BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYLE L. WILSON, Claimant, File No. 788588 VS. A P P E A L WILSON FOODS CORPORATION, Employer, D E C I S I 0 N Self-Insured, Defendant. STATEMENT OF THE CASE Defendant appeals from an arbitration decision awarding claimant permanent partial disability benefits as a result of an alleged injury sustained on February 25, 1985. The record on appeal consists of the transcript of the arbitration hearing and joint exhibits 1 through 27. Both parties filed briefs on appeal. The defendant filed a reply brief. ISSUE The issue considered on appeal is: Whether claimant is entitled to permanent partial disability benefits, and if so, the extent of her entitlement. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issue and the evidence. ANALYSIS The analysis of the evidence in conjunction with the law is adopted. FINDINGS OF FACT 1. Claimant was 42 years old at the time of the injury and 45 years old at the time of the hearing. WILSON VS. WILSON FOODS CORPORATION Page 2 2. Claimant is a high school graduate whose past employments include a waitress, grocery clerk and food and laundry worker. 3. Claimant started to work for the employer on November 3, 1980, and had worked for approximately two and one-half years when she was injured. 4. Claimant sustained a very severe blow to the left side of her head when she was hit by a 12 to 15 pound ham, which had been thrown approximately 10 to 12 feet on February 25, 1985, when she was stunned and knocked partially to the floor. 5. Mark E. Wheeler, M.D., the treating orthopedic surgeon, determined that claimant had sustained a five percent permanent impairment of the left upper extremity due to the injury to her neck which occurred on February 25, 1985. 6. A five percent permanent impairment to the left upper extremity converts to a three percent permanent impairment of the body as a whole. 7. Claimant sustained an industrial disability of ten percent to the body as a whole, due to current difficulty in performing her work, as a result of the injury which occurred on February 25, 1985. CONCLUSIONS OF LAW The injury of February 25, 1985, was the cause of permanent impairment and permanent disability. Claimant sustained a five percent impairment of the upper extremity which converts to a three percent permanent impairment of the body as a whole. Claimant is entitled to 50 weeks or permanent partial disability benefits for an industrial disability of ten percent of the body as a whole. Claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to a diskogram as recommended by Horst G. Blume, M.D. Claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to an order for a change of care. WHEREFORE, the decision of the deputy is affirmed. WILSON VS. WILSON FOODS CORPORATION Page 3 ORDER THEREFORE, it is ordered: That defendant pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of one hundred ninety-eight and 02/100 dollars ($198.02) per week in the total amount of nine thousand nine hundred and one dollars ($9,901) commencing on August 30, 1986, as stipulated to by the parties. That defendant is entitled to a credit of fifteen (15) weeks of permanent partial disability benefits paid to claimant prior to hearing at the rate of one hundred ninety-eight and 02/100 dollars ($198.02) per week in the total amount of two thousand nine hundred seventy and 30/100 dollars ($2,970.30). That the remaining benefits are to be paid to claimant in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 31st day of July, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Harry Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David Sayre Attorney at Law 223 Pine P.O. Box 535 Cherokee, Iowa 51012 1800 - 1803 Filed July 31, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYLE L. WILSON, Claimant, File No. 788588 VS. A P P E A L WILSON FOODS CORPORATION, Employer, D E C I S I 0 N Self-Insured, Defendant. 1800, 1803 Claimant's award of 10 percent permanent partial disability as a result of an injury to the head was affirmed on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYLE L. WILSON, Claimant, File Nos. 788588 vs. A R B I T R A T I O N WILSON FOODS CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Cheryle L. Wilson, claimant, against Wilson Foods Corporation, employer and self-insured defendant, for benefits as the result of an alleged injury to her left shoulder on May 24, 1982 (file no. 830439) and an injury to her head, neck, shoulders and back on February 25, 1985 (file no. 788588). A hearing was held in Storm Lake, Iowa, on November 3, 1988, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Cheryle L. Wilson, claimant, and joint exhibits 1 through 27. Defendant's attorney submitted an excellent brief. Claimant's attorney failed to file a brief. PRELIMINARY MATTER After discussion of the issues involved between the parties, claimant move to dismiss the petition for the alleged injury to the left shoulder which occurred on or about May 24, 1982. Defendant did not object to the motion. Claimant's motion was granted and the original notice and petition on file no. 830439 was dismissed without prejudice at the request of claimant. STIPULATIONS The parties stipulated to the following matters with regard to the injury which occurred on February 25, 1985 (file no. 788588). That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on February 25, 1985, which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability and that claimant was paid temporary disability benefits for the injury from February 26, 1985 to March 21, 1985, and again from March 27, 1985 to May 28, 1985, and that entitlement to temporary disability benefits is not an issue in dispute in this case at this time. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial WILSON V. WILSON FOODS CORPORATION PAGE 2 disability to the body as a whole. That the commencement date for permanent disability benefits, in the event such benefits are awarded, is August 30, 1986. That the rate of compensation, in the event of an award, is $198.02 per week. That defendant seeks no credit for nonoccupational group health plan benefits paid prior to hearing. That defendant is entitled to a credit for 15 weeks of workers' compensation permanent partial disability benefits paid to claimant prior to hearing at the rate of $198.02 based on a permanent functional impairment rating of 3 percent of the body as a whole. That there are no bifurcated claims. That the issue of whether claimant is entitled to medical benefits, as shown on the hearing assignment order, under Iowa Code section 85.27 and whether claimant is entitled to an independent evaluation by Horst G. Blume, M.D., in the amount of $200 (Exhibit 27) are no longer issues in this case for the reason that defendant has paid Dr. Blume and all of claimant's other medical expenses prior to hearing. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether the injury of February 25, 1985, was the cause of permanent disability. Whether claimant is entitled to permanent partial disability benefits, and if so, the extent of her entitlement. Whether claimant is entitled to an order for alternate medical care from Dr. Blume and whether claimant is entitled to receive a diskogram performed by Dr. Blume. SUMMARY OF THE EVIDENCE Of all the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant was born on March 8, 1943. She was 42 years old at the time of the injury and 45 years old at the time of the hearing. She graduated from high school in 1961 and has received no further education or training since that time. She is married and has two adult children. Past employments include waitress, grocery clerk and food and laundry worker at a state hospital. Claimant started to work for employer on November 3, 1980. Claimant had worked for employer approximately two and one-half years when she was accidentally struck, very hard, on the left side of the head, by a ham weighing 12 to 15 pounds, which had been thrown a distance of 10 to 12 feet by another employee. She was knocked sideways to the right, dropped down into a crouch position, saw stars and was dazed for awhile. Later she felt stiff all over, developed a headache, and could not turn her WILSON V. WILSON FOODS CORPORATION PAGE 3 head. Eventually, claimant developed pain in both sides of her neck, left shoulder, left shoulder blade and back down into her left hip. She also had pain in her right shoulder. Claimant's foreman took her to first aid. She was treated by Keith O. Garner, M.D., plant