BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROGER W. TRUE, Claimant, File No. 744226 VS. A P P E A L CATERPILLAR TRACTOR CO., D E C I S I 0 N Employer, Self-Insured, Defendant STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying benefits from an alleged work injury June 25, 1982. The record on appeal consists of the transcript of the arbitration hearing and claimant's exhibits 1 through 21. Neither party filed a brief on appeal. ISSUES Because neither party filed a brief on appeal this matter will be considered generally without any specified errors. The issues considered by the deputy were: Whether claimant's work injury is causally connected to the disability on which he now bases his claim; The nature and extent of claimant's permanent partial disability, if any; and Claimant's entitlement to certain medical expenses pursuant to Iowa Code section 85.27. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects .the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. TRUE v. CATERPILLAR TRACTOR CO. Page 2 ANALYSIS The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. FINDINGS OF FACT 1. Claimant sustained an injury which arose out of and in the course of his employment on June 25, 1982, when a part flew out of a machine he was operating and hit him on left side of the face. 2. Although claimant had been treating with the company doctor, he decided to pursue care with his family doctor. 3. Claimant was aware defendant would consider treatment with his family doctor unauthorized. 4. Notwithstanding such knowledge, claimant decided to pursue the treatment. 5. Claimant was eventually referred through defendant, to the University of Iowa Hospitals and Clinics where he came under the care of Deborah Zeitler, D.D.S. 6. Radiographs showed meniscus perforation on the left and bilateral degenerative joint disease of the temporomandibular joints and on June 26, 1983, claimant underwent surgery for meniscus repair of the left TMJ and a menisectomy of the right TMJ. 7. Following his surgery, claimant returned to work. 8. On April 4, 1987, claimant underwent right TMJ arthroplasty with implant removal and left TMJ arthroscopy. 9. Claimant has a permanent impairment as a result of his injury. 10.Claimant returned to work following surgery and is currently working under no medical restrictions or limitations. 11.Claimant continues to perceive pain and soreness in his facial muscles, follows a soft food diet, and is careful about lifting. 12.Claimant is currently employed in a position which does not require lifting more than one time per day and which he is able to perform. 13.Claimant suffers from non-industrial related low back pain which restricts his employability. TRUE v. CATERPILLAR TRACTOR CO. Page 3 14.Claimant has not suffered any loss of earnings as a result of the injury of June 25, 1982. CONCLUSIONS OF LAW. Claimant has not established he is entitled to medical expenses for the treatment provided by Dr. Sam Williams, Jackson County Hospital, and P.E. DeLong, D.M.D., such treatment being unauthorized. Claimant has failed to establish that the work injury of June 25, 1982, is the cause of any permanent partial disability or industrial disability. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant take nothing further from these proceedings. That claimant pay the costs of the appeal including costs of transcription of the arbitration hearing. That all other costs are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 26th day of April, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Kent A. Simmons Attorney at Law 116 E. 6th St. P.O. Box 339 Davenport, IA 52805 Mr. Larry L. Shepler Attorney at Law Ste. 102, Executive Sq. 400 Main St. Davenport, IA 52801 1803 - 2500 Filed April 26, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROGER W. TRUE, Claimant, File No. 744226 VS. A P P E A L CATERPILLAR TRACTOR CO., D E C I S I 0 N Employer, Self-Insured, Defendant. 1803 As a result of a work injury, claimant sustained a permanent impairment to his TM (temporomandibular) joints (jaw). However, he had no permanent work restrictions nor limitations on the type of work he could perform, had suffered no loss of earnings and his injury was not found to have impaired his earning capacity. Claimant failed to establish that the work injury was the cause of any permanent partial disability. Deputy affirmed on appeal. 2500 Claimant was aware that care by his own personal physician would be considered unauthorized by the employer. Employer advised claimant that he was to seek care with the company doctor. Claimant did not request alternate care as provided by Iowa Code section 85.27. It was found that claimant was not entitled to reimbursement for unauthorized medical expenses. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROGER W. TRUE, Claimant, File No. 744226 vs. A R B I T R A T I O N CATERPILLAR TRACTOR CO., D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Roger True, claimant, against Caterpillar Tractor Co., self-insured employer, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained June 25, 1982. This matter came on for hearing before the undersigned deputy industrial commissioner April 27, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of the claimant; and claimant's exhibits 1 through 21. ISSUES Pursuant to the prehearing report submitted and approved April 27, 1988, the following issues are presented for determination: 1. Whether claimant's work injury is causally connected to the disability on which he now bases his claim; 2. The nature and extent of claimants permanent partial disability, if any; and 3. Claimant's entitlement to certain medical expenses pursuant to Iowa Code section 85.27. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of his employment on June 25, 1982, when a part flew out of the machine he was operating and hit him on the left side of the face. After receiving some first aid at work, claimant worked the remainder of the shift. Claimant recalled he reported to first aid each day for the two weeks following his accident and after that period only on Mondays. Claimant testified that he continued to experience soreness and tenderness in his facial joints and that when he went to the doctor he was advised the injury was not healing properly. Claimant saw his family doctor (Williams) who sent him for an x-ray and referred him to P. E. DeLong, D.M D. Claimant did not tell either the employer or the company doctor he was going to see his family doctor and did not ask the employer at any time whom he should see if he was dissatisfied with the care provided. When asked whether he was told such treatment would be considered unauthorized by the employer, claimant stated "I guess I was aware of that but did not completely understand." Claimant went ahead with the appointment notwithstanding the advice from the employer. TRUE V.CATERPILLAR TRACTOR CO. PAGE 2 Claimant acknowledged after conferring with the company representative that if he went to his own doctor, the company would not pay but had decided to keep the appointments. Claimant recalled he was told by the company doctor after the appointment with his family doctor that he needed new dentures. He was referred to Dr. Oberturf who advised claimant that he did not need new dentures but needed his "jaw fixed" and thus referred claimant to Dr. Larry Huber who recommended disc therapy for his jaw joints. Claimant testified he had splints on his dentures for six to eight weeks to make sure his jaw lined up and when these splints were removed his condition improved but, within a few weeks, the problem returned. Claimant explained he was then sent to the University of Iowa Hospital, where he came under the care of Deborah L. Zeitler, D.D.S., who performed surgery on both temporomandibular joints. Claimant explained he continued to periodically see Dr. Zeitler and after three years he developed severe pain and stiffness in his jaw. He testified the discs, which were originally put in place by Dr. Zeitler, had broken loose and therefore more surgery was done. Claimant testified he is a candidate for joint replacement and that he has developed arthritis in both TM joints, right worse than left. Claimant explained a past medical history of a 1950 auto accident which resulted in facial scars and lower back strain with arthritis in his hips that is nonindustrially caused. Claimant testified he is careful what he eats (i.e. no hard foods) and particularly careful about lifting since such activity causes his muscles to get sore and the pain from the TM joints goes down into his neck and right arm. Claimant acknowledged his current position with defendant employer does not require much lifting, perhaps only as frequently as one time per day, and his current rate of pay of $14.50 per hour does not constitute any loss of pay since his injury. Claimant denied an ability to use any type of vibrating tool for any length of time or to withstand cold temperatures. The medical records of University of Iowa reveal claimant began treating for temporomandibular joint problems in June 1983 with Dr. Deborah Zeitler. TMJ arthrograms performed June 24, 1983 revealed a perforation of the meniscus on the left side and evidence of degenerative joint disease on the right side. A menisectomy of the right TMJ and meniscus repair of the left TMJ were done August 26, 1983. Following these procedures, it was noted claimant had significant improvement but still had some minor complaints of discomfort especially after heavy jaw function. In March 1987, claimant returned to the University of Iowa Hospitals and Clinics with complaints of increased discomfort in both TMJ regions. A CT scan of the TMJ was performed which showed marked erosive changes of the right TMJ. On April 4, 1987, claimant underwent right TMJ arthroplasty with implant removal and left TMJ arthroscopy. Significant degenerative joint disease on both sides was noted at that time. On November 10, 1987, Dr. Zeitler concluded: Mr. True's condition has been a chronic one since his industrial accident. I believe that his joint findings are consistent with the trauma that he has described. His TMJ problems are moderately severe and certainly has caused him a good deal of discomfort and limited function in the past. I believe that the prognosis for a full recovery is bleak in his case. I have indicated to Mr. True that he will most likely continue to have chronic arthritic pain and chronic limited mobility for the rest of his life. At this point in time I have done the best that I can as far as surgical reconstruction of his joints. However, it may be TRUE V. CATERPILLAR TRACTOR CO. PAGE 3 necessary in the future to perform more surgery. In particular, should an adequate joint replacement joint become available for the TMJ I believe that Mr. True might be a candidate for total joint reconstruction. You have requested that I utilize the "Guides to Evaluation of Permanent Impairment" published by the American Medical Association to report a percentage of impairment to the whole person in Roger True's case. I have reviewed the sections of the guide, which you provided for me, and I am trying to relate those to Mr. True's situation. Some of the values which I am taking into account include impairment due to atypical neuralgia which may range from 0 to 20%, impairment due to swallowing problems and diet restricted to semi-solids which ranged from 5 to 10% and impairment of motor function unilaterally of the trigeminal nerve which ranges from 3 to 5%. Also it is important to look at the degrees of impairment due to pain. The grade for pain which may prevent activity is 65 to 80%. Loss of strength should also be taken into account and I would like to place Mr. True into the range of 55 to 75% grading of the affected body part due to loss of strength. Taking all of these factors into account, it seems that an overall value for permanent impairment to the whole person would be approximately 10% in Roger True's case. APPLICABLE LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of June 25, 1982 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Iowa Code section 85.27 provides, in part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. TRUE V. CATERPILLAR TRACTOR CO. PAGE 4 As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, '58 N.W. 899, (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." ANALYSIS There is no question that claimants injury arose out of and in the course of his employment with defendant Caterpillar Tractor Company. At no time has defendant denied the compensability of claimant's industrial accident. Concomitant with the employer's admission of liability is the employer's prerogative to choose the medical care. Claimant requests the employer pay the medical expenses incurred with Dr. Sam Williams on August 16 and August 18, 1982, with the Jackson County Hospital on August 16, 1982 and with Dr. P. E. DeLong on August 19, 1982. However, the undersigned is unable to order defendant to pay for such medical expenses as clearly the record establishes such expenses do not constitute authorized medical care. Claimant candidly admitted during the course of his testimony at hearing that he decided to go to his own doctor without consulting the employer or the company doctor with whom he had been treating for some period of time. In addition, claimant acknowledged that he had been advised by the employer that if he chose to pursue medical care with his own family physician such care would not be considered authorized by the companys medical department and therefore would not be paid by Caterpillar. Claimant went so far as to admit that he had been told defendant considered Dr. Williams' care to be unauthorized and, notwithstanding that advice, proceeded to the medical appointments as they had been scheduled. Under such circumstances, the medical care provided by Dr. Williams, the Jackson County Hospital, and Dr. DeLong must be considered unauthorized. The only medical expert to present any testimony in this matter is Deborah Zeitler, D.D.S., who opined that claimant has a permanent impairment as a result of his industrial accident of 10 percent to the whole person. The undersigned does not dispute that claimant's impairment, as rated by Dr. Zeitler, was caused by the injury of June 25, 1982. However, it is concluded that claimant has failed to sustain his burden that he has any permanent partial disability as a result of the work incident although he may have been temporarily disabled and permanently impaired. Claimant has not sustained a scheduled injury pursuant to Iowa Code section 85.34(2)(a) through (t). Rather, it is determined that claimant has an impairment to the body as a whole and therefore an industrial disability has been sustained. As cited above, the legislature intended the term disability to mean industrial disability or loss of earning capacity and not mere functional disability. A finding of impairment to the body as a whole provided by a medical evaluator does not equate to industrial disability as impairment and disability are not synonymous terms. The resolution of this case centers around whether or not claimant's problems with his TM joints translate TRUE V. CATERPILLAR TRACTOR CO. PAGE 5 into any loss of earning capacity. Claimant asserts he has trouble lifting and working with vibrating tools. However, claimant's health care providers place no restrictions on his employability. Claimant readily admits his current position with defendant employer does not require much lifting and that he is able to perform the job as assigned. Claimant has not suffered any loss of earnings. The problems claimant experiences with pain have not been shown to interfere with his capacity to earn. It is claimant's condition at the time of hearing that must be evaluated. Claimant admitted he suffers from a non-industrial low back condition which precludes him from working at some of his former jobs. If claimant's upward mobility is limited at his current employment as he argues, it is likely so as a result of his back condition and not as a result of the accident of June 25, 1982. Claimant does have a facial scar as a result of the injury. However, even if his injury were evaluated as a scheduled injury, the undersigned could not conclude that the scar constitutes "disfigurement" which impairs the future usefulness and earnings of claimant in his occupation at the time of his injury. This is particularly true in light of claimant's own admission that his facial scars from other accidents are much more severe than that received from the accident of June 25, 1982. Accordingly, it is found that claimant has failed to sustain his burden that the injury of June 25, 1982 is the cause of any permanent partial disability and therefore is not entitled to any award under Iowa Code section 85.34. FINDINGS OP FACT Wherefore, based on the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course of his employment on June 25, 1982, when a part flew out of a machine he was operating and hit him on left side of the face. 2. Although claimant had been treating with the company doctor, he decided to pursue care with his family doctor. 