BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DENNIS RUNGE, Claimant, FILE NO. 771016 VS. A R B I T R A T I 0 N FRENCH & HECHT, D E C I S I O N Employer, Self-Insured, Defendant. _________________________________________________________________ _ INTRODUCTION This is a proceeding in arbitration brought by Dennis Runge, claimant, against French & Hecht, employer and self-insured defendant for benefits as the result of an injury which occurred on May 29, 1984. A hearing was held on October 17, 1986 in Davenport, Iowa and the case was fully submitted at the close of the hearing. The record consists of joint exhibits 1 through 23; defendant's exhibit A; the testimony of Dennis Runge (claimant), Bob Wayt, II (a co-employee), Gary Schlieper (a co-employee), and Monica Walters (industrial nurse). STIPULATIONS The parties stipulated to the following matters in the prehearing report: That an employer/employee relationship existed between the claimant and the employer at the time of the alleged injury. That the claimant sustained an injury on May 29, 1984 which arose out of and in the course of employment with the employer. That in the event of an award of temporary disability the time off work for which the claimant seeks disability benefits is from June 1, 1984 to July 9, 1984. That in the event of an award of permanent disability the commencement date for benefits is July 9, 1984. That the rate of compensation in the event of an award is $260.83 per week. That the employer is making no claim for credit for benefits paid prior to the hearing. That the employer is making no claim for credit for sick pay or medical benefits paid under an employee non-occupational group plan, except that it is stipulated that if it is later determined that any of the medical bills in claimant's exhibits 19 through RUNGE V. FRENCH & HECHT Page 2 22 have been paid by the group medical plan already, then the employer will not be required to pay them again. ISSUES The issues presented by the parties for determination at the time of the hearing are as follows: Whether the claimant is entitled to payment of certain medical expenses. Whether the injury of May 29, 1984 was the cause of any temporary or permanent disability. Whether the claimant is entitled to any temporary or permanent disability benefits and, if so, the nature and extent of such benefits. Whether the claimant is entitled to any compensation for benefits during the period from May 30, 1984 to July 9, 1984 because a claimant allegedly refused suitable work consistent with his disability offered by the employer. Paragraph 12 of the prehearing report specifies that there is an issue about whether the claimant should be suspended from benefits because of his alleged refusal to submit to a medical examination pursuant to the specified on the hearing assignment order and therefore, this issue cannot be determined by this order and therefore, this issue cannot be determined by this decision. Furthermore, defendant did not mention this issue in its opening statement, closing statement or post-hearing brief. In addition, insufficient evidence was presented at the hearing in order to make a determination if this were a viable issue. PREHEARING MATTERS At the request of defense counsel all witnesses except claimant and Monica Walters, industrial nurse, were sequestered. The claimant's original notice and petition, which was filed pro se, alleged a claim for benefits against the Second Injury Fund of Iowa in paragraph 19. The claimant dismissed this portion of his claim at the time of hearing and in addition it was not specified in the hearing assignment order. SUMMARY OF THE EVIDENCE All of the evidence presented at the hearing was examined and considered in the decision in this case, however, only the most pertinent evidence will be mentioned in this written decision. Claimant, age 32, began working for employer in 1979 and performed several labor and heavy labor types of jobs (Exhibit 9, page 4). Even though claimant previously lost a part of his right thumb in a bandsaw in 1973, bruised his right shoulder in a car accident in 1981 (Ex. 15), and was hit in the right knuckle and arm when he was beaten up with a baseball bat in 1981 (Ex. 11 RUNGE V. FRENCH & HECHT Page 3 & 18), claimant testified that nevertheless he could perform his job and regularly lifted rims and other items weighing from 40 pounds to 200 pounds at work. Bob Wayt and Gary Schlieper, co-employees, testified that claimant was very strong and regularly lifted items weighing up to 200 pounds and even heavier without difficulty prior to the instant injury. They further testified that this lifting required flexible movements of his wrists and arms. Claimant testified that none of these prior incidents bothered him at the time of the instant injury and that they had left him with no disability to perform his job at French & Hecht. Claimant's testimony was corroborated by the testimony of Wayt and Schlieper. On May 29, 1984 at approximately 5:00 p.m., some rims got jammed under a conveyor belt. Claimant stepped out on a ledge to unjam the rims. He caught his foot on a bolt and fell to the floor. In this fall his right arm grazed an iron skid and he