BEFORE THE IOWA INDUSTRIAL COMMISSIONER THEODORE L. COURCHAINE, Claimant, File No. 723925 vs. A P P E A L OVERLAND DRIVER SERVICE, D E C I S I O N Employer, F I L E D and JAN 29 1988 FARMERS INSURANCE GROUP, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from a review-reopening decision awarding claimant permanent total disability benefits. The record on appeal consists of the transcript of the review-reopening hearing, claimant's exhibits 1 through 18 and defendants' exhibits A through I. Both parties filed briefs on appeal. ISSUES Defendants state the following issues on appeal: Did the deputy industrial commissioner err in determining claimant's weekly compensation rate based upon a pay period from February 28 to June 5 and upon a pay rate of 16> per mile? Did the deputy industrial commissioner err in allowing claimant to recover expenses for medical problems not causally related to the injuries he sustained in the accident of June 5, 1981? Did the deputy industrial commissioner err in rejecting the agreement between claimant and defendants and in allowing claimant to recover for medical expenses incurred in violation of the agreement? REVIEW OF THE EVIDENCE The review-reopening decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Claimant was employed as a truck driver for defendant on June 5, 1981. Claimant was injured when the truck he was driving was struck head on by an oncoming car. The collision caused the truck to roll over a guardrail and down an embankment. Claimant struck his head on the roof of the truck and was hospitalized until noon the next day after the accident. Claimant was treated at the hospital by A. M. Romano, M.D. Dr. Romano states the following diagnosis in a letter dated October 5, 1981: The diagnosis on this man is as follows: 1. Concussion 2. Laceration of eyebrow 3. Contusion of knee Prognosis is good. It is anticipated that his concussion will give him problems for quite a while, but eventual 100% recovery is expected. (Claimant's Exhibit 9) Claimant testified that he does not have clear memory of the events of the summer of 1981 following the accident. Exhibit 10 contains copies of claimant's log book entries. The first page is dated August 18, 1981 and indicates that claimant drove about ten hours that day. The last page of this exhibit is dated September 6, 1981 and indicates that claimant drove about nine hours that day. Defendants exhibit I contains copies of medical release for work forms. Page 2 of this exhibit is signed by Dr. Romano and releases claimant for return to work on August 16, 1981. Page 1 of this exhibit is signed by Behrouz Rassekh, M.D., and indicates that claimant was under Dr. Rassekh's care from September 15, 1981 to September 24, 1981 and was released for return to work on September 28, 1981. Claimant stated that he went to see Jan J. Golnick, M.D. Dr. Golnick hospitalized claimant on October 26, 1981 and he reports the course of treatment followed in a letter dated December 3, 1981: Patient was admitted to Midlands Community Hospital on October 26, 1981 for neurological work-up as well as myelogram. During the hospitalization, he underwent extensive testing and the myelogram revealed mild asymmetry of the L5-S1 with slight blunting of the nerve root on the right side. He was seen on orthopedic consultation by Dr. Murphy who recommended that the patient would have to wear lumbosacral corset and have active rehabilitation exercise program consisting of Williams' flexion exercises in addition to cervical muscles training as well as caudal block for lumbar pain to be done by anesthesiologist, Dr. Rosenberg. (Cl. Ex. 9) Claimant gave the following testimony concerning the nerve blocks performed by Dr. Rosenberg: Q. Do you remember a Dr. Rosenberg doing some nerve blocks? A. Yes. Q. You do remember that? A. Yes. Q. Why do you remember that? A. It was really painful. Q. What did he do? A. They take a needle about ten inches long and stick it under your arm for about a foot and a half and leave it there and inject fluid in you. Q. What does it do? A. It knocks the hell out of you. Q. Did it cause numbness or something? A. It gives you a severe pain; and the next day, you're supposed to.be relieved of pain. Q. Were you relieved of pain? A. I suppose for a period of time. (Transcript, pages 71-72) Claimant continued to experience pain and was eventually referred to Dr. Blume in October 1982. Claimant testified concerning Dr. Blume's treatment: Q. When you went up to see Dr. Blume in October of 1982, did they do some injection into your spinal area to try and determine what was the problem? A. Yes, they did. Got a pen? I'll show you. They take a needle about that size and put it right here (Indicating). Q. In your throat? A. Right to the neck bone, and then they put another one right above it. Then they take a needle about that long, and they put it in there; and they induce pain in it. Q. Did they induce pain? A. You got that right. They sure did. Q. And what happened? A. I blew my guts up. Q. What do you mean? A. That's what I did. My guts blew up. Q. Well, that is very descriptive, but it doesn't help describe what you mean by that. A. They call it an ulcer. Q. When did this ulcer come to being, that you had any knowledge that you had any problem? A. Shortly after that injection. (Tr., pp. 81-82) Claimant stated that he was taken to the hospital for treatment of ulcer by his sister-in-law as he was unconscious. At the hospital claimant was treated by William A. Albano, M.D. Dr. Albano opines in a letter to claimant's counsel: Mr. Courchaine was seen by Dr. Keig and myself on an emergency basis due to a perforated duodenal ulcer with a subphrenic fluid collection. Prior to the time of the development of his acute abdomen, I had not known the patient. However, duodenal ulcer disease, especially that associated with acute perforation, has certainly been linked to stress, as well as anti-inflammatory and analgesics that are used for the type of injuries that Mr. Courchaine had prescribed following his automobile accident. The duodenal ulcer, per se, was not directly related to the automobile accident, though without question, the etiology for such an ulcer disease is directly connected to the stress and medicines that the patient was under. (Cl. Ex. 9) Apparently claimant was also seen by Lawrence M. Fitzgerald, M.D., at the hospital: I first saw Mr. Chourchaine [sic] on the evening of November 10, 1982 at which time he was suffering from a one day history of profuse abdominal pain and confussion. Subsequently he was found to have a perforated ulcer of the duodenum and underwent emergency surgery that evening. At the time of surgery he was also found to have a right subphrenic abscess. Mr. Courchaine was being treated with Fiorinal and Atavan as well as an arthritis medication for pain in the cervical and lumbosacral spine area as the result of an auto accident in June of 1981. Within the week prior to his admission he had been to Sioux City, Iowa where he underwent discography. Accourding [sic] to the patient, that procedure did cause severe pain and anxiety which lasted for several days. I believe that the undue stress that Mr. Courchaine experienced as a result of the procedure did play a small part in the development of his ulcer. However I think that the major inciting factor of the ulcer was most likely his medications, which are known to have this complication. (Cl. Ex. 9) Claimant stated that his gallbladder was removed in June 1984. Claimant opined that the gallbladder was gangrenous. Claimant also indicated that he went to James A. Conroy, M.D., a specialist in internal medicine, because he had had diarrhea and bowel problems since the ulcer surgery. Dr. Conroy opined that claimant has chronic pancreatitis. Dr. Conroy gave the following testimony concerning the cause of claimant's pancreatitis at his deposition taken on June 18, 1985: Q. Is that relative insofar as your diagnosis and any prognosis that you've made as regards to this patient? A. It was not at the time relevant. Perhaps I should restate that. It could have had some relevance. Q. Why? A. One of my final impressions as can be seen on page 4-- Q. Yes. A. --was chronic pancreatitis and as I indicated, my first consideration for the etiology or the cause of that chronic pancreatitis was related to trauma and so I based that suspicion or impression on the historical fact that he indicated that he began having loose stools the same summer as his automobile injury. (Conroy Deposition, p. 12, lines 11-24) Q. Can you tell me this: Is pancreatitis caused by other diseases such as gallstones? A. It's related to a number of other medical diseases, yes. Gallstones is included in that list. Q. What else would there be? Conroy - Direct A. Perforated peptic ulcer. Q. What else? A. Hyperlipidemia, a condition of excessively high cholesterol, high calcium, certain tumors that can elevate the calcium content. There's a long list. Q. So pancreatitis, the causations of that are numerous, also? A. Yes. (Conroy Dep., pp. 20-21, lines 21-25, 1-8) Q. Well, I guess I want to ask you, based on the fact that he had that gallbladder surgery, do you think that the gallstones were in any way related to what you've now determined as pancreatitis? A. There is some possible connection. Q. Likely connection? A. As I stated earlier, I tried to weigh all the factors and the temporal relationship with his automobile injury seems to stick out as the predominant factor, although I grant that this certainly could also have been contributory. (Conroy Dep., pp. 23-24, lines 18-25, 1-3) Q. You gave an opinion to Mr. Laubenthal that at least 50--you have at least a 50 per cent medical certainty in your mind that the ulcer was probably related to the accident. A. Indirectly, yes, I feel at least 50 per cent confident that the ulcer was precipitated by the stress and/or medications he was given that resulted from the accident. Q. And when you say "and/or medication," are you saying that it could be one or the other or a combination of the two? A. Probably both. Q. All right. Is it significant to you that he had no history of ulcers before that accident? A. Yes. That's part why I attribute at least 50 per cent, because it would have been likely, as I stated earlier today, if the man had a chronic history of peptic ulcer disease, then I wouldn't say that it was--it was likely caused by the wreck, but when he had no prior history, and this was a de novo problem, so to speak, then one has to relate it to the likely causes at the time and that was the stress and the medication. Q. What's your opinion as to whether his present pancreas problems are likewise related to the collision of June of 1981? A. I would say with the same degree of certainty as the peptic ulcer that--probably 50 per cent, but I could not say at the 90 per cent confidence level. Q. Okay. Is that because of the fact that he has--had a history, at least, of gallbladder problems? A. That's correct. (Conroy Dep., pp. 53-54, lines 19-25, 1-24) Claimant was examined by James G. Patterson, Ph.D., a psychologist, on March 30, 1983. In his psychological report Dr. Patterson opines: In brief, Mr. Courchaine is functioning in the Dull Normal range of intelligence at present. There does appear to be a significant degree of deterioration in his mental capacity in comparison with pre-morbid functioning. The deficit is most apparent in short term memory and in higher visual integration, and could be the result of depression and anxiety or brain damage, but most likely a comination [sic] of the two factors. His depression is likely to be a reaction to physical impairment and chronic pain, especially since he has no previous psychiatric history, and is accompanied by paranoid suspiciousness and mistrust, especially toward the medical profession. Some further testing and evaluation is needed in reference to his visual integration problems as well as memory. For this purpose, the Wechsler Memory Scale, and the Benton Visual Memory test will be given within the next two weeks. Possibly, some type of antidepressive medication would be helpful also. (Cl. Ex. 9) Dr. Patterson reports these results on the follow-up testing: On the Wechsler Memory Scale, he obtained a Memory Quotient of 94, which falls in the lower part of the Average range. Since these scores are directly comparable to WAIS - R IQ scores (mean of 100, standard deviation of 15), his MQ of 94 represents a considerable degree of improvement over his WAIS - R Full Scale IQ score of 84, obtained on 3/30/82. This should not be interpreted as an overall improvement in cognitive function however, since his memory for digits on both tests remained the same. His higher score on the WMS resulted mainly from better performance on tasks involving immediate recall of verbal material, paired-associates learning, and recall of current information. Hence, the results of this test contraindicate a significant memory deficit. On the Benton Visual Retention Test, he obtained a total error score of four, which is precisely equal to the expected score for normal adults for his age group with low average IQs. These results, as in the WMS suggest that he has no significant impairment of visual memory. His lower score on the WAIS - R was probably due substantially to emotional factors prevailing at that time which adversely affected his concentration. (Cl. Ex. 9) Claimant has also been examined by Thomas G. Grandy, Ph.D., a clinical psychologist on February 2, 1984. Dr. Grandy opines: Diagnostic impressions, in accordance with the inventory results, suggest consideration of obsessive-compulsive neurosis, depressive reaction, anxiety reaction. Treatment considerations include a psychiatirc [sic] examination to determine the nature of both anxiety and depressive reactions as well as to carefully evaluate the suicide potential. Anti-depressant medication and tranquilizers can be considered to reduce the severtiy [sic] of depression and panic reactions. Drug dependency does not appear to be an issue in treatment. Psychotherapy is probably not advised unless the patient desires it, as defensiveness is very high. However, should psychotherapy be considered, it may be useful to focus upon avoidance of aggression, expression of anger and sensitivity to his own emotions. (Cl. Ex. 9) Claimant was evaluated by Michael Newman, a certified vocational evaluator on February 15, 1984. Mr. Newman relates his impressions and recommendations concerning claimant's physical ability to do work in his report: Physically, this gentleman presents himself as one who is severely disabled and unemployable. Mr. Courchaine's level of physical activity was observed closely and the findings are reported in the preceding paragraphs. In addition to numerous physical complaints stated by Mr. Courchaine, the client also strongly believes that he has suffered significant brain damage as a result of his trucking accident. A review of psychological testing administered by Dr. James G. Patterson indicates that Mr. Courchaine is functioning intellectually somewhere between the dull-normal to low-average range of intelligence. Dr. Patterson further stated the possibility of the client's test scores being lowered through factors of depression and anxiety or brain damage. Based on Dr. Patterson's psychological report, it is not clearly stated whether or not Mr. Courchaine indeed suffers from organic brain damage. In keeping with the aforementioned clinical observations and current vocational testing results it appears that Mr. Courchaine would be a poor risk for successful case management until the client's current medical dilemma is resolved to his satisfaction. Currently this gentleman exhibits a tremdous [sic] amount of anger and suspiciousness towards the medical profession in general as he stated "I have been, expletive, over by them so much, I don't know who to believe." (Cl. Ex. 9) Claimant has continued to see Dr. Golnick, and in a February 27, 1985 letter to the State of Iowa Disability Determination Services Dr. Golnick opines: His medical history is very lengthy and very complex. In brief, this patient had sustained injury to the brain, the entire spine, and currently there is some evidence that he developed posttraumatic injury to the pancreas and spleen which has resulted in pancreatic insufficiency. Medical diagnosis: 1. Status post brain contusion and contusion of the entire spine and spinal cord. 2. Severe cervical thoracic and lumbosacral radiculopathy with significant discopathy and posttraumatic degenerative changes of the spine. 3. Mild to moderate organic mental syndrome with significant memory loss secondary to head trauma. 4. Posttraumatic cephalgia. 5. Possible postruamtic [sic] pancreatic insufficiency. It is my medical opinion that this patient is totally disabled for any type of work indefinitely. As far as the prognosis is concerned, there is practically no chance that this type patient will ever recover to the point where he will be able to assume any type of job or to be as well as he was prior to the accident. (Cl. Ex. 9) Claimant testified that he has tried to sell cars and to do carpenter work but he was unable to because he has to go to the toilet frequently. Claimant states that he is 52 years old. Testimony was also presented at the hearing concerning how much claimant was paid. Claimant testified that he was paid $.16 per mile, $25 for each pickup (loading and unloading) except for the first pickup for which he received nothing, and $40 for layovers. Claimant also stated that he was given a cash advance before he left on a trip to pay for trip expenses. Claimant had to produce receipts for expenditures made from this advance, and any money left over from the advance was withheld from his pay as it was money claimant already had. Claimant identified claimant's exhibits 1 and 2 as his log books for the months of April, May and June 1981. Claimant also identified the driver settlement sheets which are attached to claimant's exhibits 1, 2 and 5. Claimant's exhibit 5 is typical of these driver settlement sheets: DRIVERS SETTLEMENT Driver Ted Courchaine Unit No. 2066 Trip No. 5312 4,132 Miles @ .13 = $ $537.16 1 day layover 40.00 6 pick up Miles @ 25.00 = $ $150.00 Total Gross $ $727.16 F.I.C.A. $ 48.35 Fed. W/H 144.60 State W/H 17.19 Insurance SUB-TOTAL $ 180.14 $ -180.14 Net Pay $ $547.02 Cash Advance 50.00 Cash Spent 77.98 Adjust to Pay 27.98 $ +27.98 Total Due $ $575.00 4,132 miles 03 123.96 698.96 Paid by Check No. Date TRIP EXPENSES Truck Maint. $ Trailer Maint. Tires Fuel Oil Permits SUB-TOTAL $ ------- Loading Communications 6.63 Motel & Meals 17.47 Tolls & Scales 4.75 .83 - logs Miscellaneous 48.30 - permits SUB-TOTAL $ 77.98 TOTAL EXPENSES $ 77.98 Claimant testified that the additional $.03 which is added after withholding was a safety bonus. Page 3 of claimant's exhibit 18 is a Nebraska first report of injury prepared by Ron Chitcott, general manager of Overland Driver Service. In box 17 of this exhibit it is indicated that claimant's wage rate at the time of injury was $.16 per mile. Claimant's exhibit 4 is a letter to claimant's attorney from James B. Hagaret who, according to testimony at the hearing (Tr., pp. 37-38, lines 1 & 2), is the owner of Overland Driver Service. Hogarth states: With reference to your letter of April 17, 1985 regarding the rate of pay of Mr. Courchaine, Mr. Chilcott was in error in stating the gross pay was 16> a mile. Mr. Courchaine was paid 13> a mile as wages and an additional 3> a mile for road expense, which is probably where the misunderstanding occurred. (Cl. Ex. 4) Rich DeGroff, vice president of Overland Driver Service, testified at the hearing. DeGroff stated on direct examination that Overland Driver Service went into business on April 1, 1981. DeGroff opined that the additional $.03 per mile which claimant was paid are for expenses such as motels or meals. (Tr., p. 155) DeGroff identified defendants' exhibit G as a photocopy of the books of Overland. On cross-examination, DeGroff revealed that Overland Driver Service actually went into business on March 1, 1981. (Tr., p. 16) DeGroff indicated that he does not know why the March 13 $727.16 payment which is listed on claimant's exhibit 3 does not appear on defendants' exhibit G. DeGroff disclosed that he was not employed by Overland at the time claimant was injured. DeGroff revealed that he is the son-in-law of Hogarth. DeGroff stated that Hogarth formerly owned American Driver Service in partnership with Jim Roberts. On redirect, DeGroff stated that the $726.16 was paid by American Driver Service. DeGroff also identified defendants' exhibit H as showing that claimant was on the continuous employment at American Driver Service or Overland Driver Service. On further cross-examination, DeGroff identified Ron Chilcott as the former general manager of Overland. APPLICABLE LAW The citations of law in the review-reopening decision are appropriate to the issues and evidence. Iowa Code section 85.36 (1981) states in part: The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had he worked the customary hours for the full pay period in which he was injured, as regularly required by his employer for the work or employment for which he was employed, computed or determined as follows and then rounded to the nearest dollar: .... 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. (Emphasis added.) ANALYSIS The greater weight of evidence establishes that claimant was paid $.16 per mile. DeGroff's and Hogarth's contention that the $.03 was for motel and meal expenses is contrary to the driver settlement sheets which show motel and meal expenses as deductions from the cash advance. DeGroff admits that he was not an employee of Overland or American Driver Service at the time claimant was injured and that Ron Chilcott was general manager at the time of claimant's injury. Claimant's exhibit 3 discloses the gross pay that claimant received for the months of March, April, May and June 1981. The information contained in claimant's exhibit 3 is also contained in claimant's exhibits 1, 2 and 5. Defendants' contention that the March 13, 1981 $727.16 payment is for work done outside the 13 week period preceding claimant's injury (March 6 through June 5, 1981) is rejected as it is based on pure speculation. The payments reflected on claimant's exhibit 3 do not contain the additional $.03 per mile which claimant received. The appropriate rate will be calculated by adding the additional $.03 per mile to the total set out in claimant's exhibit 3: Gross Pay @ $.13 plus Pickups & Additional March 1981 Layovers $.03 March 13 $727.16 + $123.96 = $851.12 March 20 421.72 + 97.32 = 519.04 April 1981 April 10 375.57 + 86.67 = 462.24 April 17 626.98 + 127.98 = 754.96 April 17 226.59 + 52.29 = 278.88 May 1981 May 1 220.87 + 50.97 = 271.84 May 8 566.10 + 119.10 = 685.20 May 8 210.99 + 48.69 = 259.68 May 22 591.89 + 136.59 = 728.48 June 1981 June 5 548.03 + 114.93 = 662.96 TOTAL $5,474.40 The total is then divided by 13 to arrive at a gross wage of $421 per week. Claimant testified that he is married with two children who were ages 24 and 18 at the time of the injury. Using the workers' compensation benefit schedule for July 1, 1980 the rate of weekly compensation is $253.61. The greater weight of evidence establishes that claimant was married with two dependent children at the time he was injured. The greater weight of evidence causally connects the medical treatment claimant received for the ulcer, gall bladder and chronic pancreatitis with claimant's work injury. Doctors Fitzgerald, Albano, and Conroy opine that claimant's ulcer condition was the result of the stress and medication involved in the treatment of claimant's work injury. Doctors Conroy and Golnick causally connect claimant's gall bladder and chronic Pancreatitis conditions to the work injury. As a result of claimant's third party settlement in this matter, defendants are entitled to credit against the medical expenses awarded in this section. Defendants' credit is calculated as follows: Third party settlement $100,000.00 Claimant paid to insurance carrier -58,837.79 See claimant's exhibits 6 and 7 Attorney's fees-claimant's exhibit 7 -12,348.66 See section 85.22(1) Iowa Code and Higgins v. Peterson II Iowa Iowa Industrial Commissioner Report 199 (1982). $ 28,813.55 Medical expenses paid by defendants since 10-9-83 See claimant's exhibit 14 + 2,365.00 Defendants' credit $ 31,178.55 Finally, defendants argue that claimant is not entitled to recover medical expenses incurred in violation of the memorandum of settlement and consent to settlement entered into by claimant and states that: "Any expenditures greater than $1,000.00 on account of medical or other services shall not be