physician, Dean E. Meylor, D.C., a chiropractor, and Mark E. Wheeler, M.D., an orthopedic surgeon. She was also examined and evaluated by Horst G. Blume, M.D., a neurosurgeon, and the various professionals at the industrial Injury Clinic at Neenah, Wisconsin. Claimant was also tested at times by Dennis Nitz, M.D., a neurologist, and James L. Case, M.D., a neurosurgeon. Claimant testified that her current condition is that she still has headaches and pressure in her left shoulder that goes down into her back. She takes Tylenol for pain. Claimant returned to work on October 24, 1988, she has continued to work since that time, but testified that she doubted if she could continue to do so. Claimant testified that she was active at home prior to returning to work. However, she was still stiff from the injury and it wakes her up at night when it hurts. All employees took a cut in pay due to economic conditions at the plant as well as claimant, but she testified that she received an increase after the cut. Claimant also testified that she had not attempted to find work of any other kind with any other employer, but chose instead to return to work for this employer and has been performing the work satisfactorily since October 24, 1988. Claimant denied any other accidents or injuries to her head, neck, shoulders or back prior to or after this injury. She has had carpal tunnel syndrome treated concurrently with this injury, but the carpal tunnel syndrome has been handled as a separate claim. Claimant did admit to a left shoulder injury in 1982. She said that she was treated and returned to work without restrictions and worked from that time until the date of this injury without problems. Dr. Garner's notes show that he saw claimant a number of times with left shoulder complaints after the injury of 1982 as well as problems in both shoulders. He actually treated claimant on April 22, 1983, April 25, 1983, October 24, 1983, October 27, 1983, October 29, 1983, November 2, 1983, December 2, 1983, December 14, 1983, December 16, 1983, December 22, 1983, and December 29, 1983. Dr. Garner's notes also reflect the injury of February 25, 1985, for which he prescribed medication and physical therapy. His notes also show that claimant asked to see Dr. Wheeler on March 25, 1985 (Ex. 22, pp. 1-6). Dr. Wheeler's notes show that he treated claimant for a left shoulder injury in 1983. He treated claimant for this injury on April 15, 1985, for her neck and left shoulder pain. X-rays were normal. Range of motion of the shoulder and her neurological examination were normal. She had C-7 tenderness and slight restrictions of motion in all. directions of her neck. Dr. Wheeler diagnosed cervical strain with resultant muscle spasm. He prescribed medications and a Philadelphia neck collar (Ex. 19). On May 15, 1985, he added home cervical traction (Ex. 11, p. 4). Claimant had continuing complaints on September 4, 1985, but x-rays showed no abnormalities (Ex. 11, p. 4). When conservative management failed, claimant was hospitalized on September 10, 1985 through September 18, 1985 for cervical WILSON V. WILSON FOODS CORPORATION PAGE 4 traction (Ex. 11, p. 5; Ex. 21). A myelogram was also performed while she was hospitalized and it showed no abnormality.(Ex. 21, p. 2). Claimant was essentially unchanged on October 4, 1985. The left shoulder pain radiated to the hip. An EMG and NCR tests were ordered and resulted in normal findings. A TENS unit provided some relief. On December 5, 1985, Dr. Wheeler awarded a 5 percent permanent impairment rating of the left upper extremity (Ex. 11, p. 5; Ex. 14). On January 2, 1986, Dr. Wheeler clarified that his 5 percent impairment rating was specifically due to the neck injury of February 25, 1985, and it was separate and distinct from another 5 percent permanent impairment rating he awarded for her carpal tunnel condition (Ex. 14). On June 22, 1987, Dr. Wheeler said that claim,ant continued to have problems with her shoulder and neck. He said that this is a chronic problem related to her work (Ex. 11, p. 5; Ex. 18). On August 31, 1987, Dr. Wheeler wrote as follows: "Mrs. Wilson continues to have difficulty about her neck. She is tender over both trapezius muscles with mild limitation in motion of the neck. Thsi [sic] is her long standing problem. I have little solution here other than to discontinue her work." (Ex. 11, p. 5) Claimant had continuing upper shoulder and neck pain on April. 25, 1988. Dr. Wheeler said that as long as she continued to do strenuous work she probably is going to have muscle symptoms in her shoulder (Ex. 11, p. 6; Ex. 18). On July 21, 1988, Dr. Wheeler reported his examination of claimant as follows: Mrs. Wilson again comes in today complaining of back, shoulder, and neck pain. Her exam is unchanged. She is tender along the trapezius muscle and along most of the paracervical muscles and also along the left paraspinal muscles. She has good range of motion and no neurological deficit. I feel this is a chronic strain pattern. I do not feel she is physically holding up to the work at Wilson's. I have advised I have little offer other than recommending she discontinue her employment. In 1985, she had a complete work up in the hospital including a full myelogram which showed really no abnormality. I do not feel that further investigational studies are indicated. There is no sign of neurological deficit. She has generalize aches and pains. My only other recommendation would be that she see a rheumatologist. Return to me on a prn basis. (Given company release for full duties) (Ex. 11, p. 6) Dr. Wheeler wrote to claimant's counsel on August 17, 1988, in the following words: As you know, I have been following Mrs. Wilson for a number of years. She is going to have difficulty with her neck, shoulder, hands, and arms as she works at Wilsons. I have discussed this with her on several occasions. I personally do not feel that work restrictions are going to be of any benefit to Mrs. Wilson. As soon as she goes back to her normal duties, I believe her symptoms are going to recur. I have advised her of this several times. (Ex. 15) Claimant was examined and evaluated extensively, in great WILSON V. WILSON FOODS CORPORATION PAGE 5 detail, at the Industrial Disability Clinic, at Neenah, Wisconsin, by G.R. Anderson, M.D., T. J. Michlowski, M.D., a neurologist and psychiatrist, T. A. CoBabe, Ph.D., and W. J. Reynolds, M.S., R.R.C, a vocational rehabilitation consultant. A summary of their combined reports is dated October 5, 1988 (Ex. 25). Claimant received chest x-rays, a bone scan, x rays of the cervical spine and right shoulder, urinalysis and blood tests, an electromyogram and an electrocardiogram. All of these tests were within normal limits. The final conclusions of this group are as follows: STAFF DIAGNOSIS AND DISCUSSION Based on past medical records and data review and x-ray review and current evaluation, both clinical and laboratory, it is the opinion of the staff that this individual does not have any significant physical disorder relative to her pain complaints. It is noteworthy that the patterns of pain are rather unusual with probably some elements of simple psychomotor tension reaction. No underlying physical disorder is identified. From a psychosocial standpoint, there are numerous complexities involved in the patient's current clinical presentation to include unresolved conflicts at the jobsite, job uncertainty and an obvious somatiform response pattern to these perceived stressors. It will be very important for any primary clinician dealing with this patient to maintain a broad biopsychosocial perspective. Particular attention should be paid to any diagnostic or treatment intervention and how it might affect the patient from the standpoint of behavioral reinforcement, i.e., the somatiform adaptation. STAFF RECOMMENDATIONS AND CONCLUSIONS 1. It is the opinion of the staff that this individual has not sustained any significant or permanent injury. There is no evidence of any permanent disability and, in our opinion, she has long since recovered from the industrial incident in question without any permanent disability. 2. It is recommended that this patient move away from formal therapy including physical therapy which appears to be enhancing and reinforcing the somatiform disturbance and that she develop an independent method of dealing with her symptomatology and maintaining physical fitness and limberness. We would recommend in this regard that perhaps for two or three months she be provided with membership or access to the local swim pool and whirlpool at a motel near the area where she resides for aquacize and whirlpool. We have recommended she, in addition, maintain herself on her exercise program and return to work at regular duty within the Work Capacity Classification attached to this report on or by 24 October 1988. 