landed on his right fingers, wrist and hand. The fall abrased his right forearm and hyperflexed his right wrist. Claimant was taken to the East Kimberly Urgent Care Center. The nurse recorded pain in his right wrist and hand. Dr. O'Connor (full name unknown) reported that claimant's sensation was intact but claimant could not extend his fingers or wrists, but they could be extended on stimulation. An x-ray was taken, a futuro wrist splint was applied, medicine prescribed, and claimant was returned to work to do one handed work with his left hand. Dr. O'Connor diagnosed right wrist tenosynovitis and a strain (Ex. 1). Claimant did not return to work on May 30, 1984 or May 31, 1984. on June 1, 1984, he telephoned and asked Monica Walters, plant nurse, for permission to see his own doctor. Walters testified that she declined to give him permission. Furthermore, she cautioned him that if he did see his own doctor it was at his own expense. In addition, she made it clear that if he needed medical attention he could go back to the Urgent Care or to contact Dr. Beckman (full name unknown) at his office. This was his employer's choice of physician. Walters' testimony is supported by her recorded notes (Ex. A). Claimant saw John Skehan, his own personal physician, on June 1, 1984 (Ex. 2). Dr. Skehan referred the claimant to John A. Baker, M.D., an orthopedic surgeon, who also saw him on June 1,,1984 (Ex. 3). Dr. Baker found claimant could not extend his right fingers or wrist. The doctor took x-rays, applied a volar wrist splint, and diagnosed right radial nerve palsy. Dr. Baker took claimant off work as of June 1, 1984 and released him to return to work on light duty with no lifting with the right arm effective July 9, 1984 (Ex. 3, p. 5). Walters testified that she explained to claimant that the company refused to accept Dr. Baker's release from work because he was not the company's authorized doctor and also because they had documentation from their own doctor that the claimant could work except that he could not use his right hand. Walters testified that the company offered claimant full time work within these limitations but the claimant declined it. Dr. Baker treated claimant from June 1, 1984 to January 30, 1985. In June of 1984, he ordered an EMG and physical therapy. RUNGE V. FRENCH & HECHT Page 4 Claimant maintained he could not extend his fingers and wrist, but this was inconsistent with Dr. Baker's other medical findings and Dr. Baker suspected a strong functional overlay (Ex. 3, pp. 1-4). Dr. Baker reported on April 8, 1985 that he had trouble assessing the claimant's disability because the claimant's symptoms seemed to be way above and beyond his objective findings. Furthermore, because of inconsistent results in the Cybex test, Dr. Baker declined to give a percentage rating. However, he said he doubted if there was any significant disability. Nevertheless, he did not want to evaluate the true loss unequivocally without a repeat Cybex examination (Ex. 3, p. 7). A repeat Cybex examination was never performed. The EMG/NCV tests for Dr. Baker were taken at the Franciscan Medical Center on June 26, 1984. Robert J. Chesser, M.D., reported evidence of some denervation in the radial nerve distribution, however, with good symmetrical nerve conduction studies and the good progress patient had demonstrated to date he expected a good prognosis (Ex. 5). However, a later EMG/NCV test performed for the employer's doctor, Dr. Kreiter (full name unknown), by Daniel J. Johnson, M.D., much later on April 24, 1985, did indicate some impairment of the right radial nerve in the following respect: EMG of the right arm is normal. NCV's of both radial nerves indicates a slowing of motor conduction of the right radial nerve with normal distal sensory latency. This is suggestive of an injury to the posterior interossius branch of the right radial nerve in the forearm. (Ex. 6) Walters testified that she called the claimant on June 2, 1984 to come into work as it was indicated that he could do so by Dr. O'Connor at Urgent Care. She said that claimant could work in the store room, file and sort for her, or do customer service work. She said claimant sounded confused on the telephone. His speech was slurred. He had no interest in one handed work and he thought he would take some vacation time (Ex. A). At the hearing she described other one handed work which the claimant could do as driving the sweeper, filing, record keeping and janitor work. On June 11, 1984, claimant called Walters. She told him again that Dr. Baker's treatment was unauthorized and that Dr. Baker's release from work was not being acknowledged. She told him to go back to Urgent Care and Dr. Beckman at his office. Claimant did return to Urgent Care on June 13, 1984. He was seen by Dr. Koehler (full name unknown) who also said he could return to work with no use of the right hand or wrist. Dr. Koehler also referred claimant to Dr. Kreiter, who was an orthopedic surgeon and set up an appointment for July 6, 1984. Claimant refused to sign the work status determination of Dr. Koehler (Ex. 1, pp.5-7). Walters testified it was reported to her that claimant became disorderly at Urgent Care on June 13, 1984 and this