opined that claimant had a permanent impairment of the right upper extremity of 32% and that claimant had a permanent impairment of the left upper extremity of 24%. He reported that claimant also had a mild lumbosacral sprain, but more particularly a chronic, very painful sacroiliac sprain, giving him a so-called telalgic radiation of pain into the anterior thigh and probably into the posterior aspect of the thigh as well. The doctor reported that this was brought on by claimant's original injuries at the plant as described in the first paragraphs of the doctor's report. The first paragraph of the doctor's report deals with the development of claimant's upper extremity problems. Dr. Walker felt that claimant could be rehabilitated fairly well with either a sacroiliac arthrodesis or multiple injections of the right sacroiliac joint with Cortisone and Xylocaine. In a report of February 13, 1986, Peter D. Wirtz, M.D., indicated that, on examination of the low back, claimant had no muscle spasm, flexed to 30 degrees while standing, with extension to 15 degrees and lateral flexion of 30/30. Straight leg raising in the sitting position was 90/90 and in the supine position was 40/40 with backache. Knee jerks were 2/2 and ankle jerks were 0/0. Extensor hallicus longus was 5/5 with no sensory deficit in the lowers. Flexion of claimant's knee and hips gave pain in the back area. On examination of the hand, claimant had decreased feeling over the thumb, index, long and ring fingers of both hands, right worse than left. Tinel sign was present in the forearm proximal to the carpal tunnel release scar radiating to the long finger and the elbow. The left median nerve did not have a Tinel sign. Tinel sign was positive on the right to the shoulder and negative on the left. There were well-healed scars medially as well as a well-healed scar laterally on the right elbow. Range of motion of the right elbow was 15 degrees to 140 degrees and on the left 0 degrees to 140 degrees. Dr. Wirtz opined that claimant's loss of motion of the right elbow resulted in a three percent impairment of the upper extremity. He further opined that, since claimant demonstrated no objective findings for neurological involvement of the lower back nor objective MCBIRNIE V. OSCAR MAYER & COMPANY Page 25 restriction, he had a musculoskeletal strain and not a permanent impairment. In an August 6, 1984 report, Dr. Wirtz had diagnosed claimant's conditions as, (1) status postop bilateral carpal tunnel release; (2) status postop bilateral ulnar nerve tunnel release; (3) status postop bilateral elbow ulnar nerve compression; (4) status postop right lateral extensor tendon release; (5) neuropraxia, median nerve, bilaterally, and ulnar nerve, elbow, bilaterally; (6) right elbow stiffness; (7) musculoskeletal strain, lower back area. On June 20, 1984, Stuart R. Winston, M.D., a neurosurgeon, reported that claimant was then overweight, being 215 pounds on examination and that claimant bends and extends abnormally with limited flexion. He reported that reproducing claimant's work situation with rotation about the waist caused an increase in his difficulty with lumbosacral pain. Dr. Winston described claimant's work situation as requiring lifting ten pounds, twisting to the left about 460 times per day and working on a floor which was slanted, requiring claimant to lift at an unusual angle. Dr. Winston reported claimant's gait as essentially normal though claimant favored the right lower extremity upon first arising until he "gets going some." He characterized claimant's strength as excellent with straight leg raising being negative. Reflexes were symmetric but reduced at the ankles bilaterally. The doctor's impression was one of chronic recurrent lumbosacral strain, obesity and a chronic pain syndrome. Electrodiagnostic study of the paraspinals and lower extremities were negative. Dr. Winston opined that a chronic pain center might be advantageous to claimant and stated he had "a great deal of difficulty in seeing how this man can return to his former occupation.O Marvin Hurd, M.D., interpreted nerve conduction studies, that is, an EMG study of the lower extremities as normal. Robert Deranleau, M.D., reported in notes of September 27, 1982 that claimant had pain in the right side of the back under the shoulder blade; he reported on March 7, 1983 that claimant had had pain in the lower back since March 2, 1983 with the leg feeling tight. He also reported that the pain was across the back with a sharp pain in the middle level, apparently at L5. On March 14, 1983, the doctor reported that claimant was still tender, as above. Medical notes indicate that, on August 23, 1971, claimant twisted his back at work and it began to hurt the next day. The diagnosis was apparently of a strain of the right lower back. A note of July 5, 1979 indicates that claimant fell and landed on the back, bruising the lower back. A note of June 23, 1981 indicates that claimant has pain in the right elbow and wrist, his arm goes to sleep and his wrist aches. The note further states that the left wrist aches and that claimant drops things, especially with the right hand. A discharge summary of Dr. Deranleau from the Dallas County Hospital dated August 29, 1980 for an admission of August 27, 1980 reports that claimant has had a history of muscle spasms in his shoulders and back and that claimant was at work and had a sudden onset of back pain which radiated to his chest. The MCBIRNIE V. OSCAR MAYER & COMPANY Page 26 Dallas County Hospital Emergency Outpatient record for an admission date of March 17, 1978 indicates that, on March 2, 1983, claimant was pulling meat of the line and twisted his back. The diagnosis is one of spine strain. Nabil Faltas, M.D., interpreted x-rays of the lumbar spine of March 8, 1983 as showing a questionable borderline narrowing of the L-5/S-1 intervertebral disc space. Also noted was an incomplete fusion of the spinous process of S-1. An outpatient emergency record with an admission date of apparently March 17, 1978 reports that claimant slipped and hit his right hand on a table and the hand was painful and swollen below the fourth and fifth digits. On April 9, 1985, Wayne E. Rouse, M.D., reported that claimant's job involved standing on an uneven floor while doing considerable lifting. He opined that claimant's back complaints were directly related to the job performed and stated that claimant was precluded from similar employment due to his back condition. Dr. Rouse indicated that the point of maximum recuperation would be December, 1984 or January, 1985 in that the symptomatology seems to be leveling off with neither progression nor improvement. He reported that "at that time" he would not anticipate further improvement medically in claimant's condition. Dr. Rouse indicated that claimant's physical limitations resulted directly from his work at Oscar Mayer. He reported claimant's physical limitation as of April 8, 1985 as follows: Claimant awoke about three times a night with pain in his low back with radiation of pain into the right leg; riding in a car caused claimant's right leg to go to sleep with leg becoming completely numb after approximately one hour of riding; right leg sensation would return after five to ten minutes of activity. Prolonged sitting for more than one hour caused numbness and increasing pain in the low back with relief from pain achieved only from exercise or from relaxing in a hot tub. The doctor stated there are permanent physical limitations from the injury sustained while working at Oscar Mayer and that claimant would have "these limitations of duration of time, position, and physical capabilities within the time frames mentioned above." A return to work slip of Dr. Rouse dated April 2, 1976 contains under remarks, the notation "[c]ontusion of the peronal nerve and bone on right lower leg.O Robert Gitchell, M.D., an orthopaedic surgeon, reported on December 19, 1983 that claimant stated his job involved handling approximately 25-pound bundles of meat about 450 times each day. Claimant also stated that the work floors were slanted and that this may bother claimant as well. On examination, straight leg raising was positive on the right at 80 degrees and negative on the left; knee jerks were 2/2; ankle jerks were 1/1; atrophy was not noted in either calf or thigh; sensation was grossly intact in the lowers; range of motion of the back was fair with pain at the extremes. Claimant was tender at the right S1 joint although there was no tenderness in the sciatic notch. He was tender in the lumbosacral spine at about the L4-5 area. The doctor stated that he had programmed claimant on abdominal and back extensor exercises as he felt claimant needed to greatly improve the supporting structures of his back if he were to return to doing heavier type work as he had done in the past. The doctor thought that, in four to six weeks from the time of the report, claimant MCBIRNIE V. OSCAR MAYER & COMPANY Page 27 could consider going back to work. He reported that he would like to see claimant in approximately four weeks to check his progress. A September 15, 1983 note of Dr. Rouse reports that claimant has severe back spasm and that claimant has a history of recurrent back spasm, apparently without complaints of trauma. Arnis Grundberg, M.D., performed a lateral epicondylitis of claimant's right elbow on April 25, 1983. Dr. Grundberg has opined that claimant can perform light work involving lifting 20 pounds on an infrequent basis. He further reported that claimant should not work in extreme cold and that claimant was moderately restricted as to stooping, kneeling or crouching to pick up something light from the floor; as to crawling under a table to plug in a cord; as to reaching out with one or both arms and, as to grasping, holding, turning or handling an object with the fingers. APPLICABLE LAW AND ANALYSIS Our first concern is the nature and extent of claimantOs disability as a result of his July 1, 1979 and March 15, 1981 conditions affecting his upper extremities. Claimant contends the extremity conditions are occupational diseases under Chapter 85A and should be evaluated industrially. Defendants contend claimant's conditions result in scheduled member disability pursuant to Iowa Code section 85.34(2)(m). A treating physician's testimony is not entitled to greater weight as a matter of law than that of a physician who later examines claimant in anticipation of litigation. Weight to be given testimony of physician is a fact issue to be decided by the industrial commissioner in light of the record the parties develop. In this regard, both parties may develop facts as to the physician's employment in connection with litigation, if so; the physician's examination at a later date and not when the injuries were fresh; the arrangement as to compensation; the extent and nature of the physician's examination; the physician's education, experience, training, and practice; and all other factors which bear upon the weight and value of the physician's testimony may be considered. Both parties may bring all this information to the attention of the factfinder as either supporting or weakening the physician's testimony and opinion. All factors go to the value of the physician's testimony as a matter of fact not as a matter of law. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). 