3. We do not see the need for any continued formal medical intervention or further diagnostic studies relative to the industrial incident in question. WILSON V. WILSON FOODS CORPORATION PAGE 6 (Ex. 25) Dr. Blume examined claimant on October 12, 1988. He summarized her many symptoms and the extensive treatment which she had received for them. Dr. Blume did not give a permanent impairment rating. Dr. Blume did not feel that he could make a definitive diagnosis without a diskogram at level C-4-5, C-5-6, and C-6-7 (Ex. 5, p. 3). Claimant testified that the surgical risk of a diskogram had been explained to her and that she wanted to have a diskogram performed. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of February 25, 1985, 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 WILSON V. WILSON FOODS CORPORATION PAGE 7 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). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Claimant did sustain the burden of proof by a preponderance of the evidence that the injury of February 25, 1985, was the cause of permanent impairment and disability. The report of the Industrial Injury Clinic at Neenah, Wisconsin, and the many capable professional examiners and evaluators is impressive. They captured many of the biopsychosocial conflicts that exist between claimant, employer and Dr. Garner as well as claimant's job uncertainty due to economic conditions at the plant. Their evaluation of somatiform adaptation has merit. Their recommendation that there is no need for additional formal medical intervention or diagnostic studies also has merit. This confirms what Dr. Wheeler told claimant on several occasions. Dr. Wheeler told her that she had been thoroughly examined and tested and there was nothing further that he could do for her, but that she could return on an as needed basis. As to claimant's physical symptoms and complaints, Dr. Wheeler characterized these problems as chronic. When conservative management failed, he hospitalized claimant for traction and a myelogram. The myelogram, x-rays and other objective tests were all normal. Dr. Wheeler was claimant's long-term treating physician. He treated her as early as two years prior to this injury for the left shoulder injury in 1983. He treated claimant for over three years after this injury until July 21, 1988. He stated that claimant had a chronic muscle strain pattern about the shoulder and rated the impairment at 5 percent of the upper extremity due to the injury and recommended that she change jobs if she wanted relief. As far as claimant's purely physical complaints, the Industrial Injury Clinic did not see claimant until over three years after the injury occurred. They only saw her on this one occasion three years later. Therefore, the opinion of Dr. Wheeler is accepted on the specific element of claimant's physical injury, disability and impairment. He awarded claimant a 5 percent impairment of the left upper extremity (Ex. 11, p. 5; Ex. 14). This converts to 3 percent of WILSON V. WILSON FOODS CORPORATION PAGE 8 the body as a whole (Guides to the Evaluation of Permanent Impairment, second edition, table 20, p. 23, published by the American Medical Association) Even though Dr. Garner's notes say that claimant requested to see Dr. Wheeler, nevertheless, Dr. Wheeler was the authorized treating physician selected by employer to treat claimant for this injury. Iowa Code section 85.27. Even though Dr. Wheeler recommended to claimant that she change jobs on numerous occasions, she testified at the hearing that she had not attempted to find any other employment. On the contrary, she has returned to work for employer on her own volition. Therefore, two things are evident: (1) claimant can perform the work of this employer if she chooses to do so, and (2) there is some impairment when she does perform this work. It must be taken into consideration that claimant received a violent blow to the left side of her head which left her partially stunned or dazed. She was hit with a ham weighing 12 to 15 pounds which had been thrown 10 to 12 feet through the air before it struck her in the left side of the head. Claimant was taken to first aid, saw Dr. Garner and was referred to Dr. Wheeler and the Industrial Injury Clinic by employer. Claimant is young enough at age 45 to undertake formal education and training to learn a new kind of work or to learn a different kind of work through on-the-job training. She has a high school diploma and received C grades in high school. She has performed a variety of other employments satisfactorily such as waitress, grocery clerk, food worker and laundry worker. The occupation of homemaker and mother of two children involved numerous management skills as well as many problem solving skills. Even though claimant is earning approximately the same or slightly more then when she was injured, an actual loss of earnings is only one factor in determining industrial disability. The industrial disability is a loss of "capacity" not solely loss of earnings. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (1979). At 45 years of age, claimant is in the middle of her working career. Her loss of future earnings from employment due to her disability is much more severe than would be the case for an older or younger individual. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981). At the same time, it must be taken into consideration that claimant did not demonstrate a strong effort to either seek new employment in a different line of work or to return to work for this employer. Consequently, it is difficult to tell what claimant can or cannot do within the boundaries of her disability. Schofield v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 334, 336 (1981). Based on the foregoing considerations and all of the factors that are used to determine industrial disability, it is determined that claimant has sustained a 10 percent industrial disability of the body as a whole. Claimant's medical care and treatment needs have been taken care of in a satisfactory manner. She was treated by a qualified neurosurgeon, Dr. Wheeler, and had WILSON V. WILSON FOODS CORPORATION PAGE 9 the benefit of physical therapy and chiropractic therapy on a number of occasions. She has taken numerous diagnostic tests, including a myelogram, and all of her tests were within normal limits. In addition to the medical treatment that most claimant's receive, claimant also had the benefit of being examined and evaluated by the Industrial Injury Clinic at Neenah, Wisconsin, at the expense of her employer. Again, extensive numerous objective tests were all normal. The Industrial Injury Clinic recommended against further medical intervention or diagnostic studies and indicated that they would be counterproductive. In view of all of the medical testing, examination and evaluation that claimant has been given up to this point, she did not sustain the burden of proof by the preponderance of the evidence that a diskogram performed by Dr. Blume should be authorized. Nor did she sustain the burden of proof by a preponderance of the evidence that she is entitled to a change of medical care. The medical care that has been provided has been reasonable and promptly offered. Iowa Code section 85.27. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made. That claimant sustained a very severe blow to the left side of her head when she was hit by a 12 to 15 pound ham, which had been thrown approximately 10 to 12 feet on February 25, 1985, when she was stunned and knocked partially to the floor. That Dr. Wheeler, the treating orthopedic surgeon, determined that claimant had sustained a 5 percent permanent impairment of the left upper extremity due to the injury to her neck which occurred on February 25, 1985. That a 5 percent permanent impairment to the left upper extremity converts to a 3 percent permanent impairment of the body as a whole. That claimant sustained an industrial disability of 10 percent to the body as a whole, due to current difficulty in performing her work, as a result of the injury which occurred on February 25, 1985. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the principles of law previously discussed the following conclusions of law are made. That the injury of February 25, 1985, was the cause of permanent impairment and permanent disability. That claimant sustained a 5 percent impairment of the upper extremity which converts to a 3 percent permanent impairment of the body as a whole. That claimant is entitled to 50 weeks or permanent partial disability benefits for an industrial disability of 10 percent of the body as a whole. WILSON V. WILSON FOODS CORPORATION PAGE 10 That claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to a diskogram as recommended by Dr. Blume. That claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to an order for a change of care. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of one hundred ninety-eight and 02/100 dollars ($198.02) per week in the total amount of nine thousand nine hundred and one dollars ($9,901) commencing on August 30, 1986, as stipulated to by the parties. That defendant is entitled to a credit of fifteen (15) weeks of permanent partial disability benefits paid to claimant prior to hearing at the rate of one hundred ninety-eight and 02/100 dollars ($198.02) per week in the total amount of two thousand nine hundred seventy and 30/100 dollars ($2,970.30). That the remaining benefits are to be paid to claimant in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant pay the costs of this action pursuant to Division of Industrial Services Rule 34.3-4.33. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 23rd day of December, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David Sayre Attorney at Law 223 Pine P.O. Box 535 Cherokee, Iowa 51012 1401; 1402.40; 1803; 1402.60 2501; 2503; 2505; 2610; 2700 Filed December 23, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYLE L. WILSON, Claimant, File Nos. 788588 vs. A R B I T R A T I O N WILSON FOODS CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. 1401; 1402.40; 1803 Claimant was hit in the head with a ham weighing 12 to 15 pounds which had been thrown 10 to 12 feet which gave rise to neck, back and hip complaints. Treating physician awarded 5 percent functional impairment of the left upper extremity which converts to 3 percent of the body as a whole. Claimant awarded 10 percent industrial disability. 1402.60; 2501; 2503; 2505; 2610; 2700 Claimant had been examined and treated extensively including a trip to the Industrial Injury Clinic at Neenah, Wisconsin. Claimant did not sustain the burden of proof by a preponderance of the evidence that she was entitled to a diskogram from Dr. Blume or an order for a change of care to Dr. Blume. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHERYLE L. WILSON, : : File No. 788588 Claimant, : : vs. : R E V I E W - : WILSON FOODS CORPORATION, : R E O P E N I N G : Employer, : D E C I S I O N Self-Insured, : Defendant. : : ___________________________________________________________ statement of the case This case came on for hearing on January 11, 1993, at Storm Lake, Iowa. This is a proceeding in review-reopening wherein claimant seeks additional permanent partial disability benefits, alternate care, and payment of medical bills as a result of an injury which occurred on February 25, 1985. There had been an arbitration decision filed December 23, 1988, pursuant to a hearing held on November 3, 1988, in which claimant was determined to have a 10 percent industrial disability and was determined not to be entitled to a diskogram or change of medical care. The testimony in the proceeding consists of the testimony of the claimant and Jean McCall; joint exhibits 1 through 53; and claimant's exhibits A and B. issues The issues for resolution are: 1. The reasonableness and necessity of incurring the medical expense; 2. Whether there is a causal connection as to claimant's medical expense and the injury; 3. Claimant's entitlement to medical benefits under Iowa Code section 85.27, the issue being authorization and the incurrence of medical fees. The actual reasonableness of the fees is not disputed. 4. Whether there has been a change of circumstances since the last hearing claimant had on November 3, 1988; and, 4. Whether claimant is entitled to alternate medical care. FINDINGS OF FACT Page 2 The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant was born on March 8, 1943, and was 49 years old on the date of the hearing. She graduated from high school but has received no further education or training since that time. Claimant started working for the employer on November 3, 1980, and has been employed with the defendant to the present. Claimant testified as to the procedures at defendant company concerning if one is injured and is seeking medical care. Claimant indicated that if she was injured, she would go to the nurse and an appointment would be made with Keith O. Garner, M.D., who is the plant doctor. She indicated Dr. Garner cared for her as to her 1985 injury and that he has an office at the defendant's place of business and sees employees on the particular days when he is present at the plant. She indicated that he also has an office in town for his private practice but usually she would see him at the employer's place of business. Claimant indicated that she had treated with Dr. Garner even before her 1985 injury and had seen him because of her high sensitivity to cotton prior to her employment. She indicated that she got along with Dr. Garner for awhile and then around the time of her discharge from a hospital in 1978 and before she began working for defendant employer, the doctor-patient relationship seemed to be strained as far as the claimant was concerned. Claimant indicated Dr. Garner wanted her to take 26 pills a day and she said she switched doctors. She acknowledged she had originally picked Dr. Garner. Claimant testified that since the November 1988 trial, she has continued treatment and that she continued to be a membrane skinner in the ham boning department until February of 1990, at which time she was transferred to her current department. Claimant said the ham boning department involved a lot of arm and shoulder movement, taking off fat and handling 10 to 12 pound hams and running the hams through a blade machine. Claimant's current position involves a day job rather than her former night position and it involves rotating in all phases of the job which includes but is not limited to making boxes, knocking meat out of pans and involves continuous pulling, pushing and lifting. Claimant contends that since her November 1988 hearing, her problems have progressed to her elbow and deep into her left shoulder blade, mainly, but also her right side. Claimant contends that all of her areas that were affected before are now worse. She indicted she had continued with Dr. Garner but that he also referred her to a M. E. Wheeler, M.D., an orthopedic surgeon. Claimant had not seen Dr. Garner since her November 1988 hearing until December 1989. She was referred to joint exhibit 9 and acknowledged that Dr. Garner had indicated he thought it was claimant's imagination. She said he told her this more than once. Page 3 Claimant indicated that in October 1989, she was referred to a Quentin J. Durward, M.D., by Patricia J. Harrison, M.D., her personal doctor. She indicated she had tried to get a referral from the employer but could not. Claimant acknowledged she knew that if she picked her own doctor the defendant would not pay the bill. She indicated she had seen Dr. Durward in October 1989 after her MRI and they discussed a physical therapy program. Claimant then went back to Dr. Garner but the employer at that time would not authorize physical therapy. Eventually, the employer did authorize some additional physical therapy. Claimant indicated that the employer ultimately referred claimant to the University of Nebraska Medical Center to see Angelo Patil, M.D. She indicated he suggested she come in for therapy. She also saw someone in the rheumatology department. Claimant said that defendant cancelled the appointment two days before she was to go to her appointment. She never did see a rheumatologist and did not know why the appointment was cancelled. Claimant related her alleged problems concerning her physical therapy and attempt to get physical therapy. The record reflects joint exhibit 9, page 5, also shows there was an apparent dispute she had concerning the extent of her physical therapy treatment. This record also shows that she was missing appointments that had actually been set up for