Page 1 before the iowa industrial commissioner ____________________________________________________________ : KEITH W. FRIDLINGTON, : : Claimant, : : vs. : : File No. 788758 3M, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL INS., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case Claimant, Keith W. Fridlington, filed a petition in arbitration against defendant employer, 3M, and defendant insurance carrier, Northwestern National Insurance, following a work injury sustained on February 28, 1985. He now seeks benefits under the Iowa Workers' Compensation Act. This cause came on for hearing in Des Moines, Iowa, on November 12, 1991. The record consists of joint exhibits 1 through 4 and the testimony of claimant, Linda Fridlington, Connie Husted and Barbara Chaldy. issues The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment with 3M on February 28, 1985, that the injury caused temporary disability (the extent of which is not in dispute) and permanent disability, to a compensation rate of $267.70, that affirmative defenses are waived, that entitlement to medical benefits is not in dispute and that defendants are entitled to certain credits. The issue to be resolved includes the nature of claimant's permanent disability: whether it be to a scheduled member or to the body as a whole, and the extent thereof. findings of fact The undersigned deputy industrial commissioner finds: Keith W. Fridlington, born in 1942, is 49 years of age now and was 43 years of age on February 28, 1985. He is a Page 2 1960 high school graduate with no further formal training. Mr. Fridlington has worked as a farmhand, a construction laborer, in self-employment (carpentry, remodeling and construction of steel and pole buildings) for some 20 years, and, as an employee of 3M Company beginning in October 1984. Claimant worked as an assistant slitter operator from 1984 until the date of injury, a job that involved unwrapping and lining up large rolls of paper for processing in a machine. He was injured when a large roll (weighing perhaps 1,000-2,000 pounds) was unexpectedly ejected from the machine, striking him in the right leg from behind. This caused a crush injury involving a displaced comminuted fracture of the proximal tibia and fibula. Claimant was treated with traction and then a long leg cast for approximately six months. He returned to work as a rewind operator on a part-time basis in mid-1985, gradually increasing his hours to a full-time position. Claimant worked for some 15 or 16 months until March 25, 1987, when he underwent arthroscopic surgery on the right knee due to continued pain and stiffness in the knee. He also developed low back pain during this time. The treating surgeon, Donald Berg, M.D., described the operation as arthroscopic examination with arthroscopic removal of softened cartilage under the patella and some soft tissue bands and synovium. Post-operative diagnosis was of chondromalacia of the patella with some adhesive bands in the knee and some synovitis. Dr. Berg performed further surgery on July 21, 1987, described as neurolysis of the peroneal nerve, right lower leg. Pre- and post-operative diagnoses were of entrapment of the peroneal nerve, posterior aspect of the right leg, secondary to crush injury involving fracture of the proximal tibia and fibula. On November 2, 1987, Dr. Berg opined that claimant had sustained a 28 percent permanent physical impairment of the right leg, noting loss of strength, limited range of motion, atrophy and a shortening of the leg by some 1 and 1/2 centimeters. Dr. Berg noted that burning sensation in the leg and peroneal nerve pain distribution probably would not change. He recommended that claimant not return to work requiring him to stand on concrete, but felt claimant would be able to perform a sit-down job which involved minimal walking. Claimant's other primary treating physician has been Marc Hines, M.D. Dr. Hines first saw claimant on April 15, 1987. On July 7, 1988, Dr. Hines suggested a number of work restrictions under which claimant might return to work. Those restrictions included not working at heights, no repetitive climbing activities, no repetitive use of foot controls with the right lower extremity, no repetitive squatting or crawling, and no lifting above 50 pounds Page 3 occasionally and 30 pounds repetitively. Dr. Hines further noted that standing for long periods of time without rest would be very difficult, rest probably being needed every hour if standing would be significant in a given job. On November 2, 1988, Dr. Hines wrote: The pain in his leg is not the only problem. Because of the change in his gait and the difficulty he has in walking, he has acquired difficulties with pain in his right leg, right hip and low back. These problems, unfortunately, will all accompany the alteration in his gait and the use of his right leg and are leading to the arthralgias that he is suffering. These, unfortunately since the leg will probably not be improved, are also permanent in character. Because of the difficulties he has-he has difficulty in bending over and removing his shoes. He has difficulties in sitting, lying down or standing for long periods because of these difficulties in his back particularly with standing, difficulties in his ankle, knee and lower back, particularly and most importantly, his ankle as well. When