BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN L. HOFFMANN, Claimant, File No. 760418 vs. A P P E A L NATIONAL FARMERS ORGANIZATION, D E C I S I O N Employer, and CIGNA INSURANCE COMPANIES, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an order dismissing his petition for benefits as the result of an alleged injury on April 20, 1982. The record on appeal consists of the order of dismissal and all filings of the parties. Both parties filed briefs on appeal. ISSUE Claimant states the following issue on appeal: "Should Claimant's case be dismissed based upon an alleged failure to proceed with his case in a timely fashion?" Defendants state the following issues on appeal: "(1) whether or not dismissal of claimant's action by Deputy McSweeney on November 20, 1987, was appropriate; and, (2) whether Deputy McSweeney's denial of rehearing on December 15, 1987, was appropriate." REVIEW OF THE EVIDENCE This appeal is based on rulings by the deputy industrial commissioner dismissing claimant's petition and denying rehearing on the dismissal. Claimant filed his original notice and petition on April 18, 1984. A prehearing conference was held on April 7, 1986. At that time, claimant's attorney indicated he was having difficulty HOFFMANN V. NATIONAL FARMERS ORGANIZATION Page 2 in obtaining claimant's cooperation. As a result of that conference, a prehearing order was issued requiring claimant to file a statement within 30 days indicating he intended to pursue the case, and to answer defendants' interrogatories within 30 days. Claimant did comply with this order. Another prehearing conference was held on December 19, 1986. A prehearing order was issued on December 31, 1986, continuing the case for completion of discovery. A third prehearing conference was held on October 29, 1987. A prehearing order filed October 30, 1987 recited that defendants would be moving to dismiss the case. On November 2, 1987, defendants filed a motion to dismiss under Iowa Division of Industrial Services Rules 343-4.34 and 343-4.36, alleging that three and one-half years had elapsed since the filing of the petition, and claimant had failed to prosecute his case. On December 7, 1987, claimant filed a combination notice of appeal and request for "reconsideration" of the dismissal. Claimant amended this document on December 10, 1987, by filing a copy of a physicians' report. Defendants filed a resistance to the motion for reconsideration, reciting that claimant had not shown any good cause for his failure to prosecute the case. On December 15, 1987, the deputy treated claimant's motion for reconsideration as a motion for rehearing, and overuled the motion. On December 21, 1987, claimant filed a new notice of appeal. APPLICABLE LAW Division of Industrial Services Rule 343-4.34 states in part: Dismissal for lack of prosecution. It is the declared policy that in the exercise of reasonable diligence, all contested cases before the industrial commissioner, except under unusual circumstances, shall be brought to issue and heard at the earliest possible time. To accomplish such purpose the industrial commissioner may take the following action: 4.34(1) Any contested case, where the original notice and petition is on file in excess of two years, may be subject to dismissal after the notice in 4.34(2) is sent to all parties and after the time as provided for in the notice. 4.34(2) After the circumstances provided in 4.34(1) occur, all parties to the action, or their attorneys, shall be sent notice from the division of industrial services by certified mail containing the following: a. The names of the parties; HOFFMANN V. NATIONAL FARMERS ORGANIZATION Page 3 b. The date or dates of injury involved in the contested case or appeal proceeding; c. Counsel appearing; d. Date of filing of the petition or appeal; e. That the contested case proceeding will be dismissed without prejudice on the thirtieth day following the date of the notice unless good cause is shown why the contested case proceeding should not be dismissed. Division of Industrial Services Rule 343-4.36 states: If any party to a contested case or an attorney representing such party shall fail to comply with these rules or any order of a deputy commissioner or the industrial commissioner, the deputy commissioner or industrial commissioner may dismiss the action. Such dismissal shall be without prejudice. The deputy commissioner or industrial commissioner may enter an order closing the record to further activity or evidence by any party for failure to comply with these rules or an order of a deputy commissioner or the industrial commissioner. ANALYSIS The record clearly establishes that subsequent to the filing of claimant's petition, little action was taken by claimant to pursue this case. Even after the motion to dismiss was filed, claimant failed to file a resistance to the motion, but instead waited until after the motion to dismiss was granted before filing a motion to reconsider. Claimant's motion to reconsider failed to show good cause for the failure to prosecute, but rather merely submitted a doctor's report. No explanation for the failure to prosecute the case was given. It is impossible to determine from the deputy's order what conclusions he relied on in determining that claimant's petition should be dismissed. The deputy's order also failed to state what rule or authority he relied on in dismissing the petition. The deputy merely concludes that defendants' motion was "persuasive," without explanation of why the petition should be dismissed. A perusal of the file does not indicate that any rule or order of this agency was not complied with by claimant and thus the order of dismissal would not appear to be predicated on Rule 343-4.36. HOFFMANN V. NATIONAL FARMERS ORGANIZATION Page 4 Rule 4.34 enunciates a public policy that workers' compensation cases be handled expeditiously. The effectiveness of the workers' compensation adjudication system depends on a timely and orderly processing of contested cases. Claimant's lack of reason or excuse for letting this case pend more than three years subverts that public policy goal. However, although the merits of this case certainly justify the deputy's dismissal, procedurally rule 4.34 was not complied with. Rule 4.34 contemplates a notice to the parties that the case has been pending more than two years, and that the case is subject to dismissal for lack of prosecution. The file indicates that such a notice was not issued to the parties in this case. For that reason, the deputy's dismissal of the action was premature. FINDINGS OF FACT 1. Claimant's petition was filed April 18, 1984. 2. Claimant's petition was dismissed on November 20, 1987. 3. Claimant did not receive a notice pursuant to Division of Industrial Services Rule 4.34 that his petition was subject to dismissal for lack of prosecution. CONCLUSION OF LAW The dismissal of claimant's petition was improper. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, claimant's petition is hereby reinstated. The costs of the appeal are charged to defendants. Signed and filed this 31st day of January, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER before the iowa industrial commissioner ____________________________________________________________ : JOHN L. HOFFMANN, : : Claimant, : : vs. : : File No. 760418 NATIONAL FARMERS ORGANIZATION,: : A P P E A L Employer, : : D E C I S I O N and : : AETNA LIFE AND CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 30, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Jeffrey G. Flagg Attorney at Law 2716 Grand Ave. Des Moines, Iowa 50312 Mr. Charles E. Cutler Attorney at Law 729 Insurance Exchange Bldg. Des Moines, Iowa 50309 9998 Filed October 28, 1991 Byron K. Orton WRM before the iowa industrial commissioner ____________________________________________________________ : JOHN L. HOFFMANN, : : Claimant, : : vs. : : File No. 760418 NATIONAL FARMERS ORGANIZATION,: : A P P E A L Employer, : : D E C I S I O N and : : AETNA LIFE AND CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed April 30, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOHN L. HOFFMANN, : : Claimant, : : vs. : : File No. 760418 NATIONAL FARMERS ORGANIZATION,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA LIFE AND CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration filed by John L. Hoffmann, claimant, against National Farmers Organization, employer, and Aetna Life and Casualty, insurance carrier, defendants, for benefits as the result of an alleged injury which occurred on April 21, 1982. The original notice and petition designated the hearing request as one for arbitration and also review-reopening. At the hearing, however, claimant deleted the request for a review-reopening and requested that the hearing be designated as an arbitration hearing (transcript pages 3 and 4). A hearing was held in Des Moines, Iowa, on December 12, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented by Jeffrey G. Flagg. Defendants were represented by Frank T. Harrison. The record consists of the testimony of John L. Hoffman, claimant; Carol B. Hoffmann, claimant's wife; Garland Fickess, employer's administrative assistant; and Rene Niese, trust administrator; claimant's exhibits 1 through 309, 400 through 423, and 438 through 599; and defendants' exhibits A through G. Defendants presented a statement of defendants' contentions at the time of hearing. The deputy ordered a copy of the transcript of the hearing. Both attorneys submitted excellent posthearing briefs. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on April 21, 1982, which arose out of and in the course of employment with employer. Whether the injury was the cause of either temporary or permanent disability. Page 2 Whether claimant is entitled to temporary or permanent disability benefits, and if so, the nature and extent of benefits to which he is entitled. Whether claimant is entitled to medical benefits. Whether claimant gave timely notice of claim as required by Iowa Code section 85.23 has been asserted as an affirmative defense by defendants. preliminary matters The hearing assignment order shows that one of the designated hearing issues is whether defendants are entitled to a credit under Iowa Code section 85.38(2). However, the parties stipulated on the record that defendants were entitled to a credit for medical benefits paid under an employee group health plan in an undetermined amount and that defendants would be entitled to a credit for wages paid to claimant from the alleged date of injury, April 21, 1982, to the end of 1982 and then for the first 19 weeks in 1983 (tr. pp. 6-9). Findings of fact injury It is determined that claimant sustained an injury to his left elbow which arose out of and in the course of employment with employer on or about April 21, 1982. It is determined that claimant did not sustain an injury to his groin which caused a hernia on or about April 21, 1982, which arose out of and in the course of employment with employer. It is determined that claimant did not sustain an injury to his back on or about April 21, 1982, which arose out of and in the course of employment with employer. Claimant testified and submitted other evidence asserting that, "[I] tore the tendon in my left elbow, herniated myself and caused back damage, slipped disk and herniated disk in the back." (tr. p. 27), while lifting luggage out of the rear trunk of a rented car upon returning home from a business trip (claimant's exhibit 496 & 524). Even though claimant initially reported that the injury occurred at Manhattan, Kansas, on April 20, 1982, and then changed the date and place to April 21, 1982, at Corning, Iowa, and even though the treating physician, William R. Hamsa, Jr., M.D., reported that claimant told him that the injury occurred on March 25, 1982, it is, nevertheless, determined that claimant did sustain an injury to his left elbow on or about April 21, 1982, for the reason that he did seek treatment from Dr. Hamsa on April 22, 1982, for his only office visit concerning this injury (cl. ex. 247). Dr. Hamsa reported that during this man's employment he lifted a heavy case from his trunk and experienced a tearing sensation about the lateral side of the left elbow and that Page 3 he has had pain in this region with difficulty in using his wrist. Dr. Hamsa said that x-rays of the elbow were normal and he diagnosed traumatic lateral epicondylitis of the left elbow, job related (cl. ex. 247). Claimant has sustained the burden of proof by a preponderance of the evidence that he sustained a left elbow injury because his testimony is corroborated by Dr. Hamsa in his medical report (cl. ex. 247). It is further noted that Dr. Hamsa makes absolutely no mention of any complaints of any kind about an injury to claimant's groin or to his back. Claimant maintained that he reported the groin injury to Dr. Hamsa, but Dr. Hamsa said that claimant would have had to see some other doctor for that particular complaint. Claimant made a telephone call to Dr. Hamsa some five years later and Dr. Hamsa recorded this on May 15, 1987, as follows: Phone call from patient who is now in New York. He wants me to go over his records which I have done. He is concerned there is some type of inguinal hernia or rupture problem that he mentioned to me. Our records make no mention of this at all. He has apparently seen Dr. Kirchner with this in the past and I suggest he will have to visit with him about that. (claimant's exhibit 247) Thus, Dr. Hamsa disclaimed any knowledge that claimant reported hernia complaints to him on April 22, 1982, the only time that he saw and treated claimant. Claimant did not allege that he sought any further treatment for his left elbow and there is no evidence in the entire record that claimant did seek any further treatment for his left elbow traumatic epicondylitis. Subsequently, claimant was hospitalized in Omaha from June 2 to June 7, 1982, for chest pain, hypertension and gastrointestinal problems (cl. ex. 248-400). Prior to this injury, claimant received a physical examination at the Mayo Clinic in March of 1981, which disclosed, "...an exaggerated impulse in the left inguinal region." (cl. ex. 241). John R. Kirchner, M.D., who treated claimant at the time of his hospitalization on June 2, 1982, also found, "...a very small impulse bulge in the inguinal canal which represented a[n] early left inguinal hernia." (cl. ex. 248). Thus, it would appear that the predisposition for a left inguinal hernia was essentially unchanged in June of 1982 after the alleged groin injury. Claimant opted to have his hernia repaired on June 7, 1983, by Sherman Bull, M.D., and a left inguinal herniorrhaphy was performed on that date (cl. ex. 401). Dr. Bull's notes disclose: A 49 year old married white male financial consultant admitted for elective repair for left inguinal hernia. The patient has noted a left Page 4 groin bulge for the past 4 weeks. There has been increasing discomfort with no history of incarceration.... (claimant's exhibit 402) Thus, it would appear that claimant's left inguinal impulse did not become a bulge or an active hernia until four weeks prior to February 7, 1983, which would be approximately January 7, 1983, which is approximately eight or nine months after the alleged injury date of April 21, 1982. Dr. Bull does not mention the lifting incident of April 21, 1982, in either his surgical report or his medical notes (cl. exs. 401 & 402). Claimant was next seen by Joseph Gromults, M.D., an internist, who hospitalized claimant from April 11, 1983 to April 26, 1983, for prolonged diarrhea, nausea and testicular pain and swelling (cl. ex. 405). Dr. Gromults requested Robert Lovegrove, M.D., a urologist, to perform an observation cystoscopy for a suspected benign prosatic hyperplasia on April 22, 1983. The cystoscopy demonstrated a bladder neck constriction. Dr. Gromults requested a colonoscopy to be performed by William Pintauro, M.D., a gastroenterologist, which showed an essentially normal colon. Dr. Gromults diagnosed, "Bladder neck constriction. Diarrhea, due to adverse effect of medication (Tenormin). Non infectious hepatitis. Type 2-B hyperlipoproteinemia. Hypertension." (cl. ex. 406). Dr. Gromults does not attribute any of these problems to the lifting incident on April 21, 1982, or to the herniorrhaphy performed by Dr. Bull. Claimant was hospitalized again on September 22, 1983, for surgery by Dr. Lovegrove for bladder neck contracture with residual urine and obstructive uropathy. He performed a cystoscopy and transurethral resection of the prostate (cl. ex. 408). No mention is made of the lifting injury of April 21, 1982, or the herniorrhaphy performed on February 7, 1983. Claimant was hospitalized again by Dr. Gromults on February 5, 1985, on an emergency basis for right flank pain with radiation to the penis. Dr. Gromults diagnosed right renal colic and diabetes mellitus, adult onset (cl. ex. 410 & 411). No mention is made of the injury of April 21, 1982 or claimant's groin complaints and previous herniorrhaphy. Claimant began treating with Ira Cliff Schulman, M.D., on April 10, 1984. He reviewed claimant's extensive medical history on January 31, 1985. Dr. Schulman concluded, "As noted in the history, I cannot ascertain which if any of his medical problems stem from his employment with National Farmers Organization and hope this can be clarified by the physicians who have followed him subsequent to April of 1984." (cl. ex. 413). Dr. Schulman changed his opinion on December 8, 1987, by stating: As you will note, he was in fairly good medical health until April 21, 1982, when returning from a Page 5 business trip he suffered the development of the left inguinal hernia which was subsequently repaired in February of 1983 at St. Joseph's Hospital. He has subsequently been totally incapacitated from a multiplicity of medical problems all of which appear to begin with his hernia. The extensive and difficult medical and surgical course, which has resulted from the hernia repair is outlined for your referral and I submit this to be considered on the basis of Workman's Compensation. (claimant's exhibit 420) Dr. Schulman summarized claimant's health condition on October 11, 1989, as (1) hypothyroidism for which he takes Synthroid daily; (2) profound peripheral neuropathy of unclear etiology; (3) bilateral cataracts of unclear etiology; (4) hypertension; (5) sexual impotence; and (6) urinary dysfunction (cl. ex. 421). On November 7, 1989, Dr. Schulman stated, "I believe the initiating event dates back to his hernia repair which apparently occurred subsequent to his injury." (cl. ex. 423). It is noted that Dr. Schulman did not specifically state that the lifting incident of April 21, 1982, caused a groin injury or caused the herniorrhaphy. The fact that claimant's problems date back to the herniorrhaphy are of no consequence because it has not been established that the lifting incident of April 21, 1982, was the cause of a groin injury or the herniorrhaphy. A closely contested case, such as this one, which has such far reaching consequences, requires a more clear and unequivocal statement of causal connection to support an injury arising out of and in the course of employment from the lifting incident of April 21, 1982. Claimant was examined for defendants by Paul From, M.D., an internist, who made a report on September 26, 1989. He found the epicondylitis to be healed. He found that claimant's numerous physical problems were not related to the lifting incident of April 21, 1982, in these words: I do not believe the injury would have been related, in any way, to the long list of diagnoses and problems he has had, but believe these are all secondary to overweight, hypertension, being a "hot reactor", and having alcohol abuse and other degenerative problems as described. (claimant's exhibit 439) Although Dr. From found that the injury did aggravate the preexisting left inguinal hernia, his conclusion is not supported by the medical evidence cited above and is, therefore, rejected. In particular, both before and after this injury, claimant only had an inguinal impulse and he told Dr. Bull that the bulge occurred four weeks before February 7, 1983, which is nine months after the alleged injury. Dr. From made a list of 26 diagnoses of claimant Page 6 from childhood to the date of his report (cl. ex. 441). He also traced claimant's medical history from the Mayo Clinic physical examination in March of 1981 through May 27, 1989 (cl. exs. 443-445). Claimant did not develop a disc bulge in his lumbar spine until May 27, 1989 (cl. ex. 445). Claimant was awarded social security disability benefits dating back to January 10, 1983. However, this determination is based on claimant's overall health condition and not specifically the lifting incident of April 21, 1982. The fact the administrative law judge felt that claimant's medical problems related to the hernia operation on February 7, 1983, does not affect this decision because claimant did not establish for the purposes of this case that he received a groin injury on April 