her. Claimant contends she did not miss a physical therapy appointment but that they were cancelled by Dr. Garner. Claimant acknowledged that on March 18, 1992, Dr. Garner suggested that she needed psychiatric care. She also acknowledged that the 20 to 40 pound lifting restrictions given on August 1991 were not violated by her work and that her work was within these restrictions. Claimant indicated that she had not received any other back injuries since November 1988. Claimant was then referred to joint exhibit 3, page 7, in which a December 12, 1989 accident report reflects that she injured herself which resulted in a sore neck after bending over and working on a machine and that she incurred pain in her back. She was also referred to joint exhibit 8, page 5, which indicates that on November 14, 1990, she complained of lower back pain and that she had pain at the same time in her left leg. Claimant was referred to joint exhibit 3, page 10, in which an accident report showed on April 9, 1991, that she was complaining of a right shoulder strain that had been sore for approximately one week as a result of pulling meat from the racks, etc. Claimant acknowledged that she had carpal tunnel surgery on both upper extremities. She also acknowledged on cross-examination that Dr. Garner is her authorized doctor as of today and that from October 1988 until December 1989, she had not seen Dr. Garner, and then again from December 1989 until August 1990. She also acknowledged that she had no authorization to get an MRI or see Dr. Durward nor did Page 4 she ever ask defendant to see the doctor or have an MRI. Claimant further acknowledged that before her last hearing she had an electromyelogram and a myelogram which were normal. Also, she had been to Neenah, Wisconsin for a bone scan and tests and they were normal. Claimant related that her present status with Dr. Garner results in him yelling at her at appointments. She indicated that if she tells him she is stiff, he will reply that she has been stiff for 20 years and is always stiff and that it is her imagination. After claimant mentioned this, she was asked on recross that if she was so upset with the doctor and was not comfortable with him why did she go to him approximately 18 times from February 3, 1992 through September 30, 1992, at his office in defendant's plant. Jean McCall testified that she works for defendant as a workers' compensation director and economics coordinator. She said she takes care of the handling of the physical therapy referrals and the doctor appointments. She said Dr. Garner is a general practitioner and is an independent contractor but is the employer's authorized company doctor. She said the doctor comes to the plant on Mondays, Wednesdays and Fridays and, if necessary, a patient can go to his office in town. She said there is a nurse there with a patient and that after the doctor sees a patient, he immediately thereafter dictates the situation regarding each patient. She said if the doctor orders physical therapy and sets a time for it to occur, she sets it up and has a Mr. Hasty come to the plant for the physical therapy. The therapist is usually there from 12:30 to 4:00 on the particular days involved. She said that Mr. Hasty refers claimants to specialists such as an orthopedic or neurologist. She occasionally refers claimants to a specialist, also. Ms. McCall seems to indicate that claimant needs to see a psychiatrist and that in March of 1992, Dr. Garner's notes reflect that. She explained the reason they sent claimant to Dr. Patil was because claimant was complaining that she was becoming blind when turning her head or she would become unconscious. Joint exhibit 9, page 4, reflects the basic problems that apparently are existing concerning the treatment of the claimant. It states that basically claimant needs to see a psychiatrist or go to a pain doctor as she has had every test to modern science and her psychological evaluation has already stated on several occasions that she has somatization of anxiety. Dr. Garner's notes indicate he tried to explain this to her but she absolutely refuses to accept this. She indicated they will do the best they can but she is just going to have to live with her problem. This note, as indicated, seems to reflect the problem existing in that claimant is convinced that she has problems but tests and other treatment seems to be to the contrary. Of course, there is a question additionally as to what her problems may be, whether they are causally connected to her Page 5 1985 injury or the result of other incidents she has had (as referred to the various accident reports that have been filed and reflected in the exhibits herein). A February 26, 1992 note reflects problems the doctor was having with the claimant. It is obviously these problems that the claimant is referring to when she indicates she cannot get along with the doctor and wants alternate care. The undersigned notes considerable exhibits relating to the medical information that existed prior to the last hearing and was obviously considered at the last hearing or was available before the last hearing on November 3, 1988. The undersigned is not reviewing information to determine whether the deputy was right or wrong in his conclusions and decision rendered on December 23, 1988. The issue here is whether there has been a change in condition since the November 3, 1988 hearing. Joint exhibit 53 is a September 25, 1991 letter from the West Dodge Neurologic Clinic signed by Len Weber, M.D., a neurologist. The summary indicates that electrical testing done on claimant was normal without evidence of any injuries or myelinor axons at an upper extremity or scapular peripheral nerve, bronchial plexus or cervical nerve root level on either side at the present time. Joint exhibit 44, an October 17, 1989 letter from Dr. Durward, seems to reflect the problem that exists in this case even at the current time. He indicated on page 2 of this exhibit that "This woman has a florid number of complaints, but I can find nothing wrong on physical examination." He, too, like others made comments that possibly claimant could consider changing her occupation. He indicated that claimant's history gives a clear picture that the initial change in the job she was doing at work did result in an improvement. It appears this doctor feels as others that claimant's physical structure is such that certain work will bother her but if she stops it or changes, then her problems improve or are alleviated. The evidence shows that claimant is still working at defendant's place of business and has had no reduction in her hourly wage since her last hearing of November 3, 1988. Claimant is working in a different department than she was at the time of her November 1988 hearing but it is undisputed that any restrictions claimant may have or is operating under did not prevent her from doing the work that she is doing or would it appear that it would affect any work she was actually doing at the time of her 1985 injury. As indicated earlier, the issue here is whether there is a change of circumstances in claimant's condition since her November 3, 1988 hearing and if there is a change in circumstances whether they were anticipated at the time of the hearing. There is no evidence of any increased impairment over and above that impairment which was part of the evidence at the November 3, 1988 hearing. That evidence shows, and was accepted by the deputy at that time, that claimant had a 5 percent impairment of her upper extremity which resulted in Page 6 a 3 percent impairment to her body as a whole and the deputy found claimant had a 10 percent industrial disability. Claimant has the burden of proof to show there is a change in her condition. The claimant has failed to carry her burden. There is evidence in the file that claimant has gone through various tests and they show normal. Claimant still continues to complain as she did prior to the November 3, 1988 hearing and these complaints seem to be consistent. They are similar in nature but appear to be basically subjective. There is reference in the record that claimant may have psychological problems or emotional overlay. It appears to the undersigned that the evidence is sufficient to indicate that claimant's problems could very much be from a psychological standpoint and not from the fact that she does have an increase in impairment or any resulting increase in industrial disability since her November 3, 1988 hearing. The decision of