he attempts to ambulate such as walking or climbing stairs or getting out of chairs, he must rest frequently when he is walking, he has great difficulty climbing stairs and some difficulty getting out of low chairs because of his problems. He is currently only able to drive or ride for short periods and must get out to move about. He has leg cramps that usually occur when he is in a car for any length of time. Lifting is virtually impossible due to lower back pain and pain in the leg and ankle. (Exhibit 1, page 48) Using the American Medical Association Guides to the Evaluation of Permanent Impairment, Dr. Hines rated claimant as having sustained a 10 percent impairment to the whole person equivalent to a 24 percent impairment to the lower extremity and an additional 5 percent impairment to the whole person "secondary to claimant's low back and hip along with skin changes in the lower extremity." On February 1, 1989, Dr. Hines reiterated claimant's restrictions, adding restrictions against prolonged walking, repetitive bending and standing on concrete, even for a moderately short period. Dr. Hines has also recommended that claimant rest with his leg elevated above his heart in order to improve his problems with swelling in the lower extremity. Dr. Hines' records do not confirm claimant's impression that this would Page 4 need to be done during working hours. On September 9, 1990, claimant was seen by Gene Van Zee, M.D. Dr. Van Zee reported that change in position caused significant spasm in the left lower lumbar region and diagnosed chronic low back syndrome with some acute muscle spasm. Claimant was also evaluated in March 1990 at the Mayo Clinic in Rochester, Minnesota, being seen by a team of physicians. Dr. Carl Chan of the Department of Physical Medicine and Rehabilitation felt that claimant had post-traumatic right lower extremity pain and mechanical low back pain. Diagnoses were: 1. Status post tibia-fibula fracture with residual leg length discrepancy, evidence of an old right deep peroneal neuropathy, and right knee medial compartment narrowing; 2. Mechanical low back pain. Chart notes entitled "Neurologic Record," authored by Dr. Bruce Evans, note the onset of low back pain eight months after claimant returned to work secondary to asymmetric leg length. Gregory S. Peterson, M.D., of the Mayo Clinic, testified by deposition on October 25, 1991. Dr. Peterson is a consultant at the Mayo Department of Physical Medicine and Rehabilitation and is board certified. Dr. Peterson indicated that he had measured claimant's asymmetrical right leg as 9 millimeters shorter than the left; this he attributed to the work injury. However, he felt the discrepancy to be so minor as to be still within the range of normal. As to causation of mechanical back pain ("back pain with mechanical activities or movement of the spine"), he testified that the literature was mixed, but that the study he considered most significant found no significant correlation between low back pain and leg length discrepancies of up to either 1 or 1 and 1/2 centimeters, the doctor being unable to recall which. Dr. Peterson considered it possible that claimant's leg length asymmetry contributed to his low back pain, but did not think it probable. He believed two other conditions shown in the x-rays, spina bifida occulta and slight lumbar curve convexed to the left, were not related to low back pain. Dr. Peterson was apparently unable to discover a cause for claimant's low back pain. Dr. Peterson would assign no specific medical restrictions to claimant due to the back injury, although he noted later in his deposition that subjective reactions vary widely, and that one person might be very disabled by mild mechanical low back pain and another person might have no limitation. He suggested medical restrictions relating to the leg as limiting standing, repetitive squatting, stair Page 5 climbing and ladder climbing. After undergoing surgical treatment, claimant was not offered further work by defendant 3M. The rewind operator job he had performed was merged into the assistant slitter operator job and 3M had no positions available, given Mr. Fridlington's medical restrictions. Claimant has been essentially unemployed since his surgery. He applied for a few jobs while seeking job insurance benefits [a weekly search for work is a requirement for the receipt of job insurance benefits under Iowa Code section 96.4(3)] but discontinued all such efforts after his claim was denied, and has not sought employment since. He did work part time for a few weeks helping a relative put siding on a house and has busied himself in a small antique refinishing, restoration and resale business. Because claimant lacks capital to operate such a business full time, this enterprise might best be described as a serious or working hobby. Total sales last year were under $3,000. However, Mr. Fridlington is of the view that he could pursue this line of endeavor on a full-time basis but for the lack of capital investment. Claimant currently complains of continuing back and leg pain, recurrent ulcerations on the leg, psychological symptoms such as anxiety, depression, sleep loss and headaches, and reports that his activities are severely curtailed. Barbara Chaldy, a vocational rehabilitation consultant who has worked with claimant at defendants' behest, felt