1803 Filed May 9, 1990 DAVID E. LINQUIST before the iowa industrial commissioner ____________________________________________________________ : IRVING A. MERRILL, : : Claimant, : File No. 707565 : vs. : A P P E A L : EATON CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendants. : ___________________________________________________________ 1803 Claimant, aged 68, chose to retire after his injury. There was no medical evidence to substantiate his claim that his injury forced him to retire. Claimant's age and proximity to normal retirement age were factors in determining industrial disability regardless of whether claimant actually retired or not. BEFORE THE IOWA INDUSTRIAL COMMISSIONER IRVING A. MERRILL, File No. 707565 Claimant, A R B I T R A T I O N vs. D E C I S I O N EATON CORPORATION, F I L E D Employer, FEB 13 1989 Self-Insured, Defendant. IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is an arbitration proceeding brought by Irving A. Merrill, claimant, against the Eaton Corporation, self-insured employer, defendant. The case was heard by the undersigned in Storm Lake, Iowa on August 19, 1988. The record consists of the testimony of claimant. Also testifying for claimant are Stanley Thorpe, Frank Rose and Darlene Merrill. The record further consists of defendant's witness, Linda Maurer. The record also contains claimant's exhibits A, B and D, as well as defendant's exhibits 1 through 4. ISSUE As a result of the prehearing report and order submitted and approved on May 18, 1988, the sole issue presented by the parties is whether claimant is entitled to permanent partial or permanent total disability benefits. FACTS PRESENTED Claimant commenced his employment with defendant on December 5, 1977. on July 7, 1982, a 500 pound compressor fell approximately 30 feet onto claimant. Claimant sustained various injuries to his hips, lower back, neck, both knees and legs, right ankle, right foot, right shoulder, right arm, wrist and hand, buttock and pelvis. Claimant eventually returned to work at defendant's place of business after one year and five months. Claimant was placed on the night shift calibrating equipment as of December 1, 1983. Claimant continued in that position until November 18, 1985, the last day he worked. After November 18, 1985, claimant began receiving his retirement benefits, although he maintained he did not retire. Subsequent to the date of his injury, claimant and defendant entered into a written agreement which stated the following: This form constitutes the final statement of agreement reached between Irving Merrill and Eaton Corporation relating to his Workers Compensation injury sustained on July 7, 1982. Mr. Merrill is awarded a permanent partial disability of 20% of the shoulder which equates to 12% of the body as a whole from Dr. Donald C. Campbell, II, M.D./Mayo Clinic. Mr. Merrill is awarded a permanent partial disability of 7% of the leg which equates to 3% of the body as a whole from Dr. Donald C. Campbell, II, M.D./Mayo Clinic. Mr. Merrill is awarded an industrial disability.of 5% of the body as a whole from Eaton Corporation. The total of these disabilities equals a final settlement amounting to a 20% disability of the body as a whole or 100 weeks of permanent partial disability compensation at the weekly rate of $271.64 to be paid weekly. THIS STATEMENT WAS READ AND AGREED TO BY THE FOLLOWING PARTIES ON THURSDAY, JANUARY 12, 1984. The above written agreement has never been submitted to the Division of Industrial Services for approval pursuant to section 86.13, The Code. Claimant has been paid 208 weeks of compensation at the rate of $271.62 per week. Seventy-three weeks have been for healing period benefits. One hundred thirty-five weeks have been for other weekly benefits. Because the above agreement has not been formally approved by the Industrial Commissioner, the aforesaid agreement is not recognized as an agreement for settlement. Consequently, this proceeding is considered an arbitration proceeding rather than a review-reopening proceeding. The undersigned is not bound by any agreements between the respective parties to these proceedings. In the case at hand, there are discrepancies with respect to the degree of functional impairment that has been attributed to the claimant's current condition. Claimant's family physician, E. 0. Schlichtemeier, M.D., referred claimant to J. W. Follows, M.D., an orthopedic surgeon. Dr. Follows performed surgery for a torn deltoid ligament, an anteroinferior tibiofibular ligament, and a fractured lateral malleolus. Surgery was also performed on the right rotator cuff of the shoulder. Subsequent to the date of the surgery, claimant sought the medical opinion of specialists at Mayo Clinic. Claimant was seen by Donald C. Campbell, II, M.D. Dr. Campbell wrote the following concerning claimant's condition: "In my opinion, Mr. Merrill has a permanent partial impairment rating of 20% of the right upper extremity as a result of difficulties involving his shoulder." In order to conform to the worker's compensation regulations of the State of Iowa, Mr. Merrill's rating of 10 percent permanent partial physical impairment of the right ankle should be converted to seven percent permanent partial physical impairment of the right leg. As of August 9, 1984, Dr. Campbell opined the following: Mr. Irving Merrill returned to see me on August 6, 1984, for further evaluation of his right shoulder and his right foot. The right foot problem seems to me to be very much the same as it has been in the past and it relates directly to his ankle fracture. Each time Mr. Merrill comes, he asks me about his ankle and seems to imply that he expects that something can be done about this, or that there must be some explanation why it is still causing trouble. Each time, I point out to him that he sustained a very serious injury to his ankle and that under the circumstances, the difficulties he is experiencing are not unexpected. There are, I believe, similar expectations regarding his right shoulder. Mr. Merrill has returned to work and tells me he is doing maintenance work which requires the use of wrenches and other tools. He has more recently noted more pain in the medial aspect of his arm beginning in the area of the axilla, and asked whether the staples in his shoulder might be causing his pain. Examination reveals a range of motion which is still limited and not greatly improved over his last examination. He appears to have less muscle atrophy, however. There is an area of tenderness along the course of the long head of the biceps muscle and tendon, and a small area of tenderness in the extensor musculature of the forearm. In addition, Mr. Merrill was concerned about a soft tissue lump over the lateral margin of the right scapula. This appears to be a benign lipoma and I would not recommend any treatment for it. I felt that some of the pain that Mr. Merrill is experiencing in his shoulder might represent a biceps tendinitis and this area was injected with a mixture of Marcaine and Celestone. Hopefully, this will give him some relief. I see no reason to add any restrictions to Mr. Merrill's activities beyond those already recommended. Mr. Merrill is unlikely to improve much beyond his present status. I believe that he has difficulty accepting this, but I don't believe there is much point in my seeing him on a regular basis to simply reaffirm this opinion. Mr. Merrill has reached a point where he must decide what he is able to do. If he extends himself too far and experiences pain, then he will simply have to back off a bit. I see no reason for him not to work, however. Later, claimant became dissatisfied with the progress he was making. He requested permission from defendant to consult with Robert R. Giebink, M.D. That permission was granted by defendant. Claimant was first seen by Dr. Giebink on August 27, 1985 for evaluation on his right shoulder and on his right ankle. Dr. Giebink wrote in his progress notes the following: EXAM: Mr. Merrill is 64, 6'1", 240#. He appears to be in excellent health. He is very pleasant and very cooperative and does not appear to be in any acute distress at the present time. He is a big man and his stance & gait are normal. Pelvis is level. Shoulders are symmetrical. The pt. has a well healed S-shaped scar over the anterior aspect right shoulder joint where the surgery was done. He has 2 scars about an inch long on the anterior of each knee where he lacerated his knees bar on the fork-lift and he has two scars on his right ankle. One longitudinal scar about 2 1/2" long on the anteromedial aspect of the right ankle and another scar about 4" long over the lateral aspect of his right ankle. The patient is able to walk on his tiptoes & his heels without any difficulty. When he stands the motion of his lower back is not particularly restricted or painful. On examining the upper extremities and shoulders the patient does have a restricted motion of his right shoulder. He has some atrophy of the right trapezious muscle but the scapulohumeral motion in the right shoulder is restricted about 50%. When he brings his arm out to the side he can raise it to about 60 degrees and then he can raise it up over his head and get his hand on top of his head but he has about 1/3 loss of the ability to abduct and externally rotate his right shoulder. He can get his right arm behind his back. I would say that abduction is restricted about 35 or 40%, external rotation and internal rotation about 30%. However, the shoulder is stable. He has some tenderness about the right shoulder joint but not a great deal. ... CONCLUSIONS: This pt. had a severe injury to his right shoulder and his right ankle. Dr. Follows did an excellent job in repairing the right ankle. The ankle mortise is very good but he does have a restricted ROM. But there is good function of the ankle joint. Also, the shoulder injury apparently was a partial dislocation of the shoulder and the repair also has been excellent giving him a good stable shoulder. However, the pt. does have some mild irregularity of the glenohumeral joint and some bone spurs present over the anterior aspect of the glenoid consistent with low grade traumatic arthritis involving the right shoulder joint and although he has good ability to forward flex and raise the arm up over his head in a lying down position, when he stands abduction is considerably restricted. Motion at the glenohumeral joint is restricted both actively and passively to about 50% of normal. ... As far as the disability is concerned, the patient tells me the Mayo Clinic had examined the shoulder with him lying down and that he was able to raise his arm up over his head quite well which he does very well but in the standing position the abduction of the right shoulder is considerably more restricted. Using the Journal of The American Medical Association standards for disability evaluation for impairment of function, I feel the patient has a 25% impairment of function of his right upper extremity which is the equivalent of a 15% impairment of function of the whole body. He has an impairment of function of his right lower extremity due to the fracture-dislocation of the ankle joint of 10% which is the equivalent of a 7% impairment of function of his whole body so that adding the 15 and the 7% would give a 22% impairment of function of the patient's whole body as a result of the injury to his shoulder and to his right ankle and foot. Later, Dr. Giebink, in his office notes for May 12, 1987, determined claimant had sustained the following functional impairment: PROGNOSIS: I think as a result of the accident the patient had a 5% impairment of function of the cervical spine and a 5% impairment of function of the lower extremity from his knee injury. This would give him a total of 10% impairment of function of his right lower extremity due to the ankle, 5% impairment of function of the left lower extremity due to his left knee. He has no change in the 25% impairment of function of his right upper extremity from the rotator cuff injury and subsequent repair and restricted ROM. However, he has an addition [sic] 5% impairment of function of his spine as a result of the aggravation of the degenerative cervical disc disease by the fall. So then in summary I feel as a result of the fall he has a 30% impairment of function of his whole body combining the injuries to his shoulder, his knees, his right ankle and his cervical spine. Subsequent to the above rating, Dr. Giebink wrote in his letter of August 16, 1988: ...It is my opinion that the impairment of function which I outlined which I stated was between 40 and 45% impairment of the patient's whole body is a result of the accident or accidents that he sustained while working for Eaton Corporation. Also, I feel that this impairment of function is permanent in nature. It is my opinion and my findings are within a reasonable degree of medical certainty. Claimant was subsequently seen by a vocational rehabilitation specialist. Mr. Stanley Thorpe is a vocational worker certified by the National Rehabilitation Association. He interviewed claimant on August 16, 1988 in anticipation of this hearing. Mr. Thorpe determined claimant was not a candidate for employment because: My opinion is that because of the pain that seems to be so encompassing and because of the past work history and in review of the physical reports it seems very apparent that this individual is not a candidate for employment. I note that he's been active in seeking employment. (Transcript page 71, lines 10-14) At the hearing, Ms. Linda Maurer testified. She stated she worked in the personnel department at defendant's place of business and that she was instrumental in assisting defendant with claimant's return to work. Ms. Maurer reported claimant returned to work for approximately one and one-half years. (Ms. Maurer testified claimant was not laid off or terminated by defendant. Furthermore, during this year and a half period, claimant received his regular pay raises.) According to Ms. Maurer, claimant retired at age 65. Then on January 1, 1986, claimant began receiving his retirement benefits from defendant. APPLICABLE LAW 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(1). The sole issue to address in this matter is the extent of permanency, if any. If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro V.DeLong's Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935) the court, addressing the issue of the meaning of disability stated: What is "permanent total disability"? Does this clause refer to "functional disability" or to "industrial disability"? For clearness we shall use the term 'industrial disability" as referring to disability from carrying on a gainful occupation--inability to earn wages. By "functional disability" we shall refer to the disability to perform one or more of the physical movements which a normal human being can perform. ... It is obvious that "disability" as here used cannot refer to mere "functional disability',... It is...