December 23, 1988 found that claimant did have an impairment and was given an industrial disability. That decision indicates that claimant at that time had a permanency. It appears to the undersigned that claimant still has that permanency and is suffering from same. The undersigned finds that it is not greater than it was at the time of her November 3, 1988 hearing. The evidence on several occasions reflect that the doctors seem to indicate claimant may be in a type of business that is not suitable to her and that she will continue to have problems as long as she is in that industry. It appears if she removed herself from those circumstances that caused her to have sore muscles or pain, then she would improve and it would appear alleviate her problems. There are some people who can only do certain jobs without suffering pain or discomfort or resulting sore muscles. That does not mean one has a permanent situation. If they change their environment, circumstances, surroundings, or the type of work, then oftentimes those problems, unless there is a permanent injury, are alleviated. The claimant desires to continue to work and has worked, as indicated earlier, to the present and is working with the impairment that was found in the decision of December 23, 1988. Claimant has had other problems and surgery for her carpal tunnel. Claimant has had several accidents which she reported and is evidence herein since her November 3, 1988 hearing. All those compound a potential problem that claimant has or is complaining of but there is no evidence relating her problems to her 1985 injury other than the fact she is still working with a permanent impairment or industrial disability from her 1985 injury and as found in the December 23, 1988 decision. Also, the record shows that claimant had an impairment resulting from her carpal tunnel which is not an issue herein but that claimant is operating with that permanent impairment. Any complaint that claimant may have may also just as likely stem from her previous carpal tunnel problems and any impairment resulting therefrom or any other Page 7 subsequent accidents after the November 3, 1988 hearing. It appears to the undersigned that claimant may have an overuse or overwork condition that isn't permanent but occurs when claimant does the type of work she does at the defendant's place of business taking into consideration, additionally, the permanent impairment she had as of November 3, 1988, and the additional permanent impairment she had as a result of her carpal tunnel and resulting surgeries. Claimant has not attempted to find other employment and the evidence shows that claimant can perform the work for this employer if she chooses to do so and that this may be affecting the impairment she had as of November 3, 1988, but does not increase the same nor cause any additional industrial disability. The undersigned finds therefore that claimant is not entitled to any increased benefits and does not have any increase in impairment or industrial disability as a result of her February 25, 1985 injury and since her November 3, 1988 hearing which resulted in the December 23, 1988 arbitration decision. In the prior arbitration decision, it was found that Dr. Wheeler, an orthopedic surgeon, who was the one who opined the ultimate 3 percent impairment to claimant's body as a whole, was the authorized treating physician selected by the employer to treat claimant for the injury. Dr. Garner was the other treating physician and is not a specialist. In reading the arbitration decision, it would appear that the deputy at that time at least felt either Dr. Garner authorized Dr. Wheeler or it had that same effect as Dr. Wheeler was found also to be a treating physician. There is no evidence in the record at this review-reopening hearing that Dr. Wheeler issued any additional impairment. The record also shows a substantial lapse between the date of the hearing and the next time claimant saw a doctor. Claimant is requesting alternate care. She testified considerably to the fact that she does not get along with Dr. Garner and there seems to be with her, anyway, a dislike of him. Of course, disliking a doctor is not reason itself for requesting alternate care. Claimant has not in any way indicated her displeasure with Dr. Wheeler and since Dr. Wheeler had originally been found to be an authorized treating physician, and since the record does not show that Dr. Wheeler has subsequently been relieved as an authorized treating doctor from the specialist standpoint since he is an orthopedic surgeon, there is no reason why claimant could not have gone to Dr. Wheeler. The undersigned agrees that claimant needed to go to a specialist and was referred to Dr. Wheeler. Claimant, instead, chose to go to other doctors of her choice knowing full well that they were not authorized. Claimant admitted at the hearing that she did not have authority to go to any other doctor including Dr. Durward, a neurologist. Claimant is asking that his bill in the amount of $150 be paid (Claimant's Exhibit A). She is also asking that a $1,000 bill, represented by claimant's exhibit B, be paid, also. This involved claimant having an MRI spinal cord procedure done at the Marian Health Center. Page 8 Again, there was no authorization for the same and it appears that this test showed nothing new or further. The undersigned finds that claimant is responsible for those bills represented by claimant's exhibits A and B. The undersigned notes that claimant's exhibit B was sent to Wilson Foods and would seem to indicate that they also have an employee hospital and medical benefit under their self-insured program. The undersigned wants to make it clear that because he is not allowing it as a workers' compensation medical does not mean that it isn't payable under the provisions of the defendant's hospital and medical program for its employees for a non-workers' compensation benefit. In other words, so there is no misunderstanding, it appears this medical bill would be payable either under workers' compensation or claimant's medical and hospital insurance coverage. In both instances, it would appear that it is defendant employer who would be paying it under one program or the other. It is not a situation in which it would not be covered under any program. What the undersigned is finding is that he is not ordering it to be paid under the workers' compensation law and the same is true as far as the $150 bill represented by claimant's exhibit A. The undersigned therefore finds that claimant is not entitled to alternate care. As indicated above, defendant has provided care for the claimant, substantial physical therapy, and that it would appear that even though Dr. Garner is still the company's authorized doctor, claimant also is under the care of an authorized specialist, Dr. Wheeler, and there is no evidence Dr. Wheeler is not able to treat claimant as a specialist or that defendant has not made him available or has prevented claimant from going to Dr. Wheeler. The undersigned believes the above resolves all the issues or makes moot any other issues that may be outstanding. It is therefore found that claimant takes nothing further from these proceedings. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of February 25, 1985, 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 Page 9 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). The case law relating to review-reopening proceedings is rather extensive. The opinion of the Iowa Supreme Court in Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 (1940) stated "that the modification of...