BEFORE THE IOWA INDUSTRIAL COMMISSIONER VAN S. GARRETT, FILE NO. 777583 Claimant, A R B I T R A T I 0 N VS. D E C I S I O N CATERPILLAR TRACTOR COMPANY, Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Van S. Garrett, claimant, against Caterpillar Tractor Company, employer (hereinafter referred to as CAT), a self-insured defendant, for workers' compensation benefits as a result of an alleged injury on October 3, 1984. On October 5, 1987, 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: Malvin G. Hightower and Cora March. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $304.79 per week. 2. Claimant is only seeking temporary total disability or healing period benefits from October 3, 1984 through January 20, 1985 and from November 3, 1985 through January 28, 1986 (a total of 24 5/7 weeks) and defendant agrees that claimant was not working during these periods of time. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 4. If permanent partial disability benefits are awarded herein, they shall begin as of January 29, 1986. 5. The medical bills referred to in the prehearing report for which claimant seeks reimbursement in this proceeding are fair and reasonable and causally connected to the medical condition upon which claimant's claim herein is based but that the issue of their causal connection to any work injury remains an issue to be decided herein. GARRETT V. CATERPILLAR TRACTOR COMPANY Page 2 ISSUES The parties submit the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of his employment; II. Whether there is a causal relationship between the work injury and the claimed disability; III. The extent of weekly disability benefits to which claimant is entitled; and, IV. The extent of claimant's entitlement to medical benefits under Iowa Code section 85.27. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. Claimant testified that he worked for CAT from either 1978 or 1979 until he was laid off as a part of a plant wide economic layoff on January 20, 1985. During his CAT employment, claimant was initially a machine operator but at the time of the work injury, he was an assembler. Claimant received $480.27 in gross weekly earnings at the time of the alleged injury. The facts surrounding the work injury are in dispute. Claimant testified that while bending over to remove a "yoke" weighing approximately 60 to 65 pounds from a tub near his work station he felt a snap in his low back and sharp pain "down his legs." Claimant said that he felt as if something stabbed him. Claimant said that a fellow employee, Cora March, helped him sit on the floor and he sat for 10 to 20 minutes until his foreman came over. Claimant then said that he reported the incident to the staff at the plant medical department who told him to see his own doctor. However, Cora March testified that she could not recall helping claimant but did recall claimant telling her at some time that he had hurt his back picking up something and she told him to see the company doctor, J. Donahue, M.D. Claimant's supervisor, Malvin Hightower, testified that he could not recall any such incident as described by claimant and that he would normally have remembered such an incident if it were reported to him. Hightower also testified that normally heavy "yokes" are handled with a hoist available in the work area. March testified that CAT management frowned on the use of such hoists as such activity would slow down production. According to Dr. Donahue's office notes in joint exhibit 1, the doctor stated that claimant had not reported the injury to his foreman or to the medical department until October 10, 1984. However, in a company medical report, joint exhibit 2(i) signed by Dr. Donahue and D. Haack, R.N., which was dated October 3, 1984, the following is noted with reference to claimant: "Bent over in tub to pick up piece part hurt back." GARRETT V. CATERPILLAR TRACTOR COMPANY Page 3 Following the alleged injury, claimant testified that the medical records show that he was off work at the direction of William Reinwein, M.D., claimant's orthopedic surgeon, from October 3, 1984 until January 20, 1985. Claimant first saw Dr. Reinwein after the alleged work injury on October 5, 1984 when he reported a "twisting injury while lifting heavy weight." Claimant was treated conservatively at first with physical therapy, rest and medication including "epidural flood injections." On January 20, 1985, Dr. Reinwein released claimant to return to light duty work. Claimant was then immediately laid off by CAT as a result of a plant wide reduction in force. Claimant has not returned to CAT and apparently remains on layoff status at the present time. Claimant testified that he began working as a bookkeeper for his brother-in-law but continued treating with Dr. Reinwein after being laid off. This treatment ended in March, 1985, but claimant testified his back problems continued. Claimant eventually returned to Dr. Reinwein in October, 1985, and upon noting a persistence in claimant's symptoms and the ineffectiveness of continued conservative care, Dr. Reinwein ordered a myelogram test which to him revealed sufficient evidence of herniated disc at the L4-5 and L5-Sl levels of claimant's spine to warrant surgery. Claimant was then hospitalized and Dr. Reinwein performed surgery on November 4, 1985 called a discectomy and laminectomy. By January, 1986, claimant had improved and claimant was released for work by Dr. Reinwein on January 28, 1986, with a permanent physical restriction against lifting over 35 pounds. After Dr. Reinwein released claimant in January, 