21, 1982, or that this lifting injury was in any way otherwise responsible for the herniorrhaphy (cl. exs. 503-507). Dr. From gave a deposition on November 29, 1989, in which he reversed his opinion in his letter of September 26, 1989, by stating, "I don't believe there's any connection between the lifting incident in 1982 and the onset of his hernia in 1983." (defendants' ex. B, p. 10). Dr. From further testified that the bulge that appeared four weeks prior to the surgery on February 7, 1983, was when claimant's hernia predisposition noted at the Mayo Clinic in 1981 became symptomatic (def. ex. B, pp. 11 & 12). He said the epicondylitis was caused by the injury on April 21, 1982 (def. ex. B, p. 14), but none of the other conditions in claimant's 26 diagnoses were related to the lifting episode of April 21, 1982 (def. ex. B, pp. 14 & 15). From the foregoing evidence, it is determined as a matter of fact that claimant did sustain an injury on April 21, 1982, to his left elbow; but did not sustain an injury to his groin or left inguinal area or to his back on April 21, 1982. causal connection-entitlement-temporary disability-permanent disability It is determined that the injury of April 21, 1982, to claimant's left elbow was not the cause of any temporary disability or permanent disability and that claimant is not entitled to any temporary or permanent disability benefits. With respect to emporary disability, Dr. Hamsa stated that claimant continued to work despite his symptoms. Therefore, claimant lost no time from work. Furthermore, it was stipulated by the parties that claimant was paid his full wages from April 21, 1982 to December 31, 1982 and 19 weeks in 1983 and defendants would be entitled to a credit for that period of time. With respect to permanent disability, claimant was only treated once for the epicondylitis. No doctor issued an impairment rating. Claimant had no further complaints about his left elbow. Therefore, it is determined that claimant has not sustained any permanent disability. Page 7 Medical benefits It is determined that claimant is entitled to $50 in medical expense for the bill of Dr. Hamsa for the office call of April 22, 1982, in the amount of $50 (consultation $25, x-ray $25, total $50) (cl. ex. 1). Dr. Hamsa said the injury occurred on March 25, 1982. Even though the statute of limitations for filing a claim [Iowa Code section 85.26(1)] would have expired at the time of the filing of this claim, the statute of limitations was not asserted as an affirmative defense in this case. Deputies only hear issues which are pled, raised at the prehearing conference and are designated as hearing issues on the prehearing report. Presswood v. Iowa Beef Processors, file number 735442 (Appeal Decision 1986). Therefore, this injury to the left elbow is not barred by the two-year statute of limitations [Iowa Code section 85.26(1)] and defendants are liable for this $50 medical expense. notice It is determined that claimant did give notice as required by Iowa Code section 85.23. Defendants did not sustain the burden of proof by a preponderance of the evidence that claimant failed to give notice or that they did not have actual notice of the injury within 90 days after its occurrence. Claimant testified that he notified Geraldine Chrysler, personnel manager, and told her the exact same story that he related in his testimony at the hearing. Claimant testified that she said that she would take care of it (tr. pp. 28-30). Defendants, through the testimony of Garland Fickess, administrative assistant, established that she did not receive a report of injury from claimant until December 9, 1983, nevertheless, defendants never rebutted or refuted the testimony of claimant that he reported the accident to Geraldine Chrysler on the date that it occurred. Claimant explained that he only contacted Fickess on December 9 to make sure that a report of injury had been filed (tr. p. 77). The fact that the initial first report of injury showed an injury date of April 20, 1982, at Manhattan, Kansas, and claimant later amended that to April 21, 1982, at Corning, Iowa, are simply inconsequential details and do not prove that claimant failed to report the injury as he testified. If defendants wanted to refute claimant's testimony they should have produced Geraldine Chrysler or explained why her testimony was not produced. Therefore, it is determined that claimant gave notice to Geraldine Chrysler on the day the injury occurred on April 21, 1982, and defendants did not prove that claimant failed to give notice as required by Iowa Code section 85.23. conclusions of law Wherefore, based on the evidence presented and the Page 8 foregoing and following principles of law, these conclusions of law are made: That claimant did sustain an injury to his left elbow on April 21, 1982, which arose out of and in the course of employment with employer; that claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury to his groin or to his back on April 21, 1982. Iowa Code section 85.3(1); 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). Claimant did not sustain the burden of proof by a preponderance of the evidence that the injury to his left elbow on April 21, 1982, was the cause of either temporary or permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945); Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). That claimant is not entitled to either temporary or permanent disability benefits. Iowa Code section 85.34(1)(2). That claimant is entitled to $50 in medical expenses for the charges of Dr. Hamsa. Iowa Code section 85.27. That defendants did not sustain the burden of proof by a preponderance of the evidence that claimant failed to give notice as required by Iowa Code section 85.23. DeLong v. Highway Commissioner, 229 Iowa 700, 295 N.W. 91 (1940); Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc., Thirty-third Biennial Report of the Industrial Commissioner 191 (Appeal Decision 1977). order THEREFORE, IT IS ORDERED: That no amounts are owed by defendants to claimant for weekly workers' compensation benefits. That defendants pay to claimant or the provider of medical services fifty dollars ($50) in medical expenses for the charges of Dr. Hamsa on April 22, 1982. That defendants are entitled to a credit for this charge in the event this charge is one of the undetermined charges that the parties stipulated that defendants had paid from the employee nonoccupational group health plan prior to hearing (tr. p. 6). That each party is to pay their own separate costs of this action with the exception that defendants are ordered to pay for the cost of the attendance of the court reporter at hearing and the transcript of the hearing. Rule 343 IAC 4.33. That defendants file any claim activity reports that Page 9 may be requested by this agency. Rule 343 IAC 3.1. Signed and filed this ____ day of April, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jeffrey G. Flagg Attorney at Law 2716 Grand Ave Des Moines, Iowa 50312 Mr. Frank T. Harrison Attorney at Law 2700 Grand Ave. STE 111 Des Moines, Iowa 50312 BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD L. WILSON, Claimant, File Nos. 760432, VS. 760433 & 760434 PARKER BROTHERS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANIES, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Richard L. Wilson, claimant, against Parker Brothers, Inc., employer (hereinafter referred to as Parker Brothers), and Liberty Mutual Insurance Companies, insurance carrier, defendants, for workers' compensation benefits as a result of alleged injuries on September 30, 1982, March 11, 1983 and September 10, 1983. On June 14, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and the following witnesses: Roger Marquardt and Richard Meier. The exhibits received into the evidence at the hearing are listed in the prehearing report. Subsequent to hearing, the parties withdrew exhibit 19 which is now a part of exhibit 3. According to the prehearing report, the parties have stipulated to the following matters: 1. At the time of the alleged injuries an employer/employee relationship existed between Parker Brothers and claimant. 2. Claimant is seeking temporary total disability or healing period benefits from October 1, 1982 through January 3, 1983, March 14, 1983 through September 6, 1983 and from September 9, 1983 through the present time. WILSON V. PARKER BROTHERS, INC., Page 2 3. For purposes of computing claimant's rate of weekly compensation, claimant was married and entitled to three exemptions. 4. The medical bills submitted by claimant at hearing were fair and reasonable and causally connected to the medical condition upon which the claim herein is based but that the issue of the causal connection of this condition to a work injury remains in dispute. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. Whether there is a causal relationship between any of the alleged work injuries and the claimed disability; III. The extent of claimant's entitlement to weekly benefits for disability; IV. The rate of compensation to which claimant is entitled; and, V.The extent of claimant's entitlement to medical benefits. SUMMARY OF THE EVIDENCE The following is a brief summary of the more pertinent evidence submitted in this proceeding. Whether or not specifically referred to in these statements, all of the evidence received at the hearing was reviewed and considered in arriving at this decision. Any conclusionary statements in the following summary should be considered as preliminary findings of fact. The claimant, Richard L. Wilson, is 43 years old and has an eleventh grade education. He began working at Parker Brothers in 1967 and last worked there in September of 1983. The claimant worked in the shipping department the entire time he was employed by Parker Brothers. In 1974, the claimant became a clamp truck operator at Parker Brothers. A clamp truck is similar to a forklift truck. The claimant would sit while driving the clamp truck which was operated by the use of the right foot on a gas pedal and brake. occasionally, the claimant would be required to get off of the clamp truck in order to fill orders by hand when there was an odd number of items in the order. WILSON V. PARKER BROTHERS, INC., Page 3 The claimant was first diagnosed as having insulin dependent diabetes mellitus at age 23 in 1968. As a complication of his diabetes, the claimant has a condition called diabetic neuropathy which in claimant's case is a loss of sensation in the lower extremities. As a result of this diabetic neuropathy, the claimant has open sores on his feet called neurogenic foot ulcers. The claimant has had ulcers on his feet since 1977. The claimant is obese. He has had and continues to have hypertension. There have been many occasions where the claimant's diabetes has not been well controlled. On August 11, 1979, the claimant went on medical leave for three weeks from Parker Brothers because of his diabetes. On October 5, 1980, the claimant was admitted to Clarke County Hospital and was described as being unresponsive, with no respiration, no blood pressure but a pulse was found with carotid palpitation. The impressions of the Emergency Room physician, Robert Good, D.O., were diabetic ketoacidosis with metabolic acidosis, metabolic encephalopathy with secondary seizure activity, severe dehydration with hypovolemic shock, large pressure ulcer-left foot and possible alcohol abuse. Diabetic ketoacidosis is caused by a failure to take the proper amount of insulin. The claimant was transferred to Iowa Methodist Medical Center via helicopter. The claimant was treated at Iowa Methodist than discharged October 24, 1980. It was noted that the claimant had a bilateral peripheral neuropathy. The claimant returned to work on November 10, 1980. The claimant was again admitted to Clarke County Public Hospital on November 19, 1980, in a comatose condition. The diagnosis was acute hypoglycemic reaction secondary to insulin and diabetic neurogenic ulcer of the left 'Loot. While he was in the hospital a surgical debridement of the claimant's left foot was performed and a bacterial culture of the left foot was found to be positive. The claimant gave a history of periodic ankle swelling in the past. A small amount of pus was noted on the margin of the ulcer. The claimant was discharged from the hospital on November 20, 1980. On January 3, 1981, the claimant was admitted to Clarke County Public Hospital for the purpose of a full thickness skin graft of the neurogenic ulcer of the left foot. The claimant remained on medical leave from Parker Brothers until returning to work on March 23, 1981 as a clamp truck driver. The claimant continued to treat with Dr. Robert Good of the Clarke Medical Clinic. In an entry in Dr. Good's notes dated August 21, 1981, the doctor states that the claimant has gained too much weight having gained 40 pounds since last October. His weight was noted to be 221 1/2 pounds. On October 7, 1981, the claimant had a large amount of odorous drainage from his left foot. Dr. Good referred the claimant to Michael Adelman, D.O. In his report dated October 28, 1981, Dr. Adelman WlLSON V. PARKER BROTHERS, INC., Page 4 stated that the claimant had large ulcers on the plantar aspects of both of his feet. A large amount of callus tissue surrounded the ulcer sites and some drainage was present. Dr. Adelman prescribed innersoles for the claimant with cutouts for the ulcer sites in order to remove the pressure and to allow healing to occur. On December 12, 1981, Dr. Good reported that claimant had large neurogenic ulcers of both feet. The claimant was laid off from Parker Brothers on December 23, 1981. on January 11, 1982, the claimant was admitted to Clarke County Public Hospital for surgical debridement of the neurogenic ulcers on both his right and left feet. The claimant returned to work on March 15, 1982 as a clamp truck driver. Michael Harvey, M.D., first started caring for the claimant on May 28, 1982. On October 1, 1982, the claimant was admitted to Des Moines General Hospital with an admitting diagnosis of cellulitis, right foot and insulin dependent diabetes mellitus. The claimant gave a history of long-standing bilateral neurogenic foot ulcers and reported that the ulcer on the right foot had become progressively worse over the proceeding two to three months prior to admission. Dr. Harvey found the claimant to have marked swelling, heat and tenderness in the right leg. Terrance Kurtz, M.D., an infectious disease specialist, saw the claimant in the hospital on October 3, 1982. Dr. Kurtz reported that the claimant has had diabetes for 13 years, has been taking insulin for ten years and has had high blood pressure for ten years. Dr. Kurtz's examination of the claimant revealed the presence of two large ulcers on the ball of each foot. The doctor noted that a severely foul odored, purulent discharge, was expressed from the margins of each ulcer. On October 5, 1982, surgical debridement of the ulcers on both feet and biopsies of the metatarsal bones of both feet were carried out by N. K. Pandeya, D.O. The claimant was discharged from the hospital on November 2, 1982. The final diagnosis was cellulitis of the right and left foot, osteomyelitis of the right foot, bilateral neurogenic ulcers of the feet, insulin dependent diabetes mellitus and essential hypertension, controlled. On November 4, 1982, the claimant was admitted to Des Moines General Hospital because of hypoglvcemia caused by an insulin reaction. At the hospital the claimant's blood sugar was found to be 835. The final diagnosis was hypoglycemia secondary to insulin reaction, insulin dependent diabetes mellitus and osteomyelitis of both feet. The claimant was referred to Dr. Michael Adelman on November 23, 1982 for the purpose of obtaining special molded shoes which would take the weight off of the ulcers on his feet. The claimant was fitted for the molded shoes by Dr. Adelman. WILSON V. PARKER BROTHERS, INC., Page 5 The claimant was on medical leave from Parker Brothers during his stay in the hospital and continued on leave until January 3, 1983, when he returned to different work as an assembler. The claimant applied for and received nonoccupational group disability benefits during his leave of absence. In his application for group benefits the claimant indicated that the sickness or injury did not arise ' out of employment. In the physicians statement in support of the application for group benefits Dr. Harvey stated that the claimant's condition was not due to an injury or sickness arising out of claimant's employment. As stated above, the claimant was transferred to the position of assembler when he returned from his leave of absence in January, 1983. The claimant spent about 50 percent of his time on the assembly line. When he was not working on the assembly line the claimant would fill orders, repair damaged games and clean up. The claimant tried to sit down whenever possible while working on the assembler job and Parker Brothers did all it could to accommodate the claimant's disability. However, claimant was on his feet the majority of the time. The molded shoes were actually dispensed by Dr. Adelman to claimant on February 3, 1983. The claimant returned to see Dr. Adelman after wearing the shoes for one week and the doctor reported that the ulcers were slowly closing but they were still large. On March 11, 1983, the claimant was readmitted to Des Moines General Hospital with the chief complaint of pain and swelling in the left foot and lower leg region. The claimant continued to have bilateral neurogenic foot ulcers. The claimant's blood sugar was found to be in the 200-400 range initially upon admission. The claimant was discharged on March 25, 1983, in an improved condition. The claimant was placed on medical leave beginning March 14, 1983. The claimant applied for and received nonoccupational group disability benefits. On September 6, 1983, the claimant returned to work at Parker Brothers as an assembler and worked a total of approximately 26 hours that week. That is the last time the claimant worked at Parker Brothers. The claimant was admitted to Des Moines General Hospital on September 16, 1983 with bilateral neurogenic foot ulcers. Dr. Kurtz felt that the claimant had cellulitis of the left foot. The claimant's position with Parker Brothers was terminated on January 20, 1984 when the Des Moines Facility closed. The claimant was again admitted to Des Moines General hospital on January 27, 1984. In the records it is reported that the claimant had been doing quite well at home over the last several months, however, on January 26, 1984, the claimant noticed increased swelling and slight pus drainage from the lateral WILSON V. PARKER BROTHERS, INC., Page 6 aspect of his left foot. The claimant's feet were again debrided on January 28, 1984. Since that time the claimant has had periodic episodes of infection and cellulitis of his feet. After each acute episode the claimant's feet would improve but never completely heal. The claimant still has bilateral neurogenic foot ulcers. There is no dispute among the physicians as to the severity of the claimant's disabling condition and all agree that he could not return to his former employment or any other position that requires weight bearing on his feet. Roger Marquardt, a vocational rehabilitation specialist, evaluated the claimant and stated that in his opinion the claimant was not employable in a competitive labor market due to his severe physical limitations, lack of education, and lack of transferable skills. He further thought the claimant was motivated to return to work, particularly in light of the claimant's past work history. Marquardt stated that although claimant has good transferable skills he is physically unable to utilize them. Richard Meier, the transportation manager at Parker Brothers, testified that he was aware of claimant's foot problems and difficulty with standing during his job. He testified that he attempted to accommodate claimant's problems by trying to get fellow employees to cooperate in providing claimant with more sitting time during the assembly job. Michael Harvey, D.O., the claimant's treating physician, testified by deposition that weight bearing activities superimposed upon an individual with long-standing diabetes compromises the circulation and ultimately breaks down the tissues so that ulcers develop. He further expressed his opinion that the claimant's work activity in the fail of 1982 and the spring of 1983 would have been a substantial factor in producing the claimant's disability as the result of an aggravation of the neurogenic ulcers and subsequent complications which have now progressed to the point where the claimant is unable to be gainfully employed. Dr. Harvey also indicated that the claimant was compliant with medical treatment and that his condition was not related to a lack of care of his feet. Paul From, M.D., a board certified internist, treats a great number of diabetic patients and had examined the claimant. Dr. From testified that the claimant's preexisting diabetic