3. Claimant was aware defendant would consider treatment with his family doctor unauthorized. 4. Notwithstanding such knowledge, claimant decided to pursue the treatment. 5. Claimant was eventually referred, through defendant, to the University of Iowa Hospitals and Clinics where he came under the care of Deborah Zeitler, D.D.S. 6. Radiographs showed meniscus perforation on the left and bilateral degenerative joint disease of the temporomandibular joints and on June 26, 1983, claimant underwent surgery for meniscus repair of the left TMJ and a menisectomy of the right TMJ. 7. Following his surgery, claimant returned to work. 8. On April 4, 1987, claimant underwent right TMJ arthroplasty with implant removal and left TMJ arthroscopy. TRUE V. CATERPILLAR TRACTOR CO. PAGE 6 9. Claimant has a permanent impairment as a result of his injury. 10. Claimant returned to work following surgery and is currently working under no medical restrictions or limitations. 11. Claimant continues to perceive pain and soreness in his facial muscles, follows a soft food diet, and is careful about lifting. 12. Claimant is currently employed in a position which does not require lifting more than one time per day and which he is able to perform. 13. Claimant suffers from non-industrial related low back pain which restricts his employability. 14. Claimant has not suffered any loss of earnings as a result of the injury of June 25, 1982. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has not established he is entitled to medical expenses for the treatment provided by Dr. Sam Williams, Jackson County Hospital, and P.E. DeLong, D.M.D., such treatment being unauthorized. 2. Claimant has failed to establish that the work injury of June 25, 1982 is the cause of any permanent partial disability or industrial disability. ORDER THEREFORE, IT IS ORDERED: That claimant take nothing further from these proceedings. That costs are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 21st day of July, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Kent A. Simmons Attorney at Law 116 E 6th St P.O. Box 339 Davenport, IA 52805 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg Davenport, IA 52801 1803; 2500 Filed July 21, 1988 DEBORAH A. DUBIK BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROGER W. TRUE, Claimant, File No. 744226 vs. A R B I T R A T I O N CATERPILLAR TRACTOR CO., D E C I S I O N Employer, Self-Insured, Defendant. 1803 Claimant sustained an injury which arose out of and in the course of his employment when a part flew out of a machine he was operating and hit him on the left side of his face. As a result of the injury, claimant sustained a permanent impairment to his TM (temporomandibular) joints. Although claimant had a permanent impairment, he had no permanent work restrictions nor limitations on the type of work he could perform, had suffered no loss of earnings and his injury was not found to have impaired his earning capacity. Therefore, claimant failed to establish that the work injury was the cause of any permanent partial disability. 2500 Claimant was aware that if he sought treatment with his own personal physician that such treatment would be considered unauthorized by the employer who had provided adequate medical treatment for claimant. Notwithstanding the advice from the employer that he was to seek care with the company doctor, claimant sought care with his family physician on his own without resorting to the request for alternate medical care as provided by Iowa Code section 85.27. Therefore, it was found claimant was not entitled to reimbursement for the medical expenses. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LLOYD CHABAL, Claimant, File No. 744909 vs. MCCOMAS LACINA CONSTRUCTION, A R B I T R A T I 0 N Employer, and D E C I S I 0 N BITUMINOUS INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Lloyd Chabal against McComas Lacina Construction, his former employer, and Bituminous Insurance Company, the employer's insurance carrier. The case was heard at Cedar Rapids, Iowa on April 16, 1987 and the evidence was closed at the conclusion of the hearing. The record in the proceeding consists of claimant's exhibits 1 through 45. The record also contains testimony from Lloyd Chabal, David Lacina and Jack Reynolds. ISSUES It was stipulated that claimant sustained injury on September 16, 1983 which arose out of and in the course of his employment; that the injury required a period of recuperation for healing; and, that the injury produced a 16% permanent partial disability of claimant's left arm. It was further stipulated that the rate of compensation is $285.44 per week and that 173 3/7 weeks of compensation had been paid prior to hearing. It was further stipulated that claimant has been off work since April 9, 1984. The issues presented for determination include causal connection between the fall and any permanent disability and the nature and extent of permanent disability. Claimant also seeks payment of unpaid medical expenses and reimbursement for travel expenses. CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 2 SUMMARY OF THE EVIDENCE The following is only a brief summary of pertinent evidence. All evidence received at hearing was considered when deciding the case even though it may not be specifically referred to in this decision. Lloyd Chabal is a 50-year-old man who resides in Lone Tree, Iowa. His principle occupation during his adult life has been carpentry. He has been self-employed, operating his own construction company, a lumber yard and a hardware store. He left self-employment in approximately 1980 due to lack of profitability and returned to work as a union carpenter. His work history includes supervisory experience as a working foreman. On September 16, 1983, Chabal was employed as a working foreman for McComas Lacina Construction, assigned to a project in Coralville, Iowa. He was near the top of a ladder, approximately 12 feet from the ground, when the feet of the ladder slipped out allowing the ladder to fall. Claimant landed on his outstretched arms and face. He was taken by ambulance to the University of Iowa Hospitals and Clinics where he has since received the primary portion of his medical care. The injuries initially diagnosed included a fracture of the left ulna styloid process; left colles fracture with a triangular fracture of the distal left radius (exhibit 1, page 175); a LeForte I fracture (separation of the upper teeth and dental arch from the bone above it); fracture of the septum; nasal fracture (exhibit 35, pages 8-11); maxillary fracture (exhibit 1,.pages 181 and 187); and other relatively less serious injuries which produced no apparent long-term or continuing effect (exhibit 1, pages 95-98). The left arm fractures were treated by closed reduction and a cast. The final result of healing left claimant with irregularity of the distal surface of the radius, degenerative changes, loss of grip strength and a restricted range of motion (exhibit 1, page 163). The parties have stipulated that a 16% permanent partial disability of the left arm resulted based upon evaluations by William Catalona, M.D., and William F. Blair, M.D. (exhibits 15; 19; 33, pages 10-16; and 34, pages 40-43). None of the orthopaedic physicians has found any impairment in claimant's right hand or arm (exhibits 11 and 15). Closed reduction, disimpaction and fixation of the maxillary and LeForte I fractures was performed on September 17 and 23, 1983 (exhibit 1, pages 193 and 198). The fixation hardware was removed on November 21, 1983 (exhibit 1, page 191; exhibit 4). Radiographic studies performed December 19, 1983 showed the maxillary fracture to have healed in good anatomical position, but the studies also showed thickening of the mucosal membrane and a retention cyst in the left maxillary sinus (exhibit 1, page 162). During the initial period of recovery, claimant complained of facial pain and problems with his teeth (exhibit 1, pages 211 and 212). He also complained of tinnitus (exhibit 1, page 128). CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 3 An audiogram had previously shown a mild high-frequency hearing loss which is one of a type commonly observed in persons who have experienced long-term high noise level exposure and also consistent with presbycusis (exhibit 1, page 61). On October 5, 1983, claimant made complaint of experiencing blurred vision. The ophthalmology department physicians found no evidence of intraocular damage (exhibit 1, page 185). A subsequent eye examination on June 5, 1985 found no evidence of eye damage from any accident (exhibit 18). Claimant was authorized to return to work on January 17, 1984. A progress note dated February 27, 1984 indicates that claimant actually returned on approximately January 30, 1984 (exhibit 1, page 124). David Lacina, one of the managers and owners of the business entity which employed claimant, testified that, during the period claimant returned to work, he made complaint of facial pain. Claimant testified that he experienced facial pain, vision problems, and blacking out while working. He stated that he was unable to make much use of his left hand. Claimant related that lifting, straining and using vibrating tools gave him headaches. He testified that he was given pain medication by Dr. Blair which made him walk around in a daze (exhibit 1, page 124). Claimant testified that he reported his problems to Lacina and requested a job in the office. He testified that, when he did so, the result was that no work was available for him. He enrolled in an estimating course at Kirkwood Community College, but stated that he discontinued the course due to pain which made him unable to participate fully. During his return to work, claimant was assigned to a job at Hawkeye Wholesale where he worked on scaffolding. He testified that, on one occasion, he dropped a ramset (impact nailer). He stated that, on the following day, he fell from a sawhorse while using a cement saw to cut a window in a block wall. He sustained a puncture wound on his right elbow which developed a persistent infection. He apparently continued to work until April 8, 1984 when he sought treatment at the University of Iowa Hospitals and Clinics (exhibit 1, pages 1 and 2). The infection cleared, but claimant has not since returned to work. Robert M. Bumstead, a board certified otolaryngologist, began treating claimant in the summer of 1984. Claimant voiced complaints of facial pain, nasal obstruction and recurrent nose bleeds. He exhibited marked nasal deformity, a severely deviated septum and dilated blood vessels in the area of the anterior nasal septum (exhibit 35, pages 6-9). Septorhinoplasty surgery was performed on August 8, 1984 to correct the nasal deformity (exhibit 1, page 63; exhibit 35, pages 10 and 11). Following the surgery, claimant continued to complain of facial pain and headaches. Dr. Bumstead has used a nerve block procedure to conclude that claimant's complaints of pain are true (exhibit 35, pages 28 and 29; exhibit 42, pages 14-16). Dr. Bumstead felt that claimant has developed a vasomotor reaction which was a source of his pain (exhibit 35, pages 17 and 18). Dr. Bumstead initially indicated that claimant had a chance of improvement, but that, if the pain had not resolved by August, 1986, it would likely be permanent (exhibit 35, pages 14 and 15). The doctor CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 4 indicated that claimant could not return to construction work due to the exposure to temperature changes and the exertion involved, since both tend to cause claimant's pain to manifest itself (exhibit 35, pages 14, 15, 29 and 30). Since the surgery, claimant has remained under the care of Dr. Bumstead without any appreciable change in his complaints. Claimant has continued to complain of spells where he experiences a loss of vision. He continues to complain of chronic headaches which he can tolerate and frequent severe headaches which he finds to be disabling. His treatment has consisted of medications, chemical cauterizations to temporarily block nerve ends and cryotherapy to destroy the nasal mucosa responsible for the vasomotor reaction (exhibit 35, pages 26-28; exhibit 36, pages 5 and 6). Dr. Bumstead felt that the cryotherapy treatment was partially effective at resolving the sinus headaches (exhibit 36, pages 6-10 and 14-16). Dr. Bumstead characterized claimant's condition as post-traumatic headache or post-traumatic neuropathic pain (exhibit 36, pages 6, 24 and 25). He stated that the etiology is unknown, but it simply means that someone has smashed their brain a little bit and is having pain even though the physiological basis for the pain is unknown (exhibit 42, page 21). Dr. Bumstead referred claimant to the neurology department where he was evaluated and treated by John Sand, M.D., a neurologist. Dr. Sand diagnosed claimant's condition as post-traumatic headache syndrome and made changes in claimant's medication (exhibit 22; exhibit 37, pages 13 and 27). Dr. Sand found slight blunting of the left nasolabial fold of claimant's brain. He could find no anatomical cause for claimant's complaints of headache pain. He found no definable neurologic abnormality (exhibit 37, page 30; exhibit 38, page 14). When deposed in August, 1986, Dr. Bumstead indicated that claimant was still totally disabled by chronic pain and unable to return to full-time employment (exhibit 36, pages 11 and 141). Dr. Bumstead indicated, however, that claimant could be employed in a job which did not involve moving equipment, climbing or a clear mind and one which permitted claimant to lie down when severe headaches developed (exhibit 36, pages 27 and 28). The doctor felt that claimant's condition had plateaued (exhibit 36, page 9). Due to the impairment of claimant's left hand grip, the orthopaedic physicians, Drs. Catalona and Blair, have indicated that claimant should not be required to climb ladders, work at heights, work on roofs or use tools that require a hard, sustained or repetitive grip with the left hand. A 10-pound lifting restriction for the left hand has been recommended (exhibits 11; 15; 24; and 34, pages 44-46). Dr. Bumstead currently feels that claimant is unable to be employed due to chronic headache pain and the narcotics used for pain relief. He indicated claimant could work at a job that provided no risk from moving machinery, that required no regular hours or routine and that would not require a clear mind when pain medication was used. He stated that the job should avoid CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 5 exertion and temperature variation (exhibit 42, pages 11, 12 and 28). He felt that an indoor, sedentary job such as construction drafting might be suitable for claimant if he would be able to lie down whenever a severe headache developed (exhibit 42, page 20). Dr. Sand has concluded that claimant is able to be gainfully employed, but should not work at heights (exhibit 38, page 30). Claimant was evaluated by Eugene Collins, M.D., who concluded that it would be difficult for claimant to engage in an occupation that involved outdoor activity, lifting, pulling, pushing and driving such as carpentry. He indicated that, in the future, claimant could possibly perform an indoor, sedentary occupation, such as a manager, where he could set his own hours and avoid the things that exacerbate his headaches. Dr. Collins felt that the problem in claimant's left wrist would restrict his ability to perform a manual job, but would not restrict him from performing a sedentary occupation (exhibit 24). Claimant testified that, when he