1986, claimant found other work. For six months he worked as a car salesman and since March, 1987, he has been a full-time household and electric appliance salesman. No evidence was offered as to claimant's current income. Claimant testified that in his current job he is unable to lift the heavier appliances or stock shelves as other salesmen are expected to do. Apparently, claimant is able, at least at the present time, to make accommodations in his current employment for his physical limitations. Claimant said that he continues to have daily low back pain in the area of the surgical incision but no leg pain. Prolong standing in his job precipitates severe back pain requiring him to rest. Claimant expresses difficulty in driving or riding long distances in an automobile. Claimant complained that his back does not have the strength that it had before the alleged work injury. Claimant states that he has difficulty lifting over 25 pounds and with foreward bending. Claimant continues to see Dr. Reinwein on occasion but is not taking medication or receiving constant treatment. However, claimant states that his back is getting worse. Claimant admitted at hearing to back difficulties prior to the alleged work injury. According to his medical records, claimant has had low back difficulties as early as 1979 requiring extended absences from work. Also, in the year previous to the alleged work injury, claimant had what he describes as muscle spasms. Claimant pointed out at hearing that the only physical restrictions imposed by treating physicians when these muscle spasms occurred were temporary and claimant was able to return to GARRETT V. CATERPILLAR TRACTOR COMPANY Page 4 full duty at work after each episode. Also, claimant testified that his muscle spasms after October, 1984, were much more severe than before. In an extensive written report dated March 25, 1986, Dr. Reinwein only discusses his treatment of claimant but offered no causal connection opinions or percentage ratings as to the extent of claimant's permanent impairment. However, in a brief report to CAT dated November 13, 1985, Dr. Reinwein refers to claimant's illness as a "herniated nucleus pulposus" requiring laminectomy surgery. In this report, Dr. Reinwein responded Oyes" to a form question as to whether the patient's disability was caused by an injury at work. Also, on this same form the doctor notes the date of the initial visit for this "illness" as October 5, 1984, the first time he saw claimant following the alleged work injury. Claimant has been examined on three occasions by Byron Rovine, M.D., a neurosurgeon. On October 16, 1984, Dr. Rovine reported a history that claimant had no radiation of pain into his legs or neurological symptoms when Dr. Reinwein first saw claimant. This is contrary to the reports of Dr. Reinwein. On November 12, 1984, Dr. Rovine notes claimant's continued pain but attributes the pain to excessive exercising and opines that claimant should be able to return to work after two weeks. On April 29, 1987, Dr. Rovine again evaluated claimant. This time, Dr. Rovine felt that claimant was malingering and faking the extent of his impairment. Dr. Rovine felt that claimant was disabled but did not know whether this was functional or organic. Dr. Rovine was very critical that conservative care was not first attempted before surgery. What is most notable about Dr. Rovine's report is that he apparently became confused as to the actual injury date and felt that claimant was reinjured on October 5, 1985, less than a month before the surgery. In a subsequent report, Dr. Rovine reported that he had overlooked claimant's previous visits to him but insisted claimant reported to him a new injury on October 3, 1985. He did not indicate how the change in injury dates would effect his evaluation conclusions. In January, 1985, claimant was evaluated by a neurologist, Daniel Johnson, M.D. From his EMG tests and examination of claimant, Dr. Johnson diagnosed that claimant suffers from low back pain without clear evidence of radiculopathy. F. Dale Wilson, M.D., a general surgeon, examined claimant in November, 1986. Dr. Wilson causally connects a 14 percent permanent partial impairment to the October 3, 1984 work injury in his written report following the exam. Dr. Wilson noted in his report that claimant had previous back problems in March, 1983, while working for CAT. Dr. Wilson also reports that claimant was involved in an automobile accident in March, 1983, requiring sutures to his lip. He notes that claimant complained of back pain within three weeks after this accident and was treated by Dr. Reinwein. The records of Dr. Reinwein do not reflect any treatment of claimant in the spring of 1983. According to the billing sheet of October 12, claimant was treated by Dr. Reinwein for complaints of lumbar problems in March, 1984 and May, 1984. There is no record of any other GARRETT V. CATERPILLAR TRACTOR COMPANY Page 5 treatment by Dr. Reinwein until October, 1984. In his deposition, Dr. Reinwein testified that his causal connection opinions were based upon an assumption that claimant was pain free in the year prior to the alleged work injury. Claimant testified that before working for CAT he was employed in various jobs such as laborer, grinder, warehouseman and assembler in a manufacturing environment. Claimant also worked for approximately 10 months as a meat packer. All of this work required heavy or repetitive lifting and bending. For a short time claimant was a manager/trainee at a McDonald's hamburger franchise but claimant testified that this attempted employment proved unsuccessful after two or three months. Claimant currently is in his early thirties and has a high school education. Claimant was articulate at the hearing and appeared to possess at least average intelligence. Claimant's appearance and demeanor at the hearing indicated that he was testifying in a candid and truthful manner. APPLICABLE LAW AND ANALYSIS I. 