is also recorded in her notes (Ex. A). RUNGE V. FRENCH & HECHT Page 5 Dr. Kreiter saw claimant on July 6, 1984 for an evaluation before returning to work because claimant was taking a considerable amount of medication, more specifically Tylenol 3 and Darvocet at the same time. Dr. Kreiter reported claimant had a cloudy sensorium possibly from the medication. He found some weakness of dorsiflexion and some radial numbness. Dr. Kreiter decreased claimant's analgesics and put him on anti-inflammatory medications and stated that he could return to work on July 9, 1984. Claimant returned to work on July 9, 1984 and did, in fact, perform one handed work for Walters at that time. Dr. Kreiter saw claimant again on September 14, 1984. At that time he thought claimant was under the influence of either medication or alcohol. He said claimant had a good range of motion for his right shoulder, elbow and digits. His reflexes were intact and his strength was improved. However, claimant still had some decreased sensation on the dorsum of the right hand. His radial nerve was otherwise functioning. Dr. Kreiter felt like his examination was inadequate because claimant was tremulous and uncooperative (Ex. 7). Claimant was examined for the employer by Bruce L. Sprague, M.D., on April 16, 1985. Dr. Sprague commented that claimant appeared to have been drinking and his sensorium was not very clear. The results of his examination based on several clinical tests was essentially normal, except claimant resisted active dorsiflexion of the right wrist, but he still had full passive dorsiflexion. Dr. Sprague noted that Dr. Baker's EMG showed some denervation of the extensor muscles of the right forearm. On May 6, 1985, Dr. Sprague noted that Dr. Kreiter's EMG report showed decreased conductivity and changes in the extensor digiti communis muscle of the right forearm conducive with a postinterosseous nerve syndrome. Dr. Sprague ended this report as follows: Because of the patient's attitude, one is reluctant to operate on him because the complications from this type of surgery can be significant, and the eventual improvement may be minimal. Therefore, I feel it would be most efficacious to give him an impairment rating of 10% of the upper extremity due to weakness of the extensor comramunis [sic] muscle, as well as the indius proprius instead of trying to undertake the surgical correction. (Ex. 8). Claimant was seen for the last time by Dr. Sprague on January 20, 1986 for continued right wrist pain. Basically, there was no change from the claimant's previous condition. However, Dr. Sprague did comment in this report that the claimant had denied any previous injuries other than the one at work (Ex. 8). Much of the claimant's past medical history was introduced into evidence. It demonstrated a number of accidents and illnesses for which the claimant's personal physician had ordered prescription drugs (Ex. 10-18). Claimant presented unpaid medical bills as follows: (Ex. 19 through 22) RUNGE V. FRENCH & HECHT Page 6 Dr. John Skehan $ 26.00 Dr. John A. Baker 276.00 Rock Valley Physical Therapy 158.00 Franciscan Medical Center 190.00 Total $ 650.00 Walters testified that claimant could have and would have been given the same treatment by the employer's doctors that he received from Dr. Baker if claimant would have gone back to Urgent Care and given them a chance. She also testified that the employer's doctors had been to the plant and that they knew the plant. Also the company doctors knew it was the employer's Policy to return injured workers to work in some capacity as soon as possible and that the employer's doctors agreed with this policy and tried to implement it. She further testified that Dr. Baker had not been to the plant and was not familiar with the employer's policy. Claimant testified that his current condition is that he suffers weakness in his fingers, hand and wrist on the right hand and that he cannot dorsiflex his right wrist. APPLICABLE LAW AND ANALYSIS Iowa Code section 85.27 provides that the employer shall RUNGE V. FRENCH & HECHT Page 7 furnish reasonable medical care, but also provides that the employer has the right to chose the care. The employer did provide emergency care at the time of the injury. Walters testified that additional care could have been and would have been provided if claimant would have returned to Urgent Care or Dr. Beckman as she directed him to do. Claimant did not return to Urgent Care or Dr. Beckman. Instead claimant chose to see his own personal physician for reasons of his choosing. Walters informed claimant that if he chose his own.care the payment for it would be his own expense. Claimant did talk to his union representative and they verified that the employer could chose the care. Claimant testified his own physician was closer to him and more convenient and that he was not happy with the treatment he received at Urgent Care. Walters testified that claimant wanted to go to his own doctors so he could get stronger pain pills. In any event, claimant chose to see his own physicians knowing full well that the employer had the right to choose the care and that if he chose the care he would be expected to pay for them himself. The