returned to work in early 1984, he worked hanging doors, putting up an I-beam and from scaffolding and stepladders. He testified that he was unable to use his left hand and that lifting, straining or use of vibrating tools gave him headaches. He stated that, on one job, he used a jackhammer which bothered alot and which also bothered his vision. Claimant testified that, after the 1984 injury to his elbow, he was released from care in the month of June. He stated that he began receiving dental work in May, 1984. He stated that he commenced consulting with Orville Townsend in April, 1984 and commenced his coursework at Kirkwood in August, 1984. Claimant has completed courses at Kirkwood Community College which are related to business management and construction. He has carried a "B" average (exhibit 30). He is continuing to further his formal education and has indicated that he may go into civil engineering if he is unable to find employment with the training he receives at Kirkwood. Claimant's current career plans are to get into supervision or management. He declined to apply for a job as-a city inspector for Iowa City because he feels unable to deal with the stress that accompanies such a position and because he understands it to require climbing and outdoor work. Claimant testified that he obtained his degree in management development in the fall of 1986. He stated that he checked the job market in the Iowa City area and found none. Since claimant was unable to find work, he decided to pursue a four-year degree in construction technology. He indicated that he feels there is a market and a need for someone to work as a consultant and manager for construction in the Iowa City area. He indicated that he would be able to work as a consultant out of his own home using his own funds. Claimant testified that, as long as he has pain, he will continue with education. He stated that, if he had no pain, he would be working. CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 6 Claimant described his current complaints as constant headaches, breathing problems and vision interruptions. He stated that his pain is increased by any vibration, sharp movement, high humidity, rain, cold weather, going from warm to cold or riding in a vehicle. He stated that, when riding in a vehicle, he sometimes loses vision. He stated that, in the really severe headaches, he experiences a "shooting" pain and feels as if he is going to black out. He stated that, when he has severe headaches, he has trouble with words and has trouble concentrating. He takes Tylenol with codeine. He testified that he is not restricted from driving, but that his wife does most of it. Claimant testified that he does not attend school every day and has scheduled his classes so that he can rest between them. He expressed difficulty driving to and from school and stated that, on occasion, he needs to stop and rest while enroute. Claimant stated that he attends Kirkwood four quarters per year and carries 10-12 hours per quarter. Claimant testified that he does some chores, taking care of animals at his home, but that it takes twice as long to do as it did before he was injured. He stated that he has tried to do carpentry work in his shop at his home and found that it takes several times as long to complete a project as it did before he was injured. He stated that it took him two days to rake a 20-foot by 40-foot front yard. He stated that he is unable to mow his one-acre lawn due to the noise and vibration. Jack Reynolds, a vocational consultant, evaluated claimant's CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 7 employability. He felt that, if claimant were to actually seek employment with the services of a good vocational rehabilitation counselor, claimant would be employable. He also related, however, that claimant needed to be able to manage his pain. Reynolds relied upon Dr. Sands' recommendation in determining claimant's ability to be employed. Reynolds felt that claimant was reluctant to enter any employment that did not pay as well as his occupation as a carpenter. Claimant described himself as a true craftsman-carpenter. He feels that he needs to maintain his prior level of earnings. He earned approximately $30,000 in the nine months he worked during 1983. Claimant indicated that he is ambidextrous, although prior to the injury, he was primarily left-handed. Claimant was referred to relaxation therapy where he was taught various relaxation techniques, but he indicated that tho treatment did not affect his headaches (exhibit 40, pages 8, 19-22). Orville Townsend, a senior consultant with the Iowa Division of Vocational Rehabilitation Services, indicated that claimant's best opportunity for employment is to be a construction supervisor (exhibit 41, page 18). Townsend stated: Lloyd does have a disability. He does have vocational limitations. You know, my professional judgment is that if we got Lloyd to a level where he could manipulate his schedule and have control of his schedule and not have as much physical activity that, you know, he would most likely be employable. But at the same time there is another factor in here, and that factor is that Lloyd is still receiving medical treatment. And, you know, what would happen there is--is, you know, that the end of our program if Lloyd's medical situation has deteriorated and it is such that his physician and he have concerns about his being employable, then he still has the training. It's just a matter of when he's going to be ready for it. (Exhibit 41, page 22). Claimant has incurred certain medical expenses in treatment of his injuries as follows: Accounts Receivable Management $ 11.90 Travel to Dr. Bumstead 192.00 Stress Clinic 540.00 Mileage to Dr. Thayer 9.66 University of Iowa Hospitals/Clinics 48.50 APPLICABLE LAW AND ANALYSIS The facts and circumstances of the injury-producing events are well established by claimant's testimony and corroborated by the other evidence in the record. The bulk of claimant's medical expenses have been paid. The employer has acknowledged liability for the permanent disability in claimant's left arm. In the pre-hearing report, the employer acknowledged responsibility for claimant's dental treatment under Dr. Thayer. Exhibit 44 provides an estimate made by Dr. Thayer. An ultimate decision on CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 8 the cost cannot be made until Dr. Thayer has completed his treatment. Dr. Bumstead was initially authorized to treat claimant and did so. In view of the fact that claimant's current contact with Dr. Bumstead is relatively infrequent, it is not unreasonable for claimant to continue under treatment with Dr. Bumstead and the employer is responsible for the expenses of transportation incurred in obtaining that treatment. An employer may not summarily withdraw authorization from a physician where the worker does not consent to the change. Dye v. Safway Steel Scaffolds Company, III Iowa Industrial Commissioner Report 75 (1983). Smith v. Carnation Company, II Iowa Industrial Commissioner Report 366 (1981). 2 Larson Workmen's Compensation section 61.12a-e. With regard to the Stress Clinic, Dr. Williamson states: The presenting problem was a suicide gesture by Kim Chabal. This effort brought the family, subsequent to Lloyd ChabalOs construction accident, stress and therefore into treatment. From this statement, it appears that the stress for which therapy was provided was the suicide gesture, not the construction accident. Therefore, the claim for $540 as shown in exhibit 27 is denied. The remaining medical expenses sought by claimant are found to be related to the injury and the employer is responsible for them. The primary issue in this case is determining whether or not the healing period has ended and, if it has, the extent of permanent disability resulting from the injury. As a practical matter, the healing period ended on January 30, 1984 and then recommenced on April 8, 1984. Claimant should have commenced receiving permanent partial disability upon his return to work on February 1, 1984. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). That permanent partial disability compensation should have continued until he reentered the healing period for the 1983 injury on April 8, 1984. The fall from the sawhorse in April, 1984, and the injuries sustained are found to have been caused by the original 1983 injury. It is therefore a continuation of the 1983 injury. When deposed on August 19, 1986, Dr. Bumstead indicated that claimant's condition had plateaued (exhibit 36, page 9). This marks the end of the healing period. August 19, 1986 is the first true indication from Dr. Bumstead that further significant improvement from the injury was not anticipated. It is consistent with his earlier statements as found in exhibit 13. Armstrong Tire & Rubber Co. v. Kubli, Iowa App., 312 N.W.2d 60, 65 (Iowa 1981). All of claimantOs subsequent medical treatment has been maintenance in nature and does not appear to be improving his condition. Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124 (Iowa App. 1984). Claimant's entitlement to compensation for permanency therefore recommences on August 20, 1986. A worker cannot receive both healing period and permanency benefits at the same time for the same injury. If claimant has an impairment to the body as a whole, an CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 9 industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: OIt is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). As indicated by Dr. Bumstead, claimant's condition is one which is not appropriately evaluated using the AMA guides. Claimant certainly had a sufficiently severe trauma to his head to substantiate complaints of continuing headaches and facial pain. His complaints of sensitivity to temperature changes and vibration are not incredible. Dr. Bumstead's testing corroborates the credibility of claimant's complaints. The fact that medical science cannot pinpoint a physiological cause for complaints of pain does not mean that the pain is nonexistent or somehow conjured up for secondary gain purposes. It is found that claimant does experience pain in the areas of which he testified. It is also found, however, that claimant's motivation to return to employment is severely limited by his feeling that he should not have to accept employment that is less rewarding financially or emotionally than his work as a carpenter. This does affect the credibility of claimant's complaints. Claimant did work for several weeks in early 1984. He has attended schooling. These are all indications that he has the capacity to do the things he desires to do. Claimant has done well in his academic pursuits. Such is a strong indication that he will be able to perform sedentary employment I should he desire to pursue it. While the severity of claimant s complaints is not well established, they are considered to be sufficient to render him incapable of performing construction work as a carpenter, the trade in which he has been engaged for his lifetime. Upon successful completion of the training in which he is currently enrolled, it is anticipated that he will still suffer a severe reduction of earnings in comParison to the earning level he enjoyed as a carpenter. When all the material factors of industrial disability are considered, it is determined that claimant has sustained a 65% permanent partial disability as a result of the injury he sustained on September 16, 1983. The only provision in the workers' compensation law for training or vocational rehabilitation is the benefit provided by section 85.70, which has a maximum of $520. Claimant is clearly entitled to receive such a benefit and the evidence shows that it has previously been paid. The employer and insurance carrier are not responsible for any further retraining or educational expenses. CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 10 Claimant's exhibit 1 is 404 pages of randomly amassed information. It is not organized by author, in chronological order or in any other rational manner as was ordered in paragraph 9 of the Hearing Assignment Order. As a sanction for violation of the order, the costs of this action are assessed against claimant. Since this results from counsel's actions, counsel shall adjust his fees accordingly in order to insulate claimant from the impact of this portion of this ruling. FINDINGS OF FACT 1. Lloyd Chabal is a resident of the state of Iowa who was employed by McComas Lacina Construction Company within the state of Iowa. On September 16, 1983 he was injured when a ladder fell. 2. Following the injury, claimant was medically incapable of performing work in employment substantially similar to that he performed at the time of injury from September 16, 1983 until February 1, 1984 when he returned to work. Claimant was again similarly disabled commencing on April 8, 1984 and continuing until August 19, 1986 when claimant reached the point of recovery that it was medically indicated that further significant improvement from the injury was not anticipated. 3. As a result of the injury, claimant has a 16% permanent partial disability of his left arm. He also suffers headaches, impaired vision and facial pain as a result of the facial fractures and trauma. 4. Claimant has generally established his credibility, but the credibility of the severity of his complaints is impaired by his expressed reluctance to enter employment which is less financially rewarding than his former occupation as a carpenter. 5. All the medical care which claimant has received, as reflected by the evidence, and the anticipated further care from Drs. Bumstead and Thayer is reasonable and necessary treatment for the injury for which the employer and its insurance carrier are financially responsible. 6. It is reasonable for claimant to continue treatment under the direction of Dr. Bumstead even though he has left the Iowa City, Iowa area, provided that the appointments with Dr. Bumstead are not more frequent than once every six months. In the event that a greater frequency of treatment becomes warranted, the employer should be permitted to require claimant to obtain that treatment at the University of Iowa Hospitals and Clinics. 7. The expenses incurred by claimant as previously set forth in this decision were reasonable and necessary medical treatment for the injury except for the charge of $540 from the Stress Clinic. 8. Claimant's functional capabilities are such that any employment in which he is to engage must be sedentary, indoor and capable of allowing reasonable flexibility with regard to the days and hours of work. Claimant's stated plan for work as a CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 11 construction consultant or manager seems to be a reasonable occupational goal. 9. Claimant has a 65% impairment of earning capacity as a result of the injuries sustained on September 16, 1983. 10. Claimant has not made a prima facie showing of permanent total disability. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant's healing period entitlement under the provisions of section 85.34(l) are 19 4/7 weeks commencing September 16, 1983 and 123 2/7 weeks commencing April 8, 1984 for a total of 142 6/7 weeks. 3. Claimant's disability under section 85.34(2)(u) is 325 weeks representing a 65% permanent partial disability in industrial terms. Nine and four-sevenths weeks thereof is payable commencing February 1, 1984 and the remaining 315 3/7 weeks thereof is payable commencing August 20, 1986. 4. Robert Bumstead may remain as claimant's authorized treating otolaryngologist. CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 12 5. Defendants have previously paid all vocational rehabilitation benefits provided by section 85.70. 6. Defendants are responsible for payment of the following medical expenses: Accounts Receivable Management $ 11.90 University of Iowa Hospitals/Clinics 48.50 Mileage for travel to Dr. Bumstead 192.00 Mileage for travel to Dr. Thayer 9.66 7. The expenses in the Stress Clinic were not shown to have been caused by the accident and the employer and insurance carrier are not responsible for payment of the charges from that facility. 