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 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 of 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. In the case sub judice, claimant's testimony was not really controverted by the testimony of March and his supervisor. Defendant's witnesses only testified that they could not remember the specific events as described by claimant. Due to the lapse of time since the injury, a failure to recall the specific events is not significant. What is significant, however, is that March did remember that claimant had informed her of the injury. Also, the medical department records verify claimant's story that he reported to the medical department after the injury. As claimant is found to be credible, this deputy commissioner will accept claimant's account of the incident. Therefore, claimant has established that he suffered a work injury to his low back on October 3, 1984. II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a GARRETT V. CATERPILLAR TRACTOR COMPANY Page 6 cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. 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 GARRETT V. CATERPILLAR TRACTOR COMPANY Page 7 significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case at bar, the medical evidence certainly was conflicting on the issue of the causal connection of claimant's herniated disc problems and resultant surgery to the October 3, 1984 incident. However, on the whole record, claimant must prevail. First, the reports of Dr. Rovine are confusing and based upon inaccurate information. For that reason, his views cannot be given much weight. Likewise, the causal connection views of Dr. Wilson cannot be given much weight. Dr. Wilson is not a specialist in back problems and appears to retreat from his original causal connection opinion because claimant was not pain free in the spring of 1984. It also appears to the undersigned that Dr. Wilson like Dr. Rovine simply got his facts confused. The only other causal connection opinion in the record is the rather simple but straight forward opinions of Dr. Reinwein in his November 13, 1985 form report in which he simply responded to questions posed to him. Dr. Reinwein's answers in this report demonstrates that he believes that the symptoms he found on October 5, 1984 constituted the same illness which he eventually diagnosed as a herniated disc in claimant's lower spine requiring surgery. Dr. Reinwein also believes that the condition is work related. These opinions are uncontroverted in the record and must be given considerable weight in light of the fact that Dr. Reinwein is an orthopedic surgeon and the primary treating physician. only Dr. Reinwein treated claimant both before and after the October 3, 1984 incident. Consequently, he is in the best position to render a causal connection opinion. Therefore, the greater weight of the evidence submitted establishes that the work injury of October 3, 1984 was a significant factor in causing permanent impairment to claimant's lower spine and precipitating the 35 pound weight restriction imposed by Dr. Reinwein after the surgery. Dr. Wilson is the only doctor who has placed a percentage rating on claimant's impairment and this rating should be given weight as the rating is separate from his causal connection views. Dr. Wilson rates claimant as suffering from a 14 percent permanent partial impairment due to his low back condition following surgery. This clearly is a body as a whole rating. Therefore, claimant has established that the work injury was a cause of significant permanent partial impairment. This, however, does not automatically entitle claimant to permanent disability benefits in an industrial disability case. Claimant's entitlement to such benefits is discussed below. III. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that GARRETT V. CATERPILLAR TRACTOR COMPANY Page 8 the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). In this case, claimant's medical condition before the work injury was certainly not excellent but there is no medical evidence that he suffered a permanent functional impairment before October 3, 1984. Claimant had recurrent back problems requiring treatment and absences from work but claimant was always able to return to full duty after each episode. At the time of the work injury, claimant was able to fully perform physical tasks involving heavy lifting; repetitive lifting, bending, twisting and stooping; and, prolonged standing and sitting. Even if claimant had permanent impairment prior to October 3, 1984, the evidence fails to show that claimant had a loss of earning capacity or industrial disability before October 3, 1984. Apportionment of disability between a preexisting condition and an injury is proper only when there is some ascertainable disability which existed independently before the injury occurred. Varied Enterprises Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Dr. Wilson has given claimant a 14 percent permanent impairment rating and Dr. Reinwein has imposed permanent physical restrictions against heavy lifting. Claimant's credible testimony establishes that despite a successful result from surgery, he