incurred by Theodore L. Courchaine without approval of Overland Driver Service and Farmers Insurance Group in keeping with the rights of the employer under Section 85.27." Claimant's exhibit 6, pp. 3-4. The agreement was filed with this agency on October 13, 1983. This provision limiting medical expenditures by claimant falls for at least two reasons. First, it is apparent that this agreement was more than a consent to settlement under Iowa Code section 85.22(b)(4). This agreement appears also to be a full commutation terminating claimant's rights to future medical benefits. Nevertheless, whatever this agreement may be, it was never approved by this agency and is not enforceable by the industrial commissioner. Second, claimant needed no authorization from defendants for emergency medical treatment and the gall bladder surgery was performed on an emergency basis. Defendants present no argument on appeal concerning the extent of claimant's disability. Claimant is 52 years old with a GED and is functioning in the dull normal range of intelligence. Claimant currently experiences bowel problems due to his pancreatitis and severe back and leg pain. Claimant has experienced memory lapses due to the injury. Claimant has attempted to sell cars and do carpentry work but was unsuccessful because he had to go to the toilet too frequently. The injury resulted in multiple injuries to claimant's back, neck and brain. Claimant's treating physician, Dr. Golnick, opines that there is practically no chance that claimant will ever return to truck driving. The greater weight of evidence establishes that claimant is permanently and totally disabled. FINDINGS OF FACT 1. Claimant sustained injuries to his back and neck on June 5, 1981 when the truck he was driving for defendant-employer Overland Driver Service collided with an oncoming car and rolled down an embankment. 2. As a result of the stress and medication used to treat claimant's injury, claimant developed an ulcer which required surgical treatment. 3. As a result of the injury, claimant developed gall bladder problems which required emergency surgery to remove the gall bladder. 4. As a result of the injury, claimant developed chronic pancreatitis. 5. Claimant is 52 years old, has a GED, and is functioning in the dull normal range of intelligence. 6. Claimant has attempted to sell cars and do carpentry work but was unsuccessful because he has to go to the toilet too frequently. 7. Claimant has problems sleeping and is only able to sleep between 10 to 12 minutes at a time. 8. Claimant currently experiences severe back and leg pain. 9. Claimant has had memory lapse problems as a result of the injury. 10. Claimant is permanently and totally disabled. 11. At the time of the injury claimant was married with two dependent children. 12. Claimant was paid $.16 per mile, $25 per pickup except for the first pickup and $40 per day for layovers. 13. Claimant's rate of weekly compensation is $253.61. 14. Claimant entered into a third-party settlement as a result of the June 5, 1981 work injury under which claimant received $100,000.00. 15. On October 11, 1983 claimant entered into a consent to settlement agreement with defendants under which he paid $58,837.79 to defendants for compensation and medical expenses paid as a result of his June 5, 1981 injury. 16. Claimant incurred $12,348.66 in attorneys' fees as a result of the third-party settlement. 17. Defendants have paid $2,365.00 toward claimant's medical expenses since the consent to settlement. 18. Defendants have $31,178.55 in credit against any award made in this decision. CONCLUSIONS OF LAW Claimant has established a causal connection between his June 5, 1981 work injury and the medical treatment for the ulcer, gall bladder and chronic pancreatitis conditions. Claimant has established a causal connection between his June 5, 1981 work injury and his present disability. Claimant has established that he is permanently and totally disabled as a result of his injury on June 5, 1981. Claimant is entitled to $12,348.66 in attorneys' fees for his third-party settlement. Defendants are entitled to a credit of $28,813.55 as a result of claimant's third-party settlement; and defendants are entitled to a credit of $2,365.00 for medical expenses paid since the consent to settlement. Claimant's weekly rate of compensation is $253.61. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay claimant's medical expenses associated with the treatment of his ulcer, gall bladder, and chronic pancreatitis conditions. That defendants pay claimant permanent total disability benefits at the weekly rate of two hundred fifty-three and 61/100 dollars ($253.61) commencing June 5, 1981 for the period of claimant's disability. That defendants be given thirty-one thousand one hundred seventy-eight and 55/100 dollars ($31,178.55) credit for medical expenses already paid and for claimant's third-party settlement. That defendants pay accrued amounts in a lump sum together with interest pursuant to section 85.30 of the Iowa Code. That defendants pay the costs of this proceeding including the costs on appeal pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports pursuant to Division of Industrial Services Rule 343-3.1(2) as requested by the agency. Signed and filed this 29th day of January, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Peter J. Peters Attorney at Law 233 Pearl Street P.O. Box 938 Council Bluffs, Iowa 51502 Mr. William J. Dunn Attorney at Law 800 Commercial Federal Tower 2120 South 72nd St. Omaha, Nebraska 68124 Mr. Robert Laubenthal Attorney at Law 370 Midlands Mall P.O. Box 249 Council Bluffs, Iowa 51502 1000-1402.40-1402.60 1703-1704-1804- 2301-3000-3300-3400 Filed January 29, 1988 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER THEODORE L. COURCHAINE, Claimant, vs. File No. 723925 OVERLAND DRIVER SERVICE, A P P E A L Employer, D E C I S I 0 N and FARMERS INSURANCE GROUP, Insurance Carrier, Defendants. 1402.40 - 1804 The greater weight of evidence established that claimant was permanently and totally disabled. 1402.60 - 2301 Claimant established through medical testimony that the medical received for his ulcer, gall bladder and pancreatitis conditions was causally connected to his work injury. Defendants' arguments that these medical expenses were incurred in violation of a consent to settlement was rejected as that agreement was never approved by this agency. 1703 - 1704 - 3400 Defendants allowed credit for benefits already paid. Defendants allowed credit for amounts received by claimant under a third party settlement agreement. 1000 - 3300 - 3400 Claimant entitled to attorney's fees for his third party settlement. Claimant entitled to credit for amounts he has already paid to defendant insurance carrier from his third party settlement. 3000 Greater weight of evidence supported claimant's contention that he was paid $.16 per mile. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY A. NORTHRUP, : : Claimant, : : vs. : : File No. 724196 TAMA MEAT PACKING, : : A P P E A L Employer, : : D E C I S I O N and : : RANGER INSURANCE, : : Insurance Carrier, : : and : : THE SECOND INJURY FUND, : : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Defendant Second Injury Fund appeals from an arbitration decision awarding claimant second injury fund benefits based on an industrial disability of 60 percent and an impairment of 12 percent of the left arm and an impairment of 14 percent of the right arm. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits 1 through 12; and the agency files on file numbers 690703 and 724196. Second Injury Fund and claimant filed briefs on appeal. issues The issues on appeal are whether claimant is entitled to benefits from Second Injury Fund and, if so, the amount of the benefits. review of the evidence The arbitration decision filed March 27, 1989 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. Additional evidence will be discussed as necessary in the analysis and the findings of fact. applicable law The citations of law in the arbitration decision are appropriate to the issues and evidence. The following additional citation is also appropriate. Page 2 The Iowa Supreme Court most recently discussed the liability of the Second Injury Fund in Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989). The court stated at 358: The language of the second injury act supports this conclusion by providing that "[t]he employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability." To hold otherwise would in effect penalize the employer who hired a person with a prior injury. The purpose of Second Injury Fund statutes was to provide a more favorable climate for the employment of persons injured through service in World War II. Jackwig, The Second Injury Fund of Iowa: How Complex Can a Simple Concept Become?, 28 Drake L.Rev. 889, 890-91 (1979). Similar considerations still weigh heavily in our interpretation of the second injury act. See, e.g., Anderson v. Second Injury Fund, 262 N.W.2d 789, 791-92 (Iowa 1978) (purpose to encourage employers to hire handicapped workers). In the present case, there seems to be no argument about the extent of the second injury standing alone: it is a scheduled injury which does not extend to the body as a whole, even though the cumulative effect of this injury and the prior injuries was to cause such disability. In this case, if it had not been for the prior injuries sustained by Neelans, the employer would be liable only to the extent provided by the schedule for a leg injury. To hold that the present employer would be liable for payment of a greater amount as a result of the preexisting injuries would be inconsistent with the purpose and language of the statute. The industrial commissioner correctly ruled that the Second Injury Fund should be responsible for the industrial disability, less the total of the scheduled injuries, or a total of 262 weeks. Accordingly, we reverse and remand for reinstatement of the order by the commissioner. analysis The issues to be discussed are whether claimant is entitled to second injury fund benefits and, if so, the amount of the benefits. Several matters must be resolved in deciding the main issue. The first matter to be resolved is Second Injury Fund's argument that it is entitled to credit for the disability of both scheduled injuries. Second Injury Fund is correct and Neelans, 436 N.W.2d 355, so held. It would appear that the deputy's failure to give credit for both injuries was due to oversight. (The deputy gave credit for only the first of two injuries). Page 3 The second matter to be resolved is whether the amount of credit for the injuries should be the amount of impairment that the employer and claimant agreed to in the settlement agreements and commutations. Second Injury Fund argues that it should be given credit for the amount of settlement agreements and commutations entered into between the employer and the claimant. Claimant responds by arguing that the Second Injury Fund is not bound by the settlement agreements and commutations. In order to discuss this matter certain facts are necessary. Agency records in this matter reveal the following. In file number 690703 claimant alleged an injury to his left arm on December 19, 1981. An agreement for settlement and full commutation was filed in that matter. The full commutation was approved by a deputy industrial commissioner on September 26, 1988. The basis of the agreement for settlement and commutation was that the employer was to pay claimant for a 100 percent impairment of the left arm. In file number 724196 claimant alleged an injury to his right arm on January 24, 1983. An agreement for settlement and full commutation was filed in that matter. The full commutation was approved by a deputy industrial commissioner on September 26, 1988. The basis for settlement and commutation was that the employer was to pay claimant for a 46 percent impairment of the right arm. In both matters claimant was represented by the same counsel as in the current matter. Claimant is right that Second Injury Fund is not bound by the settlement agreements and commutations. Second Injury Fund is not bound by these agreements because the employer and the claimant could reach an agreement that would be detrimental to the Second Injury Fund. See Johnson v. George A. Hormel & Co., (Appeal Decision, June 21, 1988). However, a