8. Dr. Thayer is the authorized source of treatment for claimant's dental care and the employer and insurance carrier are responsible for payment of whatever portion thereof Dr. Thayer deems related to the 1983 injury. ORDER IT IS THEREFORE ORDERED that defendants pay claimant one hundred forty-two and six-sevenths (142 6/7) weeks of compensation for healing period at the stipulated rate of two hundred eighty-five and 44/100 dollars ($285.44) per week with nineteen and four-sevenths (19 4/7) weeks thereof payable commencing September 16, 1983 and with one hundred twenty-three and two-sevenths (123 2/7 weeks) thereof payable commencing April 8, 1984. IT IS FURTHER ORDERED that defendants pay claimant three hundred twenty-five (325) weeks of compensation for permanent partial disability at the stipulated rate of two hundred eighty-five and 44/100 dollars ($285.44) per week with nine and four-sevenths (9 4/7) weeks thereof payable commencing February 1, 1984 and with the remaining three hundred fifteen and three-sevenths (315 3/7) weeks thereof payable commencing August 20, 1986. IT IS FURTHER ORDERED that defendants pay all past due amounts in a lump sum together with interest at the rate of ten percent (10%) per annum pursuant to section 85.30. IT IS FURTHER ORDERED that defendants pay claimant two hundred one and 66/100 dollars ($201.66) for transportation expenses. IT IS FURTHER ORDERED that defendants pay the following medical bills: Accounts Receivable Management $11.90 University of Iowa Hospitals/Clinics 48.50 IT IS FURTHER ORDERED that Robert Bumstead, M.D., remain as claimant's authorized treating physician and that Keith E. Thayer, D.D.S., be authorized to provide treatment for claimant's CHABAL V. MCCOMAS LACINA CONSTRUCTION Page 13 dental injuries resulting from the September 16, 1983 injury. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against claimant pursuant to Division of Industrial Services' Rule 343-4.33. IT IS FURTHER ORDERED that defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services' Rule 343-3.1. Signed and filed this 15th day of October, 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Bruce L. Walker Attorney at Law 321 Market Street P. 0. Box 2150 Iowa City, Iowa 52244 Mr. C. Peter Hayek Attorney at Law 120 1/2 East Washington Iowa City, Iowa 52240 1402.40, 1802, 1803, 4100 Filed October 15, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER LLOYD CHABAL, Claimant, File No. 744909 VS. MCCOMAS LACINA CONSTRUCTION, A R B I T R A T I 0 N Employer, and D E C I S I 0 N BITUMINOUS INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.40, 1802, 1803, 4100 Claimant, a 47-year-old carpenter at the time of injury, fell and sustained serious injuries to his face and left arm which made him unable to resume carpentry work. He had a permanent impairment of his left arm and complained of severe, disabling headaches. Claimant awarded 65% permanent partial disability and an extended healing period. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS J. BLACKFORD, Claimant, File Nos. 744940 747501 VS. R E V I E W - SWIFT INDEPENDENT PACKING COMPANY, a/k/a SWIFT FRESH R E 0 P E N I N G MEATS COMPANY, Employer, D E C I S I 0 N Self-Insured, Defendant. INTRODUCTION These are proceedings styled in review-reopening brought by the claimant, Dennis J. Blackford, against his self-insured employer, Swift Independent Packing Company, a/k/a Swift Fresh Meats Company, to recover benefits under the Iowa Workers' Compensation Act as a result of injuries sustained April 8, 1983 and August 9, 1983. These matters came on for hearing before the undersigned deputy industrial commissioner at the Division of Industrial Services Office in Des Moines, Iowa, on November 6, 1986. The record was considered fully submitted at close of hearing. The record in these proceedings consist of claimant's exhibits 41 through 70 as well as of claimant's exhibits 1, 3, 41, 26, 27, and 28, in the prior proceedings in these matters held on July 31, 1984 as well as of defendant's exhibit C and of claimant's and Harry Lake's testimony. Pursuant to the requests of the parties, official notice is taken of the contents of the file and of prior proposed arbitration and appeal decisions of December 27, 1984 and November 20, 1985, respectively. Claimant's exhibit 41 is an August 22, 1986 deposition of John L. Walker, M. D. Claimant's exhibits 42 through 45 are reports of Dr. Walker of June 1, 1984, February 12, 1986, March 19, 1986, and November 3, 1986, respectively. Claimant's exhibit 46 is a waiver of physical defect executed between claimant and the Marshalltown Times Republican. Claimant's exhibits 47 through 51 are claimant's W2 statements for the years 1979 through 1983 with Swift. Claimant's exhibits 52 and 53 are claimant's forms 1099R for the year 1983 with Swift. Claimant's exhibits 54 through 57 are claimant's W2 statements for the Times Republican and Marshalltown Newspapers for the years 1983 through 1985. Claimant's exhibit 58 is claimant's W2 statement for the year 1985 with Pioneer. Claimant's exhibit 59 is a copy of claimant's last prehearing pay stub. Claimant's exhibit 60 is a copy of the Iowa Newspaper Association Group Health Plan. Claimant's exhibit 61 is the October 30, 1986 deposition of Bary Carl. Claimant's exhibit 62 is claimant's employee service record. Claimant's exhibit 63 is a blank application for employment with Swift Independent Packing Company employment application. Claimant's exhibit 64 is a blank health inventory to be filed with said employment application. Claimant's exhibit 65 is a Marshalltown addendum to Swift Independent Packing Company application. Claimant's exhibit 66 is a record of work, earnings and tax. Claimant's exhibit 67 is Swift Independent Packing Company comprehensive medical plan for nonsalaried employees. Claimant's exhibit 68 is a Swift Independent Packing Company pension plan for nonsalaried employees. Claimant's exhibit 69 is a Swift group insurance plan. Claimant's exhibit 70 is Swift savings plan. Prior hearing exhibits 41, 26, 27, 28, 3, and 1 were identified in the prior hearing decisions. Defendant's exhibit C is a compilation consisting of various medical records concerning claimant as identified on the exhibit, as well as copies of the depositions of Peter Wirtz, M.D., taken July 27, 1984, Lloyd James Thurston, D.O., taken July 24, 1984, and Carl 0. Lester, M. D., taken July 17, 1984, as well as a copy of the transcript of the July 31, 1984 hearing in these matters. Also included is claimant's original employment application with Swift. All objections to exhibits are overruled. ISSUES Pursuant to the prehearing report filed and approved prior to these proceedings and pursuant to the appeal decision filed November 20, 1984, the sole issue remaining is whether claimant is entitled to permanent partial disability on account of the August 9, 1983 injury. We note that an expressed conclusion of law in both the original proposed decision and the appeal decision in the earlier proceedings was that claimant was not entitled to temporary total, healing period, permanent partial or permanent total benefits on account of the April 8, 1983 injury. Claimant's stipulated rate is $234.23. REVIEW OF THE EVIDENCE Considerable evidence was presented not relevant to the issue before us. This review of the evidence will be confined to the evidence relevant to the issue of permanent partial benefit entitlement as a result of August 9, 1983 injury. All evidence relevant to that issue was reviewed and considered in the disposition of these matters even if such evidence is not expressly set forth in the following review of the evidence. Claimant testified that he graduated from high school in 1973. He subsequently worked as a laborer at Coca Cola and at Royce Litho and Printing for approximately two and one-half years. At Coca Cola, claimant also worked as a minor mechanic changing machine parts. Each job entailed lifting from 40 to 80 pounds. Claimant subsequently took a one year printing trades course after which he became employed as the Marshalltown Times Republican as an apprentice pressman. As a pressman, claimant made press plates and changed press plates for different size papers. He reported that the only physical labor involved was changing and putting the roll shaft on the press. He characterized the roll shaft as being about four foot long and two inches in diameter and weighing from 40 to 50 pounds. The press plates weigh more than one pound; ink buckets weigh approximately 35 pounds. Claimant continued at the Times Republican for three years before beginning work at Swift Independent Packing on November 13, 1979. Claimant remained at Swift until November 17, 1983. The base rate when claimant started was apparently $7.27 per hour. Workers apparently began at a wage below the base rate and BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY Page 3 reached base rate in approximately six months. Once the base rate pay is reached, jobs are classified by bracket and the worker receives $.05 per hour more than the base per each bracket of classification. Workers receive overtime pay at time and one-half the regular rate for all hours.over eight per day and for all hours over forty per week. Claimant reported that he initially worked trucking fat on the cut floor and that this was a zero bracket job at which he worked 48 to 50 hours per week and pushed from 2 to 400 pounds. Claimant subsequently worked pulling chittlings. Claimant stated he was not then qualified for brackets but worked 45 to 50 hours per week and lifted approximately eight pounds. Claimant later returned to the chittling job and received two brackets. Claimant also worked as a night checker. He testified that he worked 50 to 55 hours per week and that the job was an eleven bracket job on which he earned $11.55 per hour. Claimant was subsequently bumped off the night checker job but reported that approximately twice a month he was called to work that job and then received the eleven bracket pay. Claimant apparently sustained a carpal tunnel injury while doing the chittling job and transferred to a day janitor job. He characterized that job as a zero bracket job at which he earned $8.05 per hour and worked 42 to 44 hours per week. Claimant reported that the job required him to scoop and shovel up to twenty pounds of meat. Claimant subsequently worked at the night janitor job at Swift. That is also a zero bracket job at which claimant earned $8.35 per hour while reportedly working 45 to 50 hours per week. Bary Carl, personnel manager for Swift Independent Packing, testified that it would be unusual for any production worker to average more than 44 to 45 work hours per week, but agreed that the night checkers would likely work approximately four hours overtime on Fridays. He reported that the janitorial jobs were generally straight eight hour per day jobs. Cost of living adjustments were made to Swift Independent employees every six months to October 1982. Employees were guaranteed a 36 hour work week and received paid vacation after one year. Claimant testified that employees received two weeks of paid vacation after one year. Mr. Carl indicated that one and two year employees received one week of paid vacation only with three year to twenty year employees receiving two weeks of paid vacation. Swift employees also received eight paid holidays per year. Swift also provided its employees with a group health and accident insurance plan, a payroll savings plan, and a $10,000 death benefit policy as well as a pension and disability program. Eligible employees, of which claimant was one, could also participate in a group retirement program which would be effective after thirty years of employment. Claimant reported that under the savings plan, Swift made a maximum contribution of $3.00 per check into the savings plan program which the employee could then match. Claimant reported that he generally participated at the maximum amount in that plan. He reported that after 1982, employees were required to pay $2.30 per week for the pension and disability plan. Mr. Carl reported that Swift employees now contribute $3.00 per pay period for individual health and accident insurance with the company. Claimant testified that he resigned from Swift following his BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY Page 4 injury because the work aggravated his back condition. He opined he also could not do other jobs he had held at Swift without aggravating his back condition. Claimant testified that he had worked on the loading dock as a shipping clerk for over a year before being bumped and was unaware of any employer dissatisfaction with his work. Eleven brackets is the highest job classification at Swift for nonmaintenance and nonskilled workers. Claimant was a member of a union while at Swift. Claimant returned to work as a pressman at the Times Republican in November 1983 and continues to work there. Prior to beginning that employment, he signed a waiver of physical defect concerning his carpal tunnel problem and his back injury. Claimant reported that his wages have increased from $7.05 when he began employment on November 20, 1983 to $7.63 per hour at time of hearing. Claimant was expecting his annual review on November 22, 1983 and anticipated a $.30 per hour raise following such review. Claimant reported that the Times is a nonunion shop and that he generally has received no overtime. Claimant reported that the Times has a 60-40 employer-employee contribution medical benefits program under which he is required to pay $24.74 every two weeks for health insurance. Claimant receives two weeks paid vacation and five paid holidays per year. Claimant is not yet eligible to receive disability insurance or participate in the company retirement plan. Each of those programs require ten years of employment before an employee is eligible to participate. The retirement plan is effective after 35 years of service when an employee reaches age 65. On cross-examination, claimant agreed that retirement plan vesting period with his present employer is the same as that with Swift. Claimant agreed that only Dr. Walker has recommended surgery for his back and stated that claimant prefers postponing surgery. Claimant reported that he restricts his personal activities because of fear that he will reinjure himself. He stated that he does not lift, jog, play football or baseball. on cross-examination, claimant agreed that he has never jogged. Claimant reported that he has low back pain which progresses into his right leg on a daily basis and that he is now having left leg pain. He reported having trouble mowing his lawn, riding in a car, sitting, and sleeping. Claimant reported that he continues to golf and golfed in early Summer 1986 approximately four or five times per week using a pull cart. Claimant signed up for and apparently participated in a beer drinkathon golf tournament in the Summer 1986. Claimant fishes and has a boat in Missouri. He described his boat as a 15 foot John motorboat with an electric troller motor and boat trailer. Claimant launches the boat from the trailer. Claimant described his fishing tackle box as weighing from five to ten pounds and as being one foot long by eight inches by six inches. Claimant's wife works nights and claimant reported that he cares for his two children, ages eight and nine, when he is not attending evening classes. Since September 1986, claimant has been enrolled at Marshalltown Community College taking courses in Introduction to Business and Accounting I. He expressed his belief that he needs to get out of manual labor and stated he would like to use that schooling to either advance in his present position or with BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY Page 5 another company. Claimant has not sought either formal vocational .counseling or vocational rehabilitation. Claimant agreed that he has not had to actively search for a new job since leaving Swift. Harry Lake testified that he is 69 years old and before his January 12, 1984 retirement had worked sixteen years and five months as a job service manpower specialist in the Marshalltown area. Mr. Lake indicated that he was familiar with the Marshalltown job market at the time of his retirement and that he has attempted to stay abreast with that market since his retirement. Lake responded that that low back problems and related restrictions such as those outlined in claimant's exhibits 41 through 45 would affect the employability of a person otherwise having claimant's characteristics