continues to experience difficulty with heavy lifting, repetitive lifting, bending and prolonged sitting and standing. Claimant's current medical condition prevents him from returning to most of the work he performed in the past for which he is best suited. Claimant's current medical condition also limits his ability to perform his current job. GARRETT V. CATERPILLAR TRACTOR COMPANY Page 9 To the great dismay of the undersigned, the evidence was not presented by claimant as to claimant's current earnings as a salesman. However, it is the experience of this agency and a matter of common knowledge that appliance salesmen such as claimant earn considerable less than $480 per week. If defendant disputes this aspect, this deputy commissioner will certainly consider an application for rehearing on the matter. However, a showing that claimant had no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County, Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 218, 220 (1979). Claimant is relatively young, approximately 30 years of age. His loss of future earnings from employment due to his disability is not as severe as would be the case for an older individual. See Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981). Claimant has shown motivation to remain employed and so long as his current employer is able to tolerate claimant's inability to perform all of his assigned tasks, retraining is unnecessary. Claimant complains that his condition is deteriorating and that he will have to seek retraining in the future. However, disability award cannot be based upon what may happen in the future. Claimant has a high school education and exhibited average intelligence at the hearing. However, little was shown to indicate claimant's potential for vocational rehabilitation. Claimant raised the application of a so-called "odd-lot" doctrine in this case. This doctrine requires an award of permanent total disability benefits if defendants fail to go forward with evidence as to the availability of suitable work to claimant after claimant demonstrates a prima facie case that he has "odd-lot" or a person incapable of securing suitable and stable employment. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). This doctrine is not applicable to this case as claimant has shown that he is capable of finding suitable and stable employment because he has done so. After examination of all the factors, it is found as a matter of fact that claimant has suffered a 40 percent of loss of his earning capacity from his work injury. Based upon such a factual finding, claimant is entitled as a matter of law to 200 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 40 percent of the 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in the subsection. The parties stipulated that these benefits will begin as of January 29, 1986. As claimant has established entitlement to permanent partial disability, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work he was performing at the time of the injury; or, until it is indicated that significant improvement from the injury is not GARRETT V. CATERPILLAR TRACTOR COMPANY Page 10 anticipated, whichever occurs first. Claimant has established entitlement to healing period benefits for the two periods of time set forth in the prehearing report. Claimant was not able to return to regular duty when he was first released by Dr. Reinwein on January 20, 1985 and clearly was not able to work during the hospitalization for surgery and during his recovery time. The parties stipulated that these benefits would end as of January 28, 1986. IV. Claimant is also entitled to reimbursement for medical expenses incurred for treatment of a work injury under Iowa Code section 85.27. Defendant stipulated that the expenses requested in the prehearing report are reasonable and causally connected to claimant's low back condition. Given the finding that the low back condition is causally connected to the work injury found in this case a finding that the medical expenses are causally connected to the work injury is virtually automatic. Defendant contends that these expenses were not authorized but they have denied the causal connection of the back condition treated to a work injury. This agency has held that it is inconsistent to deny liability and the obligation to furnish care on one hand and at the same tune claimant's right to choose the care. Kindhart v. Fort Des Moines Hotel, (Appeal Decision 1985); Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner Report 1 (1981). Therefore, claimant shall be awarded all the expenses requested in the prehearing report. FINDINGS OF FACT 1. Claimant was a credible witness. 2. Claimant was in the employ of CAT at all times material 3. On October 3, 1984, claimant suffered an injury to his low back which arose out of and in the course of his employment with CAT. The injury consisted of a herniated disc at two levels in claimant's lower spine which was not accurately fully diagnosed until November, 1985, at which time disectomy surgery was deemed necessary to treat the injury. 4. The work injury of October 3, 1984, was a cause of a period of disability from work beginning on October 3, 1984 through January 20, 1985 and again from November 3, 1985 through January 28, 1986, at which time claimant reached maximum healing following the surgery. 