[an] award would depend upon a change in the condition of the employee since the award was made." The court cited the law applicable at that time which was "if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded" and stated at 1038: That the decision on review depends upon the condition of the employee, which is found to exist subsequent to the date of the award being reviewed. We can find no basis for interpreting this language as meaning that the commissioner is to re-determine the condition of the employee which was adjudicated by the former award. The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957) cited prior decisions and added a new facet to the review-reopening law by stating at page 69: But it is also true that unless there is more than a scintilla of evidence of the increase, a mere difference of opinion of experts or competent observers as to the percentage of disability arising from the original injury would not be sufficient to justify a different determination by another commissioner on a petition for review-reopening. Such is not the case before us, for here there was substantial evidence of a worsening of her condition not contemplated at the time of the first award. In a somewhat analogous vein, the Iowa Court of Appeals held in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 (Iowa App. 1978) that a review-reopening petition may allow a change in compensation when a claimant has failed to improve to the extent initially anticipated. A major pronouncement came in the case of Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968). The opinion there, at 732, stated that "[o]n a review-reopening hearing claimant has the burden of showing by a preponderance of the evidence his right to compensation in addition to that accorded by a prior agreement or adjudication." The opinion went on to discuss the common understanding that "if a claimant sustained compensable injuries of which he was fully aware at time of prior Page 10 settlement or award, but for some unexplainable reason failed to assert it, he cannot, for the first time on subsequent review proceedings, claim additional benefits." The opinion continued at 733 "[b]ut according to the apparent majority view, if a claimant does not know of other employment connected injuries or disability at time of any prior agreement or adjudication, he is not ordinarily barred from later asserting it as a basis for additional benefits." The court went on to hold at 735 that "cause for allowance of additional compensation exists on proper showing that facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of reasonable diligence, sometimes referred to as a substantive omission due to mistake, at time of any prior settlement or award." Each of these cases rests upon some disparity between claimant's actual or anticipated physical condition at the time of the previous assessment and the physical condition which exists at the time of the review-reopening proceeding. Thus, the question initially becomes whether claimant established a change in his physical condition since the time of the November 3, 1988 proceeding. Iowa Code section 85.27 provides, in part: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. It is further concluded that: Claimant has failed in his burden of proof to show that there has been a change in his physical condition since the time of his November 3, 1988 hearing. Claimant has had no increase in impairment or loss of income since her November 3, 1988 hearing which resulted in the December 23, 1988 arbitration decision. Claimant has not incurred any increase in industrial disability over and above the 10 percent that she was awarded in the December 23, 1988 arbitration decision. Page 11 Claimant is not entitled to any alternate medical care. Defendant has provided him with Dr. Garner and an orthopedic specialist, Dr. Wheeler. Defendant is not responsible for the payment of claimant's bills of $150 and $1000 as represented by claimant's exhibits A and B as to any workers' compensation matter. This does not mean that defendant as a self-insured is not responsible under another health or medical benefit policy or self-insured program for employees. order THEREFORE, it is ordered: That claimant takes nothing further from these proceedings. That claimant shall pay the costs of this action, pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of January, 1993. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Page 12 Copies to: Mr Harry H Smith Attorney at Law P O Box 1194 Sioux City IA 51102 Ms Judith Ann Higgs Attorney at Law 701 Pierce St Ste 200 P O Box 3087 Sioux City IA 51102 5-1402; 5-2500 5-2506; 5-2905 Filed January 29, 1993 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : CHERYLE L. WILSON, : : File No. 788588 Claimant, : : vs. : R E V I E W - : WILSON FOODS CORPORATION, : R E O P E N I N G : Employer, : D E C I S I O N Self-Insured, : Defendant. : : ___________________________________________________________ 5-1402; 5-2905 Claimant failed to prove there was a change of condition since her last hearing. 5-2506 Claimant found not entitled to alternate care. 5-2500 Defendant found not responsible for medical bills incurred by claimant. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERRY D. ROBINS, FILE NO. 788740 Claimant, A R B I T R A T I 0 N vs. D E C I S I O N TODD CORPORATION, Employer, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jerry D. Robins, claimant, against the Todd Corporation, employer (hereinafter referred to as Todd), whose insurance status for this case is unknown, for workers' compensation benefits as a result of an alleged injury on February 4, 1985. On December 15, 1987, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The caption of this case which identifies an adjusting firm, not an insurance carrier, as a party defendant shall be modified to reflect the unknown insurance status of the defendant employer. 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 only from claimant. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated that on February 4, 1985, claimant received an injury which arose out of and in the course of his employment with Todd. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disability; II. The extent of weekly disability benefits to which claimant is entitled; and, III. 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 the 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. As will be the case in any attempted summarization, conclusions about what ROBINS V. TODD CORPORATION Page 2 the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant testified that he worked for Todd as a route salesman and deliveryman. Todd is engaged in the business of selling and cleaning industrial uniforms, shop towels and other items. As a part of his duties, claimant was required to drive his delivery truck and load and unload cargo consisting of uniforms, towels and other items handled by Todd. Claimant testified that prior to his employment at Todd, he worked in a manufacturing plant operating a "bessley" machine which cut carbon brushes used in electric motors. Claimant also testified that he was and continues to be a house painter. Subsequent to his employment at Todd, claimant worked as a bread route deliveryman. Claimant currently works for a Des Moines department store performing "stock work.O Claimant testified that on February 4, 1985, while delivering uniforms to a customer in Webster City, Iowa, he slipped on ice and fell, striking his head on the bumper of his truck and twisting his left leg and left hand. He said that after the injury he experienced pain mainly in the left leg, developed a bad headache and observed bleeding on his left hand. Claimant stated that after the incident, customers unloaded his truck and he drove back to Des Moines. In his deposition, claimant testified that he could not remember driving back to Des Moines. Claimant said that after arriving at home that night, he felt sore and was aching. The next morning he reported the incident to his superiors at Todd and was referred by Todd to Iowa Methodist Hospital for treatment of continuing complaints. According to the records of the Iowa Methodist Hospital, claimant complained to them on February 5, 1985 of left leg pain and of a contusion on the right upper extremity on the inner aspect of the arm. The only diagnosis at that time was "knee strain" and he was released to return to work on February 9, 1985. There was no mention in these records of any complaints of hand injuries, head injuries, head pain, dizziness or headache. Claimant testified that he returned to work at Todd. In his deposition, he stated that approximately a week after his returned to work he complained to Todd management that he could not continue his route work due to dizziness and that he would have to quit. Claimant was then asked to continue working for a while until a replacement was found. Claimant agreed and he began his route that day but claimant later called back after a period of time stating that he became dizzy and could not continue working. Claimant did not seek medical attention for these complaints of dizziness until May, 1985, when he reported to Broadlawns Hospital. According to the records at Broadlawns, claimant complained at that time of numbness of the left leg and foot along with the dizziness and numbness of the hand. Initially, claimant was admitted