and residing in the Marshalltown area in a negative sense in that employers generally do not hire persons with low back injuries. Lake agreed that if claimant had received a 4.00 GBA in his printing courses and a 3.50 GBA in high school, those facts would suggest that, with training, additional jobs would open for claimant. Lake reported that employers generally make a genuine attempt to accommodate handicap workers, but when employment applicants are plentiful they take only the best; whereas when employment applicants are few, employers will select employees with physical defects provided they can continue to protect their own interests. Mr. Carl testified that the Swift health questionnaire which potential employees are required to complete with their job applications does contain considerable questions concerning prior workers' compensation claims and prior back problems. Carl testified that Swift would not necessarily exclude an individual with prior back problems from employment, but stated that for, primarily humanitarian reasons, such individuals would not be considered for positions which they could not physically handle or where they might experience an aggravation of their condition or further injury. Claimant's wages, tips, and other compensation in his last full year at Swift, that is 1982, were $32,701.01. Claimant's wages, tips, and other compensation with his current employer in 1985 were $15,257.03. As of October 23, 1986, claimant had earned $13,473.72 with his current employers in 1986. In his deposition, Dr. Wirtz indicated that strenuous activity will irritate claimant's back condition temporarily and that he will have intermittent low back pain and some leg radiation with activities that are strenuous. In an October 31, 1983 report, Dr. Wirtz indicated that strenuous activities would include lifting, repeated lifting of objects, as well as prolonged carrying of heavy objects. He reported that awkward positions of the back would tend to likewise give claimant low back complaints. In an October 13, 1983 report, Dr. Wirtz characterized claimant's problem as degenerative disc disease which would be symptomatic with heavy labor activities and would produce future injuries with such activities. Per the prior decision in this matter, claimant's medical condition is characterized as as protrusion at L4, 5 centrally and at L5, Sl centrally and on the left side. BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY Page 6 John R. Walker, M.D., an orthopedic specialist, reexamined claimant and reported thereon on February 12, 1986. The doctor characterized as a rather marked change that the fifth lumbar disc was practically collapsed down to zero height, although some disc was left anteriorally and in the mid portion of the disc as seen in lateral x-rays. Dr. Walker stated that claimant did have some permanent problem with a somewhat narrower fifth lumbar disc prior to his injury and that that could be set at six percent [permanent partial impairment] of the body as a whole. Dr. Walker subsequently indicated that claimant had a twelve percent [permanent partial impairment] of the body as a whole as a result of his work injury giving him a total eighteen percent permanent partial "disability." On November 3, 1986, Dr. Walker opined that claimant should particularly avoid the following activities: 1.) He should avoid all shoveling, pitching hay, shoveling sand, shoveling dirt or spading and/or shoveling meat. 2.) The patient should not repeatedly bend down, and pick up objects from the floor and repeatedly lift them from the floor to a table height. If he does, he must squat down. He should not pick up ten to fifteen pounds at a time and certainly not repetitively. 3.) Any lifting should be accompanied by a squat position rather than a bending of the lumbo-dorsal spine. 4.) As far as carrying is concerned, probably he could carry as much as 35 to 40 lbs. from table height to another distance of say 5 to 10 feet but this should not be done repeatedly. 5.) The patient should avoid riding lawn mowers, tractors or vehicles which give a lot of spring and bounce. APPLICABLE LAW AND ANALYSIS Our sole concern is claimant's entitlement to permanent partial disability benefits on account of his August 9, 1983 injury. Functional disability is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY Page 7 to loss of earning capacity and in the later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability 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. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY Page 8 Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Apportionment of disability is limited to those situations where the prior injury or illness, unrelated to employment, independently produces some ascertainable portion of the ultimate industrial disability found to exist following the employment related aggravation. Varied Industries, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Claimant is a younger worker whose present and past educational records suggest considerable intellectual ability. Apparently,only Dr. Walker has assigned claimant an impairment rating, that being 18 percent of the body as a whole, 12 percent of which the doctor attributes to claimant's work injury. Claimant's preexisting lumbar disc narrowing to which the remaining six percent is attributed did not appear to be producing any industrial disability prior to claimant's work injury. Claimant to that point had satisfactorily performed his job at Swift without problems related to a back condition. Hence, any industrial disability ultimately found cannot be apportioned between claimant's work injury and the preexisting condition. Both Dr. Walker and Dr. Wirtz generally have restricted claimant from physical maneuvers of lifting, bending, carrying over 35 to 45 pounds and other strenuous activities associated with heavy manual labor. Claimant voluntarily left his job at Swift following his injury. He testified he did so because he could no longer carry on his job duties without aggravating his back condition. The fact that claimant's income dropped by at least 50 percent in the year following his job change gives additional credibility to claimant's testimony in that regard. Claimant fortunately has training, skills and work experience in other than heavy manual labor and was able to utilize these to return to a position as a pressman with his previous employer. Claimant's job with that employer appears secure and claimant's salary is increasing consistently with his longevity with the employer. In several years, it may nearly equal the wage level he could have received had he remained with Swift. Claimant's need to sign a waiver of physical defect regarding his back condition with his prior employer upon his rehire after leaving Swift is reflective of difficulties Mr. Lake testified claimant might well encounter in the open labor market were he to need to compete for work positions with other workers of like experience and skills but lacking a back injury, however. One suspects claimant's prior work record with his present employer was of assistance in his securing that position despite his back injury. One also suspects that had that previous work history been lacking, claimant's present employer would have been less likely to have hired him even with a waiver of physical defect. On his job transfer, claimant lost benefits he received as a Swift employee. His current benefit package is not BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY Page 9 significantly less than that received at Swift, however. Claimant's testimony concerning the amount of overtime he generally earned at Swift is discrepant with Mr. Carl's testimony on that subject. We are not convinced claimant's accounting of earned overtime is necessarily more correct. Hence, we do not believe lost overtime hours is a significant factor in assessing claimant's loss of earning capacity. Likewise, claimant's current nonunion status is not a condition which can be said to result from his work injury and, therefore, is not a factor in assessing lost earning capacity. Claimant testified to restrictions on his nonwork life activities. We believe that testimony was exaggerated in claimant's favor in that claimant later acknowledged that he has never jogged and in that claimant continues to be able to golf, launch and operate his motorboat and care for his children, both of whom are at an age where a fair level of physical prowess would generally be required of their caretaker. As noted by Drs. Wirtz and Walker, claimant does have some real physical limitations on his activities on account of his back condition, however. He is motivated to continue work and to train himself for less physically demanding work. Given his younger age, his intellectual capacities, and his personal ambition, he is likely to be successful in those goals and may well achieve a future income and future employment security greater than that which he enjoyed at Swift. Nevertheless, claimant has sustained a present loss of earning capacity which under all factors considered equals 20 percent. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant is a younger worker who graduated from high school in 1973 with a 3.5 GBA and attended and graduated from a community college printing trades course with a 4.00 GBA. Claimant was employed as a newspaper pressman prior to beginning work with Swift. Claimant voluntarily left his employment at Swift following his work injury and returned to work as a pressman with his pre-Swift employer. Claimant initially experienced a near 50 percent drop in his income on account of his voluntary quit from Swift. Claimant left Swift because he could not handle his duties without aggravating his back condition. Claimant was required to sign a waiver of physical defect on being hired by his pre-Swift employer. Claimant would have difficulties competing on the open labor market as a manual laborer on account of his back condition. Claimant has medically imposed restrictions on lifting, carrying, bending, shoveling, and other activities generally required in heavy manual labor. Claimant is able to physically handle his present position BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY Page 10 as a pressman. His present level of training and experience is well suited to that position. Claimant's position as a pressman is secure and in time he may achieve earnings nearly equal to those who could reasonably have anticipated at Swift. Claimant gave up nonsalary job benefits at Swift. Claimant's present benefit package is not significantly less than that at Swift, however. Claimant is well motivated. Claimant is continuing his education in the hopes of obtaining training necessary for nonphysically demanding work. Claimant has a moderate permanent physical impairment related to his August 9, 1983 work injury. Claimant has a loss of earning capacity of 20 percent. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant is entitled to permanent partial disability resulting from his August 9, 1983 injury of twenty percent (20%). ORDER THEREFORE, IT IS ORDERED: Defendant pay claimant permanent partial disability benefits for one hundred (100) weeks at the rate of two hundred thirty-four and 23/100 dollars ($234.23). Defendant pay accrued amounts in a lump sum. Defendant pay interest pursuant to section 85.30. Defendant pay costs pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4.33. Defendant file claim activity reports as required by the agency. Signed and filed this 12th day of January, 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER BLACKFORD V. SWIFT INDEPENDENT PACKING COMPANY Page 11 Copies to: Mr. James C. Wilson Attorney at Law P.O. Box 431 Eldora, Iowa 50627 Mr. Steven L. Udelhofen Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309 1803 Filed 1-12-87 Helen Jean Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS J. BLACKFORD, Claimant, File Nos. 744940 747501 VS. R E V I E W - SWIFT INDEPENDENT PACKING COMPANY, a/k/a SWIFT FRESH R E 0 P E N I N G MEATS COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 1803 Twenty percent industrial disability awarded younger claimant with disc protrusions at L4, 5 and L5, Sl who had voluntarily left work with defendant employer following injury because he experienced difficulties carrying out his duties on account of his injury. Claimant had transferable skills as pressman which he utilized in present job and considerable academic and intellectual ability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOSEPH M. HERNANDEZ, Claimant, File No. 745080 vs. A R B I T R A T I O N CHARTER COACHES, INC., D E C I S I O N Employer, F I L E D and JAN 29 1988 CARRIERS INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Joseph M. Hernandez, against his employer, Charter Coaches, Inc., and its insurance carrier, Carriers Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury allegedly sustained on July 15, 1983. This matter came on for hearing before, the undersigned deputy industrial commissioner at Cedar Rapids, Iowa, on August 25, 1987. A first report of injury was filed September 25, 1983. No benefits have been paid. The record in this case consists of the testimony of claimant and of claimant's exhibits 1 through 16 as identified on claimant's exhibit list and defendants' exhibits A through F as identified on defendants' exhibit list. ISSUES Pursuant to the prehearing report, the parties have stipulated that claimant's commencement date for permanent partial disability benefits, if such are due, would be July 15, 1983. The issues remaining for resolution are: Whether claimant received an injury which arose out of and in the course of his employment; Whether there is a causal relationship between the alleged injury and the claimed disability; Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement, including the related question of whether claimant is an odd-lot worker under the Guyton doctrine; and, Claimant's rate of weekly compensation, in the event of an award. REVIEW OF THE EVIDENCE Claimant is a 54-year-old gentleman who worked for Charter Coaches intermittently from spring, 1982 through his alleged injury y date. Claimant earned $3.35 per hour without employee benefits. He reported that he received passenger gratuities of from $6.00 to $18.00 per week, but denied that he was a part-time Charter Coach employee. Claimant's Charter Coach duties included picking up and delivering airplane passengers and luggage as well as serving as a limousine service driver. Prior to working for Charter Coaches, claimant was self-employed as a taxi driver where he earned approximately $2.00 per hour. He also had worked as an over-the-road trucker. Claimant reported that his only post-Charter employments included babysitting in his home on two occasions, earning $8.00 each time, and working five hours in the week prior to the hearing delivering luggage for an airport taxi service. He agreed he has sought and been granted Social Security disability benefits since July 15, 1983. Claimant reported that, subsequent to July 7, 1983, when he sought renewal of his Department of Transportation (chauffeur's) license, his driving license was restricted to vehicles of five tons or less. Claimant served in the United States Navy from 1952 through 1956. Claimant agreed his medical problems while in the Navy included a seizure disorder, bronchial asthma and probable steroid myothrophy. Claimant had medically recorded seizures in 1979 and 1981. He was hospitalized in 1979 with dilantin subsequently prescribed. Claimant had discontinued the use of dilantin prior to July 15, 1983, however. Claimant also had had rheumatic fever, hiatal hernia, sinusitis, allergic vasculitis and gout prior to July, 1983. Claimant testified that he returned to full-time employment after (treatment) for each condition. Claimant testified that, on July 15, 1983, he began work at 4 a.m. He reported that another employee had not appeared for work in Cedar Rapids and that claimant, therefore, was one of only two people covering Charter Coaches' passenger service in the Cedar Rapids, Iowa City area. Claimant reported that, at noon, he was given an extra time trip to Iowa City. Claimant stated that he was upset and hot and that he had taken no work breaks and eaten no food, but for ingested medications from 4 a.m. until after he