full commutation presumes that claimant's disability can be and has been definitely determined. See McCollough v. Campbell Mill & Lumber Co., 406 N.W.2d 812 (Iowa App. 1987). A full commutation is binding on claimant. A claimant should not be allowed to enter into a settlement and full commutation fixing the amount of disability and then later argue in seeking second injury fund benefits that the disability is something less than the basis of the settlement and commutations. To hold otherwise would be to give claimant a windfall at the expense of the Second Injury Fund. The Second Injury Fund should receive credit for the amount of impairment approved in the settlement agreement and commutations. The next matter to be resolved is the extent of claimant's cumulative industrial disability. In order to make this determination it is necessary to determine the actual impairment of each of claimant's arms. There are numerous ratings in the records by various physicians. The rating of Carl O. Lester, M.D., orthopedic surgeon, cannot be relied upon. The rating did not use the AMA guidelines, was made upon an examination only, appears to be influenced by an earlier rating by Arnis B. Grundberg, M.D., who later Page 4 lowered his rating, and is inconsistent in that it gives a 50 percent "disability" rating for both the upper extremity and the left hand. Dr. Grundberg gave impairment ratings of 20 percent of the left hand and 25 percent of the right hand on February 28, 1984 but he expected the impairments to improve with time. Dr. Grundberg gave no subsequent ratings. His ratings cannot be relied upon because he thought claimant would improve so there is no way of knowing what his "final" ratings would be. This is particularly true in light of the fact that he had previously given a 50 percent rating of the left hand and expected further improvement with time. Claimant was also examined by John R. Walker, M.D., who apparently only saw claimant one time in anticipation of litigation. Dr. Walker based his opinions on the amount of nerve injury but his standard for determining the impairment is not given and his opinion can be given little weight. Claimant was evaluated by William W. Eversmann, Jr., M.D., who conducted a series of tests to rate claimant's impairments. Although he initially gave claimant higher impairment ratings, he subsequently gave impairment ratings (January 13, 1984) which he stated were consistent with the guidelines published by the American Medical Association and the American Society for Surgery of the Hand. Dr. Eversmann's ratings were 20 percent of the left upper extremity and ten percent of the right upper extremity. William F. Blair, M.D., an orthopedic surgeon from the University of Iowa Hospitals and Clinics, was the primary treating physician. As the deputy correctly noted Dr. Blair's qualifications and past experiences in a teaching hospital are impressive and he has had the most clinical experience with claimant. Dr. Blair's ratings were 14 percent of the right upper extremity and 12 percent of the left upper extremity (Joint Exhibit 11, page 23, lines 16-22). His ratings and Dr. Eversmann's later more reliable ratings were consistent. The ratings of Dr. Blair and Dr. Eversmann are used to conclude that claimant has an impairment of the left upper extremity of 12-20 percent and an impairment of the right upper extremity of 10-14 percent. Claimant was born July 21, 1953 and was 29 years old at the time of the injury on January 24, 1983. He has impairments of each upper extremity discussed above. Claimant has a high school education and potentially he is retrainable. The vocational rehabilitation report (joint exhibit 6) indicates that claimant has normal intelligence. Because of loss of strength and loss of feelings in his hands claimant is unable to utilize his past employment skills. Claimant's wages at the time of the injuries was $6.20 per hour and subsequent jobs he has had have paid $3.65 per hour. When all relevant factors are considered claimant has suffered a cumulative industrial disability of 50 percent as a result of work injuries on December 19, 1981 and January 24, 1983. Second Injury Fund liability is claimant's cumulative industrial disability less the credit for the benefits of amount of impairment agreed to by claimant in the settlement Page 5 agreements and commutations. The benefits of claimant's cumulative industrial disability is 250 weeks (500 weeks x 50%). The credit for benefits of the left arm is 250 weeks (250 weeks x 100%) and the credit for benefits of the right arm is 115 weeks (250 weeks x 46%). The total credits from the two injuries (365 weeks) exceeds the benefits of the cumulative industrial disability (250 weeks). Therefore, Second Injury Fund has no liability in this matter. findings of fact 1. Settlement agreements and commutations approved benefits to claimant for a 100 percent impairment to the left arm and 46 percent to the right arm. 2. Claimant sustained an impairment of 12-20 percent to his left arm from a work injury on December 19, 1981 and an impairment of 10-14 percent to his right arm from a work injury on January 24, 1983. 3. Claimant was born July 21, 1953 and was 29 years old at the time of the work injury on January 24, 1983. 4. Claimant has a high school education and normal intelligence. 5. Claimant has had a loss of strength and loss of feelings in his hands. 6. Because of his condition claimant is unable to utilize his past employment skills which has been manual labor. 7. Claimant has had a loss of wages. 8. Claimant's cumulative loss of earning capacity as a result of injuries on December 19, 1981 and January 24, 1983 is 50 percent. conclusion of law Claimant has not proved entitlement to benefits from Second Injury Fund. WHEREFORE, the decision of the deputy is affirmed and modified. order THEREFORE, it is ordered: That claimant take nothing from this appeal. That defendant, Second Injury Fund, pay the cost of this action including transcription of the arbitration hearing. Signed and filed this ____ day of March, 1990. Page 6 ________________________________ DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Avenue SW Suite 114 Cedar Rapids, Iowa 52404 Mr. W. C. Hoffmann Mr. Joseph S. Cortese II Attorneys at Law 418 6th Ave., Suite 500 Des Moines, Iowa 50309-2421 Mr. Greg Knoploh Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 3203; 3301; 3303.10 Filed March 19, 1990 David E. Linquist before the iowa industrial commissioner ____________________________________________________________ : LARRY A. NORTHRUP, : : Claimant, : : vs. : : File No. 724196 TAMA MEAT PACKING, : : A P P E A L Employer, : : D E C I S I O N and : : RANGER INSURANCE, : : Insurance Carrier, : : and : : THE SECOND INJURY FUND, : : Defendants. : ___________________________________________________________ 3203; 3301; 3303.10 Claimant entered into agreement for settlement and received full commutation with the employer for two separate work injuries. While the settlement and commutation is not binding on the Second Injury Fund (which was not party), they are binding on claimant. Second Injury Fund given credit for amount of compensation received by claimant in settlement and commutation with employer. Because the credit exceeded the amount of claimant's cumulative industrial disability, claimant took nothing from the Second Injury Fund. Deputy's decision modified on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY A. NORTHRUP, Claimant, vs. File No. 724196 TAMA MEAT PACKING, A R B I T R A T I 0 N Employer, D E C I S I 0 N and RANGER INSURANCE, F I L E D Insurance Carrier, MAR 27 1989 THE SECOND INJURY FUND, IOWA INDUSTRIAL COMMISSIONER and THE SECOND INJURY FUND, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Larry A. Northrup, claimant, against The Second Injury Fund, defendant, a special fund created by statute for additional workers' compensation benefits as a result of alleged injuries on December 19, 1981 and January 24, 1983. On May 9, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The companion case involving the employer at the time of the injuries, Tama Meat Packing Corporation (hereinafter referred to as Tama Pack) was settled subsequent to this hearing but before this decision. This decision was considerably delayed because the undersigned had been mistakenly informed by other agency personnel that the second injury fund case had also been settled. Last week, the undersigned was informed otherwise. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and his wife Susan. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On December 19, 1981 and again on January 24, 1983, claimant received injuries which arose out of and in the course of his employment with Tama Pack. 2. Permanent disability benefits shall begin as of May 31, 1984. 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $186.40 per week. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disabilities; and, II. The extent of claimant's entitlement to weekly benefits for disability from the second injury fund. SUMMARY OF THE EVIDENCE Whether or not specifically referred to in the following brief summary prepared by the undersigned, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusionary statements in the following summary should be considered as preliminary findings of fact. Claimant testified that he worked for Tama Pack from January 1980 until October 1983 as a meat packer. His duties consisted of general meat packing activities in an assembly line type of work involving the use of a cutting knife. Claimant earned approximately $6.20 per hour in his job at the time of the alleged injuries. Claimant testified that he was fired from Tama Pack subsequent to his second injury in a dispute with his foreman. Company records indicate that he quit after receiving discipline for a skirmish with fellow women employees. In records claimant submitted to a local welfare agency, HACAAP, in 1985 claimant stated that he quit to help his mother operate the family farm. Claimant did in fact assist his mother in farming while drawing unemployment compensation benefits after leaving Tama Pack. Claimant denies any hand or arm problems prior to December 1981 and no records have been submitted to controvert this claim. The facts surrounding the work injuries are not in dispute. Claimant testified that on December 19, 1981 and again on January 24, 1983, he accidentally cut his left and right arms with a knife while working as a meat cutter at Tama Pack. The 1981 injury, involving a deep laceration to the left wrist area, almost completely severed the median nerve, required surgical repair and a long period of convalescence. Claimant stated that he suffered a loss of feeling to his fingers and a loss of strength as a result of this injury. Claimant also states that he has constant pain and numbness in his left hand today which limits his ability to grasp and hold objects. Claimant returned to work, following his first injury, on June 29, 1982, without specific work restrictions by the primary post-operative treating physician, William Blair, M.D., an orthopedic surgeon from the University of Iowa Hospitals and Clinics. Dr. Blair felt that despite his loss of feeling and permanent partial impairment, claimant should have been able to return at that time to his regular meat cutting employment. A second opinion was obtained from two orthopedic surgeons, Carl O. Lester, M.D., and Arnis B. Grundberg, M.D. Dr. Lester indicated in June of 1982 that claimant should not return to using a knife or to cold environments due to his loss of sensation and the risk of future injury. On January 24, 1983, claimant was again using a knife which slipped from his left hand and cut his right forearm almost completely severing the ulnar nerve and adjacent tendons. Again, surgical repair was necessary and claimant was off several months in an attempt to recover. Claimant also complained of continued numbness in his right arm and hand but his major concern was loss of strength and dexterity to his right hand. Claimant's fingers on his right side also experienced muscle spasms. Claimant's right arm has now atrophied according to attending physicians. Claimant then returned to work for six months after this last injury. At that time claimant testified that he was bounced around a lot and worked in various jobs involving both use of