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). Iowa Code section 85A.8 provides: Occupational diseases shall be only those diseases MCBIRNIE V. OSCAR MAYER & COMPANY Page 28 which arise out of and in the course of the employee's employment. Such diseases shall have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment. Such disease must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment. Such disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease. Iowa Code section 85.34(2)(m) provides: The loss of two-thirds of that part of an arm between the shoulder joint and the elbow joint shall equal the loss of an arm and the compensation therefor shall be weekly compensation during two hundred fifty weeks. Claimant's argument apparently is that claimant's carpal, cubital and ulnar conditions and his epicondylitis are forms of tenosynovitis and, therefore, are occupational diseases as tenosynovitis was among specific occupational diseases statutorily delineated prior to the 65th General Assembly's MCBIRNIE V. OSCAR MAYER & COMPANY Page 29 repeal of the specific disease table. As defendants point out in their brief, claimant has not presented expert evidence supporting claimant's position. Indeed, Dr. Walker opined that claimant's extremity conditions should be considered injuries and not disease processes. Likewise, claimant's conditions apparently result from cumulative trauma to his upper extremities arising from repetitive movements of the extremities in his job. While the question was not before the court in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), the facts presented in that case suggest that the Iowa Supreme Court would find that conditions resulting from repetitive traumatic processes are more properly evaluated as injuries under Chapter 85, rather than as diseases under Chapter 85A. We believe such is the better result as it provides a clearer distinction between the nature of the disease and injury process and, thus, prevents unnecessary confusion in the law. Furthermore, we believe defendants are correct in asserting that, even were claimant's conditions found to be occupational diseases, section 85A.17 provides that compensation payable would be as provided in the workers' compensation law. Under Chapter 85, claimant's extremity conditions must be evaluated under the schedule and not industrially. We consider claimant's entitlement under the schedule. Drs. Wirtz, Walker and Grundberg evaluated claimant's hand. Dr. Wirtz alternately found a three percent impairment to the right upper extremity and no impairment to the left upper extremity and also a six percent impairment of the right upper extremity and a three percent impairment to the left upper extremity. Dr. Walker found a 32% impairment of the right upper extremity and a 24% impairment of the left upper extremity. Dr. Grundberg found a 10% impairment of both upper extremities. All three physicians are respected, board-certified orthopaedic surgeons well known professionally to this agency. Additionally, Dr. Grundberg is a member of the American Society for Surgery of the Hand, was claimant's treating physician for all his extremity problems and performed his right and left surgical releases and his epicondylitis surgery. Drs. Wirtz and Walker were examining physicians only and lack Dr. Grundberg's additional expertise in conditions affecting the hand. Dr. Grundberg has moderately restricted claimant as to reaching out with one or both arms and as to grasping, holding, turning or handling an object with the fingers. That restriction placed after long-time treatment of claimant appears the most objective evidence of claimant's upper extremity impairments. For the foregoing reasons, we accept Dr. Grundberg's opinion that claimant's condition has resulted in a 10% loss of use of each arm. Under section 85.34(2)(m), claimant is therefore entitled to 25 weeks of permanent partial disability benefits on account of each extremity loss with benefits to commence August 1, 1983. As the losses were incurred substantially prior to August 1, 1983 and as each loss represents a separate injury, the benefits for each loss should be paid concurrently. We next consider whether claimant sustained either a specific back injury on March , 1983 or a cumulative back injury in August-September, 1983. Claimant has the burden of proving by a preponderance of the MCBIRNIE V. OSCAR MAYER & COMPANY Page 30 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); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out ofO refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). OAn injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it.O Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971), Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the MCBIRNIE V. OSCAR MAYER & COMPANY Page 31 natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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, (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 (1962). The evidence reveals claimant sought treatment for back spasm as early as 1968. Claimant's description of his alleged March 2, 1983 work injury is confusing in that we are unable to determine whether claimant asserts he had a specific work incident on that day or whether claimant merely states he experienced pain on that date which claimant related to his job duties. In any event, claimant's description of his job duties appears somewhat exaggerated. For reasons which will be further developed below, we are unable to say the duties per se produced an injury to claimant's back. Dr. Walker has opined that claimant had an incident on March 2, 1983 when claimant was pulling meat off the line and twisted his back and felt immediate low back pain, which incident caused pain in the sacroiliac joint. Dr. Walker was an examining physician only, however, and examined claimant long after March 2, 1983. We are uncertain as MCBIRNIE V. OSCAR MAYER & COMPANY Page 32 to what Dr. Walker relied upon in reporting a March 2, 1983 incident as nursing notes for March 2, 1983 do not relate an incident. The only contemporaneous note of twisting is a March 7, 1983 admission note stating claimant twisted his back pulling meat off the line. We cannot determine whether such refers to a specific work motion, routine work motions or claimant's self description of the condition of claimant's back. Claimant's failure to testify as to specific activities of March 2, 1983 makes the point additionally confusing. As we have no specific testimony concerning a work incident on March 2, 1983, nor even a medical history precisely recording any such event, we are unable to find a specific incident of March 2, 1983 which produced injury to claimant's back. We, therefore, consider claimant's allegation of a cumulative injury. Dr. Rouse, claimant's family practitioner, has stated a causal relation exists between the conditions related on a medical note and outpatient admission record of March 7, 1983 and the condition for which the doctor treated claimant in September, 1983. He acknowledged he was unfamiliar with the work a boner performs, but for claimant's description of claimant's work duties. The doctor opined claimant's work conditions, as the doctor understood those conditions, could be condusive to aggravating chronic, recurrent back strain and spasm. The doctor had understood that claimant's condition had improved while claimant was off work. Claimant reported at hearing that his back continued to ache while he was off work from April 24, 1983 to August 1, 1983 and that he did exercises and used hot soaks to relieve his condition during that period. Such is inconsistent with Dr. Rouse's understanding and appears inconsistent with the onset of claimant's severe back spasm on September 13, 1983. On that date, a Tuesday, claimant had not worked almost four full days on account of a sore throat before the onset of his debilitating symptoms. Claimant, himself, testified that, on Monday, he was ObackwiseO ready to return to work. On Tuesday, while sitting on his sofa at home, he experienced severe back spasm for which he was hospitalized. Claimant's worse symptoms were far removed from any actual work activity. One would generally expect an individual's most severe symptoms which are aggravating a condition to be present while the individual is working or in close chronology to work activities. Claimant's actual history, therefore, discounts the weight to be given Dr. Rouse's opinion concerning a work related aggravation of claimant's underlying back condition. Dr. Wirtz, on the other hand, has opined that claimant's back spasm at home on September 13, 1983 would be a substantial factor in claimant's symptoms and [physical] disability after that date. Dr. Wirtz does not relate the September 13, 1983 spasm to claimant's work. For reasons noted above, it appears inconsistent to relate that spasm episode to work which claimant had not performed for some four days. Dr. Boulden initially stated claimant had myofascial pain which claimant's work may or may n t have produced. He later stated it was possible [emphasis added] claimant's job as described in claimant s counsel's hypothetical question could aggravate an underlying degenerative condition or accelerate degenerative disc disease. Dr. Boulden had earlier stated that MCBIRNIE V. OSCAR MAYER & COMPANY Page 33 the job viewed on video should not physically tax the back. We discount this statement somewhat as the video does not show the job claimant actually performed, but rather a job with both noted similarities and dissimilarities. The job recorded on the video does not involve a great deal of twisting of the lower back, however. Dr. Boulden reported that the one-fourth inch floor slope should not produce back problems with proper back use. Such appears reasonable. Mr. Schumacher testified that federal regulations require a one-eighth to one-fourth inch slope in packing plant construction. It appears highly unlikely such sloping would be required if the slope were a usual or recognized cause of back ailments in packing house employees. [We note in passing that we know of no other workers' compensation claim in which the slope of the packing house floor was implicated as a causative factor in claimant's back complaints. Again, if the slope can produce such problems and the slope is routinely required in packing plants, we find it unusual that we are unaware of other cases where such claim is made.] The hypothetical question to which Dr. Boulden responded referenced to claimant boning approximately 50 butts per hour, each weighing 10 to 25 pounds. Mr. Severns reported that butts to be boned would weigh between 7 3/4 and 12 pounds and that an average worker would be expected to bone 42 butts per hour. Claimant stated the average weight of butts was 7 to 15 pounds. He further testified that, after his hand surgeries, he needed co-workers' help to meet his boning production quotas. He stated he was running at only approximately 30% on his August, 1983 work return. The above facts undermine the hypothetical question as MCBIRNIE V. OSCAR MAYER & COMPANY Page 34 placed and further make it doubtful that claimant's work conditions produced his spasmatic back condition. Further, as noted earlier, claimant had episodes of back spasm over an extended time and even predating his Oscar Mayer employment. Thus, while we do not doubt that claimant has seriously disabling back complaints and we sympathize with the distress these undoubtedly cause him and his family, we cannot say on this record that those complaints arose out of and in the course of his employment. For that reason, claimant's claim must fail. As we have not found an injury which arose out of and in the course of claimant's employment, we need not address the remaining questions that claimant's claim presents. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant's conditions in his upper extremities are the result of cumulative traumatic injury and are not disease processes. Claimant had a decompression of the right carpal and ulnar tunnels and of the ulnar nerve at the right elbow on January 18, 1982. Claimant had decompression of the median and ulnar nerves of the left wrist and of the ulnar nerve at the left elbow on March 10, 1982. Claimant had a lateral epiconylotis surgery on April 25, 1983. Claimant performed repetitive movement of his upper extremities on his job; such repetitive movement culminated in his carpal, cubital and ulnar conditions. Claimant's conditions in his upper extremities are evaluated under the schedule and not industrially. Drs. Wirtz, Walker and Grundberg are all respected, board-certified orthopaedic surgeons. Dr. Grundberg is a member of the American Society for Surgery of the Hand. Dr. Grundberg was claimant's treating physician for claimant's extremity problems and performed claimant's right and left surgical releases and his epicondylitis surgery. Drs. Wirtz and Walker examined claimant only and lack additional expertise in hand conditions. Claimant is moderately restricted as to reaching out with one or both arms and as to grasping, holding, turning or handling an object with the fingers. Claimant sought treatment for back spasm on various occasions from 1968 onward. Claimant began work at Oscar Mayer in 1969. It is unclear whether claimant had a specific work incident MCBIRNIE V. OSCAR MAYER & COMPANY Page 35 on March 2, 1983 or experienced pain while performing his regular work duties. Claimant had physical therapy at Dallas County Hospital for a period beginning March 14, 1983 to relieve his back condition. Claimant was off work from April 25, 1983 to August 1, 1983 following his epicondylitis surgery. Claimant's back continued to ache while he was off work. Claimant did exercises and used hot soaks to relieve his condition while he was off work. Claimant returned to work on August 1, 1983. Claimant worked on the Boston butt boning line. Claimant boned butts with weights of from 7 3/4 pounds to 15 pounds. Workers were expected to bone 42 butts per hour. Co-workers assisted claimant in making his production quotas following his extremity surgeries. Claimant was boning approximately 30% of quota after claimant's August 1, 1983 work return. The boning area floor has a one-fourth inch per foot slope to the drain. Federal regulations require a one-eighth inch to one-fourth inch slope in meat packing facilities. With proper back use, a one-fourth inch floor slope should not produce back problems. Claimant last worked for Oscar Mayer on Friday, September 9, 1983. Claimant was off work Monday and Tuesday, September 12 and 13, 1983 on account of a sore throat. On Monday, September 12, 1983, claimant was ready to return to work as regards his back. On Tuesday, September 13, 1983, in the afternoon while sitting on his sofa at home, claimant experienced severe back spasm for which he was subsequently hospitalized. Claimant's back spasm at home on September 13, 1983 was remote in time from his work at Oscar Mayer. Dr. Rouse was unfamiliar with claimant's work conditions as claimant described those conditions. At hearing, claimant appeared to exaggerate the difficulties in his work conditions. MCBIRNIE V. OSCAR MAYER & COMPANY Page 36 The hypothetical question placed to Dr. Boulden was inconsistent with claimant's actual job duties and claimant's actual job performance. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant is entitled to permanent partial disability resulting from his upper extremities conditions of 10% of the right arm and 10% of the left arm. Claimant has not established a back condition which condition arose out of and in the course of his employment, either by way of a specific work injury of March, 1983 or by way of a cumulative injury during August-September, 1983. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability benefits for twenty-five (25) weeks on account of his right arm at the rate of two hundred fifty-six and 58/100 dollars ($256.58) per week with those benefits to commence August 1, 1983. Defendants pay claimant permanent partial disability benefits for twenty-five (25) weeks on account of his left arm at the rate of two hundred fifty-six and 58/100 dollars ($256.58) per week with those benefits to commence on August 1, 1983. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to Iowa Code section 85.30. Defendants pay the costs for proceedings in file numbers 692457 and 700671 pursuant to Division of Industrial Services Rule 343-4.33. Claimant take nothing from proceedings in file numbers 756245 and 756247. Claimant pay the costs for proceedings in file numbers 756245 and 756247 pursuant to Division of Industrial Services Rule 343-4.33. Defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 31st day of March, 1988. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER MCBIRNIE V. OSCAR MAYER & COMPANY Page 37 Copies To: Mr. Dennis L. Hanssen Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 1100, 1107, 1108.40 1803.1, 2203, 2209 Filed March 31, 1988 HELEN JEAN WALLESER CHARLES E. MCBIRNIE, File Nos. 692457, 700671 Claimant, 756245, 756247 VS. R E V I E W - OSCAR MAYER & COMPANY, R E 0 P E N I N G Employer, D E C I S I 0 N Self-Insured, Defendant. 1803.1, 2203, 2209 Claimant's argument that upper extremity conditions resulting from repetitive movement at work were occupational diseases failed. Held to be cumulative trauma. Compensation awarded under the schedule with ratings of treating physician accepted over ratings of examining physicians. 1100, 1107, 1108.40 Claimant did not establish spasmatic back condition arose out of and in the course of employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYL ANN ENDERLE, FILE NO. 693872 Claimant, R E V I E W - VS. R E O P E N I N G CITY OF DAVENPORT, D E C I S I O N Employer, Self-Insured, Defendant., INTRODUCTION This is a proceeding in review-reopening from a memorandum of agreement that was filed on February 16, 1982. The action is brought by Cheryl Ann Enderle, claimant, against the City of Davenport, employer and self-insured defendant for benefits as a result of an injury that occurred on January 13, 1982. A hearing was held on October 16, 1986 in Davenport, Iowa and the case was fully submitted at the close of the hearing. The record consists of joint exhibits 1 through 16; the testimony of Cheryl Ann Enderle (claimant); and the testimony of defendant's witnesses Robert E. Garner (police officer), Larry Brown (health spa manager), and Larry W. Frey (police sergeant). STIPULATIONS At the time of the hearing the parties stipulated to the following matters: That an employer/employee relationship existed between the claimant and the employer at the time of the injury. That the claimant sustained an injury on January 13, 1982 which arose out of and in the course of her employment with the employer. That the injury was the cause of temporary disability and that the claimant was entitled to and was paid temporary disability benefits intermittently between January 14, 1982 and November 1, 1982. That the commencement date for permanent partial disability benefits in the event of an award is November 2, 1982. That the rate of compensation in the event of an award is $131.17. That the claimant was paid seven weeks of compensation at the rate of $131.17 per week prior to the hearing. ENDERLE V. CITY OF DAVENPORT Page 2 ISSUES The issues presented by the parties for determination at the time of the hearing are as follows: Whether the injury of January 13, 1982 was the cause of any permanent partial disability. Whether the claimant is entitled to any permanent partial disability benefits. Whether the claimant is entitled to the payment of certain medical expenses with two chiropractors, Kenneth J. Meyer, D.C., and J. Larry Troxell, D.C. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered though only certain pertinent evidence is mentioned in this opinion. Claimant is 48 years old. She began working for the City of Davenport in May of 1980. She was injured on January 13, 1982. She was employed as a records clerk in the police department at the time of the injury and returned to this job after the injury. Since returning to work she has been promoted from records clerk to senior records clerk. Her duties include typing, filing, microfilming, keeping books and records, and distributing supplies. She is performing the same duties now that she performed prior to the injury. At approximately 3:45 p.m. on January 13, 1982, a power outage occurred at work. Claimant was proceeding into the electrical room next to her office to assist another employee to restore the power when she tripped on the carpet and fell on her right side. The evidence is in conflict as to whether she was unconscious for a short period of time or not. She said she twisted as she fell and hit her head, right arm, right hip and right leg when she fell. Claimant received emergency treatment at Mercy Hospital in Davenport (Exhibit 2). She complained of headache, neck pain, right elbow pain and right hip pain at the emergency room. At the hearing she stated she also had right knee, right arm and low back pain. She told the nurse at the emergency room that it felt like her hip "went out.O She told the doctor at the emergency room that she threw her hip out, which is something she does all of the time. She was on her way to the chiropractor to get it fixed but instead came to the emergency room at the hospital on the advice of her supervisor. X-rays were normal except there was a question whether a dense line across the neck of the femur was an impacted fracture from the injury or whether it was a preexisting condition. It was later determined that it was not an impacted fracture due to this accident (Ex. 9). Claimant's supervisor, Major Robert E. Garner, filed an accident report with the City of Davenport on the following day on January 14, 1982 (Ex. 16). ENDERLE V. CITY OF DAVENPORT Page 3 At the hearing claimant testified that her current complaints were her right knee, hip and back. She can only stand or sit approximately one hour at a time because her back hurts. It is hard to turn her head to the left or the right or up and down. She cannot bend forward or backward without pain. She claimed to have pain down the right leg and that she limps when she walks. She cannot ride in a car for over an hour without either laying down or getting out to walk. She denied any injuries or physical health problems either before or after the instant injury. However, claimant's treatment record with Dr. Meyer shows a number of injuries and numerous other health problems. More specifically the office note of Dr. Meyer on April 26, 1972 mentions a fall from a bicycle; the office note of October 8, 1973 notes a fall off a bed; and the office note on March 10, 1975 states that she fell flat on her face just to mention a few of the injuries recorded there (Ex. 6). It was also brought out that she was rear ended in an automobile accident in June of 1986, but the claimant stated that this affected her upper back between her shoulder blades. Sergeant Larry W. Frey, a Davenport police officer, testified that he is the claimant's supervisor. He is in daily contact with her and her desk is in his view. She has never complained of inability to do any job. She sits at her desk most of the day except to get up to wait on people or to go to the files. He has never had to assign any of her tasks to anyone else. Claimant's absences from work after the injury are no greater than they were before the injury (Ex. 13). Claimant testified.that she was first treated by J. H. Sunderbruch, M.D., who is a general surgeon in Davenport. Dr. Sunderbruch furnished a report on January 21, 1983. He saw the claimant several times between January of 1982 and January of 1983. In the course of her treatment he sent her to Richard L. Kreiter, M.D., an orthopedic surgeon; Byron R. Rovine, M.D., a neurologist; and the University of Iowa Hospitals and Clinics where she was examined in both the orthopedic and neurology departments. Dr. Sunderbruch stated that claimant was suffering from degenerative arthritis in her right hip, which may have been aggravated by her fall. However, he adds that there is a severe emotional overlay in this entire problem. He felt the accident of January 13, 1982 was not the precursor of her true complaints (Ex. 9). Dr. Kreiter first saw claimant in January of 1982 and last saw her in February of 1985. He reports on October 21, 1985, that her chief complaint was low back pain. He reviewed the record of Kenneth J. Meyer, D.C., and determined claimant saw Meyer for right hip pain and sought chiropractic care from Dr. Meyer from 1972 through December of 1983. She continued to have chronic hip problems up until the present time. His x-rays demonstrated degenerative osteoarthritis of the hip. Dr. Kreiter concluded: ...In any event it would be my opinion that Ms. Enderle has had a longstanding history of recurrent back and hip problems dating back to 1972 and that the injury that is in question may well have aggravated a ENDERLE V. CITY OF DAVENPORT Page 4 pre-existing condition, but from the physical findings, does not seem to have accelerated the condition to any significant degree. (Ex. 5) Dr. Rovine, the neurologist, saw claimant on March 12, 1982 and December 6, 1982 for pain in the entire right side -- hand, arm, thigh, leg and foot. She had been on crutches for eight weeks. On March 12, 1982, Dr. Rovine concluded: I can find no evidence that this woman's pain is on the basis of sciatic radiculopathy or neuropathy. There is no evidence to suggest that she has a herniated or extruded disc. I get some impression from some of the conflicting statements and bizarre complaints that there may be a large functional element in this woman's clinical syndrome with complaining far beyond the scope of any organic findings clinically or by x-ray to explain her problem. Once it has been decided once and for all whether or not she has had any fractures and when full mobilization is again permitted, I would suggest a rigorous physical therapy program to attempt rapid rehabilitation to normal function. If she does not respond adequately and her complaints increase, in the absence of organic findings to back up her complaints, psychiatric evaluation may well be helpful. (Ex. 8). Dr. Rovine reconfirmed the same findings on December 6, 1982. However, a CT scan ordered by Dr. Sunderbruch on November 22, 1982 (Ex. 2, page 5) indicated a protrusion of the left side of the L4-5 disc. Dr. Rovine did not think a myelogram was clinically indicated, but he informed the claimant that this would be her next step if she wanted to explore it further. Claimant indicated that her doctor had told her that she had already received the maximum allowable amount of radiation for that year. Dr. Rovine again concluded his report by saying that claimant should be evaluated psychiatrically (Ex. 8). On October 27, 1982, claimant was simply sitting and heard a popping sound in her back between her spine and her right hip. She reported to St. Luke's Hospital for emergency treatment (Ex. 3). St. Luke's told her it was her sciatic nerve. Claimant was examined at the University of Iowa Hospitals and Clinics in January of 1983 in both the orthopedic and neurology departments. X-rays, CT scans, myelogram and EMG and MCV studies were all normal. The university doctors found that claimant had mild degenerative arthritis of the right hip. They recommended medication