discontinued work on July 15, 1983. Claimant described his passenger as an author on Mexican immigration. He reported that he did not otherwise recall the passenger, but found that fact upsetting since claimant had an interest in that issue. Claimant reported that he took his passenger to the wrong location and subsequently had to receive new directions to find the appropriate location. Claimant reported that, after doing so, he drove to the Veterans Administration hospital in Iowa City. Claimant testified that he was there told he was having a seizure. Claimant testified that two physicians advised him to not drive. Claimant called Charter Coaches from the Veterans Administration Hospital; an individual was sent to pick up his vehicle. Claimant reported that he had a gout episode within ten days of July 15, 1983 with a hospitalization for asthma within one month of that date. He reported that, over the next three years, he was in the hospital with asthma at each quarter. Claimant agreed that he had seen a physician on July 13,  with complaints of suicidal ideation. He reported that his psychiatric problems prior to July, 1983 resulted from situations which he could not control. Claimant characterized his asthmatic condition as so fickle that "anything can touch it off." Claimant agreed that he was released for full-time employment upon discharge from his August 15, 1983 hospital admission. Claimant was released for driving as of April 23, 1984. Claimant further testified by way of his deposition taken August 15, 1985. The deposition disclosed that claimant has an Associate of Arts degree from Kirkwood Community College. Claimant testified he had had rheumatic fever in the Navy and has had a lumbar laminectomy. He reported he currently had osteoarthritis. Claimant stated that, as of the deposition date, he had not had a full--blown seizure nor been hospitalized for seizures since July 16, 1983. He reported that he had had "nerve seizures" after which testing was undertaken to determine whether his Dilantin dosage should be increased. Claimant attributed the fact he did not know his July 15, 1983 passenger's destination to Charter Coach personnel's failure to provide him with a passenger receipt containing that information as well as the passenger's name. Claimant reported he was upset about not knowing the individual's name as such decreased the probability that he would receive a tip. John E. Kasik, M.D., testified by way of his deposition taken September 3, 1985. Dr. Kasik is chief of staff at the Veterans Administration Hospital (in Iowa City) and professor of internal medicine and associate dean in the college of Medicine at the University of Iowa. Dr. Kasik is a board-certified internist, who has had additional postgraduate training in lung disease, infectious disease and pharmacology. Dr. Kasik reported that claimant was seen at the Veterans Hospital on July 15, 1983 with a confusional episode thought to be a seizure. Claimant was subsequently seen by a neurology service in consultation to determine whether he had actually had a seizure. Diagnosis was seizure disorder, probably temporal lobe, but with inability to rule out an atypical migraine history after using Metapral. Dr. Kasik reported that claimant had taken a number of drugs for his asthma including Prednisone, a drug which can lower one's seizure threshold. Dr. Kasik subsequently opined that claimant's seizure incident of July 15, 1983 related to claimant's asthmatic condition. Dr. Kasik reported that claimant was taking Prednisone in April, 1983 at 20 milligrams every other day, which is a moderate dose and which was not as high as the dosage on other occasions. The doctor characterized claimant as "one of the most unstable asthmatics" he had seen in practice and as "one of the most difficult asthmatics to take care of." The doctor stated that an episode in which an asthmatic hyperventilated could trigger an attack of the type described (for July 15, 1983) in someone with a lowered seizure threshold. Dr. Kasik reported that claimant was disabled because of bad asthma, but stated that causal effect was more difficult to ascertain as certainly part of the problem that Mr. Hernandez has goes back for many years, well into the 70's." The doctor reported that claimant was diagnosed as having severe asthma in approximately 1975 and agreed that claimant has had 37 Veterans Administration hospitalizations for that condition since 1957. Dr. Kasik agreed that claimant's history reports that his neurological examination of July 16, 1983 was normal and that the history did not indicate that claimant had asthmatic attack symptoms such as wheezing or shortness of breath. Claimant's presenting complaint on July 15, 1983 was that he felt confused. The doctor agreed that the hospital notes reveal that claimant had had visual aura, which might have been a premonition of a seizure or could have been something else, in the days prior to July 15, 1983. The doctor indicated that claimant's aura was "not really a major complaint in the chart" as of July 15, but that the major complaint was confusion, difficulty in being oriented to what was ongoing. The doctor stated that claimant's confusion was much better prior to claimant's hospital discharge. Dr. Kasik stated that claimant has been taking either inhaled or oral steroids, of which Prednisone is one, for at least 15 years. The doctor reported that he felt the cause of claimant's July 15, 1983 confusion was a small seizure which he related, in part, to claimant's steroid intake with the remainder probably a propensity to having seizures and the fact that claimant could have hyperventilated during that day. He agreed there was no record that claimant had hyperventilated, however. Deposition exhibit 1, a Veterans Administration medical certificate dated July 15, 1983, states in part: 1 week ago had several minutes of seeing bright colors out of [left] eye and similar episodes 3 days ago. Today was driving limosine [sic] from CR airport to I.C. Is foggy for most trip but remembers starting the trip and conversing [with] passenger on trip down. On arrival in I.C. took the wrong streets several times before arriving at destination. Then came to VA [for] resolution of confusion. Currently [complains of] [left] sided dull [headache]. No prior [history] of migraine, [headache], FH convulsive disorder, head trauma, recent (?) in meds, ETOH abuse. Has been not sleeping very well lately and was seen by psych 7/13 [with] suicidal and homicidal ideation. Has been followed by psychology for marital difficulty. Denies unusual stress at this time. No breakfast or lunch today. Progress notes of July 15, 1983 from the Veterans Administration Hospital report a presenting complaint of "confused this am. drove here but don't know how got here." Also, "I think I had a seizure am. Been very tired lately." A note of John J. Sand, R2, reports claimant's condition of July 15, 1983 as confusion and memory loss. A non-initialed note, apparently of the same date, reports that "Today had visual (?) while driving and lost way, not wholly aware of leaving driven to destination." A further note, apparently of the same date, signed by Henkle, R3, reports that claimant had a convulsive disorder in 1979 with workup here. The note further states he had: Resolution of [seizure] on Dilantin. Stopped med 1 year ago. 1 week ago had visual hallucinations x minutes. Today had 1/2 hour confusion. Annestic for 1/2 hour. Veterans Administration medical certificate of August 15, 1983 reports that claimant presents with asthma attacks starting with a mild sore throat yesterday and followed by wheezing during that a.m. A further note relative to that admission reports that claimant began wheezing following exposure to ragweed pollen and cat dander several days ago while visiting a friend's farm. A note of August 18, 1983 states in part: Seen 7/15/83 after episode of "seeing funny lights" and not knowing where going while driving. Pt placed back on Dilantin but since has had several episodes of seeing lines and lights lasting [less than] one minute usually while coughing or straining on stool. An abbreviated medical record for an admission of August 15, 1983 and discharge of August 18, 1983 reports a past history of "being on steroids [for] 8 years, off since 2/83." A November 1, 1983 note of Roberta R. Hallquist, M.D., reports that claimant had a apparent seizure on July 15, 1983 and therefore should not operate a motor vehicle until he has been completely seizure-free for six months, no earlier than January 15, 1984. A medical summary by Andrew Braun, R-1, for an admission date of February 23, 1984 with a discharge date of February 28, 1984, states that claimant has a history of steroid dependent asthma dating back about 12 years. The historian stated that claimant reported he has been on near continuous Prednisone for the past nine years. He had then been on 60 milligrams per day of Prednisone since the previous November. A pulmonary function test in September, 1983 showed an FEV1 of 1.64 and an FEC of 3.35 with little response to bronchodilators. Claimant is reported as having stated that his asthma seems to be triggered by furnace air, car heat, grasses and cigarettes. Claimant had then noted increased shortness of breath, dyspnea on exertion and cough production of yellow-white sputum over the past six weeks. Claimant was reporting night sweats for the past four months. A March 8, 1978 report of Joseph A. Sopko, M.D., Pulmonary Fellow, Department of Internal Medicine, University of Iowa Hospitals and Clinics, states that claimant has been followed at the Pulmonary Clinic of the Veterans Administration Hospital since 1974 and has carried the diagnosis of asthma since that time. He is reported as being steroid dependent and has been taking other medicines including "Prednisone, 50 mg po qd." It is reported that claimant was then attempting to work as a cab driver and could do this part-time, but after approximately 20 hours of work, he usually got into severe problems. Dr. Sopko opined that he and Dr. Kasik believed claimant had severe asthma which prohibited him from working full-time and that even 20 hours per week may be, in a sense, "pushing it" in terms of his asthma. Veterans Administration progress note of November 26, 1984 characterizes claimant as having a 15-year history of steroid dependent reactive airway disease with multiple exacerbations precipitated by multiple, stimuli in the environment, including dust, dry air, perfume and cigarette smoke. Claimant's admission diagnosis is of "Steroid-dependent asthma. ? of hemoptysis" and of seizure disorder which may be related to treatment on Prednisone and on "theo." A note of February 12, 1984 reports that claimant's chest tightness and shortness of breath are worsened with exposure to dry air, some cooking vapors and dust. Numerous medical reports speak of attempts to taper claimant's Prednisone intake after July 15, 1983. R. W. Jasinski, M.D., interpreted a chest X-ray of November 14, 1983 as revealing that the lungs are well-inflated without focal infiltrates and as showing no change compared to (x-ray of) September 22, 1982. Claimant was admitted to Mercy hospital on May 8, 1984 after he noticed a fullness in his chest, was very fatigued and had discomfort in his right shoulder, abdomen and generally over his chest after mowing his and his father's lawns that day. M. T. Hirleman, M.D., interpreted a chest x-ray of May 8, 1984 as showing left lower lobe pneumonia. A May 25, 1979 report of Fred E. Abbo, M,.D., states that claimant's seizure disorder, bronchial asthma and probable steroid myopathy could not be related to rheumatic heart disease. A medical report of Gerald J. Fogarty, M.D., of November 14, 1983 characterizes the type of aura preceding claimant's seizure as confusion. A medical report of Q. S. Dickson, M.D., of October 18, 1984, characterizes the aura as visual. On April 23, 1984, Roberta R. Hallquist, M.D., reported that claimant had been seizure-free since July, 1983 and could return to work and drive. Medical costs with Mercy Hospital and with Dr. Fogarty were in evidence as well as charges of $23.00 with Mercy Hospital for medical request and medical record abstract. APPLICABLE LAW AND ANALYSIS Our first concerns are the related questions of whether claimant received an injury which arose out of and in the course of his employment and the question of whether there is a causal relationship between that alleged injury and his claimed disability. Claimant asserts that his confusional episode of July 15, 1983 was a work-related injury and that his subsequent absence from work was proximately caused by that episode. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 15, 1983 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central. Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al Counties, 188 N.W.2d 283 (Iowa 1971), Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. When the employee has a preexisting physical weakness or disease, this employment contribution may be found either in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition, or in precipitating the effects of the condition by strain or trauma. (Larson Workmen's Compensation Law 12:00). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 15, 1983 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation 555(17)a. Claimant has a long history of medical problems including very severe asthma for which he had been taking steroids for from 8 to 15 years. Among the steroids which claimant had either ingested or inhaled is Prednisone, which Dr. Kasik stated is known to produce seizures in susceptible individuals. Claimant had had documented and medically treated full seizures in 1979 and 1981. Claimant had aura or evidence of preseizure events both one week and three days prior to his July 15, 1983 confusional episode. Such suggests that claimant was highly susceptible to a seizure event, at or near July 15, 1983. That fact supports a finding that claimant's confusional episode of that date was idiopathic and arose from a risk personal to claimant. Claimant apparently argues that traumatic events at work on the morning of July 15, 1983 precipitated the seizure episode. Claimant testified that he had not had an opportunity to eat or drink that morning, that directions given him for his final trip were inadequate, that the identity of his passenger was upsetting for him, and that he was forced to work an extra trip on that morning. He apparently believes that his confusional episode would not have occurred, but for those facts. The medical evidence in the record, taken as a whole, does not support claimant's position, however. While claimant's description of the events on the morning of July 15, 1983 bears some resemblance to his own description of his state and the happenings prior to one of his earlier seizures, it cannot be ascertained on this record whether those events or claimant's perception of those events led to the seizure or were part of the milieu of the. seizure itself. No medical testimony directly relates claimant's July 15, 1983 confusional episode to his work of that morning. Dr. Kasik did opine that an episode in which an asthmatic hyperventilated could trigger an attack of the type described for July 15, 1983 in someone with a lowered seizure threshold. While claimant, apparently because of the effects of Prednisone, apparently had a lower seizure threshold, there is no evidence that claimant hyperventilated on July 15, 1983. One would think that that would have been a fact of sufficient significance that the many medical notes made that day would have recorded such an event. One would also think that claimant would have reported any episode of hyperventilation to his multiple examiners of July 15, 1983. No such report is in the record. As noted above, medical notes of July 15, 1983 do report "aura" or near seizure events twice in the week preceding July 15, 1983. That fact further supports a finding that claimant's July 15, 1983 event was an idiopathic event arising from a condition personal to claimant and did not constitute an injury arising out of and in the course of claimant's employment. Likewise, claimant's asthmatic condition, as a cause of disablement, cannot be traced to his July 15, 1983 incident. Dr. Kasik reported that claimant was disabled because of bad asthma, but