knives and repetitive use of his hands in a cold environment. Claimant testified that this work bothered him considerably. Since leaving Tama Pack claimant has worked in several jobs but, according to claimant, all of these jobs caused him severe physical problems. Claimant worked briefly as a metal polisher and as a meat cutter in another meat packing plant. Claimant's employment ended after only a couple of weeks on each of these jobs. Claimant explained that he could not handle heavy repetitive work because of his inadequate strength and endurance in his hands. Claimant worked a few months in a "work-fair" program sponsored by HACAAP for unemployed fathers. Claimant was not paid in this job and the work was necessary to qualify his family for welfare benefits. Claimant was initially assigned to various manual labor tasks in a city traffic department. This involved digging and other simple manual tasks. Claimant said that these duties caused his wrists to ache considerably. Claimant was also assigned to painting activity in a city pollution control plant. Again, claimant expressed difficulty with aching in his hands and shoulders from such activity. Claimant then was hired by a local pizza shop to make and deliver pizzas. Claimant worked in this job from May to August 1986 and earned $3.65 per hour over a 32 hour week. Claimant testified that this job ended when the business closed. Claimant has looked for work since October 1986 and has submitted an extensive list of perspective employers. Claimant said that he now is limited in employment seeking due to home babysitting activity while his wife works but that he still applies to employers when he "hears of a lead". Claimant has sought assistance from the Vocational Rehabilitation Department of the State of Iowa. According to the.department's records, claimant is not currently competitive employable due to his disability and lack of useable transferable skills. Also, the department believes that claimant has a poor emotional state and attitude which detracts from his vocational rehabilitation prognosis. Dr. Blair stated on one occasion that although claimant's attitude did not worsen his condition, it detours from attempts to return him to gainful employment and pursue vocational rehabilitation. Various physicians have given impairment ratings on claimant's hand conditions. Dr. Blair, in his most recent evaluation, states that due to a loss of sensation, claimant has a 12 percent permanent partial impairment to the left extremity. Due to a loss of strength, Dr. Blair opines that claimant has a 14 percent permanent partial impairment to the right extremity. The doctor believes that claimant should be restricted from handling knives or other tools or devices which could cause harm. Dr. Blair states that claimant should refrain from frequent lifting over 50 pounds with both hands and no lifting over 10 pounds with one hand. Dr. Blair also felt that claimant should not operate any hand tools or hand operated powered equipment. Dr. Lester opines that claimant suffers from a 50 percent permanent partial disability to the upper extremity or 50 percent of the left hand but felt that this would improve with time. Dr. Grundberg states that claimant has a 20 percent permanent partial impairment to the left hand and a 25 percent permanent partial impairment to the right hand. John R. Walker, M.D., another orthopedic surgeon from Waterloo, opines that claimant has a 20 percent permanent partial impairment to the right extremity and a 40 percent permanent partial impairment to the left extremity. Finally, following a long series of extensive dexterity and strength testing of claimant, William W. Eversmann, Jr., M.D., another orthopedic surgeon, opines that claimant has a 45 percent permanent partial impairment of the right extremity and a 68 percent permanent partial impairment of the left extremity. Dr. Eversmann adds that he diagnosed another problem with claimant's right hand, namely carpal tunnel syndrome. Dr. Eversmann stated that he surgically corrected this problem in 1986. Dr. Eversmann opines that all of claimant's permanent partial impairment was caused by the two original work injuries at Tama Pack. Claimant testified that his past employment primarily consisted of manual labor work in manufacturing and meat packing work. Claimant is 35 years of age and has a high school education. Claimant received training as a welder at a local community college after high school but only worked briefly as a welder. Claimant testified that he performed some welding odd jobs at home but due to his hand condition he is unable to hold the welding "rods." Claimant testified that he is unable to utilize his past employment skills of painting, meat cutting and torch cutting due to a loss of strength and loss of feeling in his hands. Claimant's demeanor and appearance at hearing indicated that he was testifying truthfully. APPLICABLE LAW AND ANALYSIS I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover. for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case at bar, claimant seeks additional disability benefits from the second injury fund under Iowa Code sections 85.63 through 85.69. Claimant has settled a disability claim against his employer. The second injury fund by statute was created to compensate an injured worker for a permanent industrial disability resulting from the combined effect of two separate injuries to a scheduled member. The purpose of such a scheme of compensation was to encourage employers to hire or retain handicapped workers. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978). There are three requirements under the statute to invoke second injury fund liability. First, there must be permanent loss or loss of use of one hand, arm, foot, leg or eye. Secondly, there must be a permanent loss or the loss of use of another such member or organ through a compensable subsequent work injury. Third, there must be permanent industrial disability to the body as a whole arising from both the first and second injuries which is greater in terms of relative weeks of compensation than the sum of the scheduled allowances for those injuries. According to a supreme court decision rendered in Second Injury Fund v. Mich Coal Co., 274 N.W.2d 300, 304 (Iowa 1979), if this agency finds as to claimant's present condition an industrial disability to the body as a whole, the agency must also make a finding "as to the degree of disability to the body as a whole of the claimant caused by the second injury." Such language appears to make employers at the time of the second injury liable for disability benefits in excess of the prescribed scheduled amounts set forth in Iowa Code section 85.34(2)(a-s). However, Mich Coal merely stands for the proposition that when the second injury effects loss of use of a member and also extends to the body as a whole, a determination must be made as to the degree of industrial disability caused by the second injury. It does not mean that a scheduled loss is to be rated industrially. Neelans v. John Deere Component Works, Iowa Supreme Court Decision Number 88-399, filed February 22, 1989. See also Fulton v. Jimmy Dean Meat Company, Industrial Commissioner Appeal Decision filed July 23, 1986 (likewise affirmed on appeal February 22, 1989). When the second injury alone results in industrial disability, the fund is liable for the difference between the amount of the industrial disability caused by the combined affects of the injuries and the total amount of disability industrial and scheduled brought about by the prior and second injury individually. Neelans, Iowa Supreme Court Decision Number 88-399, filed February 22, 1989. Given the numerous conflicting medical opinions in this case, the views of the primary treating orthopedic surgeon, Dr. William Blair, is selected as the most credible and convincing with reference to the extent of claimant's disability. Dr. Blair's qualifications and past experiences in a teaching hospital are impressive and he has had the most clinical experience with claimant. Dr. Blair appears to rely upon a very traditional approach to impairment ratings and used the AMA Guides. There is one aspect, however, of Dr. Blair's views that is deficient. Dr. Blair felt that claimant's objective evaluation test results were conflicting and stated that there should be more testing to rule out intentional faking by claimant. Such additional and extensive testing was performed by William Eversmann, M.D. Dr. Eversmann was not convincing in the use of such testing to arrive at his impairment rating and his explanations concerning how such testing fits in with the methodology used by standardized methods or guides to rate impairments. Such guides such as the AMA Guides are reliable tools in the rating process. However, the testing by Dr. Eversmann did show eventual consistency especially after the carpal tunnel syndrome was corrected. Consequently, Dr. Eversmann's testing was considered as an adequate showing that claimant's claims of disability were indeed genuine and claimant is found credible on this basis along with his observed demeanor at hearing. Therefore, it will be found that in 1981 and 1983 claimant received injuries resulting in a 12 percent permanent partial impairment to the left extremity and a 14 percent permanent partial impairment to the right extremity respectively. Also, the second injury in 1983 was limited to the right extremity and did not extend into the body as a whole. The disability for the two injuries in terms of weeks of compensation under Iowa Code section 85.34(2)(m) is 30 weeks (12 percent of 250 weeks) for the 1981 injury and 35 weeks (14 percent of 250 weeks) for the 1983 injury. The undersigned uses 250 weeks because this is the maximum allowable number of weeks for a total loss of arm under Iowa Code section 85.34. Pursuant to Iowa Code section 85.64, the second injury fund payments, if any, will begin 35 weeks after the agreed upon commencement date for permanent disability benefits but that the fund's liability, if possible, will be reduced by 30 weeks as a result of the first injury. To measure the second injury fund's liability in this case, the industrial disability, if any, resulting from the combined affects of the two injuries must be measured. However, unlike scheduled member disabilities, the degree of industrial disability is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings.prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe,Inc., (Appeal Decision, February 28, 1985). In the case sub judice, claimant's medical condition before the two work injuries was excellent and he had no functional impairments or ascertainable disabilities. Claimant was able to fully perform all physical tasks involving his arms. Claimant's past employments primarily involved the use of his arms in various types of manual labor work in manufacturing and meat packing plants. Claimant's treating physician, Dr. Blair, has given claimant significant permanent partial impairment ratings to both arms. More importantly, in an industrial disability analysis, claimant's physicians have restricted claimant's work activities by prohibiting tasks such as repetitive heavy lifting; repetitive use of hand tools and hand operated power tools; limited use of his hands in cold weather; and, limitations on the repetitive use of his hands under prolonged basis. Consequently, claimant's medical condition prevents him from returning to his former meat packing work and to most other work he has performed in the past; the type of work for which he is best suited. Although claimant was working at Tama Pack after the work injuries, there was either accommodations made for his disability or claimant was forced to violate physician imposed work restrictions against using a knife and repetitive use of his hands in cold environments. This is not a showing that claimant returned to suitable work. Claimant has raised the issue of the application of the odd-lot doctrine in this case. According to the Iowa Supreme Court, this doctrine allows the claimant to establish a prima facie case for unemployability and permanent total disability benefits from a factual showing of a reasonable but unsuccessful effort to find suitable work in the geographical area of his residence. If defendants fail to go forward with the evidence on the issue of availability of