5. The work injury of October 3, 1984 was a cause of a 14 percent permanent partial impairment to the body as a whole and of permanent restrictions upon claimant's physical activity consisting of no lifting over 35 pounds and no repetitive lifting or bending or prolonged sitting or standing. Claimant had no permanent physical impairments before October 3, 1984 despite recurrent episodes of back pain. GARRETT V. CATERPILLAR TRACTOR COMPANY Page 11 6. The work injury of October 3, 1984 and the resulting permanent partial impairment was a cause of a 40 percent loss of earning capacity. Claimant is a little over 30 years of age and has a high school education with average intelligence. Claimant is unable to return to most types of physical labor employment he has held in the past. Claimant has suffered a loss of earnings from his inability to return to manufacturing labor type work. Claimant is currently working as a salesman of household and electrical appliances but cannot fully perform many of the physical tasks of the job such as lifting appliances and stocking shelves. Claimant had no loss of earning capacity before October 3, 1984. 7. The medical expenses requested by claimant in the prehearing report (Exhibit 12) totaling $3,712.50 are fair and reasonable and were incurred by claimant for reasonable and necessary treatment of the work injury of October 3, 1984. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to permanent martial disability, healing period and medical benefits as awarded below. ORDER GARRETT V. CATERPILLAR TRACTOR COMPANY Page 12 1. Defendant shall pay to claimant two hundred (200) weeks of permanent partial disability benefits at the rate of three hundred four and 79/100 dollars ($304.79) per week from January 29, 1986. 2. Defendant shall pay to claimant healing period benefits from October 3, 1984 through January 20, 1985 and from November 3, 1985 through January 28, 1986 at the rate of three hundred four and 79/100 dollars ($304.79) per week. 3. Defendant shall pay to claimant the sum of three thousand seven hundred twelve and 50/100 dollars ($3,712.50) as reimbursement for medical expenses. 4. Defendant shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for all benefits previously paid as set forth in the prehearing report. 5. Defendant shall receive credit for previous payments of benefits under a non-occupational group insurance plan, if applicable and appropriate under Iowa Code section 85.38(2) as set forth in the prehearing report. 6. Defendant shall pay interest on benefits awarded herein as setforth in Iowa Code section 85.30. 7. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 8. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 8th day of December, 1987. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock GARRETT V. CATERPILLAR TRACTOR COMPANY Page 13 Attorney at Law 4th Floor Rock Island Bank Bldg. P. 0. Box 428 Rock Island, Illinois 61201 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg. 111 East Third Street Davenport, Iowa 52801-1550 BEFORE THE IOWA INDUSTRIAL COMMISSIONER VAN S. GARRETT, Claimant, File No. 777583 vs. A P P E A L CATERPILLAR TRACTOR COMPANY, D E C I S I 0 N Employer, Self-Insured, F I L E D Defendant. OCT 31 1989 IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE Defendant appeals from an arbitration decision awarding medical benefits, healing period benefits, and permanent partial disability benefits based on an industrial disability of 40 percent. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits 1 through 13; and defendant's exhibit A. Both parties filed briefs on appeal. ISSUES Defendant states in its appeal brief that the issues on appeal are whether: I. The deputy erred in concluding that claimant satisfied his burden to establish an injury arising out of and in the course of the employment. II. The deputy erred in ruling that claimant sustained his medical burden of proof to establish a causal connection between the alleged injury and claimant's need for low back surgery. Claimant discussed these issues in his appeal brief. No other issues were preserved on appeal by discussion of the issues in the appeal brief of either party. REVIEW OF THE EVIDENCE The arbitration decision dated December 8, 1987 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS The first issue to be resolved is whether claimant suffered an injury that arose out of and in the course of his employment. Claimant described the incident as follows. He was working in an area where he was assigned to work and he was lifting a part that weighed approximately 60 pounds. He was lifting a part from a tub that was approximately 32-48 inches high. This account was verified by claimant's foreman who was called as a witness for defendant. Some aspects of claimant's description of other events at the time of the incident are not fully corroborated by other witnesses. Claimant testified that a co-employee, Cora Marsh, helped him and that he sat on the floor. Marsh said she did not recall helping. However, she did recall that claimant had stated that he had been injured and that she told him to go see the company doctor. Claimant's foreman, Malvin Hightower, testified that he did not recall helping claimant. However, Hightower did indicate that normally a worker could not leave the work area to go see the company doctor without Hightower's permission. Hightower also indicated that a hoist would be used to lift parts over 50 pounds. Both claimant and Marsh indicated that workers were discouraged from taking the time to use the hoist. Hightower admitted that he had not reviewed any records prior to his testimony. The discrepancies of testimony are discussed here because defendant in its appeal brief relies heavily on the alleged discrepancies and claimant's credibility. The medical reports verify