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 terms of percentages of the total physical and mental ability of a normal man. ... .....[T]he Compensation Law was passed for the purpose of compensating the working man when injured. The loss which this claimant suffered due to the injury which he received while in the employ of the company is the inability to carry on the work he was doing prior to the time of the injury, or any work which he could perform. This man at fifty-nine years of age, after thirty years as a street car motorman, with little education, cannot find or hold a position that would not require some manual labor, and, of course, due to the condition of his back, he cannot perform such work. To say that he might become a stenographer or a lawyer or a clerk or a bookkeeper is to suppose the impossible, for a fifty-nine-year old man, with no education, is not capable of securing or filling any such position. His disability may be only a twenty-five or thirty per cent disability compared with the one hundred per cent perfect man, but, from the standpoint of his ability to go back to work to earn a living for himself and his family, his disability is a total disability, for he is not able again to operate the street car and perform the work which the company demanded of him prior to the time of the accident. ANALYSIS The sole issue to address is the extent of permanent disability which claimant has sustained as the result of his work injury on July 7, 1982. Claimant alleges he has a permanent total disability. Defendant maintains claimant has been paid "permanent partial disability benefits." Claimant has received weekly benefits in the amount of 135 weeks. Defendant states this sum represents a "permanent partial disability and/or industrial disability of 27% of the body as a whole." The record reveals the "27% disability rating" is really a functional impairment rating provided by one medical expert. The figure is not binding on the undersigned. It is not a conclusive finding of an industrial disability. There is no question claimant has been functionally impaired. The following opinions summarize the extent of functional impairment: 1) Dr. Campbell - 20% of the right upper extremity, 7% of the right leg; 2) Dr. Giebink - 8-27-85, 22% of the whole body, 5-12-87, 30% of the whole body, 8-16-88, 40 to 45% of the whole body. 3) Dr. Follows - 20% of the right upper extremity and 10% of the ankle. The opinion of Dr. Giebink as to claimant's functional impairment is accorded great weight. While he was not the surgeon who performed the surgeries on claimant, he did examine claimant on several occasions. The medical reports kept by Dr. Giebink indicate he performed extensive tests not only on claimant's ankle and shoulder but on other portions of claimant's body as well. Additionally, Dr. Giebink referred to the Guides to The Evaluation of Permanent Impairment by the American Medical Association in evaluating claimant. Defendant apparently relied, in part, upon the opinions of Dr. Giebink when defendant prepared the proposed agreement and then defendant made voluntary payments pursuant to that proposed agreement. Dr. Campbell, on the other hand, only rendered an opinion concerning the condition of claimant's right shoulder and right foot. Dr. Campbell did not state whether he had relied upon the AMA Guidelines when he provided his opinion. Furthermore, defendant did not make voluntary payments according Campbell's opinion. Rather defendant acquiesced in allowing claimant another independent medical examination. Finally, there is the opinion of Dr. Follows. While he was the surgeon who performed the surgeries, he did not attend to claimant's condition from July 29, 1983 to April 25, 1988. No functional impairment rating was even given by Dr. Follows until he was deposed on August 12, 1988. It appears Dr. Follows was not consulted when defendant entered into the proposed agreement with claimant. It is the opinion of the undersigned that Dr. Follows was only re-involved because a hearing was pending and his testimony was anticipated by defendant. Very little weight has been assigned to the evaluation of Dr. Follows. Claimant alleges he is permanently and totally disabled as a result of his work injury, and that as a result of that injury, he is unable to earn wages. In support of his position, claimant states he has been forced to leave his position because of his pain. Claimant also states defendant was unwilling to create a second position for him once he had returned to work. Claimant returned to work after 18 months in the healing period. The record indicates defendant created a different position for claimant based upon the restrictions imposed by Dr. Campbell. Claimant held this position for one and one-half years. The record is clear that claimant was not terminated, nor was claimant forced to retire. After claimant's return to work, he received his regular wage increases. The record is clear that claimant left his employment once he had reached age 65. It is undisputed claimant has been receiving his pension since January l, 1986. While claimant vehemently denies he voluntarily retired, there is no medical evidence to indicate claimant was unable to continue in his employment. No medical practitioner had recommended retirement to claimant. The decision to retire was purely a voluntary decision by claimant, based upon his subjective pain symptoms and upon his inability to adjust his life around working an afternoon shift as opposed to working a day shift. Claimant also revealed under cross-examination that he was entitled to additional compensation because he was unable to enjoy his retirement. Since claimant's last day of work at defendant's plant, he has sought employment on several occasions. However, in those few instances, claimant has not been refused employment. Claimant, rather, has determined he is incapable of handling the position sought. Again, there is no medical evidence to establish claimant is incapable of clerking in a hardware store. In the case at hand, claimant has established he has a permanent partial disability of 50 percent. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant sustained various injuries arising out of and in the course of his employment on July 7, 1982. FINDING 2. As a result of the July 7, 1982 injury, claimant had surgery on his right shoulder and right ankle. CONCLUSION A. As a result of the July 7, 1982 injury, claimant is functionally impaired. FINDING 3. Claimant returned to work on December 1, 1983 after his injury on July 7, 1982 and he continued his employment until November 18, 1985. FINDING 4. Claimant voluntarily retired on November 18, 1985, at the age of 65. CONCLUSION B. Claimant has met his burden of proving he has a 50 percent permanent partial disability. ORDER THEREFORE, defendant is to pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits at the rate of two hundred seventy-one and 62/100 dollars ($271.62) per week. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa code section 85.30. Defendant is to take credit for benefits previously paid claimant. Costs of this action are assessed against the defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file a claim activity report upon payment of this award. Signed and filed this 13th day of February, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Paul W. Deck, Sr. Attorney at Law 635 Frances Bldg. Sioux City, Iowa 51101 Mr. Dick H. Montgomery Attorney at Law P. 0. Box 7038 Spencer, Iowa 51301 1303; 1803 Filed February 13, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER IRVING A. MERRILL, Claimant, File No. 707565 vs. A R B I T R A T I 0 N EATON CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. 1303 A written agreement which was not approved by a deputy industrial commissioner was not deemed an agreement for settlement. 1803 Claimant awarded a 50 percent permanent partial disability to the body as a whole as a result of an injury to claimant's right shoulder, right foot, right ankle, right arm, wrist and hand, buttock and pelvis, lower back and both knees. BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARRY L. GIBSON III, Claimant, vs. File No. 707659 CITY OF CLIVE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and F I L E D U. S. INSURANCE GROUP, AUG 25 1989 Insurance Carrier, Defendants. INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Harry L. Gibson III against the city of Clive, Iowa, his former employer, and its insurance carrier, the U. S. Insurance Group. The case was heard and fully submitted at Des Moines, Iowa on January 26, 1989. The record in the proceeding consists of jointly offered exhibits 1 through 14 and testimony from Harry L. Gibson III, Thomas Morris Jr., Jody Gibson, Ray Allen, Willard Ray Jr., and Marguerite Cecilia Blaskovich. ISSUES The issues identified for determination are: Determination of claimant's entitlement to compensation for healing period; determination of claimant's entitlement to compensation for permanent disability benefits; and, determination of the claimant's claim for payment of medical expenses under section 85.27 of The Code. A substantial part of the dispute in the case revolves upon whether the injury of July 12, 1982 is limited in its effect to claimant's left leg or whether it also includes his right wrist and back. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Harry L. Gibson III was run over by a tractor which he was operating for the city of Clive, his employer, on July 12, 1982. He was admitted to Mercy Medical Center on that date and underwent open reduction and fixation of a fracture-dislocation of the mid-tarsal joint with a comminuted fracture of the talus of his left ankle (exhibit 4, page 15). The emergency room record found at page 9 of exhibit 4 indicates that the history which claimant provided at that time was that the rear wheel of a tractor ran over his left leg, and the left side of his abdomen and chest. The records note abrasions on claimant's chest, upper arms, back, abdomen and left knee. Claimant's treating physician was Marshall Flapan, M.D., a Des Moines orthopaedic surgeon. Claimant then went through an extended course of recuperation. On July 21, 1983, Dr. Flapan suggested that claimant attempt to return to work (exhibit 9, page 11). Claimant did so, but experienced a great deal of pain. At that point, it was decided that further surgery would be performed (exhibit 9, page 12). On August 31, 1983, claimant was admitted to Mercy Medical Center and triple arthrodesis surgery was performed on his left foot due to traumatic arthritis which had developed and the general lack of satisfactory recovery from the original injury (exhibit 5). Thereafter claimant again went through an extended period of recuperation. The recuperative period was deemed by Dr. Flapan to have ended on February 5, 1985 (exhibit 9, pages 22 and 23). Dr. Flapan rated claimant as having a 25 percent permanent impairment of his left lower extremity as a result of the injury. Dr. Flapan's records indicate that, on January 19, 1984, Gibson reported that in the accident he had reinjured his neck and that claimant also complained of numbness and tingling in his right hand (exhibit 9, page 17). Electrodiagnostic studies were conducted which were consistent with carpal tunnel syndrome in his right hand. Carpal tunnel release surgery was performed in September, 1984. Dr. Flapan's notes indicate that claimant expressed relief of the symptoms following the surgery (exhibit 9, page 21). During the following months, claimant was evaluated by Scott B. Neff, D.O., another Des Moines orthopaedic surgeon. Dr. Neff found claimant to have no permanent impairment of his right hand, arm or wrist as a result of the carpal tunnel syndrome. He agreed with Dr. Flapan's rating of a 25 percent permanent impairment of the left ankle and foot (exhibit 10; exhibit 11, pages 8 and 15). Dr. Neff stated that he was unable to relate claimant's carpal tunnel syndrome to the July 12, 1982 accident (exhibit 11, pages 11 and 19). Dr. Neff also stated that during the times he evaluated claimant, the claimant had made no complaint regarding his back and that he saw nothing to indicate that claimant was suffering from any back trouble. Dr. Neff was unable to relate any back problems which claimant may have to the July 12, 1982 accident (exhibit 11, pages 12, 14 and 18). Claimant was evaluated by Walter B. Eidbo, M.D., a Des Moines general surgeon. Dr. Eidbo stated that claimant had suffered a strain of his lumbosacral spine in the July 12, 1982 accident and that it would be inconceivable, in view of the nature of the injury that had occurred, that claimant would not have wrenched his back in some manner. Dr. Eidbo stated that the accident either caused or aggravated a ruptured disc which he diagnosed at claimant's L4-5 level and the hypertrophic changes which existed at that level of claimant's spine (exhibit 1, page 3). On March 24, 1987, Dr. Eidbo was deposed and confirmed the earlier report. The doctor also indicated that claimant's carpal tunnel syndrome was causally connected to the accident, but the opinion was based on the history given (exhibit 12, pages 34-38 and 45-46). Dr. Eidbo also diagnosed claimant as having an anxiety reaction to the accident (exhibit 12, pages 9, 12, 23-25, 40-45). Dr. Eidbo rated claimant as having a 35 percent permanent partial disability of the body as a whole attributed as follows: Left foot and ankle, 12-18 percent; carpal tunnel syndrome, right wrist, 3-5 percent; anxiety reaction, 5-10 percent; lumbosacral spine, 5-10 percent. The total equals 25-43 percent. Dr. Eidbo then averaged the range to come up with a final rating of 35 percent of the body as a whole. Dr. Eidbo explained that the average of the disability rating for claimant's left foot and ankle would be 15 percent of the body as a whole, an amount equivalent to approximately 30 percent of the leg (exhibit 1; exhibit 12, page 12). Claimant completed high school in 1968, attended one semester of junior college and then became employed in early 1969. Claimant moved to Alaska where he was employed until approximately 1979 or 1980 when he returned to Des Moines, Iowa. While in Alaska, claimant injured his back on one occasion in 1974. He injured his cervical spine, resulting in fusion surgery, when a truck which he was driving overturned in June, 1978. Following that incident, the available medical records show continuing complaints regarding claimant's low back (exhibit 2). A myelogram of claimant's low back which was conducted on October 31, 1978 was interpreted as being normal (exhibit 8, page 19). The medical treatment records also show that claimant was given a prescription for a lumbosacral corset on December 27, 1978 and that on March 30, 1979, claimant requested a new lumbosacral support (exhibit 2). The records from Alaska also indicate that on April 13, 1979, claimant made complaints of numbness affecting the dorso-radial aspect of his right hand. The condition was diagnosed as thoracic outlet syndrome. Conservative treatment in the nature of exercises was employed (exhibit 2, pages 1-4). When he was deposed, Dr. Neff stated that symptoms of carpal tunnel syndrome and thoracic outlet syndrome sometimes mimic one another (exhibit 11, page 10). Claimant, his wife, and Thomas Morris Jr. stated that claimant's back and leg cause him a great deal of difficulty in performing the normal activities of everyday life. Marguerite Cecilia Blaskovich, a qualified vocational consultant, was employed by the defendants. During the course of her activity in the case, she provided claimant with approximately 1,200 job leads, but that he did not investigate any of the leads. Blaskovich testified that claimant told her that he did not want her help, that he could obtain a job at any time that paid $15,000 per year and that he was waiting for a settlement in this case before finding a job. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 12,1982 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). The "arising out of" requirement refers to the cause and origin of the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 12, 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.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 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). An aggravation of a preexisting condition is one form of injury for which compensation can be recovered. 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.2nd 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 (1962). The injury affecting claimant's left leg is well established and is not subject to dispute. It is only the claims regarding the carpal tunnel syndrome and claimant's back which are in dispute in this case. From the description of the injury that was given, it would be possible that some injury to claimant's back, and even to his right wrist, might have occurred. The evidence does not, however, show that claimant's back problems and right carpal tunnel syndrome, or either of them, had their origin in the July 12, 1982 injury or that they were substantially aggravated during the July 12, 1982 injury. Claimant has a long history of back troubles going back to the time that he was living in the state of Alaska. The fact that he had several doctor visits wherein back complaints were voiced and the fact that he was prescribed a lumbosacral support all clearly show the existence of some significant back trouble at the time. The degenerative changes which were identified by Dr. Eidbo were the type of things which usually are not of relatively recent origin and could have easily had their origin when claimant was in Alaska. The evidence fails to corroborate claimant's claim of continuing back complaints following the 1982 injury. It is therefore determined that claimant has failed to prove, by a preponderance of the evidence, that he sustained any permanent injury to his back in the July 12, 1982 incident. While he certainly may have aggravated his back, there is no showing that any such.aggravation was permanent or that it extended beyond February 8, 1985, the date which Dr. Flapan placed as the end of claimant's healing period. Claimant also made claim for carpal tunnel syndrome affecting his right hand or arm. The evidence shows similar symptoms and complaints having been made when claimant resided in Alaska. The possibility of an incorrect diagnosis having been made at that time certainly exists. Further, and perhaps more importantly, the record does not contain any indication of those complaints being made to Dr. Flapan until January of 1984, approximately one and one-half years following the date of the accident. As admitted by Dr. Eidbo in his deposition, a delay of that long is an indication that the accident is not a cause for the carpal tunnel syndrome condition. It is therefore determined that claimant has failed to prove, by a preponderance of the evidence, that the carpal tunnel syndrome affecting his right hand resulted from the July 12, 1982 accident or that it was permanently aggravated in that July 12, 1982 accident. Claimant also at one time voiced complaints regarding carpal tunnel-like symptoms affecting his.left upper extremity. The diagnostic studies which were conducted were negative and no further diagnosis or treatment was indicated. Whatever those symptoms may have been, there is likewise no showing that they were proximately caused by the July 12, 1982 accident. Pilcher v. Penick & Ford, file number 618597, (App. Decn., October 21, 1987). Dr. Eidbo diagnosed claimant as having an anxiety reaction to the accident. While it is certainly to be expected that any serious injury produces some emotional stress or upset, there is no showing that the anxiety which claimant has experienced rises to the level of being a medically diagnosable condition within the realm of mental health practitioners or that the condition is in any manner disabling. Claimant has therefore failed to prove that he sustained any psychological injury as the result of the July 12, 1982 accident. It is therefore determined that, while the claimant does have a well-established severe injury to his left leg, the injury is limited to the leg and the disability should therefore be determined under the provisions of Code section 85.34(2)(o). Claimant has failed to carry the burden of proving that the disability extends beyond the scheduled member of his left leg. Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Kellogg v. Shute & Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Drs. Flapan and Neff both rated claimant as having a 25 percent impairment of the left leg. Dr. Eidbo's rating was 30 percent of the leg, an amount which is not greatly divergent. The ratings from Drs. Neff and Flapan are preferred over that from Dr. Eidbo because they are orthopaedic specialists and Dr. Flapan was the treating physician. Accordingly, claimant is entitled to recover 55 weeks.of compensation for permanent partial disability. Claimant's healing period under the provisions of Code section 85.34(l) was identified as an issue. The healing period ends at the time when the injured employee returns to work, becomes medically capable of performing work substantially similar to that in which he was engaged at the time of injury, or when his medical recovery has progressed to the point that further significant recuperation is not anticipated. It is at the point of maximum substantial recuperation that physicians normally provide an impairment rating. Thomas v. William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). Dr. Neff deferred to Dr. Flapan's assessment of the end of the period of substantial recuperation. There is no evidence in the record of this case which indicates that claimant has made any substantial recovery or recuperation since early 1985. Dr. Flapan's assessment is therefore adopted as correct. Claimant's entitlement to healing period ended February 8, 1985 and his entitlement to compensation for permanent partial disability commences February 9, 1985. The healing period is interrupted by claimant's brief return to work of July 25 through August 3, 1983. According to the issues identified by the parties, the only claim for additional healing period was for that period subsequent to February 8, 1985. Claimant's claim for additional healing period compensation is therefore denied as the full entitlement has been paid. Claimant's claim for additional permanent partial disability compensation is likewise denied as the same has been fully paid. FINDINGS OF FACT 1. The injury which Harry L. Gibson III suffered on July 12, 1982 produced a 25 percent permanent partial disability of his left leg. 2. Gibson has failed to introduce sufficient evidence showing that it is probable that the July 12, 1982 accident produced any permanent disability affecting any part of his body or mental state other than his left leg. 3. Following the injury, Harry L. Gibson III was medically incapable of performing work in employment substantially similar to that he performed at the time of injury from July 12, 1982 until February 8, 1985 when it was medically indicated that further significant improvement from the injury was not anticipated, except for claimant's brief return to work running from July 25, 1983 through August 3, 1983. 4. All the physical abnormalities affecting claimant's back at the present time are as likely a result of injuries he sustained in the 1970's as they are a result of the July 12, 1982 accident. 5. It is unlikely that the carpal tunnel syndrome which affected claimant's right hand and arm resulted from the July 12, 1982 accident. 6. While claimant undoubtedly suffered strains, scrapes and abrasions on parts of his body other than his left leg in the July 12, 1982 accident, the evidence fails to show that it is likely or probable that any of those other injuries were permanent in nature. 7. Claimant's complaints regarding his back lack credibility. 8. Claimant is not motivated to resume gainful employment. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant has failed to prove, by a preponderance of the evidence, that he sustained any injuries in the July 12, 1982 accident of a permanent nature which affect any part of his body other than his left leg. 3. Claimant's entitlement to compensation for permanent partial disability is to be computed under the provisions of Code section 85.34(2)(o). 4. Claimant is entitled to recover 55 weeks of compensation for permanent partial disability representing a 25 percent permanent partial disability of his left leg. 5. Claimant's entitlement to healing period compensation under the provisions of Code section 85.34(1) ended on February 8, 1985. 6. Claimant has been fully paid all benefits which he is entitled to receive under the Iowa worker's compensation laws. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 25th day of August, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert J. Kromminga Mr. Joseph G. Bertogli Attorneys at Law Suite 270, The Plaza 300 Walnut Des Moines, IA 50309 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, IA 50309 1803. 1 Filed August 25, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARRY L. GIBSON III, Claimant, vs File No. 707659 CITY OF CLIVE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and U. S. INSURANCE GROUP, Insurance Carrier, Defendants. 1803.1 Claimant sustained a severe crush type injury to his left ankle. He underwent two surgeries and was left with a 25 percent impairment of the left leg. Claimant also unsuccessfully attempted to recover for a carpal tunnel syndrome affecting his right wrist and for a back condition. Claimant had a history of preexisting problems affecting both his right hand and low back. The greater weight of the evidence failed to support claimant's claim. Page 1 before the iowa industrial commissioner ____________________________________________________________ : PAM MOORHEAD (Willis O., : Moorhead, Deceased), : : Claimant, : : vs. : : File No. 707893 FISHER TRUCKING, : : A P P E A L Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Defendants appeal from a partial commutation decision awarding claimant a partial commutation of benefits previously awarded. Claimant cross-appeals. The record on appeal consists of the transcript of the commutation proceeding; claimant's exhibits A through M; and defendants' exhibits 1 through 4. Both parties filed briefs on appeal. ISSUES Defendants state the following issue on appeal: Whether a partial commutation is in claimant's best interests. Claimant states the following issues on cross-appeal: Whether the deputy industrial commissioner erred in ruling that the contingent fee contract is violative of public policy. Whether the deputy industrial commissioner erred in reducing the amount of partial commutation. Page 2 REVIEW OF THE EVIDENCE The commutation decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW Iowa Code section 85.45 states, in part: Future payments of compensation may be commuted to a present worth lump sum payment on the following conditions: .... 2. When it shall be shown to the satisfaction of the industrial commissioner that such commutation will be for the best interest of the person or persons entitled to the compensation, or that periodical payments as compared with a lump sum payment will entail undue expense, hardship, or inconvenience upon the employer liable therefor. A commutation may be ordered when the commutation is shown to be in the best interests of the person or persons entitled to the compensation or that periodical payments as compared to a lump sum payment will entail undue expense on the employer. Diamond v. The Parsons Co., 256 Iowa 915, 129 N.W.2d 608 (1964). Factors relied on in determining if a commutation is in the claimant's best interests include: the claimant's age, education, mental and physical condition, and actual life expectancy; the claimant's family circumstances, living arrangements, and responsibilities to dependents; the claimant's financial condition, including all sources of income, debts, living expenses; and the reasonableness of claimant's plans for the commuted funds and claimant's ability to manage the funds or arrange for someone else to manage them. Dameron v. Neumann Bros., Inc., 339 N.W.2d 160 (Iowa 1983). ANALYSIS Defendant appeals the deputy's determination that a partial commutation is not in her best interests. Under the workers' compensation law, when a commutation is sought, the claimant's best interests are controlling. Weekly benefits are the norm, a lump sum payment of benefits is the exception. Before even a partial commutation can be granted, it must be determined that claimant's best interests will be served by the commutation. Claimant's past history of financial management is highly relevant to the question of whether a lump sum distribution to claimant is appropriate. Claimant has invested her past income not needed for her living expenses in three areas: real estate, a video business, and horses. Page 3 Claimant contributed one-half of the down payment on each of two tracts of farmland, and is currently paying one-half of the payments on these purchases, in conjunction with Dennis Fisher. Claimant lives with Dennis Fisher and has for some time. Claimant states she has no plans to marry Fisher. Claimant's name does not appear on the title of one of the tracts and her name was added to the title of the second tract only after some time had passed since the purchase. Claimant acknowledges that she is not in a partnership with Dennis Fisher and that if he asked her to move out, she would have to go to court to secure her interest in these properties. Claimant's past actions in investing a substantial sum in real estate without even seeing that the property was put into her name casts significant doubt on her business acumen. Claimant has risked these sums by relying on her personal relationship with Dennis Fisher. Legally, she has no present ownership rights to one of these properties, and would have to successfully sue Fisher to obtain her share of the property if their relationship should