condition would make him more susceptible to injury from weight-bearing activities than a person without this preexisting peripheral neuropathy related to his diabetic condition that standing on hi-s feet would have aggravated or accelerated his tendency to develop neurogenic ulcers. He attributed the swelling, suffered by the claimant since March of 1983, as the result WILSON V. PARKER BROTHERS, INC., Page 7 of repeated insults of neurogenic ulcers and infection. Dr. From thought that the claimant's work activity produced a permanently disabling condition which had progressed to the point where the claimant was unable to do any kind of work at all and certainly no work requiring weight bearing activities. He further stated that the claimant's condition would prevent the claimant from engaging in any gainful employment indefinitely into the future and that the work activity was a substantial factor in producing this disability. Although Dr. From conceded that many of the claimant's problems may have occurred in any event due to uncontrolled diabetes obesity, and everyday weight bearing, the condition certainly developed sooner because of the work activity. Terrance Kurtz, M.D., was consulted on the claimant's case between October of 1982 and September of 1983. In his deposition Dr. Kurtz indicated that since the claimant was losing sensation in his feet, trauma to the lower extremities can result in neurogenic ulcer deterioration. He believed the claimant had a chronic condition and that weight bearing would increase the risk for further problems. He did not, however, have any views on the claimant's present condition since he had not seen him since 1983. Robert Good, D.O., treated the claimant between 1980 and 1982. He noted an increase in the claimant's weight during that period of time. In 1980 he treated the claimant for diabetic ketoacidosis. At that time he noted a large pressure ulcer on the claimant's left foot and then, in October of 1981, he noted an ulcer on the opposite foot. He advised the claimant to stay off his feet and ultimately a skin graft was performed in January of 1981. Then in January of 1982, the claimant was treated for ulcerations on both feet. Dr. Good testified in his deposition that anything that required the claimant to be on his feet would aggravate his ulcers further. He noted that when the claimant was hospitalized and taken off of his feet that the ulcers showed substantial healing and at one point were entirely healed. He stated that the operation of the pedals on the clamp-truck aggravated the condition in addition to standing or walking. Dr. Good recommended that the claimant avoid any type of job which required long-standing or required doing something recurrently with his feet. Edward J. Hertko, M.D., a board certified internist with a subspecialty in the care and treatment of diabetes, opined in his deposition that claimant's current foot problems are a natural progression of his diabetes disease process and that his work activity before the assembly job did not contribute to his foot problems as he was sitting most of the time on the forklift truck job. Dr. Hertko felt that any increased weight bearing such as the assembly job would accelerate the disease process but that "in the long run it had no basis for his chronic disability at this time." Dr. Hertko believes WILSON V. PARKER BROTHERS, INC., Page 8 that as of the time of his deposition in January, 1988, claimant would be unable to work in weight bearing work "no matter what type of a job he would have had." APPLICABLE LAW AND ANALYSIS Defendants, in cross-examination of claimant, raised an issue of credibility with reference to claimant's current condition, past compliance with physician recommendations as to care and treatment and the ability to handle his former job as a clamp truck operator. Therefore, a credibility finding is necessary and from his appearance and demeanor claimant is found to be credible. I. Claimant has the burden of proving by a preponderance of the evidence that he received injuries which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. II. The claimant has the burden of proving by a preponderance of the evidence that the work injuries are a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc. , 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may WILSON V. PARKER BROTHERS, INC., Page 9 be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, the issue of causal connection and whether the injury arose out of the employment was hotly contested. Defendants primarily rely upon the ruling of the supreme court in Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128, 132 (1967) and the testimony of Dr. Hertko. In Musselman the court stated that a compensable aggravation of a preexisting condition is not shown where "any rationale work" would cause the aggravation. More recently, the court in Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979) has apparently adopted a "positional risk" theory by holding that an employee injured by a deranged fellow worker was injured in the course of his employment. In Cady the court said that the injury must be a natural incident of the work or a rationale consequent of a hazard connected with employment. See Lawyer and Higgs, Iowa Workers' Compensation -- Law & Practice, section 5-1, pages 32 & 33. In any event, the legal authorities all agree that the undersigned must rely heavily upon the views of experts in this case. Turning to the experts, Dr. Harvey, the family physician, certainly supported claimant's case but his testimony cannot be given the same weight as the testimony of the specialists. Dr. Harvey did verify that claimant followed his instructions at least insofar as the mechanical care of the disease and the foot ulcers. Obviously, claimant was quite negligent in maintaining his weight over the years. Dr. Kurtz is an infectious disease specialist but was not board certified in the care and treatment of diabetes. His testimony was not very convincing as it greatly conflicted with his written reports without adequate explanation. Claimant's employment was considered in Dr. Kurtz's reports to be a significant cause of claimant's foot problems, but during his testimony WILSON V. PARKER BROTHERS, INC., Page 10 Dr. Kurtz felt that this was only a minor cause. Dr. Kurtz's testimony was, however, useful in that he did testify that claimant's chronic infection problems did not exhibit itself until after the hospitalization in March, 1983, following the performance of the assembly job. This is a critical fact which shows a significant change in condition after this assembly job which did not exist previously. Dr. Good's deposition testimony was useful to the extent that he concurred with others that weight bearing generally would aggravate claimant's foot ulcer condition and that claimant should avoid weight bearing activities in future employment. The case on the whole, however, centered around the deposition testimony of two board certified internists, Dr. From and Dr. Hertko. Despite the fact that both were so-called "hired" witnesses, they appeared quite credible in what they had to say about the cause of claimant's foot problems. At first glance the testimony of these two witnesses appear conflicting with Dr. From testifying that claimant's problems were caused by the job and Dr. Hertko saying the opposite. After close examination, however, both of these doctors appear to be saying the same thing but from different perspectives. Dr. From opined that the ulcer conditions and the resulting disability was accelerated by the assembly job but later admits to the strong possibility that claimant, over a period of time, would have experienced the same problems anyway. Dr. Hertko opined that although any increased standing would accelerate claimant's ulcer problems, in the long run this aggravation does not have an effect. Dr. Hertko is convinced that at the time of the deposition, claimant's condition would be the same regardless of his employment. Therefore, it is clear that the deteriorating condition of claimant's foot ulcers was accelerated by the assembly job in early 1983 but, regardless of this acceleration, claimant today is in the same condition he would have been had there been no reassignment to an assembly job. Therefore, it appears that from the greater weight of evidence presented that claimant has not established a gradual work injury prior to 1983 while working as a forklift operator. A job which required little weight bearing does not appear to have significantly affected a progression of claimant's diabetes disease process. However, claimant has established a gradual injury when he was assigned to the assembly job in early 1983 and was, as a result, compelled to leave his work on March 11, 1983. Under the gradual injury theory, March 11, 1983 appears to be the most appropriate injury date because the return to work during the week of 1983 was much too brief to constitute a new injury process. After the assembly job in March, 1983, claimant's condition clearly worsened according to the medical experts. He was compelled to leave employment earlier than the time when his progressive disease would have WILSON V. PARKER BROTHERS, INC., Page 11 forced a loss of employment. However, again claimant's condition and his ability to work today is no worse than it would be had he not been employed at Parker Brothers. Given his background and experienced, Dr. Hertko was very convincing on this point. Consequently, the injury did not change claimant's ultimate outcome, it only hastened this outcome. The question, therefore, is whether the acceleration injury in this case is a temporary or permanent disability. The answer to that question is not at all clear under the law. We have a line of death cases in Professor Larson's treatise on workers' compensation section 12.23, pp. 3-348.71-75, which hold that the eventuality of death due to prior existing conditions is irrelevant to the "arising out of" analysis. On the other hand, Larson at sections 12.22, pp. 3-348.34-40 points out that in cases where compensation was allowed from employment activity which accelerated a disease process, the prior existing condition may have continued indefinitely without disability but for the employment. It would appear from a reading of Larson that there is a difference in the case law between acceleration of the injury or disease process for the purpose 'of determining whether or not any injury occurred; and, the acceleration of a loss of earnings or earning capacity for the purposes of determining extent of disability. Although the former is sufficient to establish a work injury, the latter type of acceleration does not, by itself, show permanent disability where the aggravating employment ultimately had no effect on the resulting outcome of the disability. The death cases can be distinguished because the extent of disability is not at issue in such cases. The only issue in death cases is whether the death arose out of employment. Therefore, it will be found from the facts presented that claimant has only shown a temporary aggravation of a preexisting condition as a result of a gradual injury on March 11, 1983. Admittedly, one can argue that under the theory of Blacksmith, 290 N.W.2d 348, 354 (Iowa 1980), that claimant has at least some permanent disability due to the early loss of his job. However, this is not a pure body as a whole or industrial disability case but involves the loss of use of two scheduled members under Iowa Code section 85.34(2)(s). The analysis is industrial only to the extent that claimant can show a permanent total disability. First, claimant's assertion of the odd-lot doctrine is unfounded because the commissioner has ruled that claimant cannot solely rely upon a rehabilitation report but must show unsuccessful employment search to utilize the burden shifting features of the odd-lot doctrine. Emshoff v. Petroleum Transport Services, file number 753723 (Appeal Decision filed March 31, 1987). Such a showing of an unsuccessful employment search has not been made in this case. However, regardless of the odd-lot doctrine, the facts of this case do not convince the undersigned that all of the WILSON V. PARKER BROTHERS, INC., Page 12 claimant's current but admittedly severe disability is causally connected to the brief assembly job at Parker Brothers. The fact remains that prior to and independent of the assembly job, claimant was on the path of total disability within a few years in any event. If then claimant is unable to show a causal connection to permanent total disability, the analysis is limited to a scheduled member case involving a loss of both feet. Claimant should note below that the order in this case in terms of number of weeks is not significantly different than a full award for the loss of use of two feet. As claimant has established entitlement to causal connection to temporary total disability, claimant is entitled to weekly benefits under Iowa Code section 85.33 from the first day of disability until claimant returns to work or he is medically capable of returning to substantially similar work to the work he was performing at the time of the injury. The start of claimant's temporary total disability period is clear and coincides with the time claimant left employment on March 11, 1983. However, the end of temporary total disability period is not clear because claimant has not returned to work and will never be able to do so due to his progressive diabetes condition. Therefore, a reasonable interpretation of the language would be to end the temporary total disability period when claimant could return to the type of work he was capable of performing giving his progressive disease. This also would coincide with the time when the effect of the acceleration on the foot ulcer had ended and when the natural progression of the disease and the foot ulcer condition would have caught up with claimant. According to Dr. Hertko, this was true at the time of his deposition on January 27, 1988. We have no other testimony on this issue. Therefore, given such testimony, it is found that claimant on January 27, 1988, would be able to return to the type of work he was capable of performing given his prior existing progressive disease. This may not be to the same type of work he was performing in 1983. Indeed, it may not be to any particular employment at all. However, it is at this point in time that claimant's condition was no longer affected by the aggravation injury. Claimant is then entitled to temporary total disability from March 11, 1983 through January 27, 1988 except for the period from September 7, 1983 through September 8, 1983 when claimant briefly returned to work. Claimant is entitled to payment of reasonable medical expenses incurred for treatment of the gradual work injury found in this case. However, these expenses would be limited to the physician and hospital care he received during the temporary total disability period found above. Defendants will be ordered to pay these expenses, however, no part of the requested expenses for travel could be granted because there was insufficient itemization in claimant's listing of such expenses in the prehearing report to separate medical travel prior to March 11, 1983. WILSON V. PARKER BROTHERS, INC., Page 13 Therefore, it will be ordered that defendants will pay whatever portion is attributable to claimant's foot ulcers during the temporary total disability period found in this case. However, claimant is entitled to an order of reimbursement only if claimant has paid these expenses. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). Otherwise, defendants shall pay the provider directly. With reference to the rate dispute, the problem involves the extent of claimant's gross weekly earnings. According to the evidence, claimant customarily worked 40 hours a week although he occasionally worked less or more during his entire employment experience at Parker Brothers. Claimant's hourly rate on the date of injury was $6.73 per hour. No reason has been shown by either party to use anything other than the customary work week in determining rate. Given a gross weekly rate of $269.20 and the parties' stipulation that claimant was married and entitled to three exemptions, claimant's weekly compensation rate is $175.42 according to the commissioner's rate booklet for an injury on March 11, 1983. FINDINGS OF FACT 1. Claimant was a credible witness. 2. Claimant was in the employ of Parker Brothers at all times material herein. 3. On March 11, 1983, claimant suffered a gradual injury to both of his feet which arose out of and in the course of his employment as an assembly worker at Parker Brothers in early 1983. This injury was an aggravation of a prior existing diabetes and foot ulcer condition. Although the foot ulcers were a result of a progressively deteriorating diabetes condition, the employment in early 1983 accelerated this deterioration process. 4. The work injury of March 11, 1983, was a cause of a period of temporary total disability from work beginning on March 11, 1983 and ending on January 27, 1988 at which time the effect of the aggravation injury ended and claimant was able to return to the type of work to which he is capable given his prior existing progressive disease condition. Claimant, however, briefly returned to work on September 7, 1983. 5. The following medical expenses are fair and reasonable and were incurred by claimant as a result of the work injury on March 11, 1983: WILSON V. PARKER BROTHERS, INC., Page 14 Des Moines General Hospital 9/11/83 - 9/30/83 $ 7,144.32 10/14/83 201.60 11/18/83 - 11/24/83 2,144.50 1/29/84 - 1/31/84 2,264.50 7/20/86 - 7/25/86 2,253.10 Terrance Kurtz, D.O. 3/16/83 - 11/03/86 1,980.00 Michael Harvey, D.O. 1/10/83 - 1/27/88 14,629.50 Norman Rose, D.O. 9/16/83 - 11/20/83 1,225.00 $31,842.52 Claimant also incurred an undetermined amount of medical travel expenses. 6. On March 11, 1983, claimant customarily worked 40 hours per week at an hourly rate of $6.73 per hour. Claimant's gross weekly earnings at the time of the work injury was $269.20. Given the parties' stipulation as to marital status and exemptions, claimant's rate of weekly compensation is $175.42. 7. Claimant was not found to have suffered a work injury prior to March 11, 1983 while claimant was working as a forklift operator at Parker Brothers. Claimant sat most of the time during his job and the limited weight bearing activities had little impact upon the overall progressive disease process which began in claimant's early adult life. CONCLUSIONS OF LAW Claimant has established under law entitlement to the specific disability and medical benefits and rate of compensation awarded below. ORDER 1. Defendants shall pay to claimant temporary total disability benefits from March 14, 1983 through September 6, 1983 and from September 9, 1983 through January 27, 1988 at the rate of one hundred seventy-five and 42/100 dollars ($175.42) per week. 2. Defendants shall pay the medical expenses listed in finding number 4 above and the medical expenses of Terrance Kurtz, D.O., and Michael Harvey, D.O., and the medical travel expenses at the rate of twenty-one cents ($.21) per mile incurred WILSON V. PARKER BROTHERS, INC., Page 15 by claimant during the period of temporary total disability beginning on March 14, 1983 and ending on January 27, 1988. 3. Defendants shall pay accrued weekly benefits in a lump sum. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports upon the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 8th day of March, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert Siddens Attorney at Law 650 42nd St. Des Moines, Iowa 50301 Mr. Richard G. Book Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 Mr. Marvin E. Duckworth Attorney at Law Terrace Center, STE 111 2700 Grand Ave. Des Moines, Iowa 50312 1800 Filed March 8, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER RICHARD L. WILSON, Claimant, File Nos. 760432, VS. 760433 & 760434 PARKER BROTHERS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE COMPANIES, Insurance Carrier, Defendants. 