union representative told claimant that the non-occupational group medical plan would pay for some of his bills and it is possible that the claimant may have relied on this information to some extent. Nevertheless, it is determined here that claimant's medical expenses in the amount of $650 as shown in exhibits 19 through 22 are not authorized medical expenses and the employer is not responsible for their payment. The claimant has the burden of proving by a preponderance of the evidence that the injury of May 29, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant has not sustained the burden of proof by a preponderance of the evidence that he is entitled to temporary disability benefits for his time off work from June 1, 1984 to July 9, 1984. On the two occasions that claimant saw the employer's doctor, May 29, 1984 and June 13, 1984, it was determined that claimant could be returned to work to do one handed work with his left hand. Although his right wrist was splinted and his right arm was abrased, the rest of his body was fully functional. Walters enumerated a number of jobs which the RUNGE V. FRENCH & HECHT Page 8 claimant could perform with one hand. When claimant returned to work on July 9, 1984, he did in fact perform some of these very same jobs because he was still restricted by Dr. Baker to light duty and to avoid use of the right hand. It was not shown that Dr. Baker knew one handed work and light duty work was available to the claimant from the start back on June 1, 1984. Therefore, claimant has failed to prove by a preponderance of the evidence that he was unable to work during the period from June 1, 1984 to July 9, 1984. In addition, Iowa Code section 85.33(3) provides as follows: If an employee is temporarily, partially disabled and the employer for whom the employee was working at the time of injury offers to the employee suitable work consistent with the employee's disability the employee shall accept the suitable work, and be compensated with temporary partial benefits. If the employee refuses to accept the suitable work the employee shall not be compensated with temporary partial, temporary total, or healing period benefits during the period of the refusal. Again Walters enumerated several light duty jobs claimant could possibly do one handed and testified that he did in fact do some of these very same jobs when he returned to work on July 9, 1984 with the same restrictions from Dr. Baker that had been imposed earlier by Dr. O'Connor and Dr. Koehler. Claimant also admitted he did these jobs but under the mistaken belief that he did them May 30, 1984, May 31, 1984 and June 1, 1984. It is determined that the claimant was mistaken in his testimony because the employer's attendance records (Ex. 9, p. 5) show that claimant was absent from work from May 29, 1984 through July 7, 1984. Walters further testified that she knew he was absent from work also on these dates. Claimant conceded in his testimony that he suffered from memory problems especially regarding dates and sequence of events. Walters' notes show that she called claimant to come to work on June 2, 1984 but that he had no interest in one handed work and thought he would take a vacation day that day and maybe a few after that (Ex. A). Therefore, it is found that claimant is not entitled to temporary disability benefits because claimant refused suitable work (Iowa Code section 85.33(3)). The injury was the cause of some permanent disability and claimant is entitled to some permanent partial disability benefits. It is true claimant had prior injuries to his right arm. However, claimant testified that his partially severed right thumb did not effect his strength in the rest of his right upper extremity. This appears to be true because claimant, Wayt and Schlieper all testified as to the claimant's ability to regularly lift extremely heavy weights every day at work. As to the right shoulder injury in 1981 from the automobile accident the x-rays were negative and the claimant's diagnoses was strain only. No residuals from this automobile accident were indicated (Ex. 11). RUNGE V. FRENCH & HECHT Page 9 As to the incident when claimant was beat up with a baseball bat in June of 1981 there appears to be a right knuckle injury as the claimant admitted (Ex. 11, p. 2). A careful search of the University of Iowa records for this injury and his treatment show that claimant was hit in the right hand and he received a contusion of the right middle MCP joint (Ex. 18, p. 18). Claimant testified that his right wrist and arm were casted to immobilize the knuckle. The right knuckle was noted to be swollen but the x-ray of it was normal (Ex. 18, p. 22). Claimant was discharged from the orthopedic department without additional follow-up (Ex. 18, p. 23). A careful search of all the records in exhibit 18 do not reveal any serious injury or disability to the right arm or knuckle. Claimant failed to disclose these prior injuries to Dr. Sprague prior to his evaluation. It is not known and cannot be determined how much, if any, Dr. Sprague would have discounted his 10 percent permanent impairment assessment for the prior injuries. No evidence suggests that any prior permanency existed. The prior