sour. This does not display wise investment planning. In addition, claimant's use of this farmland displayed a less than maximum potential. Claimant sold hay off the ground generating about $1000 per year. The record shows that rental of the ground for grazing would have produced significantly more income. Claimant also invested a substantial sum in a video business. The business has shown a monthly profit only recently and only for one month at the time of the hearing. Claimant's share was $200 for that month although claimant had invested over $6000 six months earlier. This is a modest return on her investment especially since claimant also works at the video store. Although the losses of the business were not set out in the record, claimant described them as less than $10,000. It is not unusual for a new business to operate at a loss for a time before generating a profit. However, it is fair to say that claimant's decision to invest her money in this business has not met with glowing financial success after half a year. Claimant also invested money in registered quarterhorses. Claimant indicated this was more of a hobby than an investment and that she thought the horses would make money from the sale of foals, but that was not the main purpose in buying them. Claimant has not made any money off these horses as the one foal produced died. Claimant invested nearly one fourth of her excess income in what she herself describes as a hobby. Claimant desires a commutation in part to invest in a cattle operation. However, claimant acknowledges she has little experience in this area, having only raised three hogs and three calves in the past. Claimant has investigated the costs of this investment, including the Page 4 cost of the livestock, fencing, and trailer. However, defendants have put into the record evidence that the cattle industry is a volatile one, and that the risks are numerous even for those experienced in the industry. Another intended use of the commuted funds would be to set up a trust for claimant's daughter's education. Claimant has commendably consulted two financial advisers on the amounts that would be needed to meet her child's educational needs, and has consulted an attorney on the type of trust that would guarantee that the funds were restricted to this purpose. However, it was brought out on cross-examination of claimant that she could, by saving her workers' compensation benefits, produce the same amount of money in approximately two years. Claimant has been able to save $19,000 from workers' compensation and social security benefits above her living expenses in the past, and has invested them in real estate, her video business and horses rather than her daughter's education plans. Finally, claimant plans to use the remainder of the commuted funds to invest in certificates of deposit or zero coupon bonds. Again, however, it was brought out that none of the proposed investments yield over ten percent, the current discount rate a commutation would require. Taking into account all of the above, although claimant does have some money management experience and does have a specific plan for the commuted funds, her past actions speak loudly to her apparent willingness to invest large sums of money less than prudently. Her actions in investing in real estate to which she has no legal title, in a business which shows little profit, and in a hobby which generates no income casts doubt on her ability to invest in a cattle business which is by its nature financially risky and with which she has no experience. Since her workers' compensation benefits provide claimant with discretionary income, claimant can provide for her daughter's future educational needs by periodically investing those funds into a trust. A commutation of benefits is not in claimant's best interests. On cross-appeal, claimant urges that the contingent fee arrangement in this case was not void as violating public policy and should be reinstated, or, in the alternative, that the commuted amount should not be reduced by the amount of the fee since claimant will now need to pay her attorney from the proceeds of the commutation on a quantum merit basis. Since a commutation has been denied, these issues are now moot. However, it is noted that under Rickett v. Hawkeye Building Supply Co., (Appeal Decision June 28, 1988), a contingent fee in a commutation proceeding is improper. Claimant has already been awarded compensation. Claimant's attorney does not obtain further compensation for claimant in a commutation proceeding. For this reason, a contingent fee in a commutation proceeding violates public policy. FINDINGS OF FACT Page 5 1. Pam Moorhead, widow of Willis O. Moorhead, is single and has one child of her marriage to Willis Moorhead: Jessica, born May 31, 1982. 2. Claimant is receiving weekly benefits based on the death of Willis Moorhead in the amount of $227.54, and has been receiving those benefits since Mr. Moorhead's death on July 14, 1982. 3. Claimant has monthly income (including her daughter's Social Security benefits), even without counting workers' compensation benefits, in excess of $1,200. 4. Claimant has monthly expenses of approximately $1,300. 5. Claimant desires to commute benefits to her daughter's 18th birthday, or 587 weeks at the time of hearing. 6. Claimant intends to use $25,000 of the proposed $80,000 commutation to set up a cow/calf cattle operation on her rural property, $20,000 to fund her daughter's college education costs, $8,000 for payment of attorney fees, and $27,000 for investment. 7. There are certain risks to the proposed use to which claimant intends to put the proceeds of her commutation; in particular, the cattle market is volatile, particularly for a small operator. 8. Claimant's video business operated at a loss for six months and has only shown a profit for one month. 9. Claimant has invested in two tracts of real estate, but has failed to cause her name to be reflected in the title of one tract and only had her name added to the second tract sometime after its purchase. 10. Claimant is not married to or in partnership with Dennis Fisher. 11. Claimant has not demonstrated good financial planning in her real estate investments. 12. Claimant has not demonstrated good financial planning in her business investments. 13. Claimant has not demonstrated good financial planning in her livestock investments. 14. Claimant has little experience in the cattle raising industry. 15. Claimant is capable of meeting her child's future educational needs without a commutation of her workers' compensation benefits. CONCLUSIONS OF LAW Page 6 A commutation of workers' compensation benefits is not in claimant's best interests. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant's application for partial commutation is denied. That each party pay their own costs in this proceeding, including one-half of the costs of the appeal. Signed and filed this ______ day of April, 1990. _____________________________ DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Robert A. Burnett, Jr. Attorney at Law 300 Walnut, Suite 270 Des Moines, Iowa 50309 Mr. William D. Scherle Attorney at Law 803 Fleming Building Des Moines, Iowa 50309 1000 - 3303.20 Filed April 19, 1990 DAVID E. LINQUIST before the iowa industrial commissioner ____________________________________________________________ : PAM MOORHEAD (Willis O., : Moorhead, Deceased), : : Claimant, : : vs. : : File No. 707893 FISHER TRUCKING, : : A P P E A L Employer, : : D E C I S I O N and : : TRAVELERS INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1000 A contingent attorney's fee for seeking a partial commutation of benefits previously awarded was disapproved as violating public policy, citing Rickett v. Hawkeye Building Supply Co., Appeal Decision, June 28, 1988. 3303.20 Petition for partial commutation denied where claimant had demonstrated questionable financial practices in the past, e.g. claimant invested in real property with her live-in partner without having her name put on the title to the property; claimant planned to use commuted funds to invest in a cattle operation, although claimant had no experience in this business and the business was conceded to be risky; claimant had invested in horses in the past but had made no money on the venture; claimant desired to invest part of the proceeds in securities that would yield less than the discount she would suffer by a commutation; claimant was a partner in a video business that had failed to turn a profit until recently; and it was demonstrated that claimant could provide for her daughter's educational needs with periodic savings from her workers' compensation proceeds as well or better than with commuted funds without suffering the discount of a commutation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAM MOORHEAD (Willis 0. Moorhead, Deceased), Claimant, File No. 707893 vs. D E C I S I 0 N FISHER TRUCKING, 0 N Employer, P A R T I A L and C 0 M M U T A T I 0 N TRAVELERS INSURANCE COMPANY, F I L E D Insurance Carrier, FEB 20 1989 Defendants. INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding filed by Pam Moorhead, widow of decedent Willis 0. Moorhead, claimant, against defendant employer Fisher Trucking and defendant insurance carrier Travelers Insurance Company for partial commutation of benefits under the Iowa Workers' Compensation Act based upon the death of Willis 0. Moorhead on July 14, 1982. This matter came on for hearing before the undersigned deputy industrial commissioner in Des Moines, Iowa, on February 14, 1989, and was considered fully submitted on that date. Claimant appeared by attorney Robert Burnett, Jr. Defendants appeared by attorney William Scherle. The evidence in this case consists of claimant's exhibits A through M, defendants' exhibits I through IV and the testimony of the following witnesses: Claimant, Harold Whipple and Jeff Miller. Claimant's petition in this case sought commutation of 629 weeks of benefits from the first part of the remaining period. An amendment to that petition was allowed at the hearing, whereby claimant seeks commutation of only 587 weeks. The amendment did not materially change any issues, but only took into account the time that had elapsed since the filing of the petition. Defendants have continued paying death benefits to claimant and do not challenge her entitlement to death benefits. ISSUE The issue presented by the parties at the time of the hearing is whether or not it is in claimant's best interest to grant a partial commutation of death benefits up to the 18th birthday of Jessica Moorhead, daughter of Pam Moorhead and Willis 0. Moorhead. REVIEW OF THE EVIDENCE Claimant testified that she is the widow of Willis 0. Moorhead and that there is one child of that marriage, Jessica, who was born on May 31, 1982 and is now six and one-half years of age. Claimant is currently 28 years of age and resides on a farm near Bradford, Arkansas. She testified that she has been receiving weekly benefits of $227.54 since her husband's death. She has not remarried, does not plan to remarry and has no other children. At the time of Mr. Moorhead's death, claimant was also employed by Fisher Trucking as office manager. She continued that employment until March 1, 1985, when the business closed. By that time, claimant had developed a dating relationship with Dennis Fisher, the owner of the business. This relationship began in December, 1984. Claimant testified that she and Dennis Fisher moved to the state of Arkansas when the business closed and continued to live together on the rural property. Mr. Fisher is currently the owner/operator of a truck and claimant still keeps his books. Although this relationship is of some duration, Ms. Moorhead and Mr. Fisher have no plans to marry, presumably in part because claimant would lose Social Security and workers' compensation benefits upon remarriage. The property purchased by Ms. Moorhead and Mr. Fisher is in two contiguous tracts of, respectively, 120 and 160 acres. The property was purchased at different times. The 120-acre parcel was purchased first, in April, 1985. It has been improved with a two-bedroom ranch home and various outbuildings. The purchase price was $85,000, with a down payment of $10,000. Claimant paid one-half of the down payment and pays one-half of the annual lump sum contract payment of $13,000. The property was purchased on a ten-year contract. Although claimant considers herself to own a one-half undivided interest in this property, the contract is solely in the name of Dennis Fisher. The property is approximately seven miles from Bradford, Arkansas, a town of approximately 1,000 residents located in north central Arkansas (Jackson County). The contiguous parcel of 160 acres was purchased on April 24, 1986. Sale price was $44,000, and the property was again purchased on the basis of a real estate contract. Sale price was $44,000, $5,000 being paid down. Monthly payments are $300. Claimant paid one-half of the down payment and is responsible for one-half of each monthly payment. This contract will run for seven years. The property is unimproved and has no access, except through the contiguous 120-acre parcel. The land is fit for grazing, hay and timber harvest. Although this property was originally purchased solely in the name of Dennis Fisher, an amendment to the contract of sale was executed on February 10, 1989, to include claimant as a party. Claimant further testified that she is a one-half owner (with Martha McCall) of a business known as Bradford Video, a video rental business. The business was begun in June, 1988. Claimant, to date of hearing, has invested approximately $6,600 in the business, primarily for the purchase of videotapes for rental. The business has one part-time employee working for claimant and Ms. McCall. The video business requires gross revenues of approximately $2,200 to break even; the break even point was first reached in December, 1988. Claimant's share of the January, 1989 profits was $200; claimant testified that the business is continuing to grow. Claimant also testified as to her monthly budget, which is largely set forth in exhibits "D" and "E." Her income consists of monthly Social Security payments of $496 each to herself and to Jessica (taking into account a cost of living increase effective January, 1989). Her income from Bradford Video will presumably be variable, but was $200 in January. In addition, claimant receives weekly workers' compensation benefits of $227.54. Claimant's budget expenses are set forth in exhibit "E" and total $807 plus claimant's share of the annual payment on the 120-acre parcel; thus, her monthly expenses are approximately $1,300. Claimant testified that she has no debts, except for the farm property. Claimant purchased seven horses for $5,000 in 1987. Although this purchase was primarily as a hobby, by reason of her love of horses, claimant anticipates future profits from the sale of colts (five of her horses are brood mares). So far, only one colt has been born of the brood mares, and it died of