for diagnostic testing to determine the cause of the dizziness. After further tests, including an abnormal liver scan and a review of a history of past treatment for alcoholism, it was concluded by physicians at Broadlawns that claimant's vertigo problems were due to "alcoholic hepatitis" and claimant was informed of this ROBINS V. TODD CORPORATION Page 3 diagnosis. Nothing was mentioned in the Broadlawns records as to the possible cause of or treatment given for claimant's leg and hand complaints. Claimant later returned to Iowa Methodist Hospital and states he was referred to a neurosurgeon. Claimant states that this doctor would not examine him because the treatment may involve workers' compensation. No report from Iowa Methodist Hospital other than the treatment on February 5, 1985, was submitted into the evidence in this case. In his deposition, claimant claimed that the diagnosis by Broadlawns was not fair and that Broadlawns confused him with his twin brother, Larry, who looks the same as claimant and who possesses the same tattoo. The existence of such a twin brother called "Larry" and his presence in the Des Moines area in 1982 and at Broadlawns Hospital for treatment of alcoholism in 1982 was an issue in this proceeding. Claimant's sister testified that such a brother does, in fact, exist although she did not know his current whereabouts or where he graduated from high school. Claimant's sister stated that claimant's brother was an electrician and moves about frequently. She stated that her lack of knowledge as to his education in Iowa was due to the fact that she was absent from the state during his education. The defendant contended in claimant's deposition that the Broadlawns records in 1982 contain historical facts pertaining only to claimant's past life and family circumstances, not that of any twin brother. These records, however, were not introduced into the evidence at hearing. Claimant has been evaluated by a neurologist, Thomas B. Summers, M.D. According to Dr. Summers, claimant's symptoms may be attributable to thoracic outlet syndrome and he recommended further testing of claimant. He did not give a possible cause of such a condition. Dr. Summers notes that claimant has had carpal tunnel surgery on both hands in 1983. Dr. Summers also makes reference to a psychological report of a person having the same name as claimant who was diagnosed as an alcoholic at Broadlawns Hospital in 1982. According to Dr. Summers, this report states that the person treated had described to the staff at Broadlawns a sense of being two different persons but did not view the two persons as separate entities or personalities. Dr. Summers stated that if the Broadlawns records pertained to claimant, he would have a longstanding psychiatric history and clinical manifestations of substance abuse, sociopathic personality disorder and affective disorder. Claimant testified that he lost his job as a bread route person after leaving Todd because he was too slow in his work and that slowness was not a problem for him before the work injury at Todd. Claimant complains at the present time of light headedness, dizziness and of continued numbness and pain in his left leg and in his hands which he says is effecting his current job at the department store. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and ROBINS V. TODD CORPORATION Page 4 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). The claimant also has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the' claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, neither claimant nor his sister can be found to be credible in this case. Their testimonies contain numerous inconsistencies. Given such testimony and the current medical records in this case, this deputy is simply unable to determine whether or not claimant has a twin brother by the name of Larry or whether claimant or that twin brother was treated at Broadlawns in 1982. However, it is unnecessary to decide whether or not Larry and Jerry are one in the same persons. Even assuming Larry does exist and that such a twin brother, not ROBINS V. TODD CORPORATION Page 5 claimant, was the person who received the treatment at Broadlawns in 1982, claimant has not shown by the greater weight of evidence, be it lay or medical, that his current continuing complaints are causally connected to the work injury in this case. The most critical aspect of the evidence was that no head injuries were reported at the time of claimantOs initial treatment for the work injury. Furthermore, claimant did not seek any sort of treatment for his headaches or dizziness problems until several months after the February, 1985 fall and well after leaving the employment of Todd. Finally, no doctor involved in this case has opined that claimant's current symptoms are attributable to the February, 1985 fall. Any speculation by claimant, who has not been shown to possess any medical training, is not by itself sufficient evidence in light of the lack of head injury complaints at the time of injury on February 4, 1985. Dr. Summers, the only physician to render an opinion in this case, states that there is only a possibility of thoracic outlet syndrome and recommends further tests. Dr. Summers, however, also states that it is possible that claimant may have on the other hand a severe psychological problem. Therefore, on the whole record, claimant has not shown that the work injury in this case is a cause of his alleged continuing difficulties in his legs, extremities or head. It also could not be found that claimant terminated his employment at Todd for reasons attributable to the February 4, 1985 work injury. Claimant has established that the fall resulted in a temporary period of disability from February 5, 1985 until February 9, 1985 for a period of four days. Pursuant to Iowa Code sections 85.32 and 85.33(l), claimant is entitled to only one day of compensation for such an injury. According to the prehearing report, claimant has already been paid three days of compensation. Consequently, claimant is not entitled to further compensation for absences from work. Claimant seeks reimbursement of medical expenses which were listed in the attachment to the prehearing report totaling $133.90. However, there is no indication when and for what treatment these bills were incurred. The actual bills were not submitted into the evidence and claimant did not mention these bills at the time of hearing. Claimant only stated in his deposition generally that $100 of his bills were not paid. Therefore, claimant's request for medical expenses must be denied. As the medical records and the report of Dr. Summers were objective and assisted not only claimant but also defendant in making this decision, the cost of such evidence shall be assessed to the defendant. FINDINGS OF FACT 1. Claimant and his sister, Shirley Allison, could not be found to be credible. 2. On February 4, 1985, claimant suffered an injury to the left leg and right upper arm as a result of a fall which arose out of and in the course of employment with Todd. ROBINS V. TODD CORPORATION Page 6 3. The work injury of February 4, 1985, was a cause of a period of temporary disability from work beginning on February 5, 1985 and ending on February 9, 1985, at which time claimant returned to work. Claimant has been paid temporary total disability benefits by defendant for a period of three days. It could not be found that the work injury was a cause of permanent disability or permanent impairment. CONCLUSIONS OF LAW Claimant has not established by a preponderance of the evidence entitlement to additional workers' compensation benefits. ORDER 1. Claimant shall take nothing from these proceedings. 2. Claimant shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33 except that the defendant shall pay the cost of obtaining the medical records and reports submitted at hearing in this case. Signed and filed this 22nd day of February, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph M. Bauer Attorney at Law Suite 500 The Saddlery Bldg. 309 Court Avenue Des Moines, Iowa 50309 Mr. Marvin Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 1800 Filed February 22, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERRY D. ROBINS, FILE NO. 788740 Claimant, A R B I T R A T I 0 N vs. D E C I S I 0 N TODD CORPORATION, Employer, Defendant. 1800 Claimant denied additional workers' compensation benefits for failure to show causal connection of his current problems to the work injury in this case.