injuries do not appear to have affected the nerves of the arm as were affected by this injury. There is sufficient evidence of permanent impairment for this injury for the following reasons. First, claimant testified that his prior injuries had no residual effects and the medical records do not show any either. Secondly, claimant, Wayt and Schlieper all testified that claimant did regularly lift items weighing up to 200 pounds and sometimes even greater than that without difficulty. These jobs involved flexibility of his arms and wrists. Thirdly, Dr. Baker's EMG/NCV performed by Dr. Chesser showed evidence of denervation in the radial nerve distribution of the right arm (Ex. 5, p. 3). Fourth, Dr. Kreiter's EMG/NCV performed by Dr. Johnson showed slowing of the motor conduction of the right radial nerve suggestive of an injury to the posterior interosseseous branch of the radial nerve (Ex. 6). Fifth, Dr. Sprague also noted the results of these two EMG/NCV tests and stated they go along with the patient's history and would account for his symptomology (Ex. 8, p. 2). Sixth, claimant testified his current complaints are weakness in his fingers and inability to dorsiflex the right wrist. Urgent Care, Dr. Baker, Dr. Kreiter, and Dr. Sprague all made note of these very same symptoms all the way through the claimant's treatment from beginning to end. Seventh, claimant demonstrated his hand and fingers at the hearing illustrating how much he could and could not flex and extend the fingers and wrist on his right arm. Therefore, applying agency expertise to the foregoing information it is determined that the claimant has sustained a 10 percent permanent impairment of the right arm. (Iowa Administrative Procedure Act, section 17A.14(5)). FINDINGS OF FACT WHEREFORE, based upon the evidence presented the following findings of fact are made: That the medical expenses that the claimant incurred as shown in exhibits 19 through 22 were not authorized by the employer, but on the contrary were incurred by the claimant as his own choice of care knowing that they would not be covered RUNGE V. FRENCH & HECHT Page 10 under the workers' compensation law. That claimant refused to work during the period June 1, 1984 through July 9, 1984 even though the employer made it clear that special light duty one handed work was available and that Dr. Baker's release was not recognized as excusing the claimant from work. That claimant did not return to work and attempt to do the one handed light duty work that was offered. That claimant sustained a 10 percent permanent impairment of the right arm based upon the factors discussed above. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously stated, the following conclusions of law are made: That claimant is not entitled to payment of the medical expenses which he is claiming under Iowa Code section 85.27. That claimant is not entitled to temporary disability benefits for the period June 1, 1984 to July 9, 1984 under Iowa Code section 85.23 or Iowa Code section 85.34. That claimant is entitled to 25 weeks of permanent partial disability for a 10 percent permanent impairment of the right arm. ORDER WHEREFORE, IT IS ORDERED: That defendant pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of two hundred sixty and 83/100 dollars ($260.83) per week in the total amount of six thousand five hundred twenty and 75/100 dollars ($6,520.75) commencing on May 30, 1984. That the defendant pay these accrued benefits in a lump sum. That interest shall accrued as provided by Iowa Code section 85.30. That defendant will pay the cost of this action as provided by Division of Industrial Services Rule 343-4.33, formerly Iowa Industrial Commissioner Rule 500-4.33. That defendant file claim activity reports as requested by this agency as provided by Division of Industrial Services Rule 343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1. RUNGE V. FRENCH & HECHT Page 11 Signed and filed this 31st day of March, 1987. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James M. Hood Attorney at Law 302 Union Arcade Davenport, Iowa 52801 Mr. Craig A. Levien Mr. Larry Shepler Attorneys at Law RUNGE V. FRENCH & HECHT Page 12 600 Union Arcade Bldg. 111 E. 3rd Street Davenport, Iowa 52801 1402.60; 1802; 1803 Filed March 31, 1987 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DENNIS RUNGE, Claimant, FILE NO. 771016 VS. A R B I T R A T I 0 N FRENCH & HECHT, D E C I S I 0 N Employer, Self-Insured, Defendant. _________________________________________________________________ 1402.60 Medical care payments were denied for care that claimant incurred from his own choice of physician in the face of admonitions by the employer and his union that they would not be covered by workers' compensation. 