1800 Permanent v. Temporary Disability Claimant was a long-term diabetic who was suffering a progressively deteriorating condition in his feet consisting of foot ulcers and chronic infection. It was found that his work as a forklift operator in which he performed little weight bearing activities while on the job did not materially aggravate this progressive disease process. However, claimant was reassigned for a brief time as an assembly operator after which time his condition worsened and claimant was forced to leave his employment. It was found that this was a gradual injury but that claimant was already on the path of permanent total disability before the injury and the injury only accelerated this process. It was found that claimant had not established a causal connection of all of his problems to the brief period of employment as an assembly operator, however, it was found that claimant had suffered a significant amount of temporary total disability as a result of his having to leave the work force early and approximately five years of temporary total disability was awarded. The time the temporary total disability ended coincided with the time that claimant was able to return to the type of work he was capable of performing given his progressive disease process. This also coincided with the time the medical experts agreed that the effects of the accelerated disease process from the work had subsided and at that time claimant would have been at that condition regardless of any work experience. Claimant was awarded medical benefits during the period of time of the temporary total disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES R. HAYES, File No. 760655 Claimant, A R B I T R A T I O N vs. D E C I S I O N WILSON FOODS CORPORATION, F I L E D Employer, JAN 22 1988 Self-Insured, Defendant. IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding in arbitration brought by Charles R. Hayes, claimant, against Wilson Foods Corporation, employer, and self-insured defendant for benefits as a result of an injury that occurred on February 13, 1984. The original notice and petition allege that the injury occurred on February 12, 1984; however, all of the other evidence shows that the injury occurred on February 13, 1984. Therefore, February 13, 1984 will be used as the injury date. A hearing was held at Storm Lake, Iowa on April 14, 1987 and the case was fully submitted at the close of the hearing. The record consists of joint exhibits 1 through 67; defendant's exhibit 1; and the testimony of Charles R. Hayes (claimant); Tami Hayes (claimant's wife); Richard Corbin (claimant's friend); Mike Wilbur (co-employee); John Ketelsen (union representative); and Mary Kitterman (nurse and workers' compensation administrator). STIPULATIONS The parties stipulated to the following matters. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the claimant sustained an injury on or about February 13, 1984 which arose out of and in the course of his employment with employer. That the alleged injury was the cause of both temporary and permanent disability. That claimant is entitled to and has been paid 41 weeks of temporary disability benefits for the period specified in the prehearing report and that additional temporary disability is not an issue in this case. That claimant is entitled to and has been paid 45 weeks of permanent disability benefits based upon a nine percent impairment rating of the body as a whole. That the type of permanent disability to which claimant is entitled, in the event of an award of additional benefits, is industrial disability to the body as a whole. That commencement for permanent partial disability benefits is April 20, 1986. That the rate of compensation, in the event of an award of additional weekly benefits, is $236.51 per weeks. That claimant's entitlement to medical benefits under Iowa Code section 85.27 is not in dispute, but there is an issue with respect to Iowa Code section 85.39 for an examination by Horst G. Blume, M.D. That the provider of medical services would testify that the fees charged were reasonable and defendant is not offering contrary evidence. That no credit is claimed for benefits paid under a nonoccupational employee group plan. That defendants are entitled to credit for 41 weeks of temporary benefits and 45 weeks of permanent partial disability benefits paid prior to hearing at the rate of $236.51 per week. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant is entitled to additional permanent partial disability benefits for industrial disability to the body as a whole. Whether claimant is entitled to be reimbursed for the cost of an examination by Horst G. Blume, M.D. in the amount of $150.00 as an independent medical examination under the provisions of Iowa Code section 85.39. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant is 40 years old, married and has two dependant children. He graduated from high school in 1965. He acquired one and one-half years of junior college by attending nights and weekends. Former employments include laborer on bridge construction, welder, fork lift driver and punch press operator. He started to work for employer in May of 1966. He had no physical problems at that time. Claimant has sustained a number of previous work-related injuries to his hand, to his testicle, and to his knee while working for employer for which workers' compensation benefits have been paid. On February 13, 1984 while stuffing extra dry and large hams, claimant felt his shoulder pop and his face and neck went numb. The employer's physician Keith Garner, M.D., sent claimant to the University of Nebraska Medical Center at Omaha where claimant was treated by W. Michael Walsh, M.D., an orthopedic surgeon. Dr. Walsh first referred claimant to Lyal G. Leibrock, M.D., a neurosurgeon, at the university hospital. An EMG, myelogram and spine films were all essentially normal (Exhibit 7). Claimant was then referred back to Dr. Walsh. Dr. Walsh then diagnosed a rotator cuff tear that occurred on the job while pushing a ham through a machine. Dr. Walsh performed an arthrogram and arthrotomogram. On May 29, 1984, Dr. Walsh performed a right shoulder arthroscopic debridement of a labrum tear, Neer acromioplasty, Mumford distal clavicle resection and coracoacromial ligament resection (Ex. 12 and 16). On August 27, 1984, Dr. Walsh said claimant had recovered to 70 percent of normal (Ex. 13). On December 4, 1984, Dr. Walsh awarded a permanent partial impairment rating of 15 percent of the right upper extremity. On January 21, 1985, Dr. Walsh increased this impairment rating to 30 percent of the right upper extremity. On April 26, 1985, Dr. Walsh felt that claimant should not be in a job that involved heavier lifting than perhaps 30 pounds (Ex. 20). On May 21, 1985, Dr. Walsh finally determined that claimant sustained a 10 percent permanent partial impairment to the right upper extremity (Ex. 21). On July 24, 1985, Dr. Walsh wrote to Dr. Garner as follows: It is my opinion that Chuck Hayes will not be able to continue in his same job for Wilson Foods. I do not think that he will do well in the future in work that involves heavy use of the upper extremity such as lifting. I have advised him to see employment in another field. In the meantime, we are treating the short term problem with anti-inflammatory medication and physical therapy. Mr. Hayes may return to see me as necessary. (Ex. 22) On June 17, 1985 claimant was examined by Richard P. Murphy, M.D., an orthopedic surgeon in Omaha. Dr. Murphy awarded claimant a 15 percent permanent partial impairment of the right upper extremity. Dr. Murphy said claimant's work should be modified to prevent heavy lifting above shoulder level. Claimant testified that when he returned to work he was unable to do the shirmatic job and the tree washing job which paid extra brackets and also paid overtime. As a result, claimant was forced to perform laboring types of work with only two brackets or no brackets and without any overtime pay. Claimant testified that the young man who did the tree washing job last year earned $27,000.00. Claimant said that he only earned $20,000.00. Claimant then testified that he, therefore, lost $7,000.00 last year due to this injury because he contended that he could no longer do the tree washing job. Claimant related that he was a member of the National Guard from 1966 to 1969 and again from 1972 until 1976. When he tried to rejoin the National Guard he was unable to do so because he could not pass the physical examination. Therefore, claimant alleged that he lost $200.00 per weekend in monthly drill pay, plus another amount for the two week annual training period. Claimant estimated this loss at approximately $2,600.00 to $2,700.00 per year. Claimant also asserted that he was forced to quit his part-time job of tending bar that paid about $1,000.00 per month. This is the only evidence on these losses. They were not supported by any other evidence or income tax records. Claimant related that he still has pain in his right neck, face, shoulder and shoulder blade most of the time. He takes Advil during the day. Motrin makes him sick at his stomach. He is stiff and sore at night and has to apply ice or heat or Ben-Gay. Claimant has sought help for vocational rehabilitation and he is ready for training but lacks the finances to go to school. Claimant testified that he is interested in a two to three year course in sales at Western Iowa Tech (WIT). He looked at a nautilus job and an insurance adjuster job, but he did not have enough education for either of them. Claimant testified that he is no longer able to play golf, water ski, coach little league, do yard work, shingle, paint or remodel the house. Claimant testified that when he requested an independent medical examination under Iowa Code section 85.39 he was shown a piece of paper and was told that he already had elected and had received an Iowa Code section 85.39 examination from Scott Neff, D.O. This paper reads as follows: I request, under the provisions of Section 85.39 of the Workers Compensation Law, an independent medical examination from Dr. Scott Neff to determine the amount, if any, of my physical impairment because of a claimed Workers Compensation injury. Dated this 7 day of May, 1986 _____/s/____________ Employee (Defendants' Ex. 1) Claimant testified that he could not have requested Dr. Neff because he didn't even know Dr. Neff. Claimant said that Dr. Garner sent him to Dr. Neff. Dr. Garner gave a signed statement on May 10, 1987 to the effect that claimant signed the second opinion form in his presence and that it was claimant's decision to see Dr. Neff in Des Moines. This is Dr. Neff's statement. Charles Hayes was seen at Wilson Foods on 4-4-86 complaining of pain in the right shoulder. He stated physical therapy did not help and Motrin bothered his stomach. He was put on Advil, he was not working, and requested to see Dr. Welch. He was referred Dr. Walsh, University of Nebraska College of Medicine, Omaha, Nebraska. He was seen at Wilson Foods 4-16-86 which time the patient returned stating that Dr Walsh told him not to work. By this time we had already received a letter from Dr. Walsh dated Wednesday 4-9-86 in which Dr. Walsh stated that he had told Mr. Hayes to continue working. At this time Mr. Hayes said that he was requesting a second opinion. Examination of his records revealed he had already received a second opinion from Dr. Murphy in Omaha. He was therefore referred to the safety director Larry Flood. The patient was seen on 5-7-86. In consultation with Larry Flood Mr. Hayes stated in the presence of the nurse and myself that he wished to go to Dr. Neff in Des Moines for another opinion. The company second opinion form was filled out at this time. The patient signed the filled out form in the presence of the nurse and myself. Appointment was made with Dr. Neff 4-5-86 at 2:30 p.m. Thank you for your attention to this matter. (Ex. 64) Claimant countered that only Mary Kitterman was present when he signed this paper. He also alleged that no doctors name was on it when he signed it. Claimant contended that the name of Scott Neff was added later. Claimant then testified that he later saw Dr. Garner who told him that "We will give you another opinion", and told him that "We will send you to see Dr. Neff in Des Moines." Dr. Neff saw claimant on May 20, 1986 as did Dr. Neff's assistant, Thomas W. Bower, L.P.T. Together they awarded claimant a 13 percent permanent partial impairment rating of the right upper extremity. Dr. Neff also stated "I believe that there are significant jobs that he can continue doing, and would agree with his previous restriction of eliminating him or restricting him from overhead work, but would recommend that the weight be decreased from 20 pounds to no work eye level with the right hand." (Ex. 66). Claimant was given a complete orthopedic and neurologic examination by Byron L. Linden, D.C., on July 9, 1986. Dr. Linden gave claimant an impairment rating of 20 percent of the body as a whole. Dr. Linden cautioned, however, that it was not to be considered a permanent impairment rating, because in his opinion claimant had not obtained maximum medical improvement. In view of claimant's work history, Dr. Linden felt that if claimant continued on his present work it would promote further damage to already injured physical structures. Dr. Linden recommended that claimant seek other work (Ex. 61). Dr. Blume saw claimant on August 4, 1986. He determined that claimant suffered a 31 percent permanent partial impairment of the right upper extremity. He charged $150.00 for his examination (Ex. 62). Claimant admitted on cross examination that he did not own the shirmatic or the tree washing job. Claimant admitted that he had been bumped from both of these jobs prior to the injury. He also admitted that he had been bumped from other jobs and was stuffing hams by hand at the time of the injury. Since his return to work on April 26, 1986, claimant testified that he has only performed waist level jobs. Claimant testified that he now had the seniority to own the shirmatic job and tree washing job, but that he was unable to do them due to this injury. The tree wash job pays two brackets or ten cents extra and the shirmatic job pays six brackets or 30 cents extra. Both jobs also have overtime pay. Tami Hayes, claimant's wife, testified that claimant's activities, working at home and playing with the children are now restricted. He comes home from work and has to put ice or heat on his shoulder. When they go out in the evening they have to come home early. She testified that she has had to take on two part-time jobs to make up for claimant's lost income. Richard Corbin, a close friend of claimant, testified that he used to play golf, water ski and play softball with claimant. He also performed carpenter jobs with claimant. Now, however, claimant cannot lift his arm past a certain point. He testified that claimant can no longer shingle, paint or play golf. The witness testified that he shingled claimant's garage for him and that he painted the eves on claimant's house for him. Mike Wilbur testified that he has been employed by employer for 20 years. He stated that he operates the shirmatic machine now and earned $24,000.00 doing that job. Claimant contended that he lost $4,000.00 because he can no longer perform that job. John Ketelsen testified that he has been employed by employer for 21 years. He is vice-president of the union local number 179. He has handled workers' compensation for the union since 1983. He stated that he would choose Dr. Neff for treatment but he would not choose him to give a rating for an injury because Dr. Neff does not give good ratings. Ketelsen verified that claimant had enough seniority to qualify for the tree wash job, the shirmatic job and smokehouse jobs. These are strenuous jobs, however, but they pay overtime daily and on weekends. Mary Kitterman, R.N., day shift nurse and workers' compensation administrator, testified that she was familiar with defendants' exhibit one, a request for independent medical examination. She testified that it was executed in her office. Those present at the time it was signed were claimant, Dr. Garner and herself. She testified that Dr. Neff's name was written in at the time claimant signed it. She testified that claimant signed the form in the presence of Dr. Garner and herself. Kitterman stated that Dr. Garner recommended Dr. Neff for a second opinion. Claimant said that he had heard good things about Dr. Neff. Dr. Garner then said "Stop by after work and we will have an appointment set up for you." Kitterman testified that she had heard no complaints with Dr. Neff either with respect to his treatment or his ratings. Claimant testified in rebuttal that Dr. Garner was not present when the form was signed and that Scott Neff's name was not filled in when he signed it. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of February 13, 1984 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 32 (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). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." 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). Dr. Walsh recommended a 30 pound lifting restriction with respect to claimant's right arm and recommended employment in another field of work. He eventually and finally awarded claimant a ten percent permanent partial impairment of the right upper extremity. This rating translates to six percent to the body as a whole according to Guides to the Evaluation of Permanent Impairment, second edition, page 23, table 20. Dr. Walsh was the primary treating physician and the surgeon who operated on and cared for claimant's injury from beginning to end. Dr. Murphy, who appears to be a one time evaluating physician, awarded a 15 percent permanent partial impairment rating of the right upper extremity. This translates to nine percent of the body as a whole. Dr. Murphy recommended against lifting above shoulder level with the right shoulder. Dr. Neff, too, was an evaluating doctor. He did not treat claimant. Dr. Neff agreed with eliminating or restricting overhead work at least above eye level, but did not feel that a weight restriction was necessary. He awarded claimant a 13 percent permanent partial impairment rating of the right upper extremity. This translates to eight percent of the body as a whole. Dr. Linden, who both treated and evaluated the claimant, felt that claimant should change jobs. He awarded claimant an impairment rating of 20 percent of the body as a whole. However, Dr. Linden did not feel claimant had reached maximum medical improvement and therefore, he stated that his rating might not be the final permanent impairment rating. Dr. Blume, another evaluating physician, did not impose any working restrictions or limitations on claimant's activities. He awarded claimant a 31 percent permanent partial impairment rating of the right upper extremity. This translates to 19 percent of the body as a whole. As a practical matter claimant is now unable to work with his right arm above approximately shoulder level or eye level. Also, he has been instructed to be careful about how much weight he lifts with his right arm and shoulder. Defendants' attorney requested the following factors to be taken into consideration in determining industrial disability. Mr. Hayes returned to work at Wilson Foods on April 20, 1986, and has worked steady since that time and is still working at that job. His physical impairment has not caused him to lose any time after he was fully paid for his healing period. The only claim to loss of earnings at Wilson Foods that Mr. Hayes was able to come up with consisted in speculating that his impairment prevented him from attempting to get one or two other positions which because of the weight lifting he might not have been able to perform. These jobs, in and of themselves, were scarcely any different in wage rate. However, he claimed they presented opportunities for considerable overtime. In other words, his loss of income because of his impairment was predicated on the speculative basis that he could claim one of these jobs and then by working overtime receive more money. This is a rather flimsy and highly speculative basis for industrial disability. Mr. Hayes was working at the same type of work for the same type of pay when he was injured as he has done since he returned to work. And he has continued doing this work for the last year and he is still working at this job. It is true that whether claimant could obtain and retain either the shirmatic job or the tree wash job on a long term basis and earn the extra pay brackets and overtime pay is somewhat speculative, but the operation of the seniority bidding system is not speculative. Also, whether claimant's injury precluded him from serving a third tour in the National Guard or working part time as a bar tender is somewhat speculative. Numerous other factors, many of them unpredictable, make these losses of income speculative. What claimant's earning capacity might have been at some future date under different circumstances is purely speculation. Stewart v. Crouse Cartage Co., File No. 738644 (Appeal Decision February 20, 1987). At the same time, claimant is unable to work with his right arm above shoulder level according to one doctor, and eye level according to another doctor. Moreover, he must be careful not to lift too much weight with his right arm. Thirty pound and 20 pound weight restrictions were mentioned. In this respect, claimant has suffered a significant impairment. It is clear from claimant's testimony and the medical experts that claimant's earning capacity has been impaired in that certain employment opportunities will be foreclosed to claimant. Michael v. Harrison Co., 34 Biennial Report of the Industrial Commissioner, 218, 219 (1979). Claimant's attorney requested that the following factors be taken into consideration in determining industrial disability. Age At age 40, with a partially grown