and physical therapy. Epidural steroid shots could be considered. No return was scheduled (Ex. 4). On January 31, 1983, the City of Davenport informed the claimant by letter that they had gone to considerable expense to treat her complaints and that they had determined that her degenerative arthritis condition was the cause of her continued ENDERLE V. CITY OF DAVENPORT Page 5 medical problems. Therefore, future medical claims would have to be submitted through the health insurance carrier and absences from work would be charged to her sick leave (Ex. 15). Dr. Meyer, the chiropractor, submitted the claimant's chiropractic record from February 3, 1971 through December 16, 1983. Claimant saw him approximately 20 or 30 times every year for multiple complaints many of which were the right hip and back, neck and right shoulder pain, and leg pains. Claimant began seeing J. Larry Troxell, D.C., on December 13, 1983. He diagnosed soft tissue damage of the lumbar and sacroiliac region from the injury of January 13, 1982. He stated that the injuries that she received resulted in a 25 percent impairment. He recommended chiropractic treatment once a week for the rest of her life (Ex. 10). Claimant's total bill with him as of September 5, 1985 was $4,250 (Ex. 12). At the hearing claimant testified that she had continued to see Dr. Troxell and that her current bill was approximately $7,000. She stated that she sees him twice a week. At the request of the employer claimant was examined by W. J. Robb, M.D., on August 9, 1985. Claimant complained of back and right leg pain and trouble sitting, standing, bending and reaching. She walked with a limp favoring her right leg. He performed an extensive examination and concluded as follows: Diagnosis: 1. SPRAIN, LUMBOSACRAL SPINE, SECONDARY TO FALL AT WORK, JANUARY 13, 1982 2. DEGENERATIVE ARTHRITIS, RIGHT HIP 3. PSYCHOSOMATIC DISEASE, FUNCTIONAL OVERLAY SECONDARY TO TRAUMA (Ex. 7) Dr. Robb added that claimant continued to have back and leg pain because she did not adequately perform exercises that had been prescribed for her. Most of her pain is due to the degenerative arthritis in her hip and only a minimal amount of her pain was due to her back. He stated that settlement of her litigation would improve her condition. He gave claimant a five percent permanent impairment rating of her body as a whole as a result of the injury to the back, but added that this impairment was largely due to her failure to perform the exercises which had been prescribed and that she was not motivated to do so in the future. Dr. Robb stated that she also had an impairment of 20 percent of the body as a whole due to degenerative arthritis of the hip but it was not due to the accident nor did the accident significantly alter or aggravate her hip condition. She had no impairment due to her head, neck, right upper extremity or right knee complaints. In his opinion, further chiropractic manipulation is not necessary now or for the rest of her life. Rather her progress and improvement depends upon her own activities, exercise and physical fitness (Ex. 7). Claimant testified that she went to a health spa twice a week to do her exercises. Larry Brown, manager of the spa, testified as to her attendance from his health spa records (Ex. 14) which showed that she attended about three or four times a ENDERLE V. CITY OF DAVENPORT Page 6 month from September of 1985 to July of 1986 and then she quit attending. F. Dale Wilson, M.D., conducted a very thorough and detailed examination of the claimant at the request of her attorney (Ex. 11). He also testified by deposition (Ex. 1). He thought claimant should have a weight lifting restriction of approximately five pounds to 15 pounds and that she should be allowed to change positions while working. He believed that all of her complaints were caused by the injury of January 13, 1982. Dr. Wilson gave the claimant the following impairment ratings: Person To recapitulate: I. Head and neck 3% II. Right upper extrem- ity 5% III. Right hip 10% IV. Right knee 0% V. Lumbar spine 9% 27% disability Ex. 11) It should be noted, however, that Dr. Wilson was operating under the false or mistaken notion that the claimant had never had any problems prior to her injury on January 13, 1982. ENDERLE V. CITY OF DAVENPORT Page 7 APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of January 13, 1982 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.w.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is-for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant testified several times that she had never had any problems with her neck, back, hip or headaches prior to this injury. However, there are numerous treatments recorded by her chiropractor, Dr. Meyer, going as far back as 1971. His record shows that she received treatment for both hips, pain in her right hip, back pain, neck pain and headaches. His record directly contradicts her testimony. At the emergency room she told the nurse that it felt like her hip went out. She told the doctor that it does it all of the time. Degenerative arthritis of her right hip was established by x-rays. She apparently had an episode of it on October 27, 1982 when she was just sitting and her hip popped and she sought emergency care at St. Luke's Hospital. Dr. Sunderbruch, Dr. Kreiter, Dr. Rovine and the University of Iowa Orthopedic and Neurology Departments all diagnosed degenerative arthritis of the claimant's right hip as their primary diagnosis for her complaints. Dr. Sunderbruch, Dr. Rovine and the Orthopedic and Neurology Department apparently were not specifically asked and therefore did not make a statement on whether the accident of January 13, 1982 (1) caused or aggravated her degenerative hip condition; (2) caused any permanent impairment; or (3) warranted an impairment rating. Dr. Kreiter did say that the injury did not accelerate her longstanding arthritis condition but it may well have aggravated it. Dr. Kreiter did not give an opinion on permanent impairment and did not give an impairment rating. Dr. Meyer, claimant's chiropractor, found that all of her complaints were caused by the fall but did not make a finding of permanent impairment and he did not give an impairment rating. Dr. Troxell, the second chiropractor that the claimant ENDERLE V. CITY OF DAVENPORT Page 8 consulted, said the accident caused soft tissue damage and assessed an impairment rating of 25 percent of the body as a whole. He did not indicate how he arrived at this percentage. Dr. Wilson found the accident was responsible for the claimant's complaints and found permanent impairment in the amount of 27 percent of the body as a whole. He gave an extremely detailed account of how he determined his ratings. Dr. Robb found permanent impairment of the body as a whole. He said that five percent was for her back symptoms due to the injury on January 13, 1982, but 20 percent was not due to this injury, but rather was due to the degenerative arthritic hip disease. Varied Industries v. Sumner, 353 N.W.2d 402 (Iowa 1984). of the five percent which Dr. Robb attributed to this injury he said most of that was due to the claimant's failure to do her prescribed exercises and her lack of motivation to do so in the future. Dr. Robb did not explain how he arrived at his ratings but normally orthopedic surgeons use either the orthopedic guide or the AMA Guide or both. Dr. Wilson's percentage ratings must be discounted. He stated several times in his report and in his deposition testimony that the claimant had no problems preexisting this injury. However, this is not correct. Claimant, on the contrary, had many, many problems before this injury according to Dr. Meyer (Ex. 6) and her own remarks in the emergency room and the fact that her hip popped simply while sitting and caused her to go to the emergency room again on October 27, 1982. Dr. Troxell's rating is 25 percent but he gives no underlying basis for his rating. In addition, several doctors commented about the significant emotional overlay of the claimant. Dr. Rovine felt she needed psychiatric assistance. He also suggested secondary gain factors as affecting the claimant's many bizarre symptoms and statements. There were many indications from the doctors that the claimant's complaints exceeded her organic finding of disease. Based primarily on the opinion of Dr. Robb, who is the defendants' own doctor, and who is the only one who directly addressed the impairment issue, it is found that there is some slight degree of permanent impairment, but it is not large, it is slight. Dr. Robb rated the claimant's permanent impairment as five percent of the body as a whole due to her back complaints. Dr. Wilson and Dr. Troxell, who were claimant's doctors, also did find some impairment and gave ratings. Claimant has numerous detailed subjective complaints. She has incurred $7,000 worth of chiropractic care expense to treat the symptoms. However, many of these symptoms and numerous other symptoms existed prior to this injury and she received chiropractic care for them. Her pattern of chiropractic care after the injury appears to be no different than her pattern of chiropractic care prior to the injury. In spite of her subjective complaints the claimant has returned to work and does her job in a normal manner. Frey testified that he observes her every day, all day. She sits at her desk without complaint or any physical signs of pain and does her work without any ENDERLE V. CITY OF DAVENPORT Page 9 noticeable difficultly. He has never had to assign any of her tasks to anyone else. THEREFORE, based upon the foregoing discussion, it is determined that the claimant has sustained an industrial disability of 10 percent of the body as a whole based primarily on Dr. Robb's determination that her back is impaired due to this injury, the claimant's subjective complaints of pain, and the supporting evidence from Dr. Wilson and Dr. Troxell. Iowa Code section 85.27 provides that the employer shall furnish "reasonable" medical care. It is found that the employer did provide reasonable medical care in this case. They provided the services of Dr. Sunderbruch, a family practice physician and general surgeon; Dr. Kreiter, an orthopedic surgeon; Dr. Rovine, a neurosurgeon; and the expertise of the orthopedic department and the neurology department of the University of Iowa Hospitals and Clinics. The employer paid for x-rays, CT scans, a myelogram, and an EMG and NCR test. All of these tests proved negative for any disease other than degenerative arthritis of some longstanding that probably predated this injury. At this point the employer determined that reasonable care had been provided. This decision concurs with their decision for the reasons set forth above. Claimant was provided reasonable medical care at that point. The care of Dr. Meyer and Dr. Troxell was not authorized by the employer as required by Iowa Code section 85.27 nor was it reasonable in view of the care that the employer had already provided. Furthermore, the effectiveness of this care is in question when the patient's condition does not improve or significantly change. Dr. Troxell has treated the claimant two or three times a week for over three years. Claimant owes him $7,000. Dr. Troxell feels that claimant will continue to need treatments on a regular basis for the rest of her life. It is noted also that the claimant saw Dr. Meyer approximately 20 or 30 times a year from 1971 through 1983 for these same or similar complaints. Dr. Robb states that further chiropractic manipulation was not necessary. Rather what this claimant needed was to perform the exercises which had been prescribed for her (Ex. 7). Dr. Kreiter also opposed chronic constant chiropractic treatment in the case of this patient (Ex. 5). Dr. Wilson, the evaluating doctor for the claimant, also felt that no further rehabilitation was needed (Ex. 11). Claimant appears to be entitled to certain mileage expenses. In her testimony she stated that she traveled 120 miles round trip from her home in Davenport to Iowa City and return. A claim also appears to be made for four miles to Mercy Hospital and six miles to Dr. Rovine (Ex. 12). Total mileage claimed is than 130 miles. This claim was not disputed by the defendants. Therefore, it is determined that the claimant is entitled to medical mileage of 130 miles at the rate of $.24 per mile and should be reimbursed in the amount of $31.20. FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: ENDERLE V. CITY OF DAVENPORT Page 10 Based upon the testimony of Dr. Robb, Dr. Wilson and Dr. Troxell, the claimant did sustain some permanent impairment from this injury. Dr. Robb assessed a five percent permanent impairment rating of the body as a whole as a result of the injury to the back. Claimant has been able to perform her regular job as well after the injury as before the injury from all outward appearances but with considerable difficulty according to the claimant's subjective complaints. Claimant has sustained a 10 percent industrial disability to the body as a whole. That the claimant incurred 130 miles of authorized medical mileage. That the defendants did provide reasonable medical care to the claimant for this injury. That the treatment of Dr. Meyer and Dr. Troxell was not authorized by the employer and was not reasonable under the circumstances. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously stated, the following conclusions of law are made: That the injury of January 13, 1982 was the cause of some permanent disability. That the claimant is entitled to 50 weeks of permanent partial disability benefits based upon 10 percent of the body as a whole as industrial disability. That claimant is entitled to $31.20 of medical mileage as shown above. That the defendants proved that reasonable medical care had been provided to the claimant as required by Iowa Code section 85.27. That any other medical treatment incurred by the claimant without authorization, specifically Dr. Meyer and Dr. Troxell, was not reasonable medical expense within the context of Iowa Code section 85.27. ORDER WHEREFORE, IT IS ORDERED: That defendants pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of one hundred thirty-one and 17/100 dollars ($131.17) per week in the total amount of six thousand five hundred fifty-eight and 50/100 dollars ($6,558.50) commencing on November 2, 1982. That the ENDERLE V. CITY OF DAVENPORT Page 11 defendants pay this amount in a lump sum. That interest will accrue under Iowa Code section 85.30. That defendants are entitled to a credit for any amounts previously paid. That defendants pay claimant thirty-one and 20/100 dollars ($31.20) in medical mileage expense. That defendants are to pay the cost of this proceeding pursuant to Division of Industrial Services Rule 343-4.33, formerly Iowa Industrial Commissioner Rule 500-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1. Signed and filed this 31st day of March, 1987. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER ENDERLE V. CITY OF DAVENPORT Page 12 Copies To: Mr. Allan Hartsock Mr. Craig L. Kavensky Mr. H. Reed Doughty Attorneys at Law 4th Floor Rock Island Bldg. P. 0. Box 428 Rock Island, Illinois 61204 Mr. Mark F. Cyr Attorney at Law 116 E. 6th St. Davenport, Iowa 52803 Mr. Steven C. Lussier Staff Attorney Legal Dept. City Hall Davenport, Iowa 52801 1108.50; 1402.40 1402.60; 1803 Filed March 31, 1987 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYL ANN ENDERLE, FILE NO. 693872 Claimant, R E V I E W - VS. R E 0 P E N I N G CITY OF DAVENPORT, D E C I S I 0 N Employer, Self-Insured, Defendant. 1108.50; 1402.40; 1803 Claimant fell at work and had multiple complaints of injury and pain. Several doctors mentioned heavy psychological overlay. Claimant allowed 10 percent permanent partial disability based on defendant's doctor's evaluation of five percent permanent partial disability and other evidence. 1402.60 It was determined that employer provided reasonable medical by providing a family physician and general surgeon, a neurologist, orthopedic surgeon, and the neurology and orthopedic departments at the University of Iowa. Chiropractic bills in excess of $7,000.00 denied from chiropractor who said she would need weekly treatment the rest of her life. Her chiropractic pattern was the same after the accident as before the accident. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JANICE PRINDLE, : : Claimant, : : File No. 694423 vs. : : R E V I E W - MORSE RUBBER PRODUCTS, : : R E O P E N I N G Employer, : : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in review-reopening upon claimant's petition filed June 10, 1988. Claimant sustained a work injury on January 6, 1982 creating symptomatology in the arms, shoulder and neck. After filing a petition in arbitration seeking benefits under the Iowa Workers' Compensation Act from defendant employer Morse Rubber Products and its insurance carrier, CNA Insurance, the parties entered into a stipulation and agreement for settlement pursuant to Iowa Code section 86.13 which was approved by a deputy industrial commissioner on August 4, 1986. The agreement for settlement in pertinent part provided for certain periods of temporary total disability/healing period and further provided that claimant had sustained a ten percent permanent partial disability to the body as a whole. Hearing on the review-reopening petition was had in Burlington, Iowa, on May 24, 1990. The record consists of claimant's exhibits 1 through 17, defendants' exhibits 8 through 10 and claimant's testimony. Page 2 issues Pursuant to the prehearing report, the parties have stipulated: that claimant sustained an injury arising out of and in the course of her employment with Morse Rubber Products on January 6, 1982; that the proper rate of weekly benefits is $150.65; that defendants made certain payments pursuant to the agreement for settlement approved in 1986. Issues presented for resolution include: whether the work injury caused additional temporary or permanent disability, the extent of each and the commencement date of the latter; the extent of claimant's entitlement to medical benefits (it being stipulated that the fees charged for medical services or supplies were fair and reasonable and incurred for reasonable and necessary medical treatment, but authorization by defendants was disputed and the stipulation entered into by the parties is inconsistent with defendants' attached statement of disputed issues with respect to whether the expenses were causally connected to the work injury); taxation of costs. Of course, in a review-reopening proceeding, it is necessary for claimant to establish a change in condition in order to recover additional benefits based on permanent disability. findings of fact The undersigned deputy, having heard the testimony and considered all of the evidence, finds: Claimant was employed by Morse Rubber Products for approximately five years until losing that position in a general layoff in January 1983. She has not worked for defendant since then. Her job responsibilities included some heavy lifting and painting and some repetitive motion work involving, especially, the right hand. Claimant developed pain in both shoulders, elbows and forearms, cramping in her hands with aching and numbness and tingling into the fingers, which caused her to seek treatment from Jerry L. Jochims, M.D., on December 8, 1981. Dr. Jochims is an orthopaedic surgeon and testified by deposition on May 27, 1986 (prior to the agreement for settlement). Claimant eventually underwent a carpal tunnel surgical release in 1982 and surgery for ulnar nerve compression with cubital tunnel syndrome on the right side in 1985. Claimant also developed neck and shoulder pain on the right side; the ulnar nerve surgery was to some degree exploratory in nature and undertaken because it was more conservative and of less potential risk than cervical surgery. However, neck pain symptoms did not completely resolve. Dr. Jochims testified that claimant's symptoms were related to employment at Morse Chain, apparently meaning defendant. However, he also testified on cross-examination as follows: Page 3 Q. Now, we're going forward to April of 1984. And then she starts working at Sheller-Globe. The work that she did at Sheller-Globe includes such things as removing a pad from a conveyor, checking it for defects, both visually and by feel, trimming it, using scissors and a knife or another trimming tool, and then putting this pad aside for the next operation, and this is a continuing situation. The pad itself weighs, oh, up to 15 pounds. She -- She starts that job on April 17th of '84, and she continues working regularly at Sheller-Globe, doing this type of work, until March of '85, when she has the ulnar nerve decompression surgery. In January of '85 -- now that's, of course, before the last surgery -- she complains of pain in her right arm, and this is -- and the other complaints of the pain in the shoulder and the neck, which are reflected in your -- your notes. Now, assuming those employment facts, if I've got a period of time with Morse Rubber and then a period of time with Sheller-Globe, and, again, using your knowledge of Mrs. Prindle's condition, can you tell us with a reasonable degree of medical certainty whether Mrs. Prindle's present problems are caused by her work at Morse Rubber or whether they're caused by her work at Sheller-Globe? A. I don't know. Q. Okay. Would it be fair to say that the type of work that I've described, not very eloquently, but tried to describe at Sheller-Globe, would aggravate the problems that she previously had? A. By way of clarification, my understanding of aggravation is to take one set of conditions or intensity of complaint and make it larger. And if I were to look at it in that particular light, I don't believe that the overall intensity of her complaints nor the findings related thereto is greater now than what it was prior to her transfer from one place to the other. (Dr. Jochims' deposition, page 19, line 13 through page 20, line 23) Claimant indeed commenced working for Sheller-Globe (now apparently known as United Technology) on April 17, 1984. The work, as a finish operator, included trimming pads and covers with scissors. Claimant testified that, in her opinion, the Sheller-Globe job caused pain in her arms, shoulders and neck. In fact, she filed a petition in arbitration on June 6, 1986 against that employer, alleging Page 4 an aggravation of her preexisting condition to the neck, shoulder and right arm, although that petition was subsequently dismissed without prejudice on April 29, 1987. After the agreement for settlement had been approved, claimant developed recurrent pains across her back and in the neck. She returned to Dr. Jochims, who eventually referred her to Christopher Loftus, M.D. Dr. Loftus is a neurosurgeon and assistant professor of neurosurgery at the University of Iowa Hospitals and Clinics. He testified by deposition on May 15, 1989. Dr. Loftus first saw claimant on August 8, 1986 and has been her treating physician since. On August 29, claimant had further electrical studies and a computerized tomography scan of the neck, both of which were read as normal. Dr. Loftus began with conservative therapy, including a cervical collar and anti-inflammatory agents upon a putative diagnosis of cervical osteoarthritis with radiculopathy. By October 14, claimant reported complete resolution of pain and on examination showed complete resolution of what Dr. Loftus had originally seen as a neurological deficit. She was released to return to work. However, by one week later, after returning to work for one week with Sheller-Globe, her pain syndrome had recurred. In November, myelography showed osteophytes and nerve root compression at both C6 and C7, leading to Dr. Loftus' recommendation of surgical decompression and fusion. On November 18, 1986, claimant underwent a two-level discectomy and fusion at C5-6 and C6-7. Although Dr. Loftus felt that claimant had a good result from surgery, by the time of hearing she felt worse. She, of course, continued to work for Sheller-Globe. Dr. Loftus believed the work claimant returned to (Sheller-Globe) aggravated her condition to bring on her symptomatology. In specific, the worsening of claimant's condition following surgery was connected to returning to work at Sheller-Globe and doing repetitive motion work. conclusions of law Pursuant to Iowa Code section 86.14(2), in a proceeding to reopen an award for payments, inquiry is to be made into whether or not the condition of the employee warrants an end to, diminishment of, or increase of compensation previously awarded. A change in condition must be shown to justify changing the original award. Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959). It is not proper to merely redetermine the condition of the employee as adjudicated by the former award. Stice v. Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940). A mere difference of opinion of experts or competent observers as to the degree of disability arising from the original injury is insufficient to justify a different determination on a petition for review-reopening; there must be substantial evidence of a worsening of the condition not Page 5 contemplated at the time of the first award. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957). Or, a change in condition may be found where claimant has failed to improve to the extent initially anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978). Additionally, in cases not involving scheduled members, a change in earning capacity subsequent to the original award which is proximately caused by the original injury may constitute a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980). The parties have agreed that claimant sustained a work injury while employed with Morse Rubber Products. That employment relationship ended in January 1983. In April 1984, claimant began a repetitive motion job with Sheller-Globe and had been so employed for in excess of two years when the agreement for settlement was submitted and approved. Obviously, Dr. Jochims' opinion was a substantial factor in the parties reaching agreement for settlement purposes. Shortly thereafter, claimant developed increased symptoms while working at Sheller-Globe and underwent a major cervical operative procedure. The key issue in this case is whether claimant's cervical operation and subsequent disability is causally related to the initial work injury as opposed to an aggravation causally related to her continued employment by Sheller-Globe. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 6, 1982 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. 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 Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Early on, Dr. Jochims was somewhat unclear, but essentially indicated his belief that claimant's condition in 1986 was causally related to the initial work injury. Page 6 The subsequent treating physician, Dr. Loftus, has pointed to claimant's work with Sheller-Globe as aggravating her condition. Given the more recent opinion of treating surgeon Loftus and the obvious fact that substantial employment from 1984 to 1990 involving repetitive motion (which claimant herself believes causes arm, shoulder and neck pain) is a very significant intervening event, it must be held that claimant has failed to meet her burden of proof in establishing the necessary causal nexus between the original work injury and either the symptomatology giving rise to the surgical procedure or her current condition of ill being. order THEREFORE, IT IS ORDERED: Claimant shall take nothing further from this proceeding. Each party shall be assessed its own costs pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Mr. Elliott R. McDonald, Jr. Attorney at Law P.O. Box 2746 Davenport, Iowa 52809 1108.50 Filed January 28, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : JANICE PRINDLE, : : Claimant, : : File No. 694423 vs. : : R E V I E W - MORSE RUBBER PRODUCTS, : : R E O P E N I N G Employer, : : D E C I S I O N and : : CNA INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1108.50 Claimant failed to show causal nexus in review-reopening between original injury and current disability where she worked for several years in intervening job. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT WALTER GEORGE, FILE NO. 694775 Claimant, R E V I E W VS. R E 0 P E N I N G DUBUQUE PACKING COMPANY, Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in review-reopening from a memorandum of agreement brought by Robert Walter George, claimant, against Dubuque Packing Company, employer and self-insured defendant, for benefits as a result of an injury that occurred on February 2, 1982. A hearing was held on November 12, 1986 at Dubuque, Iowa and the case was fully submitted at the close of the hearing. The record consists of (1) the testimony of Robert Walter George (claimant); (2) the testimony of Robert L. Luthro (private employment agency proprietor); (3) claimant's exhibits 1 through 7; and (4) defendant's exhibits A through D. STIPULATIONS The parties stipulated to the following matters: That an employer/employee relationship existed between the claimant and the employer at the time of the injury. That the claimant sustained an injury on February 2, 1982 which arose out of and in the course of his employment with the employer. That the injury is the cause of temporary disability during a period of recovery and that the claimant is entitled to and has been paid temporary disability benefits from February 2, 1982 through March 14, 1985. That the injury is the cause of permanent disability and that the claimant has received permanent partial disability benefits for 10 percent of the body as a whole for 50 weeks commencing on March 15, 1985. That the weekly rate of compensation in the event of an additional award is $272.30 per week. That all requested medical benefits have been or will be paid by the defendant. GEORGE V. DUBUQUE PACKING COMPANY Page 2 That the employer has paid and the employee has received $25,488.00 in benefits from a disability retirement plan with payments beginning in October of 1982. That the defendant has paid the claimant 210 weeks of compensation at the rate of $272.32 per week prior,to the hearing for which the defendant is entitled to a credit for benefits paid. ISSUES The issues presented by the parties for determination at the time of the hearing are as follows: Whether the claimant is an odd-lot employee and entitled to permanent total disability benefits under the application of that principle of law. Whether the claimant is entitled to additional permanent partial disability benefits and more specifically whether the claimant is permanently and totally disabled. Whether the defendant is entitled to a credit under Iowa Code section 85.38(2) for $24,488.00 in disability retirement benefits paid to the claimant. SUMMARY OF THE EVIDENCE Claimant was 49 years old at the time of the injury and 54 years old at the time of the hearing. He has an eighth grade education and has completed no other formal education or training either through the union, the employer or otherwise. Claimant started to work for Dubuque Packing Company in 1947 as a messenger boy when he was 15 years old. Later he loaded and unloaded trucks and boxcars on the dock. After that he became an utility truck driver driving tankers, semitrailers and flatbed trucks. The job of truck driver included loading and unloading the trucks, usually alone but occasionally with help. Claimant has worked for this employer for 35 years and this employer has been his only employer. At the time of the injury claimant was the driver of a flatbed straight truck. This job involved pushing, pulling, bending, lifting and other forms of manual labor generally to load and unload the trucks. Claimant handled bags, barrels, boxes and bundles of salt, sugar, spices and chemicals as well as machinery and equipment. He lifted cargo that weighed from 20 or 30 pounds up to 100 pounds. Barrels that weighed 500 to 600 pounds were tipped and rolled on the rims. Normally, claimant worked alone. On February 2, 1982, claimant was picking up barrels that weighed approximately 70 to 75 pounds from the ground and was swinging them onto the bed of a truck. As he did so his back went out and he went down on his knees. He reported this to his GEORGE V. DUBUQUE PACKING COMPANY Page 3 supervisor who sent him to first aid. When hot packs did not alleviate his condition he was sent to L. C. Faber, M.D., the company physician who admitted claimant to Finley Hospital in Dubuque for conservative treatment of bedrest, medication, physical therapy and exercises. Claimant was hospitalized from February 15, 1982 to February 18, 1982 for lumbrosacral strain. Initially, he had no leg pain but later developed left anterior thigh pain (Exhibit 2, pages 51 & 58). A myelogram showed no evidence of a herniated disc (Ex. 2, p. 45). X-rays were negative for injury (Ex. 2, p. 46). The films however showed a lumbar hyperlordosis, kyposis, minimal L-5 subluxation, a left side L-5 spondylolysis and degenerative changes through the lumbar spine (Ex. 2, pp. 42, 45 & 46). The x-rays also showed an anomaly in that claimant had six lumbar vertebrae instead of five (Ex. 2, p. 46). A left leg venogram ordered by Dr. Faber on April 1, 1982 showed a normal left leg (Ex. 2, p. 3). Dr. Faber referred claimant to Eugene E. Herzberger, M.D., a board certified neurosurgeon in Dubuque, Iowa. He first saw claimant on April 8, 1982 for low back pain and left leg pain. An EMG performed by Sarah Werner, M.D., a medical neurologist was normal (Ex. 3, p. 29). Claimant was hospitalized at Mercy Hospital on April 9, 1982. An epidural venogram ruled out a herniated disc in the upper lumbar region (Ex. 3, p. 30; Ex. A, pp. 6 & 7). This test along with the earlier myelogram done by Dr. Faber did not rule out a herniated disc, but greatly reduced the likelihood of it (Ex. 3, p. 28; Ex. A, p. 7). Dr. Herzberger said that the anomaly of the presence of a sixth lumbar vertebrae which continued to show up on later films probably had no significance as far as this injury is concerned (Ex. A, p. 9). X-rays of the right knee on May 13, 1982 were normal and these right knee symptoms cleared eventually (Ex. 6, p. 22). A report from a CT scan in Davenport of a spondylolysthesis was determined to be false (Ex. A, p. 10; Ex. 6, p. 25). X-ray reports of a spondylolysis, which was a congenital condition, were not involved with this injury and they did not effect it (Ex. A, p. 11; Ex. 6, p. 25). However, the enhanced fourth generation CT scan done at Davenport on May 20, 1982 did show a bulging disc at L-6, S-1 (Ex. 6, p. 51). Claimant was hospitalized at Mercy Hospital in Dubuque and the herniated disc was excised and removed on June 3, 1982 but the protrusion was actually determined to be between L-5 and L-6 at the time of surgery (Ex. A, pp. 11, 12 & 13; Ex. 6, p. 42). After the surgery claimant continued to complain of the same low back and left leg pain. Dr. Herzberger next considered whether the claimant had an infection between the discs or a neoplasm (tumor). A bone scan was performed at Mercy Hospital on August 6, 1982 and Dr. Herzberger ruled out both an infection and a neoplasm (Ex. A, p. 14; Ex. 6, p. 76). Physical therapy was ordered in September and October of 1982 (Ex. A. pp. 15 & 16; Ex. 6, pp. 80 & 83). Repeat x-rays, another CT scan and another myelogram done on December 6, 1982 showed no change over those done in May of 1982 and these tests revealed no evidence of injury (Ex. A, p. 16; Ex. 6, p. 87). Claimant was hospitalized GEORGE V. DUBUQUE PACKING COMPANY Page 4 again on May 17, 1983. Again another CT scan and another myelogram confirmed without any question that there were no herniated discs (Ex. A, pp. 17 & 18; Ex. 6, p. 91). On May 18, 1983, claimant was evaluated by Lynn D. Kramer, M.D., a medical neurologist at Dubuque who reported to Dr. Herzberger as follows: Impression: There does appear to be some mild irritation of the L5 root on the left although this is mild as mentioned. The patient seems to be extremely pain sensitive at the time of the study. I see little on physical examination to confirm an existing radiculopathy and the EMG evaluation does not demonstrate anything particularly conclusive either. (Ex. 3, pp. 21 & 39) Claimant was evaluated at the University of Iowa Hospitals and Clinics, Department of Neurology on June 13, 1983 by Thoru Yamada, M.D., for back and left leg pain who concluded as follows: "In summary, the patient appears to have an L3-L4 radiculopathy. He will be treated symptomatically with Naprosyn 250 mg po BID. He will be followed by his local physician. Thank you.O (Ex. 3, pp., 32, 33 & 34). Dr. Herzberger hospitalized claimant again on October 10, 1983 through October 15, 1983 for three epidural steroid blocks and extensive physical therapy (Ex. A, pp. 20 & 21; Ex. 6, pp. 122 through 152). The epidural steroid injections provided temporary relief; however, the old painful symptoms in his back and left leg returned by November 18, 1983 (Ex. A, p. 21). In addition, claimant's disability pension which had begun in October of 1982 (Ex. A, p. 20) was threatened by changes in company policy. Claimant had gained weight, complained of sleeplessness, and exhibited tension, stress and depression. Dr. Herzberger did not think his physical symptoms would improve until his social and economic problems resolve in a satisfactory manner. Dr. Herzberger suggested pain therapy and a psychiatrist in 1984, but claimant refused to follow either one of these two recommendations (Ex. A, pp. 21 & 22). Claimant continued to have what claimant considered to be intractable low back and left sciatic pain but he denied any psychosomatic element. Dr. Herzberger then decided that since a year and a half had transpired since the tests in May of 1983, that it was advisable to hospitalize the claimant again for a metrizamide myelogram and CT scan and a bone scan on October 10 & 11, 1984 at Finley Hospital (Ex. A, p. 23; Ex. 2, pp. 2, 4, 5 & 6 through 40). Again these tests did not disclose any disc herniation but on the contrary produced normal results. They did not show any change from the 1982 and 1983 myelograms and CT scans other than to confirm the degenerative changes (Ex. A, pp. 23 & 24; Ex. 2, pp. 6 & 19 through 22). Dr. Herzberger did not consider that these degenerative changes were severe (Ex. A, p. 44). Claimant continued to be nervous, sleepless and depressed and was dissatisfied with Dr. Herzberger because the doctor only gave him an impairment rating of 10 percent of the body as a whole. Dr. Herzberger suggested that claimant try the University of Wisconsin Industrial Medicine Department for a more detailed