suitable work to claimant, claimant is entitled to an award of permanent total disability. See Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). Claimant testified and the evidence shows that subsequent to his employment at Tama Pack he has held various jobs. This evidence indicates that claimant is capable of employment. Such evidence also indicates that claimant has held jobs since his injury and the loss of those jobs were not due to his disability. There is also evidence from rehabilitation counselors and from Dr. Blair that claimant has an attitude problem which adversely effects his potential for vocational rehabilitation. There is no proof that this attitude problem is caused by his disability. Consequently, such evidence does not invoke the burden shifting features of the odd-lot doctrine because a reasonable effort to seek alternative employment must be clearly shown. However, an inability to utilize the odd-lot doctrine is not evidence of a lack of industrial disability. Claimant has a very real and severe disability which demands full and complete compensation. Claimant is 35 years of age and in the middle of his working career. He should be at the most productive years of his life. Consequently, his loss of future earnings from employment due to disability is more severe than would be the case for a younger or an older individual. In September, 1987, it was concluded by state vocational rehabilitation counselors that claimant is not competitively employable without further retraining and long-term work adjustment. It is readily apparent from testing performed by these counselors and in the evidence of this case that claimant cannot now be gainfully employed and any change in the situation will require very aggressive efforts by both rehabilitation specialists and claimant himself. The success of such an effort is by no means assured. Although claimant has a high school education, he exhibited below average intelligence at the hearing and the low function level was verified by vocational testing. Admittedly, the vocational counselors indicated that claimant is potentially retrainable. However, this agency has held that predicting the success of vocational retraining is speculation and is not a proper factor in measuring an injured worker's current industrial disability. Steward v. Crouse Cartage Company, Appeal Decision filed February 20, 1987. However, this agency is available upon proper application in the future to review such matters should his disability change due to successful vocational rehabilitation. After examination of all the factors, it is found as a matter of fact that claimant has shown a 60 percent loss in earning capacity from the combined work injuries at Tama Pack. Based upon such a finding, claimant is entitled as a matter of law to 270 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 60 percent of 500 weeks (less 30 weeks for prior disability), the maximum allowable number of weeks for an injury to the body as a whole under that code section. FINDINGS OF FACT 1. Claimant was a credible witness on the issue of the extent of his disability. 2. On December 19, 1981, claimant suffered an injury to the left extremity from a knife wound which severed nerve tissue. This injury resulted in a 12 percent permanent partial impairment to the upper extremity primarily due to a loss of sensation to his hand and fingers. 3. On January 24, 1983, claimant suffered another injury to the right extremity from a knife wound and the severance of nerve tissue along with adjacent tendons. This injury arose out of and in the course of employment with Tama Pack. 4. The work injury of January 24, 1983, was a cause of a 14 percent permanent partial impairment to the right upper extremity due primarily to loss of strength. 5. The injuries of December 19, 1981 and January 24, 1983, were a cause of significant permanent impairment and work restrictions against repetitive heavy lifting; repetitive use of hands in holding tools such as knives or hand operated power tools; work in cold temperatures; and, any prolonged or repetitive usage of either hand. Claimant has suffered permanent loss of feeling in his hands and a permanent loss of grip strength and dexterity in the handling of small objects. 6. The combined effect of the December 1981 and January 1983 injuries and the resulting permanent partial impairment was a cause of a 60 percent loss of earning capacity. Due to work restrictions, claimant is not physically able to return to meat cutting employment. Due to work restrictions, claimant is not able to return to the types of manual labor employment that he has held in the past which is the employment for which he is best suited. It was not shown that claimant made a reasonable but unsuccessful effort to find suitable replacement employment within the geographical area of his residence. Claimant has held jobs since his employment at Tama Pack, but these jobs were very low paying. Claimant is 35 years of age and has a high school education. Claimant performs below high school level academically. Claimant has an attitude problem which deters from his ability to be retrained. It was not shown that this attitude problem is work related. CONCLUSIONS OF LAW Claimant has established under law entitlement to the permanent partial disability benefits awarded below. ORDER 1. Defendant, Second Injury Fund, shall pay to claimant two hundred seventy (270) weeks of permanent partial disability benefits at the rate of one hundred eighty-six and 40/100 dollars ($186.40) per week beginning thirty-five (35) weeks after the stipulated commencement date for permanent disability benefits, May 31, 1984. 2. Defendant, Second Injury Fund, shall pay accrued weekly benefits in a lump sum. 3. Defendant, Second Injury Fund, shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendant, Second Injury Fund, shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. 5. Defendant, Second Injury Fund, shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 27th day of March, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave. S.W. Suite 114 Cedar Rapids, Iowa 52404 Mr. W. C. Hoffmann Mr. Joseph S. Cortese, II Attorneys at Law 500 Liberty Bldg. Des Moines, Iowa 50309 Mr. Greg Knoploh Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 3202; 4100 Filed March 27, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY A. NORTHRUP, Claimant, vs. File No. 724196 TAMA MEAT PACKING, A R B I T R A T I 0 N Employer, D E C I S I 0 N and RANGER INSURANCE, Insurance Carrier, and THE SECOND INJURY FUND, Defendants. 3202; 4100 Second Injury Fund was held liable for a 60 percent permanent partial disability as a result of the combined effects of two separate injuries. The odd-lot doctrine was not applied in assessing this liability because claimant has held jobs since the injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANE S. PORTER, Claimant, File No. 724280 vs. HAL OLMSTED, D.D.S., P.C., 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 IOWA INSURANCE GUARANTY ASSOCIATION on behalf of the JAN 24 1989 insolvent IOWA NATIONAL MUTUAL INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Diane S. Porter, claimant, against Hal Olmsted, D.D.S., P.C., employer, and Iowa Insurance Guaranty Association on behalf of the insolvent Iowa National Mutual Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of.an alleged injury of December 9, 1982. This matter came on for hearing before the undersigned deputy industrial commissioner August 9, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, James Porter, her husband, Dr. Hal Olmsted, Esther Benesh, and James Benesh; and defendants' exhibits A, B and C. Claimant's objection to defendants' exhibit D is sustained for those reasons asserted by claimant and it has not been considered in making this decision. Claimant's objection to the testimony of Esther Benesh is overruled as this witness was listed in a timely manner on defendants' witness list and the undersigned finds no reason for defendants to have disclosed the name of this witness prior to the filing of the witness list. Claimant's assertion that this witness came as a surprise to her at the time the witness list was filed thereby depriving her of the opportunity to depose the witness is without merit in light of the fact that it was clear to all parties significantly prior to the exchange of the witness list that Esther Benesh was present in Dr. Olmsted's office on the day in question. Clearly, claimant could have, on her own initiative, deposed Mrs. Benesh. ISSUES Pursuant to the prehearing report and order submitted and approved August 9, 1988, the following issues are presented for resolution: 1. Whether claimant sustained an injury arising out of and in the course of her employment on December 9, 1982; 2. Whether claimant's alleged injury is the cause of the disability on which she now bases her claim; 3. Claimant's entitlement to weekly disability benefits including temporary total disability/healing period and permanent partial disability benefits; 4. The nature and extent of claimant's permanent partial disability, if any; and, 5. Claimant's entitlement to certain medical benefits under Iowa Code section 85.27. Claimant also lists as a dispute Iowa Code section 85.39. This issue, however, was not listed as an issue on the hearing assignment order and, accordingly, the undersigned is without jurisdiction to consider it. See Joseph Presswood v. Iowa Beef Processors, (Appeal Decision filed November 14, 1986) holding an issue not noted on the hearing assignment order is an issue that is waived. FACTS PRESENTED Claimant testified she began working for defendant employer, Dr. Olmsted, in October of 1981 as his assistant in a "one girl" office and that, in addition to her chair side responsibility as a dental assistant, she also did bookkeeping, insurance work, invoices and telephone work. Claimant stated that on December 9, 1982, patient Jodie Benesh was to have a stainless steel crown placed on an upper interior tooth and that this appointment developed into a "fiasco." Claimant recalled sitting on the left side of the chair with Dr. Olmsted sitting on the right, that Dr. Olmsted wanted Jodie in and out as quickly as possible, that he did not use novacaine and that while using the drill, Dr. Olmsted went into Jodie's gum causing Jodie to try to get out of the chair, cry, scream and kick. Claimant described Dr. Olmsted thrusting Jodie back into the chair by her throat with his hand over her mouth and nose because he did not want Mrs. Benesh, who was in the waiting room, to hear what was going on and that in response to Dr. Olmsted's action, Jodie rebelled, arched her back and "came out of the chair." Claimant recalled Dr. Olmsted told her to hold on to Jodie's arms and legs, and that Jodie rolled over and kicked claimant in the stomach and arm. Claimant stated that at that point she went down on her knees, that her tendons had snapped and that Dr. Olmsted then put on the crown and "hoped it dried." Claimant testified that Jodie had swallowed the first crown Dr. Olmsted attempted to put on and that Dr. Olmsted instructed her not to tell Jodie's parents about it. Claimant stated that once Dr. Olmsted was finished, Jodie had a mark on her neck but that she cleaned Jodie's blood-stained dress and took her out to her mother. Claimant recalled she then told Dr. Olmsted something was "very wrong" with her fingers as she felt pain and she could not bring the "fingers back up" and that Dr. Olmsted told her she could not seek medical attention. Claimant testified that on her own she contacted Leland G. Hawkins, M.D., the following day and saw him three or four days later at which time he told her her tendons had been severely damaged and referred her to William W. Eversmann, Jr., M.D., whom she could not see until July 1, 1983. Claimant testified that she underwent surgery in July 1983 at which time her thumb was fused, that the surgery did not work, that eventually Dr. Eversmann "put in a plate" which claimant now wants removed and that she underwent physical therapy which also was not successful. Claimant explained that after surgery she could not go back to four handed dentistry as she could cause injury if she dropped something. Claimant stated she cannot lift heavy items, cannot water ski, cannot play volleyball and cannot perform certain household duties such