family, Claimant faces minimally 25 years in the work force with obviously diminished capacities. He is at an age where this factor is extremely important in designating an adequate award of industrial disability. Education Claimant basically has a high school education with a smattering of night school background along general lines. He has qualified for vocational rehabilitation, but he is without funds to pursue further training for work which would not involve the general labor type work he has performed for the first 22 years since high school. Then this factor, too, should warrant a relatively high finding of industrial disability. Motivation Everything in the record indicates a high degree of motivation by claimant, in working despite pain, in seeking vocational rehabilitation, and in unsuccessfully seeking other jobs. Inability To Continue In the Same Line of Work True, Claimant is still working albeit with substantial pain and against the advice of his doctors. At age 40, a person should be in his or her peak earning years. It is a difficult time to change jobs, retrain or to perform old employments with limitations and restrictions. A high school education is just about the bare minimum requirement in order to obtain living wage employment in our society. Even though claimant is earning approximately the same income after the injury that he was earning prior to the injury, nevertheless, claimant's earning capacity has been diminished by his limitations and restrictions. As far as vocational rehabilitation, defendants do not owe claimant an education when claimant is able to perform his old job at approximately the same pay. Claimant had performed his old job at approximately the same pay for approximately one year without loss of time prior to the hearing. Claimant testified that he continued to work with pain, but pain that is not substantiated by clinical findings is not a substitute for impairment. Waller v. Chamberlain Mfg., II Iowa Industrial Commissioner Report, 419, 425 (1981). Dr. Walsh and Dr. Linden recommended employment with less stress on claimant's right arm, especially lifting weight with it or lifting it above shoulder level. Dr. Neff, said, however, that there are significant jobs claimant can continue doing. From the evidence it would appear claimant is in such a job right now. Claimant testified that all of his work was now at waist level. There was no evidence that he did any lifting which was injurious to his right arm. Therefore, based upon claimant's age of 40, his high school education without additional meaningful job skills or training, the pain claimant encounters when doing his present job, his mobility to work with his right arm above shoulder or eye level, his limitation of lifting less weight when using his right arm, and his significant physical impairment ratings awarded by Dr. Walsh, Dr. Murphy, Dr. Neff, Dr. Linden and Dr. Blume, it is determined that claimant has sustained an industrial disability of 25 percent of the body as a whole. The initial burden is on the claimant to show entitlement to an independent examination under Iowa Code section 85.39. Claimant did so when Dr. Walsh gave his rating, which claimant believed was too low. Defendant contends that claimant requested and obtained Dr. Neff for his one independent examination under Iowa Code section 85.39. The defense is in the nature of award and satisfaction or payment. Electra Ad Sign Co., Inc. v. Cedar Rapids Truck Center, 316 N.W.2d 876 (Iowa 1982). The burden of proving this contention is on defendant. Defendant did sustain the burden of proof by a preponderance of the evidence that claimant did request and receive an Iowa Code section 85.39 examination by Dr. Neff. This was the testimony of Dr. Garner. This was the testimony of Kitterman. Defendant's exhibit one is a signed request for an Iowa Code section 85.39 examination by Dr. Neff signed by claimant. Although claimant alleged irregularities in the completion of this form he did not deny that he did sign the form and receive an examination by Dr. Neff a few days later, nor did claimant testify who he expected the 85.39 examiner to be if it was not Dr. Neff. Therefore, defendant did sustain the burden of proof by a preponderance of the evidence that claimant did request and receive an independent examination under Iowa Code section 85.39 by Dr. Neff. Therefore, no allowance can be made for Dr. Blume's fee in the amount of $150.00 for the independent examination. FINDINGS OF FACT WHEREFORE, based upon the evidence presented the following findings of fact are made. That claimant is able to perform similar work to the work he was doing at the time of the injury at similar pay and he has been able to do this work for approximately one year without loss of time after he returned to work on April 20, 1986, but he has lost the ability to perform higher paying jobs which he could obtain by bid. That claimant testified that he experiences pain in doing his work. That claimant's skills as a packing house employee are not particularly valuable or transferable to the general employment market. That claimant can no longer do work which requires him to raise his right arm above approximately eye level or shoulder level. That claimant is limited as to how much weight he can lift with his right arm. That claimant received permanent partial impairment ratings of 6 percent, 8 percent, 9 percent, 20 percent, and 19 percent, of the body as a whole from five competent physicians. The average of these ratings is 12.4 percent. That claimant is age 40 and has a high school education without additional meaningful education or training. That claimant has sustained an industrial disability of 25 percent of the body as a whole. That claimant requested and received an Iowa Code section 85.39 examination from Dr. Neff and is not entitled to another examination from Dr. Blume. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law the following conclusions of law are made. That claimant is entitled to 125 weeks of permanent partial disability benefits based upon an industrial disability of 25 percent of the body as a whole. That claimant is not entitled to an Iowa Code section 85.39 examination for the examination conducted by Dr. Blume and for which he was charged $150.00. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant one hundred twenty-five (125) weeks of permanent partial disability benefits at the,rate of two hundred thirty-six and 51/100 dollars ($236.51) per week in the total amount of twenty-nine thousand five hundred sixty-three and 75/100 dollars ($29,563.75) commencing on April 20, 1986. That defendant is entitled to a credit for forty-five (45) weeks of benefits previously paid to claimant at the rate of two hundred thirty-six and 51/100 dollars ($236.51) in the total amount of ten thousand six hundred forty-two and 95/100 dollars ($10,642.95). That all accrued.benefits are to be paid in a lump sum. That interest will accrue under Iowa Code section 85.30. That defendant is to pay the costs of this proceeding pursuant to 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 22nd day of January, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry Smith Attorney at Law PO Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law 223 Pine Street Cherokee, Iowa 51012 1402.40; 1803; 1703; 2502 Filed January 22, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES R. HAYES, Claimant, File No. 760655 vs. A R B I T R A T I 0 N WILSON FOODS CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.40 Claimant, age 40, high school education, packing house worker, has rotator cuff injury and surgery. Various permanent partial impairment ratings were 6%, 8%, 9%, 20% and 19% of the body as a whole. These ratings average 12.5%. Claimant was restricted from work above shoulder level, lifting 20 to 30 pounds, and could no longer bid jobs that required these abilities. 1803 Claimant awarded 125 weeks of permanent partial disability based upon an industrial disability of 25% of the body as a whole. 1703 Defendant given credit for 45 weeks of PPD paid prior to hearing based on 9% of the body as a whole. 2502 The burden of proof of entitlement to an ICS 85.39 examination is upon the claimant. The burden of proof that claimant had already received the ICS 85.39 examination to which he was entitled is upon the defendant. Defendant sustained the burden of proof that claimant had already received an ICS 85.39 examination. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHARLES R. HAYES, File No. 760655 Claimant, A P P E A L vs. D E C I S I O N WILSON FOODS CORPORATION, F I L E D Employer, JUN 03 1988 Self-Insured, Defendant. IOWA INDUSTRIAL COMMISSIONER On April 8, 1988 claimant filed a motion to dismiss defendant's appeal. The defendant having filed a resistance, the same comes on for determination. Section 86.24(4) requires that the appealing party file an affidavit with the industrial commissioner that a transcript has been ordered. The statutory requirement states it "shall be filed." Although the undersigned has the authority to modify the time to comply with any rule (Division of Industrial Services Rule 343-2.1), the undersigned does not have the same authority to modify the statutory requirements. WHEREFORE, claimant's motion to dismiss defendant's appeal is sustained. Signed and filed this 3rd day of June, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David L. Sayre Attorney at Law 223 Pine Street Cherokee, Iowa 51012 BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ KATHERINE PICKETT, Claimant, VS. File No. 760739 DAVENPORT LUTHERAN HOME, A P P E A L Employer, D E C I S I 0 N and THE HOME INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent partial disability benefits based on 35 percent industrial disability. Claimant cross-appeals. The record on appeal consists of the transcript of the arbitration hearing, claimant's exhibits 1 through 14 and defendants' exhibits A through F. Both parties filed briefs on appeal. ISSUES The issues on appeal can be stated as: 1) Whether claimant received an injury arising out of and in the course of employment; 2) Whether there is a causal connection between the alleged injury and any disability claimant may suffer. Claimant states the following issues on cross-appeal. 1. Whether the 1981 lifting incident on the job caused any of claimant's disability; 2. Whether the finding that claimant is not motivated to return to work is supported by the evidence; 3. Whether Deputy McSweeney is at liberty to disallow interest on the medical payments made by the claimant, and 4. Whether the finding that the conversion date 12/31/84 is supported by the evidence, or whether the conversion date should be 4/4/85. PICKETT V. DAVENPORT LUTHERAN HOME Page 2 REVIEW OF THE EVIDENCE Claimant testified that she sustained an injury to her low back on March 22, 1984 when she was lifting a patient from a wheelchair. Claimant states that she sought treatment from her family physician, Arthur M. Abramsohn, D.O., the next day. Dr. Abramsohn hospitalized claimant for five days. Dr. Abramsohn opines the following in his dismissal summary: On 3/28/84 the patient still with some discomfort but ambulating well, not requiring sedation. Continue with muscle relaxants. The patient requesting dismissal with care at home and at my office to be continued. The patient was dismissed after consultation with patient as to continuation of care at home with muscle relaxants, lumbosacral support and Osteopathic manipulative therapy, coupled with Physical therapy with EMS by Medcosonolator. Condition improved and prognosis good. (Claimant's Exhibit 1, unnumbered page 8 and Defendants' Ex. B) Dr. Abramsohn states his final diagnosis on page 1 of claimant's exhibit 1. 1) Lumbosacral myofibrositis, acute 2) Somatic musculoskeletal dysfunction of Lumbar spine 3) Psoasitis While she was hospitalized claimant was also examined by R. J. Chesser, M.D. Dr. Chesser reports: On examination, she presents in no acute distress. Reflexes are equal at her knees and ankles. There is no ankle clonus or Babinski sign noted. Sensation is normal for pin prick, position and vibration. Strength of the extensor hallucis longus and ankle dorsiflexors is normal bilaterally. From a short sitting position she could fully extend her knees and dorsiflex her ankles asymptomatically. Toe and heel walking was normal. Lumbar mobility was full with the complaints of right-sided back pain at the extremes of forward flexion. EMG STUDY: Both lower extremities were screened. Myotomes from L2 through Sl were examined and the findings were normal. There was no membrane instability or any fasciculations and motor units were normal. Recruitment pattern was normal and the paraspinals bilaterally from Ll through Sl were normal. IMPRESSION: Normal EMG findings. At this time there is no EMG evidence of a radiculopathy or of a peripherally denervating process. PICKETT V. DAVENPORT LUTHERAN HOME Page 3 (Defendants' Ex. C) Claimant was examined by Raymond W. Dasso, M.D., on September 10, 1984. Dr. Dasso ordered a CT scan of claimant's lumbar spine. Dr. Dasso states the following in his examination report: X-RAYS: 9-10-84 Taken in my office. X-RAY OF LUMBAR SPINE: There is no evidence of fracture or dislocation. Bone texture is normal. The sacroiliac joints are within normal limits. The disc spaces are well maintained. 9-12-84 Taken at Moline Public Hospital. CT SCAN OF THE LUMBAR SPINE: Conclusion: There is bulging disc protruding into the right nerve root foramen at the L4-L5 level. DIAGNOSIS: Protruding intervertebral disc L4-L5. At defendants' request claimant was examined by John E. Sinning, Jr., M.D., on August 9, 1984. Dr. Sinning opines in his examination report: It is my impression that Mrs. Pickett is complaining of a hyperextension back strain problem. I see no indication that this is a permanent problem nor that any permanent impairment of function exists. I would recommend implementation of the exercise program and return to work. (Def. Ex. A) Dr. Sinning examined claimant again on April 30, 1985. In his examination report he states: On examination I found that Mrs. Pickett moved about easily and comfortably. She stood erect with a normal sway back. She bent over rounding out her back normally, stretching out her back a normal five inches. Lateral flexion was smooth without splinting. She had no pain as she bent forward and came backward normally. Her gait was normal, including tiptoe and heel walking. The lower extremity reflexes were brisk with equal calf size and no evidence of muscle weakness in the muscle groups of the lower legs. Sitting straight leg raising was normal. Supine straight leg raising was 801 within a normal range. I noted Mrs. Pickett's sway back as she lay flat but she was able to flatten out the sway as she bent her knees. She complained of tenderness as I palpated over the iliac crest on her back, perhaps the right a little more than the left. She complained of some tenderness in the mid point of the lumbar curve and the mid point of the thoracic curve. There was no special irritability but a complaint of tenderness on palpation in these areas. There was nothing in this examination to indicate PICKETT V. DAVENPORT LUTHERAN HOME Page 4 anything abnormal. I reviewed the CT scan which Mr. and Mrs. Pickett brought along from Moline Public Hospital. The CT scan was from the L3 to the sacral level. Both soft tissue and bone density studies were available. Slice #3 at L5-Sl showed mild bulging of the disc at that level. Slice #10 showed the bulging disc at L4-5, a little more bulge on the right than the left. I judge both these to be a normal bulge. The disc is spongy with elasticity and some bulging is a normal phenomenon. There was no evidence of impingement or displacement of the nerve roots by this bulge. The CT scan study was dated September 12, 1984. I have reviewed the sit-up program with Mrs. Pickett and suggested a modification in the way in which she does sit-ups. This modification means tightening the abdominal muscles without motion. It is my impression that there is no suggestion that another CT scan would be in order. Mrs. Pickett has no neurological impairment and no evidence of sciatica. A CT scan would be valuable if we were trying to evaluate a neurological impairment but with no impairment present, the CT scan study would not contribute anything to our direction of treatment. Mrs. Pickett has controlled her symptoms. She has no evidence of impairment of function in regard to her back or legs. I would not recommend any limitation on her activities. (Def. Ex. D) In a March 11, 1985 letter to claimant's attorney, Dr. Abramsohn states: We have informed this patient that her condition will probably be an intermittent recurring problem which will usually respond well with osteopathic manipulative treatment for relief of the muscle spasticity and the resulting neuritic pains. This condition will probably always be a chronic recurring condition. There will not be a permanent state of healing. She will only need an active therapy program when this condition recurs and will probably benefit with intermittent, prophylatic osteopathic manipulative therapy. (Cl. Ex. 4) On April 4, 1985 Dr. Abramsohn released claimant to return to work with these restrictions: 1) No lifting, especially patients in or out of bed or chairs; 2) No duties requiring bending or twisting. See claimant's exhibit 5. Dr. Dasso opines in a letter dated December 30, 1985: PICKETT V. DAVENPORT LUTHERAN HOME Page 5 Katherine Pickett has never been seen by me since the date of examination on 9-10-84. I do not know what her final outcome has been. Based on the single examination and the CT scan report. CT Scan at Moline Public Hospital 9-12-84. I would states [sic] that she has 10% permanent partial disability of her whole body because of her low back pain from the protruding intervertebral disc. (Cl. Ex. 10) Defendants' exhibit F contains copies of Dr. Abramsohn's office notes. An entry dated August 31, 1981 on unnumbered page 5 reveals that claimant sustained a low back injury lifting a patient from a wheelchair. Subsequent entries disclose that claimant continued to experience low back pain until October 23, 1981 when an entry was made stating "muscle spasticity subsiding - moving well." An entry dated March 20, 1984 reveals that claimant hurt her back "probably lifting at work." An entry dated April 2, 1934 indicates, "Feeling good. No back complaints." Another entry dated May 3, 1984 indicates that claimant experienced back pain lifting a couch five days earlier. A May 21, 1984 entry refers again to turning a couch. Claimant admits that she sustained a low back injury on August 31, 1981 but opines that this injury resulted in no permanent disability. Claimant agrees that she saw Dr. Abramsohn on March 20, 1984 but testifies that that visit was for treatment of dizziness. Claimant states she told Dr. Abramsohn that she attempted to move, not lift a couch. Claimant does not recall whether she told Dr. Abramsohn on April 2, 1984 that she had no back complaints. Claimant testified that she has not worked since the date of the accident. Claimant indicates that she would like to return to work for defendant employer if she were offered work within her restrictions. Claimant discloses that she has not applied for jobs anywhere else. Claimant stated that she is 45 years old and has a tenth grade education. Claimant indicates that she has worked for defendant for about five and a half years. APPLICABLE LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of March 22, 1984 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Section 85.30, Code of Iowa (1985) states: Compensation payments shall be made each week PICKETT V. DAVENPORT LUTHERAN HOME Page 6 beginning on the eleventh day after the injury, and each week thereafter during the period for which compensation is payable, and if not paid when due, there shall be added to the weekly compensation payments, interest at the rate provided in section 535.3 for court judgments and decrees. ANALYSIS The first issue on appeal is whether claimant sustained an injury arising out of and in the course of employment on March 22, 1984. Claimant's testimony that she sustained an injury at work lifting a patient from a wheelchair is unrebutted. Dr. Abramsohn's office notes support claimant's testimony. Claimant has met her burden in proving she sustained an injury arising out of and in the course of employment on March 22, 1984. The next issue on appeal is whether there is a causal connection between the March 22 injury and any disability. Claimant has the burden of proving a causal connection. Claimant has not met that burden by a preponderance of the evidence presented. The dismissal summary of Dr. Abramsohn indicated that claimant's prognosis was good. Dr. Chesser's impression was normal EMG indicating no radiculopathy or peripherally denervating process. Entries on May 3 and 23, 1984 indicate that claimant experienced back pain while moving a couch at home. The undersigned finds the testimony of Dr. Sinning, who examined claimant as late as April 1985, to be the most persuasive. He PICKETT V. DAVENPORT LUTHERAN HOME Page 7 could not find anything abnormal nor did he recommend any limitations on claimant's activity. The greater weight of evidence establishes that claimant's period of temporary total disability ended on April 4, 1985 when Dr. Abramsohn released her to return to work. The deputy was correct in holding that defendants could not deny liability and direct the course of claimant's medical treatment. Kindhart v. Fort Des Moines Hotel, Vol. 1, No. 3, State of Iowa Industrial Commissioner Decisions 611, 620 (1985); Barnhart v. MAQ Incorporated, 1 Iowa Industrial Commissioner Report 16 (1981). Claimant is entitled to payment of the medical bills set out in claimant's exhibits 6, 11, 12, and 13. Claimant argues on cross-appeal that she is entitled to statutory interest on the medical benefits which defendants failed to pay. Iowa Code section 85.30 only provides for the payment of interest on weekly compensation benefits. See Klein v. Furnas Electric Company, 384 N.W.2d 370, 375 (Iowa FINDINGS OF FACT 1. Claimant injured her back lifting a patient from a wheelchair on March 22, 1984. 