stated that the causal effect was more difficult to ascertain as claimant's problems had been ongoing for many years. The doctor characterized claimant as one of the most unstable asthmatics he had seen in practice. Claimant, himself, testified that anything could set off his asthma. His asthmatic attack most proximate in time to the July 15, 1983 incident was that related to his August 15, 1983 hospitalization. Notes as of that time relate that attack's onset to a farm visit where claimant was exposed to ragweed, pollen and cat dander. Veterans Administration progress notes report that claimant has had multiple exacerbations of his asthma, with those precipitated by multiple stimuli in the environment, including dust, dry air, perfume and cigarette smoke. Hence, even had the July 15, 1983 incident been found an injury arising out of and in the course of claimant's employment, claimant has not established that that incident had any relationship to the status of his ongoing asthmatic condition; nor does that incident appear in any way related to claimant's multiple other medical conditions, all of which predated the July 15, 1983 incident. Likewise, nothing suggests that the July 15, 1983 confusional episode, even had it been found an injury arising out of and in the course of claimant's employment, could he related to claimant's later near seizure or preseizure events. Each such event, like similar events prior to July 15, 1983, appears to have been a separate episode related to claimant's underlying predisposition to seizures on account of his steroid dependent asthmatic condition and not in any way related to the episode of July 15, 1983. Because claimant's July 15, 1983 confusional episode has been found to be an idiopathic condition arising from a risk personal. to claimant, claimant is not entitled to recovery of either medical or other benefits. We note that, had claimant established a temporary aggravation of his preexisting condition through the events of the morning of July 15, 1983, at most claimant would be entitled to recover for medical costs and time off on account of any such temporary aggravation. It appears, however, that there are no medical costs to claimant directly related to the July 15, 1983 episode as the Veterans Administration provided care for the episode. Furthermore, any inability to work from July 15, 1983 onward apparently relates to claimant's underlying condition, that is, his asthmatic propensity to seizures on account of his steroid dependency as well as to claimant's multiple other health problems and not to the confusional episode of July 15, 1983. Hence, temporary total disability benefits would not have been due for that episode, even had a temporary aggravation been found. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant had a history of very severe asthma for which he had either ingested or inhaled steroids drugs. Among the drugs prescribed for claimant is Prednisone. Prednisone is known to produce seizures in susceptible individuals. Claimant had had seizures in 1979 and 1981 for which he had sought and received medical treatment. Claimant had had near or preseizure events both one week before and three days before July 15, 1983. On July 15, 1983, claimant was employed for Charter Coaches, Inc. as a driver who picked up and delivered airplane passengers. On July 15, 1983, claimant reported to work at approximately 4 a.m. On July 15, 1983, claimant did not eat, nor drink, nor take a break from beginning work until leaving work. On July 15, 1983, claimant had to deliver a passenger from Cedar Rapids to Iowa City. Claimant's passenger was an expert in Mexican immigration. Claimant found this upsetting as the subject was one in which claimant had an interest. Claimant did not know the passenger's name. Claimant felt he would be less likely to receive a tip on account of that fact. Claimant did not believe he had received adequate directions as to where to deliver the passenger. Claimant initially delivered the passenger to the wrong location, sought additional directions from his dispatcher, and subsequently delivered the passenger. Upon delivering the passenger, claimant was confused and reported to the Veterans Administration Hospital. An episode such as claimant's work episode of July 15, 1983 might precipitate a seizure in an asthmatic who had hyperventilated. Medical notes of July 15, 1983 do not report any incident in which claimant hyperventilated. Claimant's asthmatic condition was very volatile and could be set off by a multitude of environmental factors including dust, dry air, perfume, cigarette smoke, ragweed pollen and cat dander. Claimant's August 15, 1983 asthmatic hospitalization was the hospitalization most proximate to the July 15, 1983 confusional episode. Claimant's August 15, 1983 asthmatic hospitalization resulted from an asthmatic attack set off after claimant visited a farm at which he was exposed to ragweed pollen and cat dander. Claimant has had multiple other health conditions including rheumatic fever, hiatal hernia, sinusitis, allergic vasculitis and gout. Claimant has been disabled on account of his asthmatic condition, his propensity to seizures and his multiple other medical conditions since July 15, 1983. Claimant's July 15, 1983 episode was an idiopathic episode relating to risks personal to claimant and not an injury which arose out of and in the course of claimant's employment. Claimant's disablement after July 15, 1983 relates to his underlying medical conditions and not to that idiopathic episode, per se. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has not established any injury arising out of and in the course of his employment on July 15, 1983. Claimant has not established that his current disablement related to that alleged injury. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing from this proceeding. Claimant pay costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 29th day of January, 1988. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Kenneth F. Dolezal Attorney at Law 430 Higley Building Cedar Rapids, Iowa 52401 Mr. Scott E. McLeod Attorney at Law 526 Second Avenue SE P.O. Box 2457 Cedar Rapids, Iowa 52406 1100, 1108.50 Filed January 29, 1988 HELEN JEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOSEPH M. HERNANDEZ, Claimant, vs. File No. 745080 CHARTER COACHES, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and CARRIERS INSURANCE COMPANY, Insurance Carrier, Defendants. 1100, 1108.50 Claimant, with history of very severe asthma for which he had taken steroid medication known to predispose one to seizure disorders, did not establish an injury arising out of and in the course of his employment when he had a confusional episode while at work. The seizure condition and the episode were held to be idiopathic and to have arisen from a risk personal to the employee. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CAROL WYMER, Claimant, File Nos. 745312 745314 VS. 745315 JOHN DEERE AND CO., d/b/a A R B I T R A T I 0 N JOHN DEERE OTTUMWA WORKS D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Carol Wymer, claimant, against John Deere and Company, d/b/a John Deere Ottumwa Works, employer and self-insured defendant, for benefits as the result of three alleged injuries which occurred on April 12, 1981, January 5, 1982, and October 21, 1982. A hearing was held in Ottumwa, Iowa, on March 9, 1989 and the case was fully submitted at the close of the hearing. The record consists of the testimony of Carol Wymer, claimant, and joint exhibits 1 through 20. Claimant was represented by Mr. Steven C. Jayne. Defendant was represented by Mr. Roger Ferris. The attorneys should be commended for the good manner in which the exhibits were marked, which included separately marking every page where appropriate. Both attorneys submitted excellent prehearing briefs. Defendant's attorney also submitted a posthearing brief. The hearing deputy ordered a transcript of the hearing. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of all three alleged injuries. That the time off work for which claimant now seeks temporary disability benefits is from April 13, 1981 to July 5, 1981 and again from January 6, 1982 to February 1, 1982. That the type of permanent disability, if the injury is, found to be a cause of permanent disability, is industrial disability to the body as a whole. That claimant's gross weekly earnings are shown on pages two through five of the attachments to the prehearing report and that claimant is single and entitled to three exemptions. WYMER VS. JOHN DEERE OTTUMWA WORKS Page 2 That no claim is made for medical benefits at this time. That in the event of an award, defendant is entitled to an appropriate credit for the nonoccupational group health plan benefits paid to claimant prior to hearing as shown on page 1 attached to the prehearing report. That defendant makes no claim for workers' compensation benefits paid prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on April 12, 1981, January 5, 1982, and October 21, 1982, which arose out of and in the course of employment with employer to include whether the injury of October 21, 1982 is a cumulative injury. Whether any of the alleged injuries were the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits, and if so, the nature and extent of benefits, to include whether or not claimant is an odd-lot employee. Whether claimant filed a timely claim pursuant to Iowa Code section 85.26(l) is asserted by defendant as an affirmative defense with respect to the alleged injury of April 12, 1981. Whether claimant is entitled to the benefit of the discovery rule with respect to the alleged injury of April 12, 1981. What is the proper rate of compensation in the event of an award. SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant testified that she is 38 years old, and has two dependant children. She graduated from high school. She also graduated from beauty school and worked as a beautician for three years. Claimant started to work for employer in May of 1973 handling parts. Later, she worked as a tractor driver and skid hunter, a fork lift driver, a hand trucker and a material handler supplying the line with parts. The fork lift job involved a lot of bouncing around that aggravated her back. The material WYMER VS. JOHN DEERE OTTUMWA WORKS Page 3 handler job involved bending, twisting, lifting and walking. It also involved sliding, shoving, and pulling boxes with her body and stacking heavy rings that weigh 90 to 100 pounds (transcript 13-27). Claimant prepared a card which shows that she handled weights from as low as 12 pounds to as high as 488 pounds (exhibit 5, deposition ex. 1). Employer maintained a record of the jobs performed by claimant from September 26, 1977 to October 21, 1982, at which time claimant was terminated (tr. pp. 29 & 30). Claimant was hospitalized three times in 1980 for back problems and again in February of 1981. Claimant believed that her problem was diagnosed as arthritis (tr. pp. 31 & 32). She was returned to work on February 16, 1981, sanding roll ends for the round baler. Initially she worked under a 15 pound lifting restriction. Eventually she returned to work as a material handler in March of 1981 (tr. pp. 33-38). With respect to first alleged injury, claimant testified that she was hospitalized on April 12, 1981 until May 9, 1981, but that she had no recollection of any traumatic event from slipping, falling or lifting. She does not know of anything unusual that happened at that time (tr. pp. 38 & 39). Claimant said she was treated by D. Dale Emerson, M.D. and Donald D. Berg, M.D., who performed surgery on her back after he took a myelogram (tr. pp. 39-41). Claimant testified that she returned to work on July 6, 1981 as a material handler and that she was feeling fine and pain free at that time. In October of 1981 she was able to work without restrictions (tr. pp. 39-43). With respect to the second alleged injury of January 5, 1982, claimant was admitted to the hospital again by Dr. Berg for a urinary tract infection and back pain. She received therapy and traction and was released from the hospital on January 24, 1982. Claimant testified that she had no recollection of any unusual event such as slipping, falling or picking up an object that might have injured her back. Claimant testified that she returned to work in February of 1982 (tr. pp. 41-46). Claimant was hospitalized again in July of 1982 for back pain and received therapy and traction. She returned to work on August 5, 1982. Previously she had worked on the second shift in the evening, but this time she was put on the day shift. The day shift required two or three times more work than the evening shift and claimant could not keep up. Claimant testified that it was a two man job and it was only a one man job on the evening shift. She testified that she developed hammer toe, a curling up of her toe, from all of the additional walking to supply the line. The evening line was only about one-half block whereas the day line was a full block long. She also developed blisters on her feet on October 6, 1982. Her work caused pain in her lower back and down her leg. She returned to work from the blisters and hammer toe on October WYMER VS. JOHN DEERE OTTUMWA WORKS Page 4 21, 1982 (tr. pp. 46-50). As to the third alleged injury, claimant was released on October 19, 1982 to return to work on October 21, 1982. She reported to work, but could not walk very good and was called to the front office and fired. A disciplinary action dated October 25, 1982, reports that claimant was suspended on October 21, 1982 as being unemployable due to absenteeism after a meeting with company officials and union representatives (tr. pp. 50-53; ex. 1). The disciplinary action hearing shows that claimant was discharged on October 21, 1982 for a high percentage of absenteeism, most of it related to numerous and widely varied illnesses and health conditions (ex. 1). Claimant described that currently she has terrible discomfort, muscle spasm and pain in her lower back and down both legs that shoots up and into her arms, shoulders and hands. She related that she has not had a good nights sleep for over five years. She has difficulty being on her feet and also driving a car (tr. pp. 53 & 54). Claimant told that her daughter was born in late 1979 and after that claimant gained a lot of weight. Her weight increased to approximately 230 to 250 pounds. Claimant testified that she weighed 246 pounds at the time of the hearing (tr. pp. 54 & 55). Claimant said that she could only walk one to one and one-half blocks before she gets severe pain. The pain interferes with her concentration (tr. pp. 56 & 57). Claimant testified that she has looked for all kinds of work as a clerk, gas station attendant, factory worker, receptionist, and beautician, but that she has not been able to find a job in 18 months of searching (tr. pp. 57 & 58). On cross examination, claimant acknowledged that she did not actually sustain an injury on October 21, 1982, but rather that was the day she was fired. She granted also that this was not the first day that she had missed work on account of her back condition. She admitted that she had been missing work due to her back since 1978 and possibly even since 1973. Claimant testified that sometimes her back pain and time lost from work was due to activities at work and sometimes it was due to personal activities outside of work. Claimant said that she would not quarrel with a company record that showed she lost work on August 2, 1974, on account of her back which she believed was due to her work. Claimant testified that she weighed 220 when she started to work for employer, but that she lost much weight on two occasions, but that it had gone back up again since her surgery. She denied that she had hurt her back in high school or in any automobile accidents (tr. pp. 58-65). WYMER VS. JOHN DEERE OTTUMWA WORKS Page 5 A review of the medical evidence reveals, and both parties know, that claimant has suffered a long and difficult health history of not only back pain, but numerous other health conditions as well. Defendant's posthearing brief enumerates 30 instances of situations where claimant received treatment for her back prior to any of these injuries under consideration in this hearing (defendant's posthearing brief pp. 1-6). Most pertinent to this