1802 Claimant was denied healing period benefits for the period that he refused to do light duty one handed work where the employer's physicians authorized it and employer offered it even though his own choice of physician said he could not work. Claimant's own physician was not familiar with employer's policy of returning employees to work as soon as possible and making employment available to them. 1803 Claimant was allowed 10 percent permanent partial disability based on defendant's doctor's evaluation which was the only evaluation of impairment. Although claimant had several prior injuries and accidents, none of them had caused any impairment that conflicted with the current evaluation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA L. FERNS, Claimant, vs. File Nos. 771026 & 838625 HON INDUSTRY SYSTEMS GROUP, A R B I T R A T I 0 N Employer, D E C I S I 0 N and HARTFORD INSURANCE, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Linda L. Ferns, claimant, against Hon Industry Systems Group, employer, and Hartford Insurance Company, insurance carrier, defendants. The case was heard by the undersigned in Davenport, Iowa on September 15, 1988. The case was fully submitted at the close of the hearing. The record consists of the testimony of claimant and Evelyn Norris Burns. The record also consists of the testimony of the following witnesses for defendants: William Shellabarger and Peggy Sue Hinbaugh Stackweather. Additionally, the record consists of claimant's exhibits A and B, as well as joint exhibits 1 and 2. The parties stipulate to the existence of an employer-employee relationship between claimant and defendant at the time of the alleged injuries. ISSUES PRESENTED The issues presented by the parties at the time of the prehearing and hearing for each of the case files are as follows: 1) Whether claimant received an injury which arose out of and in the course of employment; 2) Whether there is a causal relationship between the alleged injuries and the claimed disability; and, 3) Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits. FERNS V. HON INDUSTRY SYSTEMS GROUP PAGE 2 FACTS PRESENTED Claimant had been employed by defendant as a sewing machine operator. According to claimant on October 25, 1983, she had finished making covers and had grabbed her time card. Suddenly, she experienced a jerk from the tables in front of her. Claimant struck her left knee against the work station table. Claimant's chair tipped and she jumped back with bent knees. She stated it hurt to stand and she felt a "shooting pain" across her front as well as a soreness in her hips. After the above events occurred, claimant testified she reported the incident to George Williams, a supervisor. She then completed an accident report and returned to work. Claimant also related the events of her second injury which allegedly occurred on February 15, 1985. She testified she was at her work station. Nearby, another employee was driving a forklift containing a stack of tables. The tables fell from the forklift causing a "domino effect." One of the tables apparently struck claimant. Claimant related she experienced a "smack on the back of her leg." She also reported she felt a tremendous pain on her shin bone from the knee cap to the ankle. Additionally, claimant stated she was hit behind and below the hip on her right upper thigh. After the incident claimant completed an accident report. Several days later, claimant was terminated. 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). Claimant has the burden of proving by a preponderance of the evidence that she received injuries on October 25, 1983 and February 15, 1985 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The 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); FERNS V. HON INDUSTRY SYSTEMS GROUP PAGE 3 Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the WorkmenOs Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant must prove by a preponderance of the evidence that her injuries arose out of and in the course of her employment. Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove her injuries occurred at a place where she reasonably may be performing her 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 October 25, 1983 and February 15, 1985 are causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert FERNS V. HON INDUSTRY SYSTEMS GROUP PAGE 4 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, 261 Iowa 352, 154 N.W.2d 128 (1967). 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. The right of a worker to receive compensation for injuries sustained which arose, out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). 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." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, , cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be FERNS V. HON INDUSTRY SYSTEMS GROUP PAGE 5 given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * 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, 1121 125 N.W.2d 251, 257 (1963). In Parr v. Nash Finch Co.,(Appeal Decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. 