as vacuuming as a result of her injury. On cross-examination, claimant testified she was holding Jodie by both arms over the chair from the left side, that she continued to hang onto Jodie's arms even after she was kicked in the stomach, and that she did not recall how she was kicked or with what foot. Claimant stated she was down on the floor for five minutes, that she was kicked after Dr. Olmsted put on the crown and that while she was still on the floor, Dr. Olmsted left the room. Claimant also stated she was kicked after the crown preparation was done but before the crown was put in Jodie's mouth. Claimant stated that, in accordance with Dr. Olmsted's instructions, she did not tell Mrs. Benesh that Jodie had swallowed a crown. Claimant could not recall if Dr. Olmsted saw any other patients that day but maintained that if he did, she would have assisted him as usual. Claimant could not recall if she worked at all between December 9 and when she first saw Dr. Hawkins. Claimant testified that when she returned to work after seeing Dr. Hawkins, she was wearing a splint to which Dr. Olmsted objected and that he became "irate" when she insisted on wearing it. Claimant explained that with the splint she was able to continue working as a dental assistant although she had to do some things with her left hand and did not pass instruments or syringes for fear of dropping them. James Porter testified that claimant is no longer capable of doing things around the house such as carrying hot foods or clothes baskets and that claimant drops dishes when her "hand releases." Mr. Porter acknowledged that although claimant had the condition known as Erb's palsy from which claimant had some limitations even before the December 1982 incident surgery had helped to repair that condition and did not interfere with claimant's abilities to function normally. Hal Olmsted, D.D.S., testified his dental practice has been limited to pediatrics by choice since 1954 and that claimant was employed for approximately eighteen or nineteen months as a receptionist and chair side assistant including making chart notations without his instruction. Dr. Olmsted stated he first saw Jodie Benesh in November 1982 and opined she behaved well for an eighteen month old. Dr. Olmsted testified that on December 9, 1982, he noticed no appreciable difference in Jodie's behavior from earlier appointments although Jodie was squirming and "thrashing around." Dr. Olmsted could not recall Jodie kicking stating that "she cannot kick much" as she is "just a little girl." Dr. Olmsted explained that he noted on Jodie's chart on December 9, 1982 that she had swallowed a crown. Dr. Olmsted could not recall anything happening to claimant on December 9, 1982, testifying that he did not observe claimant getting kicked in the stomach or the arm, that claimant usually mixed the cement needed for the procedure, and he could not think of any reason why she would not have on December 9, although he could not specifically recall, and that he had no recollection of claimant going down on her knees during the course of the procedure. Dr. Olmsted testified claimant continued to work with him the remainder of the day and the next day and that claimant did not comment she had been injured. Dr. Olmsted explained he did not notice anything different about the manner in which claimant performed her job and that it was not until the following week, when claimant asked him if he had workers' compensation insurance, that he was aware she was alleging any injury. Dr. Olmsted testified that when claimant returned to the office with a splint, he did not tell her not to wear it and that claimant said the splint bothered her work. Dr. Olmsted estimated claimant wore this splint for a week to ten days and then never saw her wear it again over the next five months. On cross-examination, Dr. Olmsted testified it was "highly unlikely" Jodie could have kicked claimant without him noticing and "not possible" that claimant fell to her knees and he did not notice. Esther Benesh, Jodie's mother, testified that after Jodie's appointment on December 9, 1982, "nobody ever told" her "it was anything unusual," that there was nothing unusual about Jodie's clothing, and that there was no dampness on the clothes. Mrs. Benesh stated there was no mark on Jodie's neck, that she would have seen one had there been one, and that she was told Jodie swallowed a crown although she could not recall who might have told her. Mrs. Benesh explained she would have paid claimant for the costs of the procedure that day and that she did not notice anything was wrong with claimant. Mrs. Benesh recalled looking at the work done in Jodie's mouth and that there was nothing unusual noticed. She stated there was no blood, that Jodie has had no complication with the crown and that she was never given any indication of any problems with Jodie or the appointment. James Benesh testified. William Wilbert Eversmann, Jr., M.D., orthopedic surgeon specializing in hand surgery since 1974, testified claimant was a patient of his office, the Iowa Musculoskeletal Center, since approximately 1950 for Erb's palsy which he defined as: Erb's palsy is an injury to the brachial plexus, which is a group of nerves that comes out of the neck and supply the necessary nerve supply to the upper extremity. In the case that we are discussing here, of course, it's the right upper extremity. With an injury at birth, usually a stretching type injury or an injury provoked by some abnormal position during delivery or during the birthing process, the nerves become stretched in some way as either the uterus clamps down on the shoulder after the head has been delivered from the uterus or, in fact, there's some abnormal position farther down the birth canal. (Defendants' Exhibit B, pp. 3-4) Dr. Eversmann explained that the usual effect of Erb's palsy is some limitation in the nerve supply to the muscles of the upper extremity, either the shoulder, elbow, wrist or hand. Dr. Eversmann was provided with a history from Dr. Hawkins which stated: [W]hile holding a patient, a young child,....the child was moving a lot,....and Diane in some way injured her right upper extremity where Dr. Robb had carried out several operations years before, the operations having been carried out for the effects of the Erb's palsy. At the time she was seen on the 13th of December, the patient had pain about five inches above the wrist joint on the dorsal surface of the extensor tendons. She could still bring the extensors of the fingers up to a neutral position. There was no ecchymosis, that is, there was no bruising apparent. And she could make.a full fist without difficulty. Dr. Hawkins had a splint made which would support the three fingers toward the ulnar side of the hand and support those fingers in extension at the metacarpophalangeal joints, which are the knuckles of the fingers, and agreed to see her back -- or asked to see her back in three weeks. (Def. Ex. B, p. 6) At the time of his first examination of claimant, Dr. Eversmann stated he found claimant had: ...a solid arthrodesis of the wrist, had deficiencies of muscles around the shoulder, which I'm sure had been present since her Erb's palsy at birth, significantly on the hand. She had loss of function of the extensor pollicis brevis tendon, although the extensor longus and adductor longus were normally functional. She had excellent extension of the index finger, but deficient extension of the middle, ring and little fingers on the right hand. She had normal passive motion, that is, I could move the joints through a normal motion but she could not actively bring the fingers up to an extended position. (Def. Ex. B, p. 7-8) Dr. Eversmann recommended: A. ...that we undertake a tendon transfer using the ring finger -- a ring finger tendon, passing it through the middle portion of the forearm and using that tendon to extend the middle, ring and little fingers. At the same time, in order to allow her to better extend her thumb, we would fuse one joint in her thumb, allowing her to have the usual and normal motion at the last joint of her thumb, the interphalangeal joint, and at the base of her thumb as she already had. This would alleviate the flexion contracture she had at the metacarpophalangeal joint of the thumb and stabilize it in an acceptable position. Q. And that surgery was carried out on July 14? A. Yes, on the 14th of July, 1983. (Def. Ex. B, pp. 8-9) Dr. Eversmann testified: Q. Doctor, let me ask you, as best you can: Was that surgery necessitated by the injury that your patient described to you as occurring on December 9, 1982? A. Having not seen her on December 9th, 1982, I'm not sure I can tell you with some certainty. But certainly it would appear from everything I've ever known about Mrs. Porter that that injury of December 9th, in fact, tore the tendons to the fingers and possibly to the thumb, which caused us to have to go ahead with the surgery that we did in July. (Def. Ex. B, p. 9) Dr. Eversmann then opined: Q. ...Do you have an opinion, Doctor, based upon a reasonable degree of medical certainty, of whether the accident of December 9, 1982, resulted in any problems with the right upper extremity and, in particular then, I'm thinking about the pain to the forearm? A. Well, the -- I believe that the rupture of the tendon was in the forearm, if that's what you're asking. The rupture of the tendon was probably in the forearm. But as I say, I didn't expose or explore the ruptured tendon, so I'm not sure exactly where it was. But I would certainly expect it to be in the musculotendinous site of the forearm as the site of rupture, which is not contrary to what Dr. Hawkins had described. But he is the only one that saw her at the time and attended to her injury. Q. Is that testimony then based upon a reasonable degree of medical certainty? A. It's consistent -- That concept is perfectly consistent with Dr. Hawkins' note, but I have no way of corroborating it. It would be nothing more -- Since I saw her months after her injury, it would be nothing more than a guess on my,part and I didn't expose or explore that area to corroborate it. I'm not sure it requires a degree of medical certainty. It's just -- It's a guess. I don't know. (Def. Ex. B, pp. 20-21) On November 27, 1984, Dr. Eversmann estimated claimant's degree of permanent physical impairment as: In an attempt to separate the patient's long standing medical problems from those generated by the injury of December of 1982, there is little doubt that any physical impairment arising at this time cannot be referred to any problem with the shoulder, elbow or wrist which have undergone a considerable amount of treatment in the past and which at this time cannot be ascribed to an injury in December of 1982. So also is any impairment from loss of sensibility in the hand. On the other hand, two areas come to mind referable to the injury of December of 1982. The first of these is the metacarpal phalangeal joint of the thumb, which has been determined at this time to result in a degree of physical impairment of 43 per cent of the thumb or 17 per cent of the hand or 15 per cent of the upper extremity. The loss of powerful extension of the m.p. joints of the fingers could be interpreted as a second impairment as the result of the injury of December of 1982. Since this is a loss of quality rather than a loss of total function, that is at this time the patient can extend the m.p. joints with some difficulty, I feel that an arbitrary value of 20 per cent of loss of use of the hand from the loss of powerful extension of the m.p. joints which tabulates to a loss of 18 per cent of the upper extremity is justifiable. Combining the loss of 15 per cent of the upper extremity for loss of use of the thumb and 18 per cent of the upper extremity from loss of use of the fingers, results in a combined value of 30 percent of the upper extremity attributable to the injury of December of 1982. (Def. Ex. A, pp. 4-5) John R. Walker, M.D., who saw claimant for the purpose of evaluation, opined on April 3, 1987: It is obvious that this patient was able to carry on her work as a chair side, four handed dental assistant. It is quite obvious now that she can't. Therefore, at this particular point, as far as her livelihood and her industrial disability is concerned, it would appear to be 100%. It is obvious that she could do