decision is the testimony of Donald D. Berg, M.D., an orthopedic surgeon at Ottumwa, who treated claimant for all three alleged injuries (ex. 7). At his deposition on May 17, 1988, Dr. Berg identified his substantial curriculum vitae and stated that he was a board certified orthopedic surgeon. Dr. Berg related that he first saw claimant when she was hospitalized in the Ottumwa Hospital for pelvic inflammatory disease and back pain in consulation with Dr. Emerson in April of 1981. Dr. Berg testified that he examined the office records of Jack W. Brindley, M.D., which disclosed to Dr. Berg that claimant had a long history of chronic back pain and degenerative disc disease, especially narrowing between L5 and Sl (ex. 7, dep. ex. 2; ex. 7, pp. 7 & 8). Dr. Berg described that his myelogram verified a very large herniated disc at the L4, L5 disc space (ex. 7, p. 8). He removed this disc which had herniated mostly to the right, but also to the left (ex. 7, pp. 11 & 12). Dr. Berg answered that he could not tell when this problem occurred, but he speculated that it could have been there for some time (ex. 7, p. 13). He said that claimant was taken off work by Dr. Emerson on April 13, 1981, and he returned her to work on July 6, 1981, with a 25 pound weight restriction for one month (ex. 7, p. 14). Dr. Berg testified that normally he notes it in his records if he has evidence that a situation is a work-related injury (ex. 7, pp. 16 & 17). He added that he did not feel that this was a work-related injury because he was not given any history of a work-related injury. Furthermore, he has no sheet filled out that this was a workers' compensation claim (ex. 7, pp. 19-21). Dr. Berg testified that he could not say that claimant's job duties caused the disc problem to occur or caused it to flare-up because he had no information that it did (ex. 7, pp. 21 & 22). The following dialogue transpired between claimant's counsel and Dr. Berg: Q. And in summary, you felt that it was possible that her occupational duties with Deere--whatever they were that she was performing at that time--again could aggravate the level of the surgery and produce the symptoms that she was expressing at that time? A. It's a possibility, yes. Q. Well, and in addition to that, she was having WYMER VS. JOHN DEERE OTTUMWA WORKS Page 6 a weight problem, as you recall? A. Yes. Q. And that would also be a factor that would enter into aggravation at this level? A. Yes. I think that's probably the major factor. (ex. 7, pp. 25 & 26) Dr. Berg testified that claimant suffered back pain, leg pain and muscle spasms on January 6, 1982 and again on July 15, 1982 and was hospitalized on both of these occasions. He said that she had been operating a fork lift at that time. He agreed that this type of activity could aggravate her condition (ex. 7, pp. 26-29). Dr. Berg said that he next saw claimant on October 18, 1982 for back pain. At that time he recommended that she lose 75 pounds and have gastric bypass surgery (ex. 7, p. 30). He acknowledged that she might have some scar tissue from the April 1981 surgery, but he felt that the major factor causing her condition was her weight. She was even much heavier a year later in 1983 (ex. 7, pp. 31 & 32). Even when she was no longer working in October of 1983, she continued to have problems (ex. 7, p. 33). He continued to see claimant for back problems on September 12, 1984 and again on February 10, 1988 with the same general complaints (ex. 7, pp. 34 & 35). Dr. Berg stated that claimant had a 10 percent physical impairment. As far as her functional impairment he recommended that she not do extremely heavy lifting (ex. 7, pp. 38 & 39). On October 7, 1985, Dr. Emerson restricted claimant from lifting and carrying 10 pounds. He also stated that continuous sitting would be a severe problem and claimant would need to be able to lie down (ex. 10, p. 1). On December 19, 1986, Dr. Emerson stated that claimant is unable to do any work which requires sitting, lifting or walking (ex. 10, p. 2). With reference to the alleged second injury of January 5, 1982, Dr. Berg made the following office note on January 7, 1982: INTERVAL NOTE: Patient, Carol Wymore [sic], is girl, 31 years of age, who complains of rathermarked [sic] back pain and sid e [sic] pain with history of radiation into her legs but now is not radiating into her legs and more abdominal and side pain and she recently had laminectomy and removal of herniated disc from lumbar spine earlier this year and it was felt that she may be having recurrent sciatica but upon evaluation WYMER VS. JOHN DEERE OTTUMWA WORKS Page 7 today, 1/7/82, I feel she may be having evidence of urinary tract infection and so patient was admitted [sic] and placed at bed rest and will be seen in consultation by regular family physician, Dr. Emerson. PHYSICAL EXAMINATION: Reveals negative straight leg raise and reflexes are present and equal. RESTOF [sic] PHYSICAL EXAMINATION: PAST MEDICAL HISTORY: Unchanged from her recent hospitalizations. CLINICAL IMPRESSION: Urinary infection with back pain probably secondary to this urinary tract infection. (ex. 13, p. 5) With respect to the alleged injury of October 21, 1982, Dr. Berg wrote the following information on October 18, 1982: Patient Carol Wymer was seen and evaluated concerning recurrent back pain and sciatic pain. She works for John Deere and is markedly overweight. She has had a previous laminectomy at L4-5 and is now having recurrent sciatic pain and tenderness in the plantar surface of both feet. Recommended she use metatarsal pads in her shoes and also recommend she lose about 75 pounds and possibly seek help in regard to this with a gastric bypass operation. She is to think about this and will see a general surgeon to see if this is what she desires to do. I feel her only chance to improve is with weight loss. Also recommended she stay off work for about three days. (ex. 11, p. 4) Claimant's counsel wrote a lengthy letter to Dr. Berg on May 7, 1987 (ex. 11, p. 6). Dr. Berg's reply on May 14, 1987 was as follows: Dear Attorney Jayne: I reviewed your letter written May 4, 1987 regarding Carol Wymer and would state that on the 2nd page that the word probable should be changed to possible. I cannot, with reasonable medical certainty, state that that is a probable cause was her occupational duties. There is a possibility that they were involved but I have no history of definite date of injury WYMER VS. JOHN DEERE OTTUMWA WORKS Page 8 and it would be impossible that that is a probable cause. Further on down the page at about the 4th paragraph, I feel that a major contributing factor as far as her symptoms were concerned is her weight and would only state that possibly her work may have aggravated [sic] her situation but I could not state with any degree of medical certainty that this is the probable cause. On your question that you posed at the end of your letter whether in my opinion there is a relationship between the conditions noted in October 1983 and the residuals of the April/May 1981 surgery, I would state it is probably no. The only possible relationship would be that she may have had some scar tissue formation present. I think her major factor in this situation is her being overweight which continues to cause a stain [sic] on her back. (ex. 11, p. 9) APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injuries on April 12, 1981, January 5, 1982 and October 21, 1982, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The claimant has the burden of proving by a preponderance of the evidence that the injuries of April 12, 1981, January 5, 1982 and October 21, 1982 are causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital., 251 Iowa 375, WYMER VS. JOHN DEERE OTTUMWA WORKS Page 9 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained injuries on April 12, 1981, January 5, 1982 and on October 21, 1982, that arose out of and in the course of employment with employer. Dr. Berg was confronted on several occasions point blank with the question of whether claimant's back pain was caused by her employment. Dr. Berg always responded that it was possible, but he said that there was no way that he could say that her back injury or injuries were probably caused by her employment or were probably aggravated by her jobs at work. On the contrary, Dr. Berg clearly stated that the major factor or cause of claimant's back complaints was her weight (ex. 7, pp. 21 & 22, 25 & 26, 26-29; ex. 13, p. 5; ex. 11, p. 2; ex. 11, p. 9). As to the alleged injury of April 12, 1981, Dr. Berg said in his deposition that it was possible that her work for employer could aggravate or produce these symptoms that she experienced in April of 1981, but that claimant's weight was probably the major factor (ex. 7, pp. 25 & 26). As to the alleged injury of January 5, 1982, the most that Dr. Berg could say was that the fork lift job "could" aggravate her condition (ex. 7, pp. 26-29). The doctor's office note on January 7, 1982, clearly shows that he determined that claimant had a urinary tract infection with back pain secondary to the urinary tract infection (ex. 13, p. 5). It is a well known principle in workers' compensation law as to causation that a possibility is insufficient, a probability is necessary. Claimant points out that if the available expert testimony is insufficient alone to support a finding of causal connection, then such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere vs. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911 (1966). However, in this case, a review of all of the evidence--medical evidence or nonexpert evidence--does not produce any sufficient evidence that would warrant a finding that claimant's work caused these three alleged injuries. WYMER VS. JOHN DEERE OTTUMWA WORKS Page 10 On the contrary, claimant herself testified that she could not describe any occurrence, event or incident, such as a slip, fall, or lifting, that injured her back (tr. pp. 38 & 39, 44-46, 50-53 and 58 & 59). Her statement that she had to walk one block on the day shift as compared to a half block on the evening shift is not sufficient to make a determination that this walking caused a back injury. Her primary complaint from this walking was blisters on her feet and hammer toe (tr. p. 49). As to the alleged injury of October 21, 1982, claimant admitted that there was no actual event or incident of injury that occurred on that date. Dr. Berg further testified that even though claimant might have had some recurrence from scar tissue from the surgery in April of 1981, he felt that the major factor was her weight (ex. 7, pp. 31 & 32). At that time he recommended to claimant that she loose 75 pounds and consider having a gastric bypass operation. He said that her only chance to improve is with weight loss (ex. 11, p. 2). Dr. Berg bolstered his opinion by testifying that even after claimant had terminated her employment in October of 1981 and was no longer an employee of employer, she nevertheless, continued to have back complaints on September 12, 1984, and again on February 10, 1988 because she had maintained her excessive weight (ex. 7, pp. 34 & 35). In his letter to claimant's counsel on May 14, 1987, Dr. Berg repeated and compounded his steadfast opinion that he could not say :that claimant's condition was caused by her occupational duties. He acknowledged it was possible, but he had no history of a definite injury date and that it would be impossible that her occupational duties were a probable cause. In the second paragraph of this letter he restated that it was possible her work may have aggravated her situation, but he could not say that it was a probable cause. The major contributing factor was her weight. In the final paragraph of this letter, he ruled out that later back complaints in 1983, were the residuals of the surgery in April of 1981. Again, he said that the major factor is her overweight condition which continues to put a strain on her back (ex. 11, p. 9). Moreover, even if claimant had established a cumulative injury, which she did not do, there is no legal authority at this time which states that the date of the injury is the date that an employee is terminated from employment for absenteeism due to an inordinate number of other health problems. Since claimant failed to prove an injury arising out of and in the course of employment, then all of the other issues in the case are now moot and will not be addressed. Likewise, since claimant did not prove that any of her back complaints were caused by her employment, it is not possible to find a cumulative injury on October 21, 1982. Moreover, even if claimant WYMER VS. JOHN DEERE OTTUMWA WORKS Page 11 had established a cumulative injury., which she did not do, there is no legal authority at this time which states that the date of injury is the date that an employee is terminated from employment for absenteeism due to an inoridnate number of health problems. In McKeever Custom Cabinets vs. Smith, 379 N.W.2d 368 (Iowa 1985), Smith introduced evidence of a number of minor cumulative traumas from pounding with a hammer in his occupation as a carpenter for several years. There was no such similar corresponding evidence of numerous cumulative traumas in the evidence introduced in this case. Dr. Berg ruled out bouncing on the fork lift as a probable. cause of aggravation of her back condition. The issues of the nature and extent of temporary and permanent disability, the proper rate of compensation, the odd-lot doctrine and the statute of limitations with respect to the discovery rule then are now moot issues. The weight of the evidence is that claimant's back complaints and many of her other health problems are due the condition of being overweight. Hopefully she will be able to find help for this problem. Claimant did not sustain the burden of proof by a preponderance of the evidence that her back complaints were caused by her work. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made. That Dr. Berg, claimant's treating physician, testified that claimant's back problems were possibly due to her work, but he could not testify that they were probably due to her work. Dr. Berg further testified that he believed that claimant's back problems were due to her overweight condition. That there was no nonexpert evidence or any other evidence coupled with the testimony of Dr. Berg that her work possibly caused her back complaints which support the proposition that her work caused her back complaints. Claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury to her back on April 12, 1981, January 5, 1982 or October 21, 1982, that arose out of and in the course of her employment with employer. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made. WYMER VS. JOHN DEERE OTTUMWA WORKS Page 12 That claimant did,not sustain this burden of proof by a preponderance of the evidence that she sustained and injury on April 12, 1981, January 5, 1982 or October 21, 1982, that arose out of and in the course of her employment with employer. ORDER THEREFORE, IT IS ORDERED: That no amounts are due from defendant to claimant. That since there is no award that there can be no credits allowed under Iowa Code section 85.38(2). That the costs of this proceeding, including the cost of the transcript, are charged to claimant pursuant to Iowa Code section 86.19(l) and Division of Industrial Services rule 343-4.33. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 30th day of May, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steven Jayne Attorney at Law 5835 Grand Ave STE 201 Des Moines, IA 50312 Mr. Roger Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, IA 50309 51106, 51108.50, 51401, 51402.2; 51402.30, 51402.40, 51402.60 Filed May 30, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CAROL WYMER, Claimant, File Nos. 745312 745314 vs. 745315 JOHN DEERE AND CO., d/b/a A R B I T R A T I 0 N JOHN DEERE OTTUMWA WORKS, D E C I S I 0 N Employer, Self-Insured, Defendant. 51106, 51108.50, 51401, 51402.20, 51402.30, 51402.40, 51402.60 Grossly overweight claimant, with long-term chronic bad back, could not describe a specific event for any of her three alleged back injuries. The treating physician said several times claimant's work did not cause any of her three alleged back injuries. He clearly stated all three alleged injuries were due to her overweight condition and recommended gastric bypass surgery.