claimant's assertions on how and when the injury occurred. The defendant's medical report recorded a date of injury on October 3, 1984. Claimant sought care from William Reinwein, M.D., who recommended that claimant be off work beginning October 4, 1984. Claimant was also evaluated by Byron W. Rovine, M.D., who had not had an opportunity to see claimant's x-rays but recommended claimant begin a remedial exercise program. When all the evidence is considered claimant has demonstrated that he suffered an injury that arose out of and in the course of his employment. Claimant was at work doing an activity that was work related. He was doing an activity that would cause an injury to his lower back. His account was corroborated, particularly by the medical reports. Claimant has proved that on October 3, 1984 he suffered an injury that arose out of and in the course of his employment. The next issue to be resolved is whether there is a causal connection between the work injury and claimant's medical treatment. Defendant relies upon the medical evaluations of Dr. Rovine and upon attempts to discredit the medical reports of Dr. Reinwein. Dr. Rovine's medical reports should be discarded on the basis of those reports alone. On October 16, 1984 Dr. Rovine reports that he had not seen x-rays. On April 29, 1987 he was critical of the fact that claimant had surgery without a real trial of conservative treatment but had erroneously thought claimant was injured only one month before the surgery. On May 1, 1987 he indicates he had then located his own records and discovered the date of the work injury was October 3, 1984. Defendant's attempts to discredit the medical reports of Dr. Reinwein are based upon the assertion that certain of the medical records were not signed by Dr. Reinwein. Merely because the medical reports may not have been signed by him does not mean that the medical record, which is from his records, is not reflective of his opinion. Furthermore, the form in question was dated November 13, 1985 and a letter by Dr. Reinwein dated March 25, 1986 gives no indication that the form incorrectly reflects Dr. Reinwein's opinion. As claimant correctly notes in his appeal brief, defendant could have deposed Dr. Reinwein but did not do so. Dr. Reinwein is an orthopedic surgeon and was the primary treating physician who treated claimant for a period of a year. His medical records indicate claimant's disability was caused by an injury at work. That opinion was directly supported by F. Dale Wilson, M.D. Dr. Reinwein's medical evidence will be given the most weight. After Dr. Reinwein's conservative treatment proved unsuccessful, he recommended surgery which was performed. According to Dr. Reinwein the surgery improved claimant's condition. Claimant has proved by the greater weight of evidence that his work injury on October 3, 1984 was causally connected to his back surgery. FINDINGS OF FACT 1. On October 3, 1984 claimant was lifting a part out of a tub that was approximately 32-48 inches high while working for defendant. The part weighed approximately 60 pounds. 2. Claimant injured his lower back when lifting the part. 3. Claimant sought care from the company doctor on October 3, 1984. 4. Claimant also sought care from Dr. Reinwein. 5. Dr. Reinwein, an orthopedic surgeon, was the primary treating physician. 6. Dr. Reinwein's opinions are the most reliable. 7. Medical records of Dr. Reinwein indicate that claimant's injury was work related. 8. The injury consisted of a herniated disc at two levels in claimant's lower spine which was not accurately, fully diagnosed until November 1985. 9. Claimant underwent conservative treatment from October 1984 through November 1985. 10. Dr. Reinwein recommended surgery which was performed in November 1985. 11. The medical expenses requested by claimant in the prehearing report (Exhibit 12) totaling $3,712.50 are fair and reasonable and were incurred by claimant for reasonable and necessary treatment of the work injury of October 3, 1984. CONCLUSIONS OF LAW Claimant has proved that he suffered an injury on October 3, 1984 that arose out of and in the course of his employment with defendant. Claimant has proved that there is a causal connection between the work injury and the medical expenses incurred. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendant pay claimant two hundred (200) weeks of permanent partial disability benefits at the rate of three hundred four and 79/100 dollars ($304.79) per week from January 29, 1986. That defendant pay claimant healing period benefits from October 3, 1984 through January 20, 1985 and from November 3, 1985 through January 28, 1986 at the rate of three hundred four and 79/100 dollars ($304.79) per week. That defendant pay claimant the sum of three thousand seven hundred twelve and 50/100 dollars ($3,712.50) as reimbursement for medical expenses. That defendant pay accrued weekly benefits in a lump sum and shall receive a credit against this award for all benefits previously paid as set forth in the prehearing report. That defendant receive credit for previous payments of benefits under a nonoccupational group insurance plan, if applicable and appropriate under Iowa Code section 85.38(2) as set forth in the prehearing report. That defendant pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendant pay the costs of this action including the costs of transcribing the arbitration hearing pursuant to Division of Industrial Services Rule 343-4.33. That defendant file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 31st day of October, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock Attorney at Law 4th Floor Rock Island Bldg. P.O. Box 4298 Rock Island, IL 61204 Mr. Larry L. Shepler Attorney at Law Executive Square, Ste. 102 400 Main St. Davenport, IA 52801 1100; 1800 Filed December 8, 1987 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER VAN S. GARRETT, FILE NO. 777583 Claimant, A R B I T R A T I 0 N vs. D E C I S I 0 N CATERPILLAR TRACTOR COMPANY, Employer, Self-Insured, Defendant. 