pneumonia. Claimant anticipates selling colts at one to two years of age at prices ranging from $1,000 apiece. Claimant testified to limited experience in raising calves, pigs, chickens, dogs and cats. On a very small scale, some of these animals have been raised for sale. Claimant further testified to her desire to commute 587 weeks of benefits from the first part of her remaining benefit period (to the date of hearing), the commuted value of which is $80,013.62. The 587 weeks is based upon Jessica's 18th birthday. Claimant testified also as to her reasons for desiring commutation. She anticipates investing approximately $25,000 in a cow/calf raising operation, the details of which are set forth in exhibit "G." For Jessica's college education, she intends to invest approximately $20,000 in zero-coupon United States bonds yielding from 8.32%-8.36% and to mature in the four years from 1999 through 2002, with maturity values from $12,000-$15,000 per year. In addition, claimant proposes to set up a trust agreement to guarantee the corpus of this trust. The trust is to be irrevocable with claimant as trustee. Claimant also testified to her expectation of paying $8,000 in attorney fees if the commutation be granted (on a contingent fee contract) and of her wish to invest the remaining $27,000 in investment vehicles such as certificates of deposit and bonds. Claimant is a self-described "tightwad." She has saved enough money from her weekly workers' compensation benefits since the death of her husband to make a $5,000 down payment on the 120-acre parcel, a $2,500 down payment of the 160-acre parcel, to invest $6,600 in the video business and to purchase horses for $5,000. This is a total of $19,100 in less than seven years and would appear to justify claimant's self-characterization. Claimant testified further to being a high school graduate who married at 21, and worked until her husband's death only at a state hospital, as a data clerk and mail room employee at a Des Moines department store and as office manager of Fisher Trucking, which then employed only approximately 10-12 employees. She testified that she has had no investments "go bad" in the last ten years. However, it was brought out on cross-examination that these "investments" have not, to date, been an unalloyed success. The purchase of the property was, of course, largely for personal residence. However, the land is also income-producing. Approximately 100 acres of the 160-acre parcel is "hay" ground, which can rent for approximately $20 per acre, per year. Ms. Moorhead and Mr. Fisher have sold approximately $4,000 of hay from this land (at $1.00 per bale) and have approximately 3,000 bales stored in the barn at present. The video business has only just reached the break-even point, but it is clear that claimant anticipates further profits in the future. No returns have materialized from the horse purchase of November, 1987. As noted, one colt was born, but died. However, claimant believes that her horses are now worth approximately $3,000-$5,000 apiece. Claimant further noted that Jessica would be protected in the event the commutation is granted by a $50,000 life insurance policy on her life, by continued Social Security benefits, and by the irrevocable trust she intends to set up. Harold Whipple testified that he is president of Hawkeye Bank and Trust Company in Centerville, Iowa. He has worked as a banker and loan officer for some 22 years, with particular concentration on farm loans. He also has personal experience in the livestock business of approximately 15 years' duration, both in field lot and cow/calf operations. Mr. Whipple testified that land values in the state of Arkansas have been volatile in the past ten years and that following the boom/bust/recovery in land prices over the last ten years, land in Jackson County has failed to recover to the degree Arkansas land in general has recovered. Claimant's land is of below average value, and such land tends to be more stable in value than more valuable rural properties. Mr. Whipple further testified that the cattle market is of "tremendous" volatility and that most operators, particularly cow/calf operators, are at substantial risk and have little latitude against market forces. Jeff Miller testified that he is a structured settlement consultant and that periodic death benefit payments under the workers' compensation act are a form of "structured settlement." He testified as to the advantage of structured settlements as providing greater benefits over time and because investments are undertaken by experienced third parties. Further, he testified that a large number of individuals who receive a lump sum, such as is provided in a commutation of benefits, dissipate the funds within a few years. APPLICABLE LAW AND ANALYSIS Section 85.45, Code of Iowa, provides in relevant part: Future payments of compensation may be commuted to a present worth lump sum payment on the following conditions: 1. When the period during which compensation is payable can be definitely determined. 2. When it shall be shown to the satisfaction of the industrial commissioner that such commutation will be for the best interest of the person or persons entitled to the compensation, or that periodical payments as compared with a lump sum payment will entail undue expense, hardship, or inconvenience upon the employer liable therefor. . . . 4. When a person seeking a commutation is a surviving spouse/ a permanently and totally disabled employee, or a dependent who is entitled to benefits as provided in section 85.31, subsection 1, paragraphs "c" and "d", the future payments which may be commuted shall not exceed the number of weeks which shall be indicated by probability tables designated by the industrial commissioner for death and remarriage, subject to the provisions of chapter 17A. . . . Although this is a death benefits case, the period during which compensation is payable can be definitely determined in a partial commutation up to the 18th birthday of claimant's child, since that period is subject to definite determination. Paulsen v. Central States Power, Ltd., II Iowa Industrial Commissioner's Report, 304 (1982). The future payments which are sought to be commuted in this case do not exceed the number of weeks set forth in probability tables designated by the industrial commissioner for death and remarriage and set forth in Division of Industrial Services Rule 343-6.3. Therefore, the issue to be determined here is whether it has been shown that the proposed commutation will be for the best interest of that person or persons entitled to the compensation, or that periodical payments will entail undue expense, hardship or inconvenience upon the employer. The employer is not seeking commutation, so that question is not an issue here. The remaining issue is the "best interest" determination. The Iowa Supreme Court set forth bases for granting commutations in Diamond v. Parsons Company, 256 Iowa 915, 129 N.W.2d 608 (1964). The Court noted that the adjudicator should not act as an "unyielding conservator" of claimant's property and disregard claimant's desires or reasonable plans merely because future success is not assured. The principles set forth in Diamond v. Parsons Company, were reconsidered by the Iowa Court in Dameron v. Neumann Brothers, Inc., 339 N.W.2d 160 (Iowa 1983). After reviewing the Diamond decision, the Court readopted its principles and commented: In summary, Diamond held that the decision whether to allow commutation must turn on the statutory guideline, best interest of the claimant, and the focus should be on the worker's personal, family, and financial circumstances, and the reasonableness of the worker's plans for using the lump sum proceeds. Consequently, factors which can be distilled from the Diamond analysis include the following: 1. The worker's age, education, mental and physical condition, and actual life expectancy (as contrasted with information provided by actuarial tables). 2. The worker's family circumstances, living arrangements, and responsibilities to dependents. 3. The worker's financial condition, including all sources of income, debts and living expenses. 4. The reasonableness of the worker's plan for investing the lump sum proceeds and the worker's ability to manage invested funds or arrange for management by others (for example, by a trustee or conservator). Ultimately, the Diamond analysis involves a benefit-detriment balancing of factors, with the worker's preference and the benefits to the worker of receiving a lump sum payment weighed against the potential detriments that would result if the worker invested unwisely, spent foolishly, or otherwise wasted the fund so it no longer provided the wage-substitute intended by our worker's compensation law. Under the last two paragraphs quoted above from the Diamond opinion, however, a request for commutation is approved on the best-interest balancing test unless the potential detriments to the worker outweigh the worker's expressed preference and the demonstrated benefits of commutation. The Court noted that Professor Larson advocated on policy grounds a much more stringent test, 3A Larson's Workmen's Compensation Law, section 82.71, but noted that the General Assembly has retained "best interest of the claimant" as the fundamental touchstone for deciding commutation cases, despite a change in the section subsequent to the Diamond decision. The Dameron Court stated its belief that, had the legislature intended a more restrictive approach, tougher requirements would have been enacted when section 85.45 was amended to shift from the courts to the industrial commissioner the responsibility to make the initial "best interest" determination in contested cases. This deputy notes in passing that the Dameron decision was handed down on October 19, 1983, and that the legislature has still not changed that "fundamental touchstone." Therefore, it is the responsibility of the deputy to consider the factors distilled from the Diamond analysis and apply the best-interest balancing test set forth in the above quotation. Claimant is 28 years of age, has a high school education, has no apparent health or physical problems appearing of record, and gave every indication during her testimony of being a rational and intelligent person. Claimant lives with one daughter and has a long-term and presumably fairly stable relationship with Dennis Fisher. The plans she has made with regard to her responsibilities to her daughter appear reasonable and appropriate. Claimant's financial condition appears at this time to be very good. Her monthly expenses are approximately $1,300. Social Security payments to Ms. Moorhead and Jessica are $1,000. In January, claimant realized a profit of $200 from her video business and, while there is of course no guarantee that any small business will continue growth or profitability, claimant does have a reasonable expectation of growing profits from her video store. She has a small additional source of income from the rental of hay land or sale of hay, and has a not unrealistic expectation of future profits from the sale of colts. That is to say, claimant's expenses and income are very nearly in balance, even without the receipt of weekly workers' compensation death benefits. Because claimant has no acute need for the benefits she is currently receiving, she is in a position to accept a certain degree of risk with regard to her proposal. As Mr. Whipple's testimony made clear, the cattle business is not without risk. One can scarcely live in the state of Iowa without recognizing that Mr. Whipple's opinion as to the volatility of that market has some validity. Of course, as Diamond and Dameron point out, claimant's desires and reasonable plans are not to be disregarded simply because future success is not assured. While a cow/calf operation is subject to the vagaries of market prices, claimant's plans appear well thought out and reasonable. After all, the proposed disposition of the funds obtained from this commutation include an investment of some $27,000 in financial instruments. This provides a certain cushion against the possibility of a "bad year" afflicting claimant during the early stages of her planned cattle operation. Claimant has clearly demonstrated the ability to be frugal by managing to save some $19,000 in less than seven years for investment in her residence/income property, hobby/income horses and video business. She has shown an ability to manage funds and, in this case, has also planned to arrange for management of the funds set aside for Jessica's education by an irrevocable trust and the purchase of zero-coupon U. S. Government securities. One important consideration in the Dameron case is no longer valid. When Dameron was handed down, the statutory discount rate applicable to commutations was 5% and the record there showed that 12%-14% investments were both prudent and available. Now, the discount rate is 10%, and the record reflects that investments in which claimant intends to invest are of a lesser return. The early years of this decade were a time of high interest rates, much more so than is today the case. It can scarcely be argued that prudent 12%-14% investments are much less commonly available than was the case in 1983. Nonetheless, this writer does not feel it appropriate to deny a commutation simply on the basis that the current statutory discount rate may exceed the return on commonly available prudent investments. Under the Dameron test it does not appear that "best interest" necessarily means the "best" or most remunerative investment vehicle possibly available anywhere. Rather, the test is whether the potential detriments to the worker outweigh the worker's expressed preference and the demonstrated benefits of commutation. In this case, the demonstrated benefits of commutation include the potential for large profits from a cattle operation and also tie in to claimant's personal preferences. Claimant has some experience in raising animals and desires to do so. She has clearly opted for a rural existence, with whatever psychological and personal benefits that such an existence may provide to a given individual. The detriments in this case include the very real possibility that claimant's investments will fail to exceed the statutory discount rate, the loss of assured income to claimant and her daughter until Jessica's 18th birthday, and the potential for catastrophic loss in the cattle raising business. While these detriments are serious, this deputy does not feel that they overweigh claimant's expressed preference and the demonstrated benefits of commutation, at least from the perspective of one who has been admonished by the Iowa Court not to "act as an unyielding conservator of claimant's property." However, the portion of this proposed commutation which is planned to pay attorney fees cannot be approved. The industrial commissioner has in the past held a contingent fee agreement to be void as a matter of public policy in a situation such as this because the contract creates "differing interests" between attorney and client and permits counsel to obtain a contingent proprietary interest in the present property of claimant which rests upon litigation or settlement which may be unnecessary for claimant's benefit. Rickett v. Hawkeye Building Supply Co., file number 739306 (Decisions on partial commutation, rehearing and.appeal, February 5, 1987, November 21, 1986 and June 28, 1988, respectively). This is the case where the attorney's representation does not gain for claimant any property to which she is not already entitled, but merely changes the time frame in which benefits are payable. The deputy wishes to make it clear that his unwillingness to approve the portion of the commutation to be used for attorney fees has nothing whatsoever to do with the quality of representation claimant has received, but is mandated by the Rickett case. Claimant can of course elect to pay her attorney whatever she may wish, but the contingent nature of the fee is not subject to approval due to its voidness as against public policy; therefore, allowance of that portion of the commutation would not be in claimant's best interest. Counsel did perform valuable services for claimant for which he is entitled to be compensated, and has every right to seek approval of a reasonable fee on a quantum meruit basis. As claimant intended to pay $8,000 in attorney fees, the commutation shall be approved only to a sum approximately $72,000. Based on a compensation rate of $227.54, a commutation of 489 weeks reflects in the 10% discount table published in Division of Industrial Services Rule 343-6.3, a commutation factor of 316.7682, which yields a commuted sum of $72,077.44. Therefore, partial commutation of 489 weeks shall be allowed. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Pam Moorhead, widow of Willis 0. Moorhead, is single and has one child of her marriage to Willis Moorhead: Jessica, born May 31, 1982. 2. Claimant is receiving weekly benefits based on the death of Willis Moorhead in the amount of $227.54, and has been receiving those benefits since Mr. Moorhead's death on July 14, 1982. 3. Claimant has monthly income (including her daughter's social Security benefits), even without counting workers' compensation benefits, in excess of $1,200 with reasonable expectations of an increase by reason of her video, hay and horse concerns. 4. Claimant has monthly expenses of approximately $1,300. 5. Claimant desires to commute benefits to her daughter's 18th birthday, or 587 weeks at the time of hearing. 6. Claimant intends to use $25,000 of the proposed $80,000 commutation to set up a cow/calf cattle operation on her rural property, $20,000 to fund her daughter's college education costs, $8,000 for payment of attorney fees, and $27,000 for investment. 7. Claimant has established herself as a frugal person by saving in excess of $19,000 from her workers' compensation benefits since the death of her husband. 8. Claimant is a rational and intelligent person. 9. There are certain risks to the proposed use to which claimant intends to put the proceeds of her commutation; in particular, the cattle market is volatile, particularly for a small operator. 10. Claimant's plans for the use of the proposed funds from this commutation are reasonable, except as to attorney fees. Further, they are appropriate to the rural lifestyle which she now leads. CONCLUSIONS OF LAW WHEREFORE, based upon the principles of law previously cited, the following conclusions are made: 1. The potential detriments of the proposed commutation do not outweigh claimant's expressed preference and the demonstrated benefits of commutation. 2. The claimant has established that the proposed commutation will be in her best interests, except as to attorney fees, which requires a reduction in the weeks commuted. ORDER THEREFORE, IT IS ORDERED: That defendants pay unto Pam Moorhead, widow of Willis 0. Moorhead, the sum of seventy-two thousand seventy-seven and 44/100 dollars ($72,077.44) as partial commutation of four hundred eighty-nine (489) weeks for the first part of the remaining period of death benefits, using a commuted value factor of three one six point seven six eight two (316.7682) times the weekly benefit rate of two hundred twenty-seven and 54/100 dollars ($227.54). That the costs of this action are taxed to the defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file a final payment report upon completion of this award. Signed and filed this 20th day of February, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert A. Burnett, Jr. Attorney at Law 300 Walnut, Suite 270 Des Moines, Iowa 50309 Mr. William D. Scherle Attorney at Law 803 Fleming Building Des Moines, Iowa 50309 1001, 3303.20 Filed February 20, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER PAM MOORHEAD (Willis 0. Moorhead, Deceased), Claimant, File No. 707893 vs. D E C I S I O N FISHER TRUCKING, O N Employer, P A R T I A L and C 0 M M U T A T I O N TRAVELERS INSURANCE COMPANY, Insurance Carrier, Defendants. 1001 Contingent attorney fee not allowed in partial commutation of death benefits as void and not in claimant's best interest. 3303.20 Contested case partial commutation granted, but weeks commuted were reduced from petition because contingent attorney fee disallowed. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PEGGY ROBINSON, Claimant, File No. 708497 vs. MEREDITH CORPORATION, A P P E A L Employer, D E C I S I 0 N and CIGNA, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying further permanent partial disability benefits. The record on appeal consists of the transcript of the arbitration proceeding; claimant's exhibits 1 through 25, 27 through 35, and 37 through 61; and defendants' exhibits 1, 1A, A-1, A-2, B through Z, 2, 3, 4, 5 and 9. There were no briefs on appeal as claimant failed to timely file her brief. ISSUES Pursuant to the commissioner's ruling filed March 8, 1988, this appeal will be considered generally without specified errors. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. ANALYSIS The record as a whole is considered generally without specified errors. The deputy's analysis of the evidence in conjunction with the law is adopted. The record shows that claimant is not entitled to further compensation for her right knee. The record also shows a lack of medical evidence to establish that claimant suffers a permanent lower back injury or injury to her right foot, or that any such injury is caused by her treatment to her knee. Claimant has failed to carry her burden to show a causal relationship between her claimed disability involving her back and right foot and the treatment stemming from her right knee injury. FINDINGS OF FACT 1. Claimant was employed by the employer on July 13, 1982 when she injured her right knee. 2. Claimant was paid healing period benefits for the right knee injury. 3. Dr. Grant assessed a 12 percent impairment of the lower right extremity and Dr. Neff assessed a 16 percent impairment of the lower right extremity. 4. Claimant was paid 35 2/7 weeks of permanent partial disability benefits for this injury based on a 16 percent impairment of the right lower extremity. 5. Claimant alleged that she injured her back, right leg and right foot while performing exercises on an orthotron machine in the course of her physical therapy treatments on January 14, 1983. 6. Claimant failed to clearly report such an injury as an injury to the physical therapist at the time of the alleged injury. 7. Claimant failed to report this injury to either one of the treating orthopedic surgeons, Dr. Grant or Dr. Neff, at the time of the injury or the next time she saw them or within a reasonable time after the alleged injury. 8. Claimant saw her own personal physician, Dr. Odland, the same day for low back pain after taking physical therapy treatments but did not report an injury, as such, or a pull or a pop in her back as she testified to at the hearing. 9. Claimant did not seek any additional treatments for her back with her own personal physician, Dr. Odland, for over a year after January 14, 1983 until March 28, 1984. 10. Claimant did not report this injury to therapist Bower according to his records when she saw him on February 7, 1983. 11. Claimant did not seek medical treatment for the alleged back injury through the employer until September of 1983 which was approximately nine months after the injury allegedly occurred. 12. Dr. Neff testified that there was no causal relationship between the orthotron machine exercises and the claimant's lower back, right leg and right foot complaints. 13. The alleged injury to the back was never reported to Dr. Grant and, therefore, could not and did not give an opinion on causal connection. 14. Dr. Young, Dr. Friedgood, Dr. Stein, Dr. Daube and Dr. Emerson did not give a professional medical opinion on causation ROBINSON V. MEREDITH CORPORATION Page 3 between the orthotron machine exercises and the claimant's lower back, right leg and right foot complaints. 15. Dr. Carlstrom and Dr. Hefty acknowledged that it was possible for the lower back, right leg and right foot complaints to have occurred as the claimant described but that neither one of them gave a professional medical opinion that it was probable that these complaints occurred in that manner or actually occurred in that manner. 16. Dr. Moore was the only doctor who expressed a definite opinion on the cause of the lower back, right leg and right foot complaints and he stated that her pain syndrome was secondary to childhood and marital problems. 17. That none of the many medical doctors, general practitioners, orthopedic surgeons or neurologists could explain the claimant's symptoms of pain in her lower back, right leg and right foot and could not find an organic or physical cause for it after numerous diagnostic tests. CONCLUSIONS OF LAW Claimant failed to prove by a preponderance of the evidence that she is entitled to additional permanent partial disability benefits for the injury to her right knee on July 13, 1982. Claimant failed to prove by a preponderance of the evidence that her lower back condition or her right foot condition are causally connected to her injury to her right knee on January 14, 1983, or to the subsequent treatment for that injury. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That no additional permanent partial disability, temporary total disability, or medical benefits are due claimant. That costs of the appeal including the transcription of the hearing proceeding are charged to claimant. That defendants file any reports that may be required by Division of Industrial Services Rule 343-3.1. Signed and filed this day of April, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER ROBINSON V. MEREDITH CORPORATION Page 4 Copies To: Mr. Patrick B. Chambers Attorney at Law P.O. Box 516 718 Des Moines Street Webster City, Iowa 50595 Mr. Marvin E. Duckworth Attorney at Law Terrace Center, Suite 111 2700 Grand Avenue Des Moines, Iowa 50312 1402.20-1402.40-1402.60 Filed April 25, 1988 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER PEGGY ROBINSON, Claimant, File No. 708497 vs. MEREDITH CORPORATION, A P P E A L Employer, D E C I S I 0 N and CIGNA, Insurance Carrier, Defendants. 1402.20 - 1402.40 - 1402.60 Claimant failed to show by a preponderance of the evidence that she suffered any permanency or that her medical treatment for an injury to her knee resulted in an injury to her back. BEFORE THE IOWA INDUSTRIAL COMMISSIONER PEGGY ROBINSON, Claimant, vs. MEREDITH CORPORATION, File No. 708497 Employer, R U L I N G and CIGNA, Insurance Carrier, Defendants. Appellant's failure to timely file its appeal brief does not constitute grounds for dismissal. An untimely filed brief which is objected to, however, will not receive consideration. The appeal will be considered generally without any specified errors to determine its compliance with the law. Signed and filed this 8th day of March, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Patrick B. Chambers Attorney at Law 718 Des Moines Street P.O. Box 516 Webster City, Iowa 50595 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Ave., Suite 111 Des Moines, Iowa 50312 BEFORE THE IOWA INDUSTRIAL COMMISSIONER DEBRA L. HANSON, Claimant, vs. File No. 709232 MERCY HOSPITAL MEDICAL A P P E A L CENTER, D E C I S I O N Employer, and AETNA CASUALTY AND SURETY COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from a review-reopening decision denying compensation because she failed to establish a causal connection between her work injury and her present condition. The record on appeal consists of the transcript of the review-reopening hearing and joint exhibits A through Y. Both parties filed briefs on appeal. ISSUE The issue on appeal is whether claimant has established that her herniated disc is causally related to her work injury of July 18, 1982. 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 contained in the review-reopening decision are appropriate to the issues and evidence. HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 2 ANALYSIS The deputy's analysis of the evidence in conjunction with the evidence is adopted. Although claimant has presented evidence that would allow one to conclude a causal connection exists between her back problem and her work injury on July 18, 1982, the deputy's decision quite adequately explains why he found otherwise. Thomas A. Carlstrom, M.D., opined that the herniated disc is not related to the work injury and testified as to his reasons: l) that the herniated disc did not appear on the myelogram taken on October 5, 1982, 2) that claimant's low back and right leg problem had resolved when he saw her in February 1983; and 3) that a herniated disc is not indicated by intermittent symptoms such as claimant described to him. Dr. Carlstrom's opinion is adopted because the greater weight of evidence presented is more consistent with his opinion. FINDINGS OF FACT 1. Claimant testified that the condition of her low back and right leg worsened in August 1984. 2. Claimant was first diagnosed as having a "fairly large herniated lumbar disc, L5-Sl" in January 1985 by Dr. Bashara. 3. Claimant underwent a lumbar myelogram on October 5, 1982 which revealed no abnormalities. 4. Claimant's low back and right leg problems had resolved when Dr. Carlstrom examined her in February 1983. 5. A herniated disc is not indicated by intermittent symptoms. 