2. Claimant reported to her treating physician on May 3 and May 21, 1984 that she experienced low back pain while moving a couch. 3. Claimant currently suffers no permanent impairment as a result of her injury on March 22, 1984. 4. Claimant was released for return to work on April 4, 1985 by Dr. Abramsohn. 5. Claimant's rate is stipulated to be $134.94 per week. CONCLUSIONS OF LAW Claimant has established that she sustained an injury arising out of and in the course of employment on March 22, 1984. Claimant has not established a causal connection between the injury on March 22, 1984 and any disability she now suffers. Claimant is entitled to benefits for temporary total disability for the period commencing March 23, 1984 and ending April 4, 1935 at the rate of $134.94 per week. WHEREFORE, the decision of the deputy is affirmed in part and reversed in part. ORDER THEREFORE, it is ordered: PICKETT V. DAVENPORT LUTHERAN HOME Page 8 That defendants pay claimant one hundred thirty-four and 94/100 dollars ($134.94) per week for the period commencing March 23, 1984 and ending April 4, 1985. That defendants pay claimant one thousand one hundred twenty-seven and 50/100 dollars ($1,127.50) for medical expenses. That defendants pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendants be given credit for weekly benefits already paid to claimant. That the costs of the appeal including the transcription of the hearing proceeding are to be shared equally. That defendants file claim activity reports pursuant to Division of Industrial Services Rule 343-3.1(2), as requested by the agency. Signed and filed this 30th day of October, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Peter M. Soble Attorney at Law 505 Plaza Office Bldg. Rock Island, IL 61201 Mr. Lawrence J. Lammers Attorney at Law 701 Kahl Bldg. Davenport, Iowa 52801 Mr. Michael W. Liebbe Attorney at Law 116 E. 6th Street P.O. Box 339 Davenport, Iowa 52805 1402.20-1402.30-1402.40 1402.60-1801-1803-3800 Filed October 30, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ KATHERINE PICKETT, Claimant, VS. File No. 760739 DAVENPORT LUTHERAN HOME, A P P E A L Employer, D E C I S I 0 N and THE HOME INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ 1402.20 - 1402.30 - 1402.40 - 1402.60 - 1801 - 1803 - 3800 Claimant's injury found to have arose out of and in the course of her employment. Claimant did not prove causal connection between her injury and any disability she may suffer. Claimant entitled to payment of medical expenses. Defendants may not deny liability and direct the course of claimant's medical treatment. Section 85.30 only provides for payment of interest on weekly compensation benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROSALIE J. DESGRANGES, Claimant, vs File No. 76074 DEPARTMENT OF HUMAN SERVICES, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying temporary total disability benefits, healing period benefits, permanent disability benefits, and medical expenses. The record on appeal consists of the transcript of the arbitration hearing and the exhibits listed in the prehearing report except those described in the arbitration decision as missing from the package of exhibits. Both parties filed briefs on appeal. ISSUES The issues on appeal are: Whether the deputy erred in making certain findings of fact; whether claimant received injuries arising out of and in the course of her employment; whether the deputy erred in limiting claimant's presentation of her case; and whether the deputy erred in assessing the costs of the arbitration proceeding to the claimant. REVIEW OF THE EVIDENCE The review of evidence will be discussed generally in three parts to facilitate the understanding of the large volume of evidence and testimony in this matter. The first part of the discussion will relate to the reliability of claimant's testimony. The second part will relate to claimant's alleged fall and back injury. The third part will relate to claimant's alleged mental disability. DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 2 Claimant testified that on the afternoon of December 6, 1983 she fell as she was ascending steps where she worked. She stated she limped and favored her back at the office. She also testified that she had not initiated contact with an attorney who represented Bonnie Bolander Davies, who was involved in a hearing with the Department of Human Services (hereinafter department) regarding termination of Davies' parental rights. The only aspect of these events supported by other testimony was testimony by Bonnie Davies that she had seen claimant fall. The other aspects of claimant's testimony described were directly contradicted by testimony of other witnesses. Claimant disclosed during her testimony that she was confused in October 1982 and in February 1984. She also indicated that she was having trouble concentrating during her testimony and stated that she rambled a lot when she talked. Bonnie Davies testified that she was nervous during the court hearing and revealed that she went to the bathroom and was leaving the courthouse when she saw claimant fall on the stairs. Bonnie Davies' account of the events of December 6, 1983 did not include a confrontation with a judge which was described in the testimony of her attorney. The second evidentiary matter to be reviewed relates to claimant's alleged fall and back injury. In addition to the evidence described above, the following evidence is also described. Claimant testified that she fell on December 6, 1983 and had continuing pain until the last day she worked, February 10, 1984, and after that date. Claimant stated that she complained a lot about the pain to individuals (Teresa Hill, Cindy Sands, Joe Torres, and Sue Hallock) with whom she worked. She further testified that Dr. Egger in January 1984 and St. Paul hospital on February 23, 1984 were aware of the pain but explained that the lack of medical notes concerning her pain until April 1984 was because they did not make a note of the pain. Sue Hallock testified that claimant never told her that she had fallen and hurt her back. Teresa ~ill and Cindy Sands both generally testified that they did not notice claimant limping or favoring her back or arm. Joe Torres did not testify. A note from the progress records of St. Paul Hospital in Dallas, Texas, dated February 23, 1984, reported: "Pt. complained today of numbness & tingling of left arm. On questioning stated it had been bothering her for 2 months." Claimant contacted The Hillcrest Institute in Dallas, Texas on February 14, 1984 regarding treatment and possible hospitalization. In a letter dated March 23, 1984, D. F. Martinez, M.D., psychiatrist, gave a diagnosis of claimant's psychological problems only. In a letter dated April 29, 1985, which was cosigned by Dr. Martinez, he related: DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 3 In February, 1984, Ms. Desgranges came to our office for evaluation and treatment. She was placed in St. Paul Hospital and given Triavil 4-25 three times a day, for depression. X-rays were also performed on her neck and left shoulder but the results were negative. She continued to complain of pain on the left side and it was recommended that she see a neurologist. Ms. Desgranges returned to Council Bluffs and was seen by Dr. Miller, an orthopedic surgeon, who conducted additional tests and X-rays that were also reportedly negative. Dr. Miller referred her to Dr. Gooding, a neurologist. (Joint Exhibit 83) R. Schuyler Gooding, M.D., a neurosurgeon; first saw claimant on April 17, 1984. In a letter dated March 14, 1985, Dr. Gooding reported: She was referred to me by Dr. Ronald Miller, the Council Bluffs Orthopedic Surgeon, and she was originally seen by me in my office on April 17, 1984. She is a thirty-nine year old, Left-handed caucasian female, who, on the 6th of December 1983, fell at work while carrying a load of mail, landing hard on her buttock, bruising her Right buttock, and since that time, she has had variable numbness and tingling of the Left arm, and to a slightly lesser extent the Left leg. She also describes some stiffness and discomfort in her lower back, and to a slightly lesser extent, in her neck.... Further and detailed evaluation by myself revealed normal cervical spine X-rays, but X-rays of the lumbar spine revealed a slight L5 anterior on Sl listhesis. EMG studies of the Left-sided extremities were normal. A total Amipague Myelogram revealed a ventral C6-C7 defect seen in the lateral projection as a double density, felt to be consistent with a disc herniation. A Cervical Discogram, did not add any additional information to this noted abnormality. In the lumbar region, the Myelogram revealed a moderate ventral L5-Sl defect with bilateral amputation of the Sl nerve roots. This abnormality was felt to reflect, at least in part, her spondylolisthesis, with a contribution by a ruptured disc at that level, also being considered. DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 4 The overall impression, is that this patient has a ruptured disc at the C6-C7 level, which is contributing to her discomfort and paresthesiae involving the Left upper extremity. The problems of her Left lower extremity, are no doubt related to the abnormality described at the L5-Sl level. The history, as related to me, is that this patient had none of these problems prior to the fall, and therefore, I would directly relate the symptomatic picture involving the Left-sided extremities as being definitely related to the afore-mentioned [sic] fall, in that the under-lying [sic] abnormalities, if not absolutely and totally caused by the fall, (spondylolisthesis is most likely congenital in orgin [sic]), at least they were brought into symptomatic relief by the super imposed [sic] trauma of the fall. (Jt. Ex. 82) Dr. Gooding further reported in a letter dated April 24, 1986: [M]y impression continues to be of a patient who has some documentable problems with both her cervical and lumbar spine, interwoven with a series of falls, and with the patient appearing to have progressively more symptoms, as time goes on, and as the falls begin to add up. It even crosses my mind that perhaps her subsequent falls are increasingly the product of her problem, rather than the cause of it. Certainly, all of the history of trauma that this patient has experienced during this period that she has had problems with her spine, is most important. But it is also important to recognize that we may be dealing with a progressive situation initiated by the fall in December of 1983, rather than a series of isolated traumatic incidents, all of which are relatively independent of one another. (Jt. Ex. 82) Claimant was admitted to Jennie Edmundson Memorial Hospital on October 22, 1984 where a myelogram and cervical discogram DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 5 were performed on October 22, 1984 and October 23, 1984, respectively. The findings of the myelogram procedure were: In the lumbar region, there was a moderate ventricle L5-51 defect with the Sl nerve roots amputated bilaterally. (The patient does have a first degree spondylolithesis.) In the thoracic region, no significant abnormalities were noted. In the cervical region, there was a ventral C6-7 defect seen in the lateral projection as a double density. It was felt that this latter defect may represent a ruptured disc. (Jt. Ex. 82) George W. Warton, M.D., noted on December 4, 1984: "I think we badly need any old medical records from this patient's previous treatment. Her history is quite uncertain and it is difficult to make any sense of the story which is available." (Jt. Ex. 87) An office note made by Dr. Martinez dated August 13, 1984 reported that claimant "fell at sisters bruised [right] arm, [right] leg & both knees. [Left] leg seemed give way - tingles up to hip. Low back pain." (Jt. Ex. 83) The third evidentiary matter to be reviewed relates to claimant's alleged mental disability. Claimant began working for the department at its Mills County office in December 1980. In March 1982, the department reorganized its office structure and claimant's former supervisor, Ray Buell, was replaced by Sue Hallock. Sue Hallock supervised the social workers in Mills and Fremont counties and claimant was the secretary for Sue Hallock and the social workers in the Mills County office. The record is in dispute as to whether or not Sue Hallock had a critical and berating attitude. Michael L. Egger, M.D., a psychiatrist, treated claimant in August 1982 when he saw her approximately six times and then saw her again in January and February 1984. Claimant had sought Dr. Egger's care after a misunderstanding between her and Hallock regarding whether claimant's request for time off was to be treated as "comp time" or vacation time. Dr. Egger's office note dated August 11, 1982 indicates that claimant was treated by Dr. Mount in Texas sometime between 1975 and 1978. Claimant again sought treatment in 1984. Claimant had received a written reprimand at work in December 1983. Joseph H. Lindsay, M.D., psychiatrist, gave an impression when claimant was admitted to St. Paul Hospital on February 20, 1984 of "Paranoid personality. Rule out paranoid schizophrenia." His impression when claimant was admitted on May 7, 1984 was "(1) DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 6 Depression. (2) Emotionally unstable personality." D. F. Martinez, M.D., psychiatrist, is the medical director at the Hillcrest Institute in Dallas, Texas where claimant was treated. A letter dated April 29, 1985 cosigned by Dr. Martinez reads in relevant part: Ms. Desgranges is still under our care as a result of her work-related injuries of both a physical and psychological nature.... In January, 1984, Ms. Desgranges saw Dr. Egger in Council Bluffs as she continued to have pain and numbness from her earlier injury as we]l 25 depression as a result of this continuing pain as well as job-related stress aggravated by stringent supervision at work. Dr. Egger recommended that Ms. Desgranges terminate her employment, but she was unable to follow this recommendation given her financial condition. Therefore, she was forced to continue working under adverse conditions that contributed to her present state of being disabled. (Jt. Ex. 83) George Mount, Ph.D., is the psychology director at the Hillcrest Institute. He testified that his first contact with claimant was on February 22, 1984 and she had been in the office approximately 60 times for about 50 minutes each session. His final diagnosis was Axis I: generalize anxiety disorder with some depression and Axis II: avoidant personality disorder. He opined that the cause of claimant's disorders were related to stress in claimant's work environment. Robert E. Smith, M.D., psychiatrist, saw claimant pursuant to defendants' request for about one hour on August 8, 1985 and her husband for about half an hour and reviewed materials relating to her. He testified that his diagnosis for Axis I is dysphoria, chronic and there was no evidence for a major depressive disorder which is a more severe dysphoria. His diagnosis for Axis II was borderline personality disorder. Dr. Smith testified in depositions on cross-examination: Q. You would agree that Doctor Mount and Doctor Martinez have had a better opportunity than you to observe her conditions of health, functional viability and everyday life more than you have? A. No, I disagree with that. Doctor Mount and Doctor Martinez have seen her during two exacerbations DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 7 of a long-term process. And we have no records of what their diagnosis or treatment was in 1976, but we do have records of the 1984. They are focusing purely on the major complaints that the patient has; depression, anxiety. They have failed to look at what is the context in which these symptoms are arising from, what is the basis of this personality of this person as an individual. And that's where they're at conflict with the doctor in their own clinic who has made the diagnosis the same as the one I'm making. Q. Okay. Now, could those perceived stressful events have in actuality been stressful events, not just being perceived stressful events. A. In my experience, in dealing with her employers and dealing with her work environment, there is always a significant component of one misconception and a significant component of their behavior actually feeding into a negative situation; the removal of support, the removal of an environment in which they feel comfortable. They contribute to the downfall -- Q. I understand that. A. -- because of the nature of their disorder. Does the job stress contribute to the aggravation or the lighting up of that condition? A. Minimum. Q. But it does contribute to it? A. Minimum. [Jt. Ex. 105 ( 1)] He opined that claimant's work environment did not cause her borderline personality disorder, that it was present prior to working for the department, and that it was exacerbated and came to flourish in the work setting because of her feeding into it. He indicated that the increase in pressure on the job was contributed to by her interpersonal behavior with individuals in the work setting. DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 8 APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of her employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Services stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In cases involving alleged mental injuries which are not the result of physical trauma, the required showing to establish a compensable mental injury arising out of employment vary from state to state. See Sersland, Mental Disability Caused by Mental Stress: Standards of Proof on Workers' Compensation Cases, 33 Drake L.Rev. 751 (1984). The Iowa Supreme Court has not as yet decided what rule applies in this state. The court has only stated that claimant's employment must provide more than a "stage for the nervous injury." Newman v. John Deere DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 9 Ottumwa Works, 372 N.W.2d 199 (Iowa 1985). On one occasion in the past this agency has indicated preference for the so-called "objective'' or "Wisconsin" rule which was first expressed in School District #1 v. Department of Industry, L. & H.R., 62 Wis.2d 370, 215 N.W.2d 373 (1974) and later in Swiss Colony v. Dept. of ILAR, 72 Wis.2d 46, 240 N.W.2d 128 (1976). See Schreckengast v. Hammermills, Inc., IV Iowa Industrial Commissioner Report 305 (Appeal Decision 1983). However, this agency's decision in Schreckengast was appealed to the Iowa Supreme Court which affirmed the agency on other grounds. Whether or not the ruling from this agency in Schreckengast is binding in this case, the Wisconsin rule appears to be the best approach and is favored by Professor Larson in his treatise on workers' compensation law. See Larson, The Law of Workmen's Compensation, Vol. lB, p. 7-637 et. seq., section 42.23(b). The rule insures that the claimed emotional difficulty is truly work related given the difficulties surrounding proof of the existence and nature of emotional harm. Furthermore, the rule is consistent with the concept in personal injury cases long recognized in Iowa that damages are more difficult to recover in a case involving only an emotional injury than a case involving a physical injury. Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981), negligent infliction of emotional harm; Barnett v. Collection Service Co., 214 Iowa 1303, 1312, 242 N.W. 25, 28 (1932), intentional infliction of emotional harm. Under the Wisconsin rule, a nontraumatically caused mental injury is compensable only when the injury "resulted from a situation of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience." Swiss Colony, 240 N.W.2d at 130. In other words, there are two issues which must be resolved before finding an injury arising out of employment--medical and legal causation. The medical causation issue is strictly an examination into the cause and effect relationship between the stresses and tensions at work and the mental difficulties. If the medical causation issue is resolved in favor of the claimant, legal causation is next examined. This determination concerns the issue of whether the work stresses and tensions (viewed objectively, not as perceived by claimant) were "out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury." School District #1, 215 N.W.2d at 377 ANALYSIS The first matter to be considered is the reliability of claimant's testimony. The deputy found that claimant was not a credible witness. Claimant argues on appeal that this finding was erroneous because claimant's testimony was corroborated by other witnesses. While some of claimant's testimony is corroborated by other witnesses, other testimony is contradicted. It DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 10 should be noted that a material aspect of claimant's testimony regarding the occurrence of her alleged fall is corroborated by Davies who was herself under duress on the day of the fall and the credibility of Davies' testimony would be suspect. Furthermore, Davies' testimony would be suspect because her account of her activities on the day of the fall excluded her confrontation with the judge. A sufficient amount of the testimony is contradicted, confused, and implausible so that it is impossible to rely on claimant's testimony. Claimant's own testimony was that she was confused during the time she worked for the department and at the time of the hearing. Claimant's confusion and the contradictions in her testimony as well as Davies' testimony leave enough information in doubt as to conclude that the testimony of neither the claimant nor Davies is reliable. The second matter to be considered is whether claimant suffered a mental injury that arose out of and in the course of her employment. As will be discussed below, claimant has not established that she had a back injury that arose out of and in the course of her employment. It should be noted that claimant's treatment for her mental condition in August 1982 predated her alleged fall in December 1983. Therefore, the alleged mental injury would not be the result of a physical trauma. In discussing whether claimant's employment was the cause in fact of claimant's mental condition, the deputy stated: There was dispute among the medical experts testifying in this case as to the exact diagnosis of claimant's mental problems. Claimant's treating psychiatrist, D. F. Martinez, M.D., and treating psychologist, George R. Mount, Ph.D., diagnosed claimant as suffering from only "avoidant personality disorder," a lesser degree of personality disorder than [borderline personality disorder]. Drs. Martinez and Mount state that this condition made claimant susceptible to severe and disabling depression and anxiety caused by various stressors in her work environment. However, the views of the expert retained by defendants, Robert E. Smith, M.D., a board certified psychiatrist, were given the greater weight....Although Dr. Mount is an extremely able psychologist and Dr. Martinez has not been shown to lack in credentials, Dr. Smith's academic credentials along with his teaching and clinical experience as an instructor at a major medical school and teaching hospital were impressive despite Dr. Martinez's and Dr. Mount's longer clinical experience with claimant. also, Dr. Smith's portrayal of a typical person suffering from "borderline personality disorder" was more descriptive of claimant's behavior in this case. DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 11 According to Dr. Smith, persons who have a borderline personality disorder suffer from recurrent episodes of depression which require hospitalization. Such persons encounter difficulty with interpersonal relationships and exhibit mood instability. Borderlines generally seek to control their environment. They do not easily take criticism. Such persons seek recognition from others and sometimes attempt to manipulate their environment to achieve recognition of being good or better than others. Also, borderlines tend to blame others for their difficulties rather than examine their own possible capability for their problems. Finally, the depression experienced by borderlines unlike endogenous or biochemical induced depression generally improves very quickly upon hospitalization and medication therapy. However, Dr. Smith also states that because of their desire to control, borderlines do not tend to follow through with follow-up treatment after depression episodes and they likewise are not likely to continue taking prescribed medication. For these reasons, borderlines are difficult to treat and their prognosis is generally not good. Only two other psychiatrists were involved in this case. Michael L. Egger, M.D., who treated claimant in 1982 and Joseph H. Lindsay, M.D., an associate of Drs. Martinez and Mount who initially admitted claimant to the hospital in 1984. Dr. Smith testified that these physicians agree with his diagnosis from his review of their reports. Except for the fact that Dr. Mount stated that Dr. Lindsay only briefly dealt with claimant, he did not dispute Dr. Smith's-assessment of their views. The deputy correctly concluded that claimant suffered from a psychiatric condition termed a borderline personality disorder prior to her employment with defendant employer. Not only did Dr. Smith's portrayal of a typical person suffering from borderline personality disorder describe claimant's behavior in this case, but his explanation as to why his diagnosis differed from Dr. Mount's was convincing. While Dr. Smith may have had less contact with claimant, he based his diagnosis on the general picture of claimant's condition and not merely components or symptoms of claimant's condition or complaints by claimant. Although Dr. Smith did indicate that job stress may have aggravated claimant's condition, he emphasized that it was a minimum contribution. It was also his opinion that the increase in the pressure on the job experienced by claimant was contributed to by claimant's interpersonal behavior with individuals in the DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 12 work setting. It is impossible to tell the extent that job stress contributed to the aggravation of claimant's condition. There is insufficient medical evidence in the record to determine at any one point in time how much of claimant's condition was due to her underlying condition and how much was due to the aggravation of the condition. There were apparently other factors that also contributed to the aggravation and it is impossible to determine how much of the aggravation could be attributed to job stress and how much was attributed to the other factors. Those doctors who opine that claimant's condition in 1984 or thereafter was a result of the work environment do not specify what, if any, aspects of the work environment were the contributing factors. It is impossible to tell at any time if claimant's condition was due to the work environment or the normal progress of claimant's mental condition. Dr. Smith indicated that claimant's condition was exacerbated in the work setting because of her own interpersonal behavior. It is not clear whether it was Dr. Smith's opinion, which is the most reliable, that the work setting aggravated claimant's condition or the aggravation was the result of claimant's own interpersonal behavior. A work connected injury which more than slightly aggravates a preexisting condition can be the cause of a compensable injury. In this case claimant has not demonstrated that her work environment developed a pattern of stress over a significant period of time. She first sought care for her mental condition only a matter of several months after the office reorganization. The misunderstanding regarding whether claimant was to have time off charged as "Comp time" or vacation time was certainly not part of any pattern. That misunderstanding was not an out of the ordinary work stress. It cannot be said that this misunderstanding was an actual precipitating factor for claimant's condition at that time. Claimant has not proved that that misunderstanding or any other work activity aggravated her condition beyond the normal progression of her condition. Claimant has not proved that her work environment, in fact, caused her mental condition nor has she proved that it aggravated her preexisting mental condition. This is especially true since claimant is not credible and the physicians were basing their opinions on claimant's statements as to history and complaints. The third matter to be considered is whether claimant received a physical injury that arose out of and in the course of her employment. In discussing this issue, the deputy stated: Drs. Mount and Martinez also opine that claimant's difficulties beginning in February 1984 were also significantly aggravated by claimant's back problems caused by the alleged fall experienced by claimant at work on December 6, 1983. This opinion is based DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 13 upon the history that claimant provided them of this fall and that all of her back problems began at that time. Dr. Smith agrees that a borderline personality individual will have more difficulty dealing with physical problems than a normal person. Claimant was diagnosed in October 1984 as suffering from a herniated disc in her cervical spine and spondylolisthesis in her lower spine resulting in upper and lower back pain and numbness in the left upper and lower extremities. However, due to a lack of credible evidence, no finding can be made that claimant actually suffered a fall at work on December 6, 1983 or at any other time. Claimant contends that she had no back problem before a fall she experienced in the Mills County courthouse on the day of the juvenile court proceeding in which she testified on behalf of Davis [sic]. At that time, toward the end of the day, claimant testified that she fell on her buttocks while attempting to climb the stairs near her office. Interestingly, the only person to verify her story was Davis [sic] herself. Claimant stated that her back pain and numbness started at that time and that she experienced continuous severe pain since that time. Claimant said that she reported the fall to Hallock but that Hallock ignored her because Hallock was upset over claimant's testimony that day. Hallock denies that claimant ever mentioned the fall at any time prior to leaving work in February 1984. Aside from the fact that claimant generally is not credible, claimant's story regarding the fall is not plausible. She did not seek immediate medical attention despite a complaint of an immediate onset of continuous back pain that she supposedly had never before experienced. Although claimant apparently complained of neuritis symptoms during the February 1984 hospitalization and x-rays were taken of her back at that time, no such fall was mentioned in any of the histories reported by her physicians in Texas until October 1984. After the February 1984 hospitalization, claimant did not seek further treatment of her back until April 1984 and then again no further treatment was received until October 1984. The only mention of any fall prior to October 1984 in any of claimant's medical records concerned a fall at her sister's house in Texas in August 1984 after which she complained of low backache and numbness in her left leg. Furthermore, if claimant had thought she orally notified DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 14 Hallock on the day of the fall, why did she feel it necessary to retain an attorney to file a first report of injury in March 1984, three months after the alleged fall, before Hallock or anyone else knew claimant was filing a workers' compensation claim in this matter. Hallock simply had no opportunity to deny the oral notice of injury prior to the first report of injury. Furthermore, Davis' [sic] verification of claimant's fall is not credible. Her testimony in her deposition submitted into the evidence contained numerous inconsistencies and conflicts with other credible evidence in this case. Davis [sic] at first denied talking with claimant especially about her work and her problems with Hallock-before the--juvenile hearing but later on upon further questioning she admitted to prior discussions with claimant on at least two occasions, once in her home. Davis [sic] also said that claimant was limping around the Mills County office after this fall but no other person in the Mills County office observed such symptoms. Also, Davis' [sic] testimony was not impressive for the reason that she claimed that human services had been unfair to her. She also professed a real interest in her children in her testimony. However, her attorney testified that he was forced to withdraw as her attorney after the December 1983 hearing because she did not keep him informed of her whereabouts and did not attend subsequent court hearings. Admittedly, two credible witnesses, Roland York and Esabelle Garrison, the court-bailiff, who testified by way of deposition, stated that claimant told them of a fall she experienced on the courthouse stairs. However, neither of these witnesses could state when this occurred except that York stated that it was during her employment with human services. It is unclear from York's testimony whether he meant before the last day of work in February 1984 or her termination in June 1984. It is completely therefore possible that claimant could have mentioned this fall when she returned from Texas in March 1984 after her lawyer filed the first report of injury. It is also possible that he could have been referring to a fall at a much earlier time then [sic] December 1983. Unfortunately, the testimony of these witnesses were insufficient, given claimant's lack of credibility, to establish that claimant suffered the fall in question or that the fall was the beginning of her back difficulties. DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 15 The deputy correctly determined that claimant had not proved she had fallen at work on December 6, 1983. Claimant admitted she was confused during this time. The alleged fall coincided with the testimony at the court hearing at which she was upset. She perceived that her coworkers and supervisor were upset about the testimony and this further upset her. The doctors who state that her physical condition was a result of the fall base their opinion upon a history that is not reliable and somewhat inconsistent. Claimant related different symptoms at various times. She stated that she limped and was in considerable pain at work but also complained of neck and arm problems and later only reported arm problems and still later reported neck and lower back problems. The evidence is too inconsistent and unreliable to conclude that claimant met her burden of proving a back injury that arose out of and in the course of her employment with defendants on December 6, 1983. Claimant raises two other matters on appeal that can be dealt with summarily. First, claimant argues that the deputy erred in limiting claimant's presentation of her case. That argument is at odds with the circumstances of this case. Much of the testimony was given by means of deposition and claimant was represented when those depositions were taken. In addition, the Analysis of Status/Certificate of Readiness for Pre-Hearing Conference dated October 1, 1984 which was signed by claimant's representative stated that the hearing would be three to four hours. The hearing lasted from 8:30 a.m. until 4:20 p.m. on May 22, 1986 and it was continued until June 27, 1986 when it commenced at 8:30 a.m. and concluded at 5:00 p.m. Ten of the thirteen witnesses testifying at the two days of hearing were called by claimant to testify. Claimant's argument that the deputy erred in limiting presentation of her case is simply not persuasive. Claimant also argues that the deputy erred in assessing the costs of the proceedings to her. In support of the argument, claimant points out that three-fourths of the costs incurred were for the discovery depositions taken by defendants. Division of Industrial Services Rule 343-4.33 provides in relevant part: "Costs are to be assessed at the discretion of the deputy commissioner or industrial commissioner hearing the case unless otherwise required by the rules of civil procedure governing discovery." While the costs of the proceeding may be in part due to the depositions taken by defendants, there is no indication that the discovery by defendants is excessive. Claimant's own actions, her credibility and her candor, and the nature of this case are all factors that contribute to the costs of this case. As ordered below, claimant takes nothing from these proceedings. The deputy did not abuse his discretion in assessing costs to the claimant in this case. DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 16 FINDINGS OF FACT 1. The testimony of claimant was unreliable. 2. Claimant was employed by defendants in Mills County, Iowa, from December 8, 1980 to June 17, 1984, initially as a Clerk II and later as a Secretary I. 3. Claimant's employment history consists mainly of secretarial and clerical work prior to December 1980. 4. Prior to her employment with defendants, claimant suffered from a psychiatric condition, a borderline personality disorder. That condition is one in which environmental influences or interpersonal conflict perceived by claimant as stressful precipitates recurrent or chronic severe depression, anxiety, and anger. 5. Prior to claimant's hospitalization for emotional difficulties in 1982 and 1984 and prior to her employment with defendants, she was hospitalized for emotional difficulties on one occasion in December 1976 while she was living in Texas following the burning of her house. 6. The defendant department underwent a reorganization in March 1982 and the Mills County office where claimant worked was relocated shortly thereafter. 7. After the office was relocated, the office space was small and cramped for all the employees in the office. 8. There was tension in the office when it was supervised by Hallock. The tension was experienced by several employees including claimant. 9. The mental work stresses and tensions claimant experienced during her employment with defendant between March 1982 and February 1984 did not aggravate her preexisting mental condition. 10. Claimant did not suffer a back injury as a result of a fall at work on December 6, 1983. 11. Claimant's mental condition is not the result of a physical trauma. 12. Claimant's job was not unusually stressful. CONCLUSIONS OF LAW Claimant has failed to prove by a preponderance of the evidence that she suffered a mental injury that arose out of and in the course of her employment. Claimant has failed to prove by a preponderance of the DESGRANGES V. DEPARTMENT OF HUMAN SERVICES Page 17 evidence that she suffered a physical injury on December 6, 1983 that arose out of and in the course of her employment. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That claimant pay all costs of this action including the costs of the appeal and transcription of the arbitration hearing. Signed and filed this 19th day of August, 1988. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN TADIN, Claimant, File Nos. 761013 VS. 818247 GLENWOOD STATE HOSPITAL-SCHOOL,: A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATEOF IOWA, Insurance Carrier, Defendant. INTRODUCTION These are arbitration proceedings brought by John Tadin, claimant, against the State of Iowa, Glenwood State Hospital-School, self-insured, employer. The case was heard by the undersigned in Council Bluffs, Iowa on January 23, 1989. The record consists of the testimony of claimant. Also the record consists of the testimony of Michael D. Bague, for claimant, and Robert F. Wallace, Sr., for employer. Additionally, the record consists of claimant's exhibits A 1-33 and defendant's exhibits A-J. Claimant objected to the admission of defendant's exhibits H, I and J. However, the undersigned determines H, I and J are admissible, even though the exhibits are hearsay evidence. See: DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940). ISSUES As a result of the prehearing report and order submitted on January 23, 1989, the issues presented by the parties are: 1. Whether claimant sustained injuries on March 9, 1984 or March 13, 1984 and February 6, 1986, which arose out of and in the course of employment with employer; 2. Whether there is a causal relationship between the alleged injury and the disability; TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Page 2 3. Whether claimant is entitled to permanent partial disability benefits to the body as a whole; and, 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. FACTS PRESENTED Claimant commenced his employment with defendant on December 7, 1979. He was hired to work in the alternate living unit, and in the behavior modification unit where residents were experiencing severe physical problems. Claimant's job title was known as a resident treatment worker. Resident treatment workers were required to maintain constant contact with the residents and to assist the residents in eliminating negative behavior. Claimant testified that resident treatment workers were often attacked by the residents, or jumped from behind. Claimant indicated he had been attacked several times. Claimant also indicated he had filed prior accident reports for alleged back injuries in 1981, 1983, 1984 and 1985. Those injury dates are not in dispute. Claimant testified that on either March 9, 1984 or on March 13, 1984, a resident attempted to jump from a restroom window. The resident was hanging from the window and claimant pulled the resident back into the building. While claimant was pulling on the resident, claimant felt a sharp pain in his back. He testified he took several days off work as a result of this incident. Claimant also testified this was the first occasion where claimant had seen Behrouz Rassekh, M.D., a doctor retained by defendant. With respect to the second alleged injury, claimant testified he felt back strain from carrying and delivering patient charts. Then on that same evening, claimant, in his deposition, testified he was teaching residents how to bowl and he again felt a pain in his back. At the hearing, claimant testified he was not teaching residents how to bowl. Rather, the bowling incident took place while claimant was bowling on his own league. The bowling incident was a purely personal endeavor. Claimant testified he terminated his employment with defendant on February 6, 1986, because his back was becoming more painful. He reported he requested a light duty position from Ms. Jensen, but she indicated there were no light duty positions available. Claimant also testified he requested a light duty position from Robert Wallace. Claimant stated he informed Mr. Wallace of the back pain but no light duty job was offered. TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Page 3 Subsequent to his separation, claimant testified he was denied unemployment compensation. Claimant also indicated he eventually started his own construction business in the fall of 1986. According to claimant's testimony, he now lifts only light objects and if he does any heavy labor, he suffers the consequences. Claimant, in his deposition, states he is engaged in remodeling houses, building homes, weatherizing homes, performing government contracts and building customized kitchen cabinets. Claimant also testified that he is in the Army Reserves. He admitted in his deposition that he had not informed his superiors of his back condition. Likewise, claimant stated he never intended to report his back condition to his superiors or else he would be medically discharged. Claimant reported he is required to take an annual physical every year and he has successfully completed every physical test. Claimant also stated he is required to attend summer camp each year. Michael D. Bague testified at the hearing. He.stated he worked with claimant at Glenwood. Mr. Bague stated claimant, subsequent to February 6, 1986, remodeled the home of Mrs. Bague's grandmother. Claimant roofed the house and built a new deck. Claimant, according to Mr. Bague, had no problems climbing up and down ladders, drywalling, or painting and plastering. Michael Bague testified that on two occasions only did claimant complain about his back and claimant never indicated he left work because he was unable to perform the job tasks. Robert F. Wallace, Sr., testified he was a supervisor at Glenwood. He indicated he supervised claimant and that for three and one half years, he had observed claimant performing his requisite job tasks. Mr. Wallace reported he never observed claimant experiencing difficulties when engaging in his job performance. Mr. Wallace additionally testified claimant only complained once that he was in need of a light duty position. When the request had been made, Mr. Wallace stated he arranged a position as a vehicle driver for claimant. Mr. Wallace indicated he was not provided with a satisfactory reason for claimant's termination. Mr. Wallace reported claimant did not state he was leaving because of his back, and because claimant was not given a permanent light duty position. Mr. Wallace did report claimant had discussed mental stress on the job, but the back condition was not discussed. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Pagp 4 Claimant has the burden of proving by a preponderance of the evidence that he received injuries on March 9 or March 13, 1984 and February 6, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The 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, 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, 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, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injuries of March 9 or March 13, 1984 and February 6, 1986 are 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 TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Page 5 testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). 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, 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 (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.2nd 756, ...(1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962). 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, .....(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 section 555.(17)a.. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Page 6 condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620,.106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist,.. 218 Iowa 724, 254 N.W. 35 (1934). 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, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." 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, 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 to loss of earning capacity and in the latter 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. TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Page 7 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. 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). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 288 N.W.2d 181 (Iowa 1980) ANALYSIS Claimant has established that he has sustained an injury which arose out of and in the course of his employment. The injury occurred while claimant was attempting to restrain a resident from jumping out a restroom window. The injury occurred on March 13, 1984, while claimant was working the 6:00 TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Page 8 a.m. shift. According to the in house accident report which was completed on the same day, the injury occurred at approximately 7:00 a.m. Claimant has also established there is the requisite causal connection between the March 13, 1984 injury and claimant's claimed disability. There is medical evidence to substantiate the causal connection. After the incident on March 13, claimant sought medical treatment. Defendant sent claimant to its doctor,. I. J. Hanssmann, M.D. Dr. Hanssmann, in turn referred claimant to a neurosurgeonl Behrouz Rassekh, M.D. Dr. Rassekh saw claimant on March 22, 1984. Dr. Rassekh in his letter of May 28, 1986 to claimant's attorney determined: As stated.in my previous letter, this patient does have lumbar spondylolisthesis which was pre-existing to his injury; however, I do believe the injury in 1984 at work did aggravate this pre-existing condition from which he had improved in May, 1984. Now he complained of recurrent back pain and stated he has not had any other injury. If he has had no other injury in the intervening period of time, then I do believe that some of this pain is due to lumbar spondylolisthesis which makes people with that kind of problem more susceptible to recurrent back problems and discomforts. Claimant has not proven by a preponderance of the evidence that he sustained an injury on August 23, 1985 which culminated on February 6, 1986, in claimant terminating his employment. Claimant, during his deposition, testified he was instructing residents in the art of bowling and he felt a sharp pain in his back. Later, at the hearing, claimant changed his testimony. He indicated the bowling incident was not work related. Rather, claimant stated he was bowling on a recreational league when he experienced a sharp pain in his back. Exhibit 10 substantiates claimant's later testimony. In a memo dated August 22, 1985, there is information to indicate claimant had not been bowling with residents for a 1ong period of time. Claimant's testimony concerning this alleged injury is not credible. Claimant alleges he also injured his back carrying heavy charts. The accident report indicates this is only a minor aggravation of the incident which occurred on March 13, 1984. Mr. Wallace's testimony indicates the charts weighed an average of five pounds. The undersigned finds that lifting charts weighing five pounds is not unduly strenuous. Again, claimant TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Page 9 indicates this alleged injury resulted in claimant terminating his employment on February 6, 1986. Claimant alleges his condition prevented him from performing his assigned duties. However, it is the determination of the undersigned that claimant,left his employment for reasons other than his back condition. Mr. Wallace denied he was informed by claimant that claimant's condition prevented him from working as a resident treatment worker. No physician had ever determined claimant was unable to perform his job tasks. It appears claimant voluntarily terminated his employment because claimant was dissatisfied with the general management of the hospital school after there had been an evaluation by federal officials. All reports maintained by claimant's supervisor indicate claimant left without notice and that claimant terminated because of personal reasons. There is nothing to substantiate claimant's position he was physically incapable of handling his job, and thus, forced to terminate his employment. The next issue to address is the issue of permanency. The primary treating physician, Dr. Rassekh, determined claimant had a functional impairment of five percent to ten percent due to claimant's injury on March 13, 1984. Later the impairment was modified to five percent. This is uncontroverted medical evidence. Claimant, on the other hand, maintains he has an industrial disability of at least 40 percent. Claimant asserts he has a loss of earning capacity due to his back condition, and that he has been forced to quit his job because he has not been given a light duty position. Again, it is the determination of the undersigned that such is not the case. Claimant's physician only restricted claimant's work activities in 1984 as follows: Would recommend this patient be on program of William's Exercise and as soon as the acute phase is over would be advisable for him for four to six weeks to be on restricted activity, not to do any lifting over 35 to 40 pounds or repeated bending. The patient is to be re-evaluated at the office on May.03, 1984. Again, as far as restrictions are concerned, as of May 3, 1984, Dr. Rassekh writes: The patient is doing well; although, he.still will have some pain after heavy lifting. TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Page 10 For this reason the patient was advised he should not lift over 50 pounds and to continue with the program of exercise. No other restrictions were placed on claimant prior to his voluntary termination. Claimant continued working for nearly two years. Only after his termination was he restricted by Dr. Rassekh as follows: At the present time, in view of the nature of his diagnosis, he will be better off not to return to any occupation which requires heavy lifting,.bending or twisting, because otherwise he will be more subject to recurrent back problems due to the lumbar spondylolisthesis. Claimant maintains he was denied employment on several occasions because of his back condition. He reports he applied in 1986 at Griffin Pipe but was denied a position once x-rays of the back were reviewed. Claimant reports the same events transpired when he applied at Express Messenger and Deli Express. Such is not the case with respect to claimant's application at the Iowa School of the Deaf. There claimant stated he was not impaired in any fashion. Consequently, his back condition could not have been a factor in his hiring. Furthermore, claimant, at all times maintained his position with the Army Reserves. He was able to successfully complete and pass his annual physical. Claimant started his own construction business in the spring of 1986. He testified he incorporated the business in 1987. At first, the business was slow but claimant testified he received $60,000.00 in government contracts in September of 1986. Claimant's tax records reveal he grossed $16,913.80 in 1986 but those records did not include any income earned from the U. S. Department of the Army. Claimant testified he grossed $110,000.00 in 1987 and netted $38,000.00 for that year. Claimant did not produce records to verify the sum. Nor did claimant provide information concerning income earned in 1988. Claimant has demonstrated he has a permanent partial disability of seven percent. This finding is based on: 1) the aforementioned considerations; 2) based upon the permanent functional impairment ratings assigned by Dr. Rassekh; 3) based upon personal observation of claimant; 4) based upon claimant's testimony at the hearing and during his deposition; and, 5) based upon agency expertise, (Iowa Administrative Procedures Act 17A.14(s). Claimant is also entitled to unpaid medical expenses under section 85.27. These include the following: TADIN V. GLENW00D STATE HOSPITAL-SCHOOL Page 11 Neurosurgical Associates of Council Bluffs $ 75.00 Jennie Edmundson Hospital 84.00 $159.00 FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant sustained a back injury arising out of and in the course of his employment on March 13, 1984. FINDING 2. Claimant did not injure his back on August 23, 1985. FINDING 3. Claimant did not sustain a gradual injury to his back as a result of an alleged injury date on February 6, 1986. FINDING 4. Claimant did not terminate his employment on February 6, 1986, because of his back condition. FINDING 5. As a result of the injury on March 13, 1984, claimant has an attributable functional impairment of five percent to ten percent of the body as a whole. FINDING 6. Claimant incurred medical expenses as a result of his injury on March 13, 1984. CONCLUSION A. Claimant has met his burden of proving he has a seven percent permanent partial disability as a result of his injury on March 13, 1984. CONCLUSION B. The subsequent medical expenses are compensable under section 85.27 as a result of the injury on March 13, 1984: Neurological Associates of Council Bluffs $ 75.00 Jennie Edmundson Hospital 84.00 $159.00 CONCLUSION C. Claimant has not established by a preponderance of the evidence that he is entitled to any benefits under the Iowa Workers' Compensation laws as a result of an alleged injury date of February 6, 1986. TADIN V. GLENWOOD STATE HOSPITAL-SCHOOL Page 12 ORDER THEREFORE, defendant is to pay unto claimant thirty-five (35) weeks of permanent partial disability benefits at the rate of three hundred and no/100 dollars ($300.00) per week as a result of the injury on March 13, 1984. Defendant is to also pay medical expenses in the sum of one hundred fifty-nine and no/100 dollars ($159.00) as a result of the injury on March 13, 1984. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa.Code section 85.30. Defendant is to be given credit for all benefits previously paid to claimant. Costs of this action, including the following costs, are assessed against the defendant pursuant to Division of Industrial Services Rule 343-4.33: 2-26-88 medical report Dr. Rassekh $30.00 5-28-86 medical report Dr. Rassekh $40.00 Defendant shall file a claim activity report upon payment of this award. Signed and filed this 24th day of May, 1989. MICHELLE A.McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 3rd Ave. P. 0. Box 1588 Council Bluffs, Iowa 51502 Ms. Joanne Moeller Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 51803 Filed May 24, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN TADIN, Claimant, File Nos. 761013 VS. 818247 GLENWOOD STATE HOSPITAL-SCHOOL,: A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendant. 51803 Claimant sustained a back injury on March 13, 1984 which resulted in a seven percent permanent partial disability. Claimant worked for nearly two years after the injury and then claimant voluntarily terminated his employment. Claimant failed to establish his voluntary termination was the result of a second gradual injury to his back. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ EMMA C. MC INTOSH, Claimant, VS. File Nos. 761150 767189 BLUE STAR FOODS, INC., A P P E A L Employer, D E C I S I 0 N and MARYLAND CASUALTY, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying all compensation because she failed to establish by a preponderance of the evidence that she sustained a hernia on October 5, 1983 and a back injury on May 22, 1984 which arose out of and in the course of her employment. The record on appeal consists of the transcript of the arbitration hearing; claimant's exhibits 1 through 11; and defendants' exhibits A through W. Both parties filed briefs on appeal. ISSUE The issue raised on appeal is whether claimant received injuries arising out of and in the course of her employment. REVIEW OF 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 the evidence. ANALYSIS The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. FINDINGS OF FACT File No. 761150 1. Claimant was aware of company policy regarding reporting work injuries including the requirement that all injuries be immediately reported to the company nurse. 2. Claimant reported an injury to her.right hand to the nurse on October 5, 1983, but did not report another injury on or about that date. 3. Claimant's foreman and department supervisor were unaware of her alleged work injury. 4. Claimant did not lift weights of 40 pounds or more in the course of her employment. 5. Claimant did not claim her condition was work related when she sought leave of absence. 6. Dr. Bleicher's November 1984 medical note does not specify the amount of weight claimant lifted. 7. Claimant had three prior hernias and repairs at the same site. 8. The site of claimant's hernia and the minimal surrounding tissue for repair resulted in hernia reoccurrences. File No. 767189 1. Claimant was aware of the company policy regarding reporting of work injuries including the requirement that all injuries be immediately reported to the company nurse. 2. Claimant did not report a back injury to the company nurse until June 14, 1984. 3. Claimant did not claim her condition was work related when she sought medical leave of absence on May 29, 1984. 4. Claimant's claim is of a May 22, 1984 work injury to her back. 5. Claimant had only returned to work May 21, 1984. 6. Claimant's customary job was stenciling boxes. 7. Claimant was putting 50-ounce or less cans in boxes and pushing them down the line on her May 1984 work return. 8. Claimant lifted empty cases. 9. Claimant's department supervisor and her foreman were not aware claimant had back complaints when she left work May 22, 1984. 10. Claimant is five feet three inches tall and weighs 250 pounds. CONCLUSIONS OF LAW File No. 761150 Claimant has not established an injury on October 5, 1983 which arose out of and in the course of her employment. File No. 767189 Claimant has not established an injury on May 22, 1984 which arose out of and in the course of her employment. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: File No. 761150: That claimant take nothing from this proceeding. That defendants pay the costs of the arbitration proceeding and claimant is to pay the costs of the appeal including the transcription of the hearing proceeding. File No. 767189: That claimant take nothing from this proceeding. That defendants pay the costs of the arbitration proceeding and claimant is to pay the costs of the appeal including the transcription of the hearing proceeding. Signed and filed this 31st day of December, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph B. Reedy Attorney at Law 227 South Sixth Street Council Bluffs, Iowa 51501 Mr. Philip Willson Attorney at Law 370 Midlands Mall P.O. Box 249 Council Bluffs, Iowa 51502 1108.50 - 1402.30 Filed December 31, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ EMMA C. MC INTOSH, Claimant, VS. File Nos. 761150 767189 BLUE STAR FOODS, INC., A P P E A L Employer, D E C I S I 0 N and MARYLAND CASUALTY, Insurance Carrier, Defendants. _________________________________________________________________ 1108.50 - 1402.30 Claimant did not prove that a hernia or a back injury arose out of and in the course of her employment.