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, 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) Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLongOs Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). ANALYSIS In the case at bar, claimant contends she suffered a permanent impairment as a result of either or both of the work injuries which she received. There is a dispute as to how the events in question occurred. However, there is no genuine issue whether the two incidents took place. It is acknowledged claimant has some type of recurring health problems. There is only very minimal support in the record that claimant's alleged disability is causally connected to the two incidents which give rise to these proceedings. Moreover, there is little evidence to establish that claimant has a permanent impairment. The treating FERNS V. HON INDUSTRY SYSTEMS GROUP PAGE 6 physician, Richard L. Kreiter, M.D., in his letter of October 26, 1984, writes: ...Her exam is basically unremarkable except for some mild restricted motion but her neurological exam is normal. ... She may well be one, as you know, who tries to manipulate her work situation and seems to have done a good job of that .... Dr. Kreiter does not determine whether there is any impairment.. He does not causally relate claimant's alleged disability to the injury dates in question. Patrick A. Tranmer, M.D., claimant's treating physician, has determined claimant suffered from the following as of July 24, 1985: "Linda Ferns suffers from a rheumatoid condition that involves her lower back, shoulders and hands...." He, however, does not attribute the rheumatoid condition to the work injuries which are at issue. Another of claimant's treating physicians, W. McCrady, M.D., at the University of Arizona, Student Health Service, disputes the diagnosis of Dr. Tranmer. Dr. McCrady does not establish that claimant is even suffering from rheumatoid arthritis. He writes in his progress notes for December 15, 1987: ... They sent her here to school to learn to be an accountant after she had been in 2 industrial accidents being hit by a fork lift [sic] with injury to the back of her right leg on one occasion. She states that she has as a result of these injuries, acquired rheumatoid arthritis ... .... I see no evidence for rheumatoid arthritis. This persons [sic] pain pattern sounds like a chronic pain syndrome no doubt induced by the injuries of a few years ago. The accidents were in 1983 and 1985 .... Later, H. C. Tretbar, M.D., of The Tucson Clinic, P.C., in his progress notes of April 6, 1988 writes in relevant part: ...The neck has good range of motion. There is a little bit of tightness in the trapezia. Upper extremities show normal shoulders, elbows, arms, hands and fingers. There is some spot tenderness over the lumbosacral and she is able to flex past 45 degrees. The lateral bending is good and there is a little bit of soreness on the posterior flexion. There is some sensitive areas over the pelvic brims and she is sensitive over both trochanteric areas, greater on the left side. She has a little bit of soreness in the left sciatic notch, but there is no radicular symptoms down the leg. She has normal movement of the left hip and the right hip has a little bit of soreness on full flexion and on internal rotation and I wonder if she may have a little intra-articular hip change which would be demonstrable on x-ray. Knees, ankles and feet look normal. She has normal knee and ankle jerks. FERNS V. HON INDUSTRY SYSTEMS GROUP PAGE 7 There is no weakness in the legs or feet. Sensory exam is grossly normal. IMPRESSION: History of injury to the legs, particularly the right. There may be some residual right hip problem which x-ray would be helpful in evaluating. Basically if she can lose weight, [sic] do her back exercises and stay on MOTRIN she should do quite well. Dr. Tretbar is unable to find any objective clinical findings which establish an alleged disability. He does not determine whether claimant has a permanent impairment. Next, claimant's treating chiropractors can find no permanent impairment. Jeffrey A. Shay, D.C., makes no findings of functional impairment. Ben F. Hanssen, D.C., reports: ...She (claimant) was released with no apparent permanent injury on Jan. 18, 1984, but still complained of reoccurring pain in her hips and lower back .... I felt the structural misalignment had been corrected at that time but was uncertain of any future care because of her complaints of the reoccurring back pain. Finally, there is the nearly exhaustive report from the medical personnel at the Industrial Injury Clinic at the Theda Clark Regional Medical Center. Claimant was referred to the clinic by defendants. She was admitted for examination and evaluation on November 4, 1984 and she was discharged on November FERNS V. HON INDUSTRY SYSTEMS GROUP PAGE 8 7, 1984. Numerous tests were conducted. The relevant results of the tests, as well as the staff diagnosis, reveal the subsequent evidence: A CT of the Lumbar Spine was performed on 11-5-84 and interpreted by M.A.SanDretto, M.D., Radiologist: Axial sections were obtained through three levels, L3-4, L4-5 and L5-Sl. At all three levels studied, the posterior disc margin is normal in appearance. There is no evidence of disc herniation or other abnormality. The facette joints and neural foramina are also normal at the levels studied. Impression: Normal lumbar CT of L3-4, L4-5 and L5-Sl. There is no evidence of disc herniation. A Chest X-ray was performed on 11-5-84 and interpreted by L.L. Bauer, M.D., Radiologist: There is no active cardiopulmonary disease. An X-Ray of the Lumbar Spine was normal. X-Rays of the hands were normal. A Bone Scan was performed on 11-5-84 and interpreted by L.L. Bauer, M.D.: Pharmaceutical