6. Claimant's herniated disc, L5-S1 is not related to her July 18, 1982 work injury. CONCLUSION OF LAW Claimant failed to establish a causal connection between her herniated disc and her work injury of July 18, 1982. Claimant failed to prove a change in her physical condition which was causally connected to her work injury of July 18, 1982. WHEREFORE, the decision of the deputy is affirmed. HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 3 ORDER THEREFORE, it is ordered: That claimant take nothing further from this proceeding. That claimant pay the costs of this appeal including the costs of the transcription of the hearing proceeding and each party pay their own costs of the hearing proceeding with the defendants paying the costs of the certified shorthand reporter at the time of hearing all pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 17th day of August, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DEBRA L. HANSON, Claimant, vs. File No. 709232 MERCY HOSPITAL MEDICAL A P P E A L CENTER, D E C I S I O N Employer, and AETNA CASUALTY AND SURETY COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from a review-reopening decision denying compensation because she failed to establish a causal connection between her work injury and her present condition. The record on appeal consists of the transcript of the review-reopening hearing and joint exhibits A through Y. Both parties filed briefs on appeal. ISSUE The issue on appeal is whether claimant has established that her herniated disc is causally related to her work injury of July 18, 1982. 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 contained in the review-reopening decision are appropriate to the issues and evidence. ANALYSIS The deputy's analysis of the evidence in conjunction with the evidence is adopted. Although claimant has presented evidence that would allow one to conclude a causal connection exists between her back HANSON V. MERCY HOSPITAL MEDICAL CENTER PAGE 2 problem and her work injury on July 18, 1982, the deputy's decision quite adequately explains why he found otherwise. Thomas A. Carlstrom, M.D., opined that the herniated disc is not related to the work injury and testified as to his reasons: 1) that the herniated disc did not appear on the myelogram taken on October 5, 1982; 2) that claimant's low back and right leg problem had resolved when he saw her in February 1983; and 3) that a herniated disc is not indicated by intermittent symptoms such as claimant described to him. Dr. Carlstrom's opinion is adopted because the greater weight of evidence presented is more consistent with his opinion. FINDINGS OF FACT 1. Claimant testified that the condition of her low back and right leg worsened in August 1984. 2. Claimant was first diagnosed as having a "fairly large herniated lumbar disc, L5-S1" in January 1985 by Dr. Bashara. 3. Claimant underwent a lumbar myelogram on October 5, 1982 which revealed no abnormalities. 4. Claimant's low back and right leg problems had resolved when Dr. Carlstrom examined her in February 1983. 5. A herniated disc is not indicated by intermittent symptoms. 6. Claimant's herniated disc, L5-S1 is not related to her July 18, 1982 work injury. CONCLUSION OF LAW Claimant failed to establish a causal connection between her herniated disc and her work injury of July 18, 1982. Claimant failed to prove a change in her physical condition which was causally connected to her work injury of July 18, 1982. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing further from this proceeding. That claimant pay the costs of this appeal including the costs of the transcription of the hearing proceeding and each party pay their own costs of the hearing proceeding with the defendants paying the costs of the certified shorthand reporter at the time of hearing all pursuant to Division of Industrial Services Rule 343-4.33. HANSON V. MERCY HOSPITAL MEDICAL CENTER PAGE 3 Signed and filed this 17th day of August, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Arvid D. Oliver Attorney at Law 2635 Hubbell Avenue Des Moines, Iowa 50317 Mr. Hugh Cain Attorney at Law 404 Equitable Bldg. 604 Locust Des Moines, Iowa 50309 1402.40 Filed August 17, 1988 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER DEBRA L. HANSON, Claimant, File No. 709232 vs. A P P E A L MERCY HOSPITAL MEDICAL CENTER, D E C I S I O N Employer, and AETNA CASUALTY AND SURETY COMPANY, Insurance Carrier, Defendants. 1402.40 Claimant failed to establish that her herniated disc was causally related to her work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DEBRA L. HANSON, Claimant, FILE NO. 709232 VS. R E V I E W - MERCY HOSPITAL MEDICAL CENTER, R E 0 P E N I N G Employer, D E C I S I 0 N and AETNA CASUALTY AND SURETY COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in review-reopening brought by Debra L. Hanson, claimant, against Mercy Hospital Medical Center, employer, and Aetna Casualty and Surety Company, insurance carrier, for further benefits as a result of an injury which occurred on July 18, 1982. An earlier decision filed May 18, 1984 found that claimant did receive an injury which arose out of and in the course of her employment with the employer and awarded temporary total disability benefits from July 19, 1982 to October 18, 1982. A review-reopening hearing was held on November 21, 1986 at Des Moines, Iowa and the case was fully submitted at the close of the hearing. The record consists of joint exhibits A through Y and the testimony of Debra L. Hanson, claimant. STIPULATIONS The parties stipulated to the following matters: That an employer/employee relationship existed between the claimant and the employer on the date of the injury. That the claimant did sustain an injury on July 18, 1982 which arose out of and in the course of her employment with the employer. That the rate of compensation in the event of an award is $199.19 per week. That the provider of medical services would testify that the fees charged were reasonable and that the defendants are not offering contrary evidence. That the medical expenses were incurred for reasonable and necessary medical treatment. HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 2 That defendants are entitled to a credit under Iowa Code section 85.38(2) for disability income and medical expenses paid under an employee non-occupational group plan but that the amount of these benefits is undetermined. That the defendants paid certain benefits to the claimant prior to the earlier decision filed May 18, 1984 as shown in the attachment to the prehearing report. That the issue of permanent disability is bifurcated. ISSUES The issues presented by the parties for determination at the time of the hearing are as follows: Whether the injury of July 18, 1982 is the cause of any additional temporary disability during a period of recovery. Whether the claimant is entitled to any additional temporary total or healing period disability benefits. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant was employed as an intensive care nurse for the employer on July 18, 1982. Claimant testified that on that date she tried to reposition a disoriented patient. The woman grabbed her around the neck. Claimant then felt pain in her low back and down the inside of her right leg. Claimant was seen by a number of physicians after the injury including H. W. Halling, M.D.; John Zittergruen, D.O.; Marvin H. Dubansky, M.D.; Robert C. Jones, M.D.; Steven R. Adelman, D.O.; G. Bradley Klock, D.O.; and Thomas A. Carlstrom, M.D. A workers' compensation contested case hearing was held on April 5, 1984. Deputy Industrial Commissioner Steven E. Ort issued a decision on May 18, 1985. Official notice is taken of that decision (Iowa Administrative Procedure Act section 17A.14(4)). He found that claimant did sustain an injury that arose out of and in the course of her employment as to her low back and right leg pain. He allowed temporary total disability benefits from July 19, 1982 to October 18, 1982. He found that there was no evidence of permanent impairment due to the low back and right leg. Deputy Ort found that a neck and left arm complaint that arose approximately two months after July 18, 1982 were not causally connected to the injury of July 18, 1982 (Ort Decision, pages 7 & 8). Deputy Ort mentioned that Dr. Jones, a neurosurgeon to whom claimant was eventually referred for low back care, performed a lumbar myelogram which failed to show any abnormalities (Exhibit P-1). Dr. Jones released claimant from his care of the low back HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 3 and right leg pain and directed claimant to return to work on October 18, 1982. It was then that claimant for the first time complained of the neck and left arm symptoms (Ort Decn., p. 4). Claimant has always denied in both of her depositions and at both hearings that Dr. Jones had released her from his care in October of 1982. She asserts that she was actively taking physical therapy at his direction at that time. Deputy Ort also commented that Dr. Carlstrom, who saw claimant primarily for the neck and left arm complaints, noted that claimants' low back pain resolved rather promptly after the injury (Ort Decn., p. 5; Ex. M-1; Ex. X, pp. 5, 6 & 7). Claimant has always denied in both of her depositions and at both hearings that she ever made such a statement to Dr. Carlstrom. Claimant's consistent testimony has been that she has had persistent low back pain from the date of the injury on July 18, 1982 until the present time. She denied any intervening accidents or injuries which might have caused or contributed to this pain. She did admit to one miscarriage in March of 1983 (Ex. M-2) and the birth of a child on March 17, 1984 (Ex. D-1 & D-2). She stated that the second stage of labor pain hurt her back so bad that she requested and received a cesarean section. Ross J. Valone, M.D., stated that during the second stage of labor claimant had significant discomfort in her back and could feel the muscles pulling away from their attachments. She knew she was doing serious injury to her back by continuing the second stage of labor (Ex. D-1). Claimant testified at this hearing that her low back and right leg pain gradually began to get worse in August of 1984. She went to see Dr. Adelman on September 18, 1984. Dr. Adelman said that he did not feel that she could work when he saw her in September, 1984. He did not say whether the cause of her disability was or was not the injury of July 18, 1982 (Ex. K-8). Dr. Adelman referred claimant to Jerome G. Bashara, M.D., an orthopedic surgeon. Dr. BasharaOs office notes corroborated claimant's testimony that she saw him on December 11, 1984 (Ex. A-4). Dr. Bashara said he examined thoracic and cervical x-rays from the Des Moines Osteopathic School of Medicine dated December 15, 1982. He recorded that claimant had a mild thoracic scoliosis and a reversal of the normal cervical lordotic curve. A full set of spine x-rays from Dr. England (full name unknown), a chiropractor dated September 18, 1984 showed a mild double curve lumbar scoliosis which was compensated. No mention was made of a herniated disc for either of those dates (Cl. Ex. A-4). Dr. Bashara then ordered a CT scan of the lumbar spine and recorded on January 22, 1985 that it showed a fairly large herniated disc at L-5, S-1 centrally and to the right (Cl. Ex. A-5). Claimant's testimony and Dr. BasharaOs office records are in agreement that conservative treatment of medication, physical therapy and epidural Cortisone injections were not successful. Dr. Bashara noted on August 27, 1985 that claimant was to be admitted to Mercy Hospital for an EMG/NCV test, a lumbar myelogram and a lumbar laminectomy (Ex. A-6). On September 11, 1985 a lumbar laminectomy and a discectomy was performed on the HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 4 right side at L-5, S-1 for a herniated disc and L4-L5 on the right was explored but appeared normal (Ex. A-6). Nevertheless, on January 31, 1986, Dr. BasharaOs office notes show that claimant was again complaining of low back pain and left leg pain (Ex. A-7). On February 7, 1986, his office notes reflect a diagnosis of (1) recurrent disc herniation L5-Sl, and (2) possible herniated disc L4-L5. Claimant was to be readmitted to Mercy Hospital for a lumbar myelogram, enhanced CT scan, EMG/NCV test and another possible lumbar laminectomy (Ex. A-7). Dr. Bashara stated that after a consultation with Robert Hayne, M.D., and Bill Boulden, M.D., a diagnosis of recurrent disc herniation with some development of mechanical instability was made. A second lumbar laminectomy and a lumbar fusion of L5-Sl was performed on July 9, 1986 (Ex. A-2). Prior to the first laminectomy on April 5, 1985, Dr. Bashara wrote the following letter relative to causal connection to claimant's attorney: Dear Mr. Oliver: Enclosed are the medical records on the patient, Debra L. Hanson. My final diagnosis is a herniated lumbar disc, L5-Sl, centrally and to the right. It is my opinion that this is directly related to her work injury at the Mercy Hospital on July 19, 1982. I have recommended surgery to include a lumbar laminectomy to relieve the patient's symptoms. Hoping this will be of some help to you. Thanking you, Jerome G. Bashara, M.D. (Ex. A-1) The evidence in this case did not include any written material from Dr. Boulden but there is a report from Dr. Hayne dated June 10, 1986 to the insurance carrier. The letter reviews claimant's medical history but is silent on whether the injury of July 18, 1982 was the cause of her worsened condition in August of 1984 or the herniated disc that was first diagnosed after the first hearing by Dr. Bashara on January 22, 1985 (Ex. B-1). Claimant was examined by S. L. Danielson, M.D., on December 12, 1985 after the first laminectomy and before the second one. He performed a very detailed examination of the claimant and his report very carefully reviewed claimant's medical history. He thought her back pain was ligamentous in nature rather than discogenic or neurogenic. Dr. Danielson was silent on whether the injury of July 12, 1982 was or was not the cause of the claimant's worsened condition in August of 1984 or the herniated disc problem (Ex. C-1). Claimant was also seen at the Institute for Low Back Care in Minneapolis by Charles Burton, M.D., on March 21, 1986 after the HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 5 first laminectomy and before the second one. He commented that claimant was born with significant structural difficulties regarding her back. He stated that she has poor support of the spine, a transitional S-1 vertebra, hyperdordosis and scoliosis. He stated that these conditions were aggravated by the work related injury. In association with this there has probably been longstanding degenerative disc disease at L4-L5 and L5-Sl. With respect to the disc herniation he stated that her work related injury may have produced the disc herniation at L5-Sl which required the surgery (Ex. E-1). Dr. Carlstrom, a board certified neurosurgeon, examined claimant in February of 1983 prior to the first hearing in regard to her neck and left arm complaints (Ex. M-1 through M-6) and then again in October of 1986 prior to the second hearing in regard to her low back and right leg pain (Ex. X, p. 4). Dr. Carlstrom testified that he examined a lumbar myelogram done by Dr. Jones which was taken on approximately October 5, 1982. it was his recollection that this myelogram showed no extradural defect, that is no herniated disc. He did not write it down but he felt his recollection was reliable because he was concerned about whether Dr. Jones' myelogram covered the cervical area or not (Ex. X, pp. 8 & 