1100; 1800 Claimant awarded 40 percent permanent partial impairment as a result of a work injury to his low back and an inability to return to the type of work that he had performed in the past. 1100;5-1108;5-1402-60 Filed October 31, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER VAN S. GARRETT, Claimant, File No. 777583 vs. A P P E A L CATERPILLAR TRACTOR COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 5-1100 Claimant proved that injury arose out of and in the course of his employment. Claimant was performing assigned task of lifting 60 pound parts when the alleged injury occurred. Medical records corroborated the incident. Claimant's description of events at time of incident were not fully corroborated by other witnesses. 5-1108; 5-1402.60 Claimant proved causal connection between work injury and medical treatment. Medical evidence of treating physician whose office records gave opinion that claimant's condition was a work injury was accepted. Surgery was performed after conservative treatment proved unsuccessful. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BETTY HAYNES, Widow of CARROLL HAYNES, Claimant, VS. File No. 777622 WITCO CHEMICAL, R U L I N G Employer, and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. Claimant applies for an assessment and taxation of the cost of a copy of the transcript which was to be used in preparing her brief and argument on appeal. Claimant had ordered the transcript copy after receiving a notice of appeal by defendants from an arbitration decision of the deputy commissioner. The appeal was subsequently dismissed by defendants. Although the deputy commissioner assessed the costs of the arbitration proceeding against the defendant, the taxation of costs on appeal is at the discretion of the industrial commissioner. The ordering of a copy of a transcript filed by appellant with the commissioner is available to all parties. Claimant's application is denied. Signed and filed this 15th day of April, 1987. ROBERT C. LANDESS INDUSTRIAL COMMISSIONER Copies To: Mr. Greg A. Egbers Attorney at Law 600 union Arcade Bldg. 111 East Third Street Davenport, Iowa 52801 HAYNES V. WITCO CHEMICAL Page 2 Mr. James P. Richmond Attorney at Law 900 Sixth Avenue P.O. Box 148 DeWitt, Iowa 52742 Ms. Dorothy L. Kelley Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ PATRICIA TERWILLIGER, : : Claimant, : : vs. : File Nos. 777628/791749 862946/877065 SNAP-ON TOOLS CORPORATION, : : R E M A N D Employer, : : D E C I S I O N and : : ROYAL INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ This matter is on remand from the Iowa Court of Appeals. In a decision filed February 23, 1993, No. 2-533/92-162 the court of appeals affirmed the district court. The district court had remanded this matter to the agency for purposes of determining the extent of claimant's disability of her hands and wrists in file number 862946. The remand decision of the district court directed that lay testimony and all germane impairment evidence including a possible preexisting psychological condition be considered. ISSUE The issue on remand is the extent of claimant's disability to her hands. FINDINGS OF FACT The evidence presented in this case was reviewed. The following findings are based upon the evidence and are limited to the issue on remand. Claimant sought care from Ronald S. Bergman, M.D., in September 1987. She was treated conservatively for bilateral carpal tunnel syndrome without improvement. Carpal tunnel releases were performed on the left on October 30, 1987 and on the right on January 8, 1988. Dr. Bergman performed the surgeries and returned claimant to work with restrictions on February 8, 1988. Claimant underwent a work hardening program and on May 31, 1988 Dr. Bergman gave permanent restrictions of five-day work week; eight-hour work days and a 20 pound weight restriction. On June 13, 1988 he modified the lifting restriction to occasionally lifting more than 20 pounds but not more than 35 to 40 Page 2 pounds. Dr. Bergman gave claimant a one percent rating to the left hand and two percent of the right hand. On July 5, 1988 Michael W. Crane, M.D., rated claimant as having a three percent "permanent partial disability" of each the right and left hand. He noted that claimant was becoming functionally disabled in regard to her job in spite of the lack of objective or physical evidence. (Defendants' Exhibit 8, page 9) Dr. Crane testified that he agreed with Dr. Socarras and Dr. Kitchell's notation of functional overlay and symptom magnification. (Def. Ex. 18, p. 23) He also testified he felt a psychiatric referral wasn't necessary. (Def. Ex. 18, p. 48) Claimant was examined by Alfredo D. Socarras, M.D., on March 18, 1988. In his report dated March 20, 1988 he noted that there was a great disproportion between claimant's complaints and the lack of objective findings. The electromyogram of both upper extremities with nerve conduction studies of the median and ulnar nerves were normal. Dr. Socarras was unable to explain the constellation of claimant's symptoms on the basis of carpal tunnel syndrome. (Def. Ex. 7) In April 1985 