there were a number of jobs claimant could perform, even given Dr. Hines' restrictions, including light-duty carpentry, bench finishing and the like. Interestingly, she felt the jobs claimant was able to do included slitter operator, which both claimant and defendant 3M agree he cannot do, at least for this employer. Ms. Chaldy was apparently unaware of restrictions against concrete floors suggested by Drs. Hines and Berg. She agreed this would affect her opinions, but did not specify how. conclusions of law The parties have stipulated to the existence of an injury arising out of and in the course of employment. They agree on the extent of healing period and stipulate that the injury caused permanent disability. The primary fighting issue in this case is whether claimant's injury should be compensated as a scheduled member disability to the right leg under Iowa Code section 85.34(2)(o), or as an industrial disability to the body as a whole under 85.34(2)(u). Claimant asserts two theories to "extend" this leg injury into the body as a whole. First, he asserts that the swelling and edema problems in his leg constitute damage to his "circulatory system," and that the circulatory system is Page 6 a part of the body as a whole. This theory is not persuasive. As defendants point out, an injury to the bones or muscles of the leg does not constitute a body as a whole injury on the theory that bones are part of the skeletal system or muscles a part of the musculoskeletal system. It is the situs of the disability that is significant. Second, claimant asserts that he developed disability to the lower back as a remote result of the work injury and that a back injury is compensable industrially. This theory is persuasive. Where an individual suffers a compensable injury and thereafter sustains further disability which is the proximate result of the original injury, the further disability is compensable. Oldham v. Scofield & Welch, 222 Iowa 764, 266 N.W. 480 (1936). If, then, claimant suffers from a disabling back condition, and, if that condition resulted from the original leg injury, the original injury does extend to the body as a whole and must be compensated industrially. Thus, causation is in dispute as to the nature of claimant's disability. The claimant has the burden of proving by a preponderance of the evidence that his back symptoms are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant credibly testifies to back pain and indicates that it did not preexist the work injury. Dr. Peterson essentially finds no disability to the back (although he does not dispute that claimant subjectively experiences pain) and has testified that there is a possibility, but not a probability, that claimant's asymmetrical leg length Page 7 contributes to his mechanical back pain. A mere possibility of the necessary causal nexus may be sufficient to meet claimant's burden of proof where the evidence otherwise shows that claimant did not suffer a disabling condition prior to the injury and did afterwards. Treating physician Hines, on the other hand, opined that there is a direct relationship between asymmetrical leg and his subsequent back symptoms. Be it noted that claimant's back conditions began when he returned to work after his cast was removed and did not preexist the injury. Evaluating physician Peterson appeared to largely base his opinion on one study on a topic where the literature is, by his own description, mixed. That study apparently found no correlation between leg length differences of either 1 or 1 and 1/2 centimeters, although the doctor could not recall which measurement was employed in the study. Dr. Peterson measured claimant's leg difference at 9/10 of a centimeter only, but Drs. Berg and Hines have measured up to 1.5 centimeters difference. It should also be noted that Dr. Evans, also of the Mayo Clinic, charted the onset of low back pain as secondary to asymmetric leg length. After considering these factors, it is found that the opinions of Dr. Hines and Dr. Evans are more persuasive, especially when coupled with the sequence of events (the onset of back pain), the "possibility" of causal nexus described by Dr. Peterson, and the lack of any other mechanism for producing low back pain (it will be recalled that Dr. Peterson testified that the other abnormalities discovered radiographically were not related). Claimant's mechanical low back pain was caused by his asymmetrical leg length, itself caused by the work injury and therefore a direct sequela of the work injury. But is the back pain disabling? It is the disability that is compensated, not the injury. Dr. Hines has rated impairment to the body as a whole directly attributable to the back injury and, it appears that at least some of his proposed restrictions are so related (for example, restrictions against repetitive bending). Claimant's credible testimony of pain buttresses that conclusion. Part of claimant's total disability is attributable to his back condition, so the entire injury must be compensated industrially. 