9). Dr. Carlstrom ordered a cervical myelogram for himself on April 12, 1983 (Ex. M-2). Dr. Carlstrom was confronted with the question of causal connection for the low back and right leg pain and the following colloque transpired: Q. Doctor, within a reasonable degree of medical certainty, do you have an opinion as to whether Mrs. Hanson's present complaints of low back pain are caused by the incident of July 1982 at Mercy Hospital? A. Yes. Q. Can you tell us what that opinion is? A. I don't think they are caused by that incident. Q. Why do you think that, Doctor? A. Well, you didn't ask me about the myelogram that was done by Doctor Bashara in O85, but -- Q. Does that play a part in your answer? A. Yes, it does, because that study showed a large herniated disk, and it would be my opinion that a large herniated disk would not have been missed on that initial myelogram, even if it had been there, and I think that she developed the herniated disk between the time of the initial myelogram and the second myelogram. And so I believe that taking that into consideration along with the history that I obtained that her back was not really bothering her anymore, I think she probably resolved the initial complaint before my exam in February of 1983 and sometime between then and 1984 or 1985 developed the herniated disk. (Ex. X, pp. 8 & 9) Dr. Carlstrom may be mistaken in his statement that Dr. HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 6 Bashara diagnosed claimant's herniated disc by a myelogram. Dr. Bashara diagnosed claimant's herniated disc by a CT scan initially (Ex. A-5). However, Dr. Bashara did order a lumbar myelogram and EMG/NCV test prior to the first surgery (Ex. A-5) and Dr. Bashara did indicate that all three tests -- the CT scan, the myelogram and the EMG/NCV test -- led him to a definitive diagnoses of a herniated lumbar disc at the L5, Sl space centerly and to the right (Ex. A-2) Dr. Carlstrom further testified that the pregnancy could result in a low back problem or even a herniated disc (Ex. X, p. 9). He estimated claimant's physical impairment as 10 percent of the body as a whole according to the AMA criteria (Ex. X, p. 10). Claimant's counsel challenged Dr. Carlstrom on his statement that the low back was resolved at the time Dr. Carlstrom first saw her (Ex. X, p. 6) and the following dialogue occurred: Q. Doctor, of what significance is it to you, if any, that Mrs. Hanson reported to you back in 1983 that she was still having pain in the low back and in the thigh areas and had had an incident of pain at least approximately one week before she saw you at that time? A. Well, it depends on what you're asking. HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 7 Q. Is it of any significance to you that she had ongoing symptomology of pain in the low back area? A. I guess the best way to answer that is that yes, it is, and in particular when discussing a problem which has been diagnosed as a herniated disk, it is very unusual for a patient to have a herniated disk which comes up one day, goes away and comes back a week later, or something like that, and the fact that she was having pain at that time does not diagnose a herniated disk by any means. We all have our back pains, and fortunately most of us don't have herniated disks. Q. Unusual, Doctor, but not unheard of, I take it? A. What's unusual? Q. I believe your statement was that it's unusual to have a person with complaint of pain and not find some immediate evidence of herniated disk? A. I would say that it is rare for a patient to have a herniated disk and have intermittent symptoms. (Ex. X, pp. 12 & 13). Claimant testified that she is still recovering from the second surgery. She has not been able to work since the original injury on July 18, 1982. She looked at a number of jobs through her employer's personnel director and also through a vocational rehabilitation specialist. None of these jobs were within her limitations. She did however work as a bartender in a family operated tavern four hours a day, three or four times a week, from November of 1984 to November of 1985. She could do this job while sitting on a chair. The job involved no lifting or standing. Claimant admitted that she has lifted her small children on some occasions. Claimant conceded in her testimony that the myelogram done by Dr. Jones in October of 1982 did not show a herniated disc. Claimant testified that she thought Dr. Hayne did give an opinion of causal connection, but after examining exhibit B-1, she admitted that Dr. Hayne did not relate her low back pain to the July 18, 1982 work incident. APPLICABLE LAW AND ANALYSIS The earlier decision of Deputy Ort filed May 18, 1984 found that claimant sustained an injury to her low back and right leg which arose out of and in the course of her employment; however, it also found that claimant suffered no permanent physical impairment due to this injury at that time (Ort Decn., pp. 7 & 8). This is a review-reopening proceeding under Iowa Code section 86.14. Claimant must demonstrate a change of condition subsequent to the earlier decision which is a result of the original injury of July 18, 1982. See Lawyer & Higgs, Iowa Workers' Compensation HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 8 -- Law & Practice, section 20-2, p. 158 and the cases cited there. Claimant has established that her low back condition became worse. On January 22, 1985, Dr. BasharaOs CT scan of her lumbar spine revealed for the first time that claimant had a fairly large herniated disc at L5, Sl, centrally and to the right (Ex. A-5). Claimant did not, however, sustain the burden of proof by a preponderance of the evidence that her worsened condition in August of 1984 and the herniated disc that was discovered in January of 1985 were caused by the injury which occurred on July 18, 1982. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 18, 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 l28 (1967). The lumbar myelogram of Dr. Jones in October of 1982 failed to show any abnormalities (Ex. P-1; Ort Decn., P. 4). Dr. Carlstrom reviewed this myelogram and testified that this myelogram showed no lumbar herniated disc (Ex. X, pp. 7 & 8). The full set of spine x-rays taken by Dr. England, the chiropractor, on September 18, 1984, did not disclose a lumbar herniated disc of any size, large or small (Ex. A-4). It is true that Dr. Bashara wrote to claimant's counsel on April 5, 1985 and stated that the herniated lumbar disc at L5-Sl was directly related to the work injury on July 18, 1982. However, Dr. Bashara did not say that the injury of July 18, 1982 actually caused the lumbar herniated disc. Dr. Bashara did not say that there was a cause and effect relationship. What Dr. Bashara means by directly related to the work injury is not explained by him. No supporting factual or medical basis is offered for his opinion. Nor does he give any reasoning process leading up to it. He did not explain why it did not show up on prior x-rays or the prior myelogram. He did not explain why it did not show up until his CT scan revealed it on January 22, HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 9 1985, approximately two and one-half years after the injury of July 18, 1982. He did not explain how a patient grabbing the claimant around the neck would cause a herniated disc in her lumbar spine at L5, Sl which could not be proven radiographically for two and one-half years and then be fairly large when it could be seen for the first time. Dr. Bashara's statement stands as an opinion without any supporting basis either factually or medically and it raises more questions then it answers. Although Dr. Bashara consulted with Dr. Boulden after the first surgery and before the second one, there is no medical evidence introduced from Dr. Boulden (Ex. A-2). Dr. Hayne, Dr. BasharaOs other consultant, made a report but he offered no opinion on whether the worsened condition or the herniated disc was or was not causally related to the injury of January 18, 1982 (Ex. A-2; Ex. B-1). Dr. Danielson examined claimant extensively between the two laminectomies and he gave no opinion on whether the worsened condition or the herniated disc was or was not caused by the injury of July 18, 1982. Dr. Burton at the Institute for Low Back Care stated that the injury of July 18, 1982 may have produced the herniation at L5-Sl which required surgery. He also pointed out that claimant was born with very significant structural liabilities regarding her back. He also stated that there has probably been longstanding degenerative disc disease at L4, L5 and L5, Sl (Ex. E-1). Dr. Carlstrom gave his professional medical opinion within a reasonable degree of medical certainty that the herniated disc problem was not caused by the injury of July 18, 1982 for the reason that it was a fairly large bulge but did not show up on the myelogram of Dr. Jones done in October of 1982. Therefore, he concluded that the herniated disc occurred sometime after October of 1982 and before January of 1985 (Ex. X, pp. 8 & 9). Furthermore, claimant told him in February of 1983 that her low back problem was resolved. Dr. Carlstrom said that a herniated disc does not have intermittent symptoms (Ex. X, pp. 12 & 13). Dr. Carlstrom further testified that pregnancy and child birth could cause a herniated disc (Ex. X, p. 9). Therefore, based upon the foregoing considerations, it is determined that claimant did not sustain the burden of proof by a preponderance of the evidence that the alleged worsened condition in August of 1984 and the herniated disc discovered in January of 1985 by Dr. BasharaOs CT scan were caused by the injury of July 18, 1982. Accordingly, claimant is not entitled to temporary or medical benefits for the alleged worsened conditions or the herniated disc condition. FINDINGS OF FACT WHEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant testified that the condition of her low back and right leg worsened in August of 1984. That Dr. Bashara determined in January of 1985 that claimant had a fairly large herniated disc. That Dr. Bashara said that the herniated disc was directly HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 10 related to her work injury on July 18, 1984, but that he did not say there was a cause and effect relationship; he did not explain why it did not appear on earlier radiographic studies and he did not explain why it did not manifest itself until his CT scan which was two and one-half years after the initial injury. That Dr. Hayne and Dr. Danielson examined claimant but gave no opinion as to whether her worsened condition or herniated disc was or was not caused by the injury of July 18, 1982. That Dr. Carlstrom testified that within a reasonable degree of medical certainty it was his opinion that the injury of July 18, 1982 did not cause claimant's subsequent herniated disc because (l) her low back and right leg problem had resolved when he first saw her in February of 1983, (2) the herniated disc did not appear on the myelogram taken by Dr. Jones on October 5, 1982, and (3) a herniated disc is not indicated by intermittent symptoms such as the claimant described to him. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously discussed, the following conclusion of law is made: That claimant failed to sustain the burden of proof by a preponderance of the evidence that the alleged worsened condition she noticed in August of 1984 and the subsequent herniated disc problems she experienced after that were caused by the injury of July 18, 1982. ORDER THEREFORE, IT IS ORDERED: That no amounts are due from the defendants to the claimant for disability or medical expenses. That each party pay their own costs of this proceeding, except that defendants will pay the cost of the certified shorthand reporter at the hearing pursuant to Division of Industrial Services Rule 343-4.33. That the defendants file any reports requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 28th day of May, 1987. WALTER R. McMANUS,JR. DEPUTY INDUSTRIAL COMMISSIONER HANSON V. MERCY HOSPITAL MEDICAL CENTER Page 11 COPIES TO: Mr. Arvid D. Oliver Attorney at Law 2635 Hubbell Avenue Des Moines, Iowa 50317 Mr. Hugh J. Cain Attorney at Law 4th Floor, Equitable Bldg. Des Moines, Iowa 50309 1108.50; 1402.40 1801; 1802 Filed May 28, 1987 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DEBRA L. HANSON, Claimant, FILE NO. 709232 VS. R E V I E W - MERCY HOSPITAL MEDICAL CENTER, R E 0 P E N I N G Employer, D E C I S I 0 N and AETNA CASUALTY AND SURETY COMPANY, Insurance Carrier, Defendants. 1108.50; 1402.40; 1801; 1802 In review-reopening from a prior award, claimant failed to prove that the original injury caused a herniated disc which was not discovered until two and one half years later. Claimant's doctor said it was work related but made no explanation as to how and why. One doctor who examined claimant made no report. Two other doctors who examined claimant made no comment on whether the original injury caused the herniated disc. One doctor said claimant had several congenital back problems that were aggravated and that the original injury may have caused the herniated disc. Defendants' doctor dogmatically testified that there was no causal connection between the original injury and the herniated disc. He examined claimant after the original injury and again prior to this hearing. He said claimant told him that, (1) her low back pain had resolved itself shortly after the original injury; (2) a myelogram after the original injury did not show a herniated disc; and, (3) a herniated disc does not have intermittent symptoms like claimant described to him. Held: causal connection was not proven. Therefore, no benefits were awarded. 1803; 2500; 4000 Filed March 23, l990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : CHRISTINE LANMAN, : : Claimant, : : vs. : : File Nos. 793562 & 710341 EVERCO INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WESTCHESTER FIRE & MARYLAND : CASUALTY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2500 Defendants were not liable for medical benefits for a 1982 work injury when there was an intervening work injury in April of 1985. Defendants liable for medical benefits and mileage because of work injury which occurred in April of 1985 and which aggravated preexisting condition. 1803 Claimant was awarded a 10 percent permanent partial disability attributable to an April of 1985 work injury. Claimant returned to work as a laborer. According to her own testimony she was "getting along fairly well." Claimant had a lighter position than the one she had on the day of the April 1985 injury. Claimant was earning greater wages and a bonus upon her return to work and she had received all raises pursuant to the collective bargaining agreement. 4000 Benefits under section 86.13 were awarded to claimant from a defendant insurance carrier. The carrier had unreasonably withheld benefits after the only physician involved modified his opinion and found a causal relationship between the April 1985 work injury and claimant's alleged condition.