claimant was seen by Michael J. Kitchell, M.D., and a Minnesota Multiphasic Personality Inventory test (MMPI) was done by Jack L. Dodd, M.D. Dr. Kitchell noted that the MMPI was very abnormal, consistent with a conversion reaction. Individuals with this profile develop physical symptoms as a reaction to mental or environmental stress. (Def. Ex. 9) Claimant testified that after her return to work she had some problems occasionally trying to pick up small pieces, turning and twisting things. She said she had trouble holding things and would drop things and had fair strength. (Def. Ex. 19, p. 73) She also testified that she had sought counseling on Dr. Bergman's recommendation so that she could deal with the pain. (Def. Ex. 19, p. 44 and Transcript, p. 31) She had no other counseling (Tr. p. 35) and wasn't depressed from the pain. (Tr., p. 73) She has pain in her hands and sometimes her fingers will not move correctly. Claimant's witnesses, Diane Bunkofske, Diane Hansen, Allen Vaske, Jeanne Householder, Holly Miller, and Janet Woodyard testified that claimant's hands were swollen when claimant returned to work after surgery, her hands and fingers wouldn't work or bend, and that claimant could not perform tasks after surgery that she had before. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A Page 3 cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The claimant has the burden of proving by a preponderance of the evidence that the injury of August 24, 1987 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. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In this case claimant has received impairment ratings from two doctors. Dr. Bergman's ratings were two percent of the right hand and one percent of the left hand. Dr. Crane rated claimant has having a three percent "disability" of each hand. The lay testimony in this case does not contradict nor outweigh the impairment ratings of the doctors. It was recognized in 1985 that claimant may magnify her symptoms. The symptom magnification would make the subjective lay testimony suspect. The medical testimony is more reliable. The impairment evaluations by Drs. Crane and Bergman are very similar. There is insufficient reliable evidence in the record to find that the extent of claimant's disability exceeds the medical evaluations. Dr. Crane had extensive contact with claimant and evaluated her impairment after her surgery and subsequent return to work following work hardening. When all the evidence is given the proper weight and consideration, it is found that claimant suffered a three percent disability to each hand from her bilateral carpal tunnel syndrome. Using tables 2 and 3 and the combined values chart of the AMA Guides to the Evaluation of Permanent Impairment, 3rd Edition, three percent impairment of the hand converts to three percent impairment of the arm; three percent impairment of the arm is two percent of the whole person; and 2 two percent impairments of whole person converts to Page 4 four percent of the whole person. Four percent of 500 weeks is 20 weeks. Claimant is entitled to 20 weeks of permanent partial disability benefits. It should be noted that while there is some indication that claimant had a conversion reaction, i.e., that she was a symptom magnifier, there is insufficient evidence, medical and otherwise, to conclude that claimant had a preexisting psychological condition prior to her August 24, 1987 injury. Also, the record is insufficient to conclude that if claimant had a psychological condition, it was caused or aggravated by a scheduled injury. Therefore, the holding in Mortimer v. Fruehauf Corp, No. 200/92-1143, Iowa Supreme Court filed June 16, 1993 is not applicable. The extent of claimant's disability should be determined using Iowa Code section 85.34(2)(s). ORDER THEREFORE, it is ordered: That defendants are to pay unto claimant twenty (20) weeks of permanent partial disability benefits at the rate of two hundred fifty-three and 05/100 dollars ($253.05) per week from February 22, 1988. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on unpaid weekly benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are to be given credit for benefits previously paid. That defendants shall file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1(2). That claimant shall pay any costs of this matter not previously ordered paid by this agency or the district court or the court of appeals. Signed and filed this ____ day of July, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Mark S. Soldat Attorney at Law 714 E. State St. Algona, Iowa 50511 Page 5 Mr. Paul C. Thune Attorney at Law P.O. Box 9130 Des Moines, Iowa 50306 5-1808 Filed July 16, 1993 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ PATRICIA TERWILLIGER, : : Claimant, : : vs. : File Nos. 777628/791749 862946/877065 SNAP-ON TOOLS CORPORATION, : : R E M A N D Employer, : : D E C I S I O N and : : ROYAL INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1808 On remand it was determined that claimant had suffered a three percent impairment to each hand from bilateral carpal tunnel syndrome. A treating doctor's opinion of impairment was accepted over subjective lay testimony. The subjective lay testimony was suspect because of claimant's possible symptom magnification. It was noted that the Supreme Court decision of Mortimer v. Fruehauf, June 16, 1993 was not applicable because there was insufficient evidence to determine that claimant had a preexisting psychological condition or that the scheduled injury aggravated the psychological condition if claimant had one.