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, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). Page 8 A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). A number of factors militate in favor of increased industrial disability. These include claimant's age, as he is in what would normally be considered his prime earning years. While claimant has a high school education, he has received no formal training thereafter and his work history is more typical of a blue collar worker than it is of a Page 9 white collar worker. He has work experience as a farmhand, construction laborer, machine operator and carpenter. Of course, he also has additional skills that he has developed through self-employment, including the ability to supervise other workers, reading blueprints, estimating costs and the like. Still, the restrictions imposed by treating physicians Hines and Berg seriously interfere with his ability to accept work in any of the occupations in which he has previous experience. Even though claimant has not established that he is required to elevate his foot over his heart while at work, it is apparent that he will require accommodations from any employer with respect to his ability to alternate sitting and standing, at least to some degree. 3M, a relatively large employer and manufacturing concern, has shown itself unable to return claimant to remunerative work. This itself is a factor showing increased industrial disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Pigneri v. Ringland-Johnson-Crowley, File No. 838742 (App. Decn., July 31, 1991). Nonetheless, this observer tends to agree with Barbara Chaldy that there are jobs claimant could still perform. Very likely, claimant would be so employed now but for his lack of motivation, a factor tending to diminish industrial disability. Claimant appears to be of at least average intelligence and has proven himself capable of self-employment in disparate fields: construction and the antique trade. He has developed transferrable skills. Still, it seems clear that claimant's earning capacity has been severely diminished. Considering these factors in specific and the record otherwise in general, it is held that claimant has sustained a permanent partial disability equivalent to 50 percent of the body as a whole, or 250 weeks. The parties have stipulated that permanent disability benefits should commence on January 5, 1988. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits at the stipulated rate of two hundred sixty-seven and 70/100 dollars ($267.70) per week commencing January 5, 1988 and totalling sixty-six thousand nine hundred twenty-five and 00/100 dollars ($66,925.00). Defendants shall have credit for benefits voluntarily paid and, under Iowa Code section 85.38(2), for sick pay/disability income totalling two thousand seventy-four and 15/100 dollars ($2,074.15). All accrued benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Page 10 The costs of this action are assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Lance A. Grotewold Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Street Des Moines, Iowa 50309 1803.1 Filed November 15, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : KEITH W. FRIDLINGTON, : : Claimant, : : vs. : : File No. 788758 3M, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NORTHWESTERN NATIONAL INS., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803.1 Leg injury caused shortening of leg; altered gait caused mechanical back pain, for which treating physician assigned impairment rating and restrictions. Back disability found to be a sequela of the leg injury and entire injury was compensated industrially. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ IN RE: RICHARD BROMERT, HERITAGE MUTUAL INS. CO., Petitioner, vs. File No. 788831 TRAUSCH CO., n/k/a COMMERCIAL EQUIPMENT A R B I T R A T I O N COMPANY, INC., D E C I S I O N Employer, and UNION MUTUAL INSURANCE CO., FIREMAN'S FUND INSURANCE CO., LIBERTY MUTUAL INSURANCE CO. Respondents. ________________________________________________________________ STATEMENT OF THE CASE This is a proceeding brought pursuant to Iowa Code section 85.21 by petitioner, Heritage Insurance Company, against Fireman's Fund Insurance, Liberty Mutual Insurance Companies and Union Insurance Company. The dispute centers around a 1985 workers' compensation claim. Petitioner afforded workers' compensation insurance coverage to Trausch Company, now known as Commercial Equipment Company, Inc., from March 1, 1985 until April 8, 1985. Respondent Union Insurance Company provided coverage from May 28, 1985 through June 1, 1986. Fireman's Fund provided insurance coverage from August 1, 1986 through August 1, 1987. Liberty Mutual Insurance Company has provided workers' compensation insurance coverage to the employer from March 3, 1987 to the present. FINDINGS OF FACTS The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Richard Bromert was employed by Trausch Company, now known as Commercial Equipment Company, for more than 17 years. His job title was that of a working foreman, which required that he perform physical work, such as digging ditches, laying and soldering pipe, and carrying pipe, cylinders and tanks. In March of 1985, while working on a job site, Mr. Bromert fell 12 to 14 feet from a ladder. He received initial treatment from the emergency room at St Luke's Hospital in Cedar Rapids, Iowa. The hospital took x-rays of Mr. Bromert's cervical spine, right ribs, right hip and right wrist. (Joint Exhibit 1, pp. 1_3) Eventually, he came under the care of Douglas Reagan, M.D., an orthopaedic specialist, who performed surgery on the right wrist on June 27, 1