one-handed jobs but she couldn't do much with the right hand. Her permanent, partial impairment as far as the middle, ring and little finger on the 3rd, 4th and 5th digits are concerned, this amounts to 35% of the right hand. In addition, it would appear that she has suffered some permanent partial impairment of the right thumb, amounting to 25% of this member and an impairment of the index finger amounting to 20% of the index finger. This obviously adds up to 80% of the right hand. This then transposes in to 72% of the entire right, upper extremity or 43% of the whole man. It is obvious that some of this pre-existed because of the Erb's palsy and the previous surgery performed by Dr. John Robb, however, it should be stated definitely that she was able to carry on with almost all of her functions and particularly she was able to function and be employed as a four-handed dental chair side assistant. This, I believe is the bottom line with this particular young ladies [sic] problem. Again I might state that as.far as treatment is concerned I have nothing to offer and only the most skilled hand surgeon would be able to help and there is a good deal of doubt in my mind as to what could be done. (Def. Ex. A, p. 2) APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The claimant must prove by a preponderance of the evidence that her injury arose out of and in the course of her employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove her injury occurred at a place where she reasonably may be performing her duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consolidated School District, 246 Iowa 402, 68 N.W.2d 63 (1955). Of primary concern is whether or not claimant sustained an injury which arose out of and in the course of her employment on December 9, 1982, for if one is to believe such an injury occurred under the conditions described by claimant, then the undersigned would be compelled to conclude that claimant has established by the medical evidence a causal connection between that injury and the disability on which she now bases her claim and an entitlement to weekly disability and medical benefits. Claimant initially argues that defendants' position which denies claimant sustained an injury arising out of and in the course of her employment "defies all reasons" particularly in light of the fact defendants have paid claimant $12,732.16 in weekly compensation along with claimant's medical bills. However, claimant should not need reminding that the payment of benefits, in and of itself, is not an admission of liability. The Iowa workers' compensation statute was amended sometime ago specifically to allow for the payment of benefits to be made without an admission of liability. Clearly, this acts in claimant's favor and claimant should not use this provision to the detriment of defendants by asserting that the payment of benefits creates some type of presumption of liability. In addition, defendants' amended and substituted answer filed February 17, 1987 specifically denied claimant sustained a personal injury arising out of and in the course of her employment. Therefore, claimant cannot argue with any credibility that the first time this issue was raised was at the prehearing conference. One need not look too deep into the evidence of this case to conclude that significant conflicts in testimony exist. Discrepancies rage between claimant's testimony given at hearing and during her two depositions, between claimant's testimony and Dr. Olmsted's testimony, and between claimant's testimony and that of Mrs. Benesh. I. F. Stone wrote in The Trial of Socrates that all knowledge may be reduced to comparison and contrast. Comparing and.contrasting the testimony in this case simply does not allow the undersigned to conclude that claimant's testimony is credible or that her recitation of what occurred in Dr. Olmsted's office on December 9, 1982 is believable. Claimant testified that she was kicked after the crown was put on, kicked after the preparation was complete but before the crown was put on and before the cement was mixed to put the crown in place, meaning that Dr. Olmsted was holding Jodie down while mixing the cement himself. The undersigned cannot find it believable that a child that was in a state such as that described by claimant would simply sit still while claimant was lying on the floor without the ability to hold her and while Dr. Olmsted freed his hands to mix the cement. Clearly, a child who was trying to get out of the chair so violently just seconds before would not sit still and wait for more. Claimant testified that she was down on the floor from the time she was kicked until after Dr. Olmsted left the room, that she got up when Dr. Olmsted had ordered her to, and that when she stood up, she did not know if Dr. Olmsted was in the room or out of the room. If, in fact, claimant stood up on Dr. Olmsted's order, one wonders how she could have heard the order if he was out of the room and why claimant would say he ordered her to get up if she did not know whether he was in the room or not. The undersigned does not doubt that Jodie Benesh did not want to be in Dr. Olmsted's chair on December 9, 1982. Claimant would assert the appointment was just about as traumatic for her as it was for Jodie. Therefore, it is curious to note the number of things claimant neither remembers nor recalls about that day or on which she had "no comment." For example, claimant could not recall or did not know if Jodie was still distraught when she left the office that day and could not recall if she assisted Dr. Olmsted with any other patients that day or for the days before she went to see her own doctor. One must wonder just how "excruciating" claimant's pain was if she could not recall using or not using her hand during the rest of the day on December 9 (a Thursday) or the days after until she saw her physician. Clearly, if Jodie was as distraught as claimant described, some evidence of that condition would remain and would be capable of being seen once Jodie got out of Dr. Olmsted's chair. Claimant's habit of responding to questions she elects not to answer with a "no comment," which is replete within the deposition testimony, further does not instill confidence in her story. One glaring example of this is found in the following exchange: Q. Did you attempt to get her to open her mouth? A. No, I did not. Q. Why is that? A. I'd already been kicked. I was injured and I was in pain. Q. So that pain kept you from trying to get Jodie to open her mouth to put the crown in? A. That's the dentist's job. Q. You're coming at it from a couple different ways. I understood you to say you did not try to get her to open her mouth up because you were in pain. Is that the reason A. That's not what I said. Q. What did you say about the pain? A. I said it's not my job for her to open her mouth. That's the dentist's job. Q. Before that you said something about pain. A. I was in pain. Q. In the context that it kept you from getting Jodie to open her mouth. A. No. I was in pain, but that doesn't -- isn't the reason she didn't open her mouth. Q. You're saying you didn't say anything about that, about the fact that you didn't try to get Jodie to open her mouth up because you were in pain? You didn't say that? Do you recall the question? A. No comment. (Def. Ex. C, pp. 35-36) Claimant insisted that it was Dr. Olmsted's instruction that Jodie's parents not be told Jodie swallowed a crown. However, the record is unrefuted that it is Dr. Olmsted's writing on Jodie's medical chart that recorded the fact Jodie swallowed a crown. Claimant maintained she did not tell Mrs. Benesh and was definite in her testimony that Dr. Olmsted did not speak with Mrs. Benesh following the conclusion of the procedure. Yet, Mrs. Benesh was just as definite that she had been advised Jodie swallowed a crown. One would wonder why Dr. Olmsted would not want Mrs. Benesh to be made aware of the fact that Jodie swallowed a crown when he himself noted that fact on the chart. The undersigned simply cannot cite to each and every instance in the record which has led her to conclude claimant's testimony is not credible. For to do would result in a decision as voluminous as the record in this case. Claimant clearly has a pecuniary interest in the outcome of this case as does Dr. Olmsted whose interest, since he is now retired, may be less than that of claimant but still evident. The witness in this case who does not appear to the undersigned to have any interest at all in the outcome of the claim was Esther Benesh who appeared to the undersigned to testify honestly and forthrightly. As Jodie's mother, it is reasonable to conclude she would have noticed dampness on her daughter's clothing, would have noticed if Jodie was particularly distraught or upset and would have noticed a mark on Jodie's neck. Yet, Mrs. Benesh noticed no dampness on Jodie's clothing although claimant maintains she washed off blood with a wet towel and Mrs. Benesh carried Jodie out. Mrs. Benesh looked over the work Dr. Olmsted did and noticed nothing unusual. Mrs. Benesh testified that Jodie has had no complications with the crown and still has it in place after five years. It is difficult to believe that the crown could have been "slopped on" as claimant described and that it would have remained in place without complications for so many years. It is also reasonable to conclude she would have noticed claimant's appearance after the appointment. Mrs. Benesh testified she paid claimant for the cost of the appointment following the conclusion of the procedure and testified she did not notice anything unusual about claimant. Yet, if claimant had been in such pain and had been crying herself, as she described, it is highly unlikely that such conditions could have gone unnoticed. Considering then all the above, it is concluded that claimant failed to meet her burden of establishing she sustained an injury which arose out of and in the course of her employment on December 9, 1982 and claimant shall take nothing as a result of this proceeding. The undersigned would add only that if claimant had met this burden, it would have been concluded that the benefits already paid to her adequately compensated her for the effect of her injury. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following findings of fact are made: 1. Claimant was not a credible witness. 2. Esther Benesh was a credible witness. 3. Claimant's testimony is in contrast with the testimony of Esther Benesh who, in addition, has no pecuniary interest in the outcome of the case. 4. Claimant's recitation of the circumstance of how her injury allegedly occurred is wrought with inconsistency. 5. Claimant has failed to establish by credible evidence she sustained an injury arising out of and in the course of her employment on December 9, 1982. CONCLUSION OF LAW Therefore, based on the principles of law previously stated, the following conclusion of law is made: Claimant has failed to establish she sustained an injury on December 9, 1982 which arose out of and in the course of her employment with Hal Olmsted, D.D.S., P.C. ORDER THEREFORE, it is ordered: Claimant shall take nothing further from this proceeding. Costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 24th day of January, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas J. Currie Mr. Tom Riley Attorneys at Law 3401 Williams Blvd. SW P.O. Box 998 Cedar Rapids, IA 52406 Mr. Aldean E. Kainz Mr. David A. Elderkin Attorneys at Law 700 Higley Bldg P.O. Box 1968 Cedar Rapids, IA 52406 Mr. E.J. Giovannetti Attorney at Law Terrace Center, Ste 111 2700 Grand Ave. Des Moines, IA 50312 1100 Filed January 24, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANE S. PORTER, Claimant, File No. 724280 vs. HAL OLMSTED, D.D.S., P.C., A R B I T R A T I 0 N Employer, D E C I S I 0 N and IOWA INSURANCE GUARANTY ASSOCIATION on behalf of the insolvent IOWA NATIONAL MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1100 Claimant failed to meet her burden of proof that she sustained an injury arising out of and in the course of her employment. Claimant was not a credible witness; her testimony was in contrast with the testimony of another witness who had no pecuniary interest in the outcome of the case; and claimant's recitation of the circumstances of how her injury allegedly occurred was wrought with inconsistency.