is 21.7 mCi of Tc 99MDP. Uptake of radiopharmaceutical is normal and physiological. Conclusion: Normal bone scan. All Body Chemistries performed while at the IIC were essentially within normal limits. The Urinalysis was essentially normal. A Rheumatoid Arthritis Quantitative Titre was reported as negative. The Sed. Rate is elevated at 28 mm. A Street Drug Screen was reported as negative. Serum Protein Electrophoresis was performed on 11-5-84 and interpreted by P.N. Gohdes, M.D., Pathologist: The total protein is within the reference range. There are no abnormalities of the serum protein electrophoretic study. There is no evidence of areas of restricte protein mobility or beta-gamma bridging. Impression: Normal serum protein electrophoretic study. An Electrocardiogram was performed on 11-4-84 and resulted in a normal sinus rhythm with premature ventricular or aberrantly conducted complexes and an otherwise normal EKG. An Electromyogram was performed on 11-6-84 and interpreted by T.J. Michlowski, M.D.: Nerve conduction studies of the lower extremities including the H reflex bilaterally were within normal limits. On needle examination there was normal insertional activity, no abnormal spontaneous activity and normal motor unit potential characteristics in all muscles examined Impression: This NCS/EMG study is within normal limits. Specifically, there was no evidence to suggest a myopathic, neuropathic or active radicular process. FERNS V. HON INDUSTRY SYSTEMS GROUP PAGE 9 .... STAFF RECOMMENDATIONS AND CONCLUSIONS 1. It is the opinion of the staff that this individual does not have any permanent physical impairment or disability relative to the industrial injury in question. .... 3. It is the opinion of the staff that this individual can return to work at this time within the work capacity classification attached to this report. Because of the low grade underlying rheumatic condition, it is recommended that she avoid high and very high speed rapid alternating work activity especially of a repetitive impact loading type. Other major factors that will probably help with improvement of her symptoms and better endurance at the job will be resolution of the current interpersonal conflict with her immediate supervisor. If this cannot be resolved, relocation at another job site and job task at her place of employment may be prudent. Given the disparity of medical diagnoses and the statements from claimant that on occasions prior to the two injuries in question, she had sought chiropractic treatments from Dr. Shay for back pain, it is not possible to state that claimant's alleged disability was proximately caused by the two work incidents. The evidence as to causation as it relates to permanent disability is minimal at best. Claimant has not sustained her burden of proof. Likewise, there has been no permanency established by any medical personnel. The next issue to address is whether claimant, on account of her work incidents, is entitled to temporary total disability benefits under section 85.33(l). This section provides: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. It is not easily ascertainable whether claimant's injury produced temporary total disability. The evidence presented at the hearing was scant regarding when claimant was absent from work and the purposes of each such absence. Also, since the major portion of the time claimed was more than six months after the first work incident, it is impossible to determine whether the absences are proximately related to the incident on October 25, 1983. As no causal relationship has been established, no entitlement to temporary total disability benefits is FERNS V. HON INDUSTRY SYSTEMS GROUP PAGE 10 determined,. FINDING OF FACT WHEREFORE, based on the evidence presented and the principles of law previously cited, the following finding of fact and conclusion of law are made: FINDING 1. Claimant did not sustain permanent or temporary injuries to her back, hip, or leg as a result of two work related incidents which occurred on October 25, 1983 and on February 15, 1985. CONCLUSION OF LAW Claimant has not established by a preponderance of the evidence that she is entitled to any temporary or permanent disability benefits. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing from these proceedings. Claimant pays costs of these proceedings pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 14th day of December, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. William G. Gillies, Jr. Mr. Christopher J. Klockau Attorneys at Law 1808 Third Ave. P. 0. Box 1279 Rock Island, Illinois 61204 Mr. Larry L. Shepler Attorney at Law STE 102, Executive Sq. 400 Main St. Davenport, Iowa 52801 1801.1; 1803 Filed December 14, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA L. FERNS, Claimant, vs. File Nos. 771026 & 838625 HON INDUSTRY SYSTEMS GROUP, A R B I T R A T I O N Employer, D E C I S I O N and HARTFORD INSURANCE, Insurance Carrier, Defendants. 1803 Claimant failed to show a causal connection between the claimed permanent disability and two separate work incidents. 1801.1 Claimant failed to show an entitlement to temporary total disability benefits as a result of two separate work incidents.