GEORGE V. DUBUQUE PACKING COMPANY Page 5 and objective assessment. Such an assessment was not introduced into evidence. Dr. Berzberger last saw claimant on April 11, 1985 (Ex. A, p. 25). Dr. Herzberger had no explanation for claimant's persistent pain. When he ruled out all physical and objective explanations he followed the common practice of recommending pain therapy and a psychiatrist (Ex. A, pp. 26 & 27). Dr. Herzberger testified that he saw claimant for 30 outpatient visits and that he hospitalized claimant four times under his care (Ex. A, p. 27). Claimant's case was exceptional in that he never seemed to stabilize (Ex. A, p. 28). The doctor said that a normal impairment evaluation for a person who underwent disc surgery and did well would be five percent, however, since claimant did not do well, even though there was no physical explanation for it, he allowed 10 percent. Dr. Herzberger said he has performed approximately 4,000 disc surgeries in his career practice (Ex. A, pp. 28 & 29). He admitted that a portion of an impairment rating is based on pain and therefore it tends to be somewhat arbitrary or approximate (Ex. A, pp. 22 & 31). Dr. Herzberger continued to recommend pain therapy and a psychiatrist to pinpoint the stresses which were triggering or amplifying the claimant's pain (Ex. A, pp. 30 & 31). The following dialogue between Dr. Herzberger and counsel permitted Dr. Herzberger to give his insights into the claimant's failure to recover. Q. Is it your opinion, Doctor, that there may exist some sort of functional overlay with regard to Mr. George's current condition? A. We have to speak about 1985 as the latest condition. I don't like to use the word "functional overlay" because it has been used traditionally in a noncomplimentary way in relation to patients. I don't like to use it therefore. Q. What word would you -- what term or phrase would you prefer to use? A. I would say that I was aware of the fact that Mr. George had the personality that made him inclined to worry a lot and to be rather nervous and that his financial situation, his work situation has created tremendous stresses and that he was living with an uncertainty of his future as far as pension or benefits is concerned. He realized he may not be able to do the heavy work. He didn't have light work available to him. He was too old in order to go to look for employment at least in Dubuque in 1982, O83. We had a recession. There were no jobs even for young very healthy people and I felt all along that his type of personality and whatever stresses he may have may play a role in this and I would have been very interested to have somebody delve into that area and find out. (Ex. A, p. 37 & 38) Dr. Herzberger reconfirmed that claimant was not able to do heavy physical work, which excluded driving a truck. He stated that the claimant was only capable of light work that would allow him to change the positions of sitting, bending and walking and GEORGE V. DUBUQUE PACKING COMPANY Page 6 that he would be qualified to do administrative work (Ex. A, p. 36; Ex. 3, p. 13). Claimant testified that he last saw Dr. Herzberger in March of 1985. Dr. Herzberger was his only treating physician and that he has not sought medical attention from him or any other doctor since then. Claimant denied any other workers' compensation or bodily injury claims. He had no injuries prior to or after the injury of February 2, 1982 that affected his current condition. He has not worked since February 2, 1982. He has been receiving a disability retirement pension since October of 1982 in the amount of $1,062 per month (Ex. D). Claimant conceded that he had not sought or applied for any employment of any kind since his injury on February 2, 1982. He admitted that if he took a full time job his disability retirement pension would be discontinued. Also, if he earned more than $6,000 in any kind of employment it would probably be reduced. Claimant applied for social security disability but his claim was denied. Vocational rehabilitation training was never offered by the employer and was never requested by the claimant. He admitted that he refused to see the psychiatrist. He declined to go to a pain clinic because he would have to go out of town and be gone from home for five to six weeks and he was not told that the employer would pay for it. The findings of the Social Security Administration were as follows: The following reports were used in deciding your claim: Dr. C. Schultz's report dated 10/22/82;, Dr. E. Herzberger's report dated 9/30/82; Finley Hospital's report dated 2/18/82; Mercy Hospital's reports dated 5/13/82 to 6/6/82. You said you were unable to work because of a back condition. The medical evidence shows that you do have a back condition which has required surgery. While you do have some back pain, you have the satisfactory use and movement of your back. We realize that your condition prevents you from returning to your usual job as that of a truck driver, however, you should be able to perform a job requiring less physical exertion. You should be able to lift 20 pounds maximum with frequent lifting and/or carrying of objects weighing up to 10 pounds. You should also be able to walk and stand approximately 6 hours per an 8 hour working day. You should also be able to perform a job that does not require large amounts of pushing or pulling movements. (Ex. 5, p. 8) Dr. Faber, the company doctor, said on April 19, 1983, that claimant did not get better because he chose instead to receive $279.30 per week in workers' compensation and $795.25 a month in disability retirement pension which amounts to $1,912.45 per month without doing any work (Defendant's Ex. C). GEORGE V. DUBUQUE PACKING COMPANY Page 7 Claimant testified that many of his former activities have been eliminated or restricted because he is in constant pain 100 percent of the time in his back and left leg and the pain shoots down into his left foot. Treatment did not improve his condition, but instead he got worse and he testified that it continued to get worse at the time of the hearing. Claimant testified that he saw F. Dale Wilson, M.D., of Davenport, Iowa, for an evaluation at the request of his attorney. Dr. Wilson testified that he is a general surgeon who is 75 years of age and currently specializes in doing impairment examinations and evaluations. He performs about eight examinations per week primarily for claimants and he performs about two or three examinations per week for claimants' counsel specifically (Ex. 1, p. 9). A very respectable curriculum vitae is shown at exhibit 1, deposition exhibit 1. Dr. Wilson examined and evaluated the claimant one time on March 18, 1986 for approximately an hour or one and one-half hours. Claimant had high blood pressure and should have been on medication but was not (Ex. 1, p. 12). Claimant was also 60 pounds overweight. He weighed 235 pounds and his height was five feet nine inches (Ex. 1, p. 13). Claimant complained of continuous pain in his low back that radiated into his left leg and left foot which subjectively limited his ability to walk, sit, stand, run, jump, kneel, crouch, or lift (Ex. 1, pp. 20-22). He was also fearful, GEORGE V. DUBUQUE PACKING COMPANY Page 8 depressed and woefully discouraged (Ex. 1, p. 23). Dr. Wilson performed a very careful and extensive examination of the claimant (Ex. 1, pp. 24-57). He said in a written report dated March 18, 1986 that unless some method of relieving pain is found that claimant is totally and permanently disabled (Ex. 1, Dep. Ex. 2, P. 4). In his deposition, however, Dr. Wilson testified that claimant was not actually permanently and totally disabled, but rather had a 37 percent permanent impairment (Ex. 1, p. 65). Dr. Wilson's impairment rating is as follows: Impairment evaluation: Discectomy 5% A. Motion loss: Flexion 2 3 Lateral 1 Rotation 3 6 15% Motion B. Pain 7 C. Weakness for weight lifting, standing, sitting 7 D. Nerve control, sciatica, sensory loss 3 37% Person (Ex. 1, Dep. Ex. 1, p. 5) Dr. Wilson added that it was his experience that the vocational rehabilitation people did not consider a man with an eighth grade education who has previously worked as an ordinary laborer or a truck driver as a good candidate for rehabilitation (Ex. 1, P. 70). Robert L. Luthro, who has operated a private employment service for 26 years, had reviewed the deposition of Dr. Herzberger and the deposition of Dr. Wilson as well as the restrictions suggested by each of these doctors. He testified that there are some jobs that the claimant should be able to do. Sales representative, either telephone or in person visit sales, require little training, driving or walking and earnings would be based upon commissions. Plant assembly work could fit the claimant's condition and pay $3.35 to $7.00 per hour. Cashier,jobs or ticket sales would pay pay $4.00 to $5.00 per hour. There were also opportunities driving small trucks. Claimant could also drive forklifts which are operated by buttons at $3.35 to $7.00 per hour. He could also spot trucks on a dock. Telephone solicitor or collector pays $3.35 to $5.00 per hour plus commissions. Entry pay in Dubuque runs about $5.50 to $6.00 per hour. He was not asked to find a job for this claimant but he has found jobs for persons in the fifties with an eighth grade education and within the prescribed medical restrictions. GEORGE V. DUBUQUE PACKING COMPANY Page 9 Luthro conceded that telephone jobs are drive or campaign types of work which are short term, high turnover and unstable. It is not a career type of job. Cashier and ticket sale jobs tend to be automated and require some training. A plant assembly job would require a pre-employment physical and a 50 year old applicant with a medical history would be at a disadvantage. Partially impaired persons are not preferred and there is not a surplus of jobs in the Dubuque economy. If certain highway contracts come into being in the future then there could be jobs for counters, checkers and traffic control people. Claimant's exhibit 7 is a letter from the employer to the claimant dated March 26, 1985, concerning his workers' compensation and disability retirement pension benefits. Among other things the letter states that claimant's workers' compensation benefits will not be effected by his pension benefits. APPLICABLE LAW AND ANALYSIS In order to be considered an odd-lot employee the burden of proof is upon the employee to produce substantial evidence that the worker is not employable in the competitive labor market. It is normally encumbent upon the injured worker to demonstrate a reasonable effort to secure employment in the area of residence. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 104, 106 (1985). In this case claimant testified that he has made no effort to find any employment of any kind. Dr. Herzberger felt that claimant could do light work and administrative work. Luthro testified that there were a number of jobs which the claimant could do if he tried. The Social Security Administration also believes that there were a number of jobs which the claimant could perform. Claimant, therefore, has failed to make a prima facie case by proving that he is not employable in any well known branch of the labor market. Claimant did not prove that he is an odd-lot employee. Therefore, the burden of proof did not shift to the employer to demonstrate that regular employment was available to claimant. Consequently, the claimant cannot be considered to be permanently and totally disabled under the odd-lot doctrine or otherwise. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 2, 1982 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need no be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in GEORGE V. DUBUQUE PACKING COMPANY Page 10 part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man.O The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered..... In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * Claimant has not proven that he is permanently and totally disabled. Iowa Code section 85.34(3); Diederich, 219 Iowa 587, 593, 258 N.W. 899, 902 (1935). None of the physicians suggested that claimant was permanently and totally disabled, except Dr. Wilson, in his written report (Ex. 1, Dep. Ex. 2, p. 4). However, Dr. Wilson retracted this statement in his deposition testimony (Ex. 1, pp. 64 & 65). Dr. Herzberger, Dr. Wilson and Dr. Yamada all felt that claimant was unable to return to truck driving or heavy manual work. However, Dr. Herzberger thought that claimant could do light work or administrative work. The Social Security Administration denied the claimant disability retirement because they felt that there were a number of jobs that the claimant could do. Luthro testified that there were a number of jobs that claimant could do. Therefore, it is determined that claimant is not permanently and totally disabled. Claimant has proven that he is permanently and partially disabled as a result of the injury of February 2, 1982. Dr. Herzberger awarded a 10 percent permanent impairment rating. He said five percent would be a normal amount of impairment but due to the claimant's continuing severe subjective symptoms of pain, he allowed a 10 percent permanent impairment rating even though he could find no professional, medical, objective, physical reasons for the claimant's complaints of pain. He did say however, that they were related to the claimant's social and economic situation and he did not look for the claimant to GEORGE V. DUBUQUE PACKING COMPANY Page 11 improve until these problems were resolved. Dr. Wilson did award a 37 percent permanent impairment rating but in this case deference must be given to Dr. Herzberger who is a neurosurgeon and the treating physician. He saw the claimant approximately 30 times and hospitalized him four times. By comparison, Dr. Wilson is a general surgeon who only saw the claimant on one occasion for a short period of time and then specifically for the reason of giving an impairment rating for litigation purposes. Also, Dr. Wilson did not examine any of the many x-rays, CT scans or myelograms. In applying the weight to be given to the evidence of these two physicians the principles considered in Rockwell Graphics System, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985) were considered and applied. Dr. Yamada and Dr. Kramer did not make a finding of permanent impairment and neither doctor gave an impairment rating. Claimant is age 54 and has an eighth grade education. it would be difficult for a man this age to change jobs under any circumstances. If training is required for a new job it will be more difficult to either complete the training or to obtain employment after the training is completed. In addition, claimant indicated that his reading and writing skills are not as good as he would like them to be because he did not use them in his former employment. Claimant has few, if any, transferable skills. He started to work for this employer at age 15 doing manual labor and driving trucks. This is the only employment which he has ever had from age 15 up to age 49 when he was injured. Therefore his experience and qualifications are somewhat limited in the context of the total labor market opportunities and claimant cannot go back to the manual labor and truck driving he formerly performed. Claimant's motivation to work was placed in question by Dr. Faber who pointed out that claimant would actually lose money if he returned to work. Claimant himself said that a full time job would,terminate his disability retirement pension and indicated that if he took part time employment and earned over $6,000 per year it would reduce his disability retirement pension. Claimant's wife is employed. His children are all adults at this time, but one child is in college. Claimant has not seen a doctor for treatment for his back or leg complaints since March of 1985. Claimant refused to see a psychiatrist even though it was recommended by his treating physician. He refused to go to a pain clinic as recommended by his treating physician. Claimant has not sought out any vocational rehabilitation and none was offered. Claimant has not looked for any work or applied for any work of any kind. Claimant has become overweight and developed hypertension for which he should be taking medication since the injury but which is not due to the injury. A number of witnesses testified that the Dubuque economy is bad and that it is difficult for young unimpaired persons to find a job. However, all workers are victims of an economic downturn GEORGE V. DUBUQUE PACKING COMPANY Page 12 and claimant should not be entitled to additional compensation because employment opportunities are restricted due to an economic downturn. Webb v. Lovejoy Construction Co., II Iowa Industrial Commissioner Report 430, 435 (Appl. Decn. 1981). (District Court Affirmed and Supreme Court Appeal dismissed.) An employee making a claim for industrial disability will benefit by a showing of some attempt to find work. Hild v. Natkin & Company, I Iowa Industrial Commissioner Report 144 (Appl. Decn. 1981); Beintema v. Sioux City Engineering Company, II Iowa Industrial Commissioner Report 24 (1981); Cory v. Northeastern States Portland Cement Co., Thirty-three Biennial Report, Iowa Industrial Commissioner 104 (1976). Consideration may be given to an employee's plan for retirement. Swan v. Industrial Engineering Equipment Co., IV Iowa Industrial Commissioner Report 353 (1984) as we; as current retirement benefits being received. McDonough v. Dubuque Packing Co., I-1, Iowa Industrial Commissioner Decisions 152 (1984). There is sufficient evidence in this case summarized above from which it could be concluded that claimant has already retired. Employers are responsible for the reduction in earning capacity caused by a work injury but they are not responsible for a reduction in actual earnings because the employee resists returning to work. Williams v. Firestone Tire & Rubber Co., III Iowa Industrial Commissioner Reports 279 (1982). Claimant has testified to continuing severe pain in his back GEORGE V. DUBUQUE PACKING COMPANY Page 13 and left leg that shoots down to his left foot 100 percent of the time. There is also evidence that claimant has suffered emotionally in the way of sleeplessness, tension, stress and depression. However, several hospitalizations, numerous x-rays, four myelograms and CT scans, two venograms, a bone scan and the expertise of a competent neurosurgeon failed to produce any medical explanation for claimant's symptoms. Pain that is not substantiated by physical findings is not a substitute for impairment. Waller v. Chamberlain Mfg. Company, II Iowa Industrial Commissioner Report 417,425 (1981). In making this decision it is also noted that the wage base in Dubuque and at this employer is considerably less than it was at the time of the injury. Based on the foregoing factors it is determined that claimant has sustained a 40 percent industrial disability to the body as a whole due to this injury of February 2, 1982. Defendant has claimed a credit under Iowa Code section 85.38(2). This section of the Code provides as follows: Credit for benefits paid under group plans. In the event the disabled employee shall receive any benefits, including medical, surgical or hospital benefits, under any group plan covering nonocupational disabilities contributed to wholly or partially by the employer, which benefits should not have been paid or payable if any rights of recovery existed under this chapter, chapter 85A or chapter 85B, then such amounts so paid to said employee from any such group plan shall be credited to or against any compensation payments, including medical, surgical or hospital, made or to be made under this chapter, chapter 85A or chapter 85B. Such amounts so credited shall be deducted from the payments made under these chapters. Any nonoccupational plan shall be reimbursed in the amount so deducted. This section shall not apply to payments made under any group plan which would have been payable even though there was an injury under this chapter or an occupational disease under chapter 85A or an occupational hearing loss under chapter 85B. Any employer receiving such credit shall keep such employee safe and harmless from any and all claims or liabilities that may be made against them by reason of having received such payments only to the extent of such credit. The only evidence in support of a credit is exhibit D (however, exhibit D merely states that claimant retired on September 31, 1982 under disability retirement and receives $1,062 per month until it reduces upon the receipt of social security benefits. There is nothing in exhibit D to establish a credit for the defendant's payment of these benefits. This code section expressly states it does not apply to benefits which would have been payable even though a compensable injury occurred. No showing has been made that claimant would not have received his disability retirement benefits if an injury compensable under workers' compensation were the cause of the disability. Moreover, claimant introduced a letter from the employer which states that the workers' compensation benefits will not affect the claimant's right to disability retirement GEORGE V. DUBUQUE PACKING COMPANY Page 14 benefits (Ex. 7). The retirement plan document itself was not introduced into evidence. The plan document itself is the best evidence of what it provides. Consequently, it is determined that defendant has failed to prove by a preponderance of the evidence that they are entitled to a credit. On the contrary, the claimant has demonstrated that the defendant is not entitled to a credit. Hebensperger v. Motorola Communications and Electronics, Inc., II Iowa Industrial Commissioner Reports 187 (1981). FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant sustained an injury to his back on February 2, 1982 in the course of his employment while swinging 70 to 75 pound barrels from the ground onto a truck. That the injury caused a permanent partial impairment to the body as a whole. That claimant could not return to his old job as a truck driver or perform manual labor duties. That claimant is receiving $1,062 per month from a disability retirement pension from the employer since September 31, 1982. That claimant has not sought any work of any kind or applied for any jobs since the date of the injury. That claimant has not sought any medical treatment for this injury since March of 1985. That claimant has sustained an industrial disability of 40 percent to the body as a whole. That defendant has introduced no evidence to support entitlement to credit under Iowa Code section 85.38(2). CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principals of law previously mentioned, the following conclusions of law are made: That claimant did not make a prima facia showing of permanent total disability. That claimant is not permanently, totally disabled under the odd-lot doctrine or otherwise. That the injury of February 2, 1982 was the cause of a 40 percent permanent partial disability as industrial disability to the body as a whole. That defendants did not sustain the burden of proof by a GEORGE V. DUBUQUE PACKING COMPANY Page 15 preponderance of the evidence that they are entitled to a credit in the amount of $24,488.00 for disability retirement pension benefits paid to the claimant. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant two hundred (200) weeks of permanent partial disability benefits at the rate of two hundred seventy-two and 30/100 dollars ($272.30) per week commencing on March 15, 1985 in the total amount of fifty-four thousand four hundred sixty and no/100 dollars ($54,460.00) less credit for fifty (50) weeks of permanent partial disability benefits previously paid. That defendant pay accrued benefits in a lump sum. That interest will accrue under Iowa Code section 85.30. That defendant will pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendant file claim activity reports as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 21st day of April, 1987. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Nick J. Avgerinos Attorney at Law 101 North Wacker Drive Suite 740 Chicago, Illinois 60606 Mr. Alfred E. Hughes Attorney at Law 325 Dubuque Bldg. Dubuque, Iowa 52001-6816 1402.40; 1701; 1803 1804; 4100 Filed April 21, 1987 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT WALTER GEORGE, FILE NO. 694775 Claimant, R E V I E W VS. R E 0 P E N I N G DUBUQUE PACKING COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 4100 Claimant was not odd-lot. His treating physician said he could do light work and administrative work. An employment specialist testified that there were jobs that claimant could do. The Social Security Administration found that there were jobs claimant could do in denying Social Security Disability benefits. Claimant testified that he has made no efforts to find any employment. Prima facie case not made. 1402.40; 1804 For the same reasons claimant was found not be permanently and totally disabled. 1402.40; 1803 Claimant, age 54; 8th grade education; who worked 35 years for the same employer as a truck driver as his only employment in life; who had limited reading and writing skills; awarded 10 percent impairment by his treating physician and 37 percent by claimant's evaluating physician; who had made no efforts to find employment, who would lose his disability retirement pension if he took employment; was awarded 40 percent permanent partial disability as industrial disability. His complaints of pain which got worse instead of better could not be established by innumerable medical tests. GEORGE V. DUBUQUE PACKING COMPANY Page 2 1701 No 85.38(2) credit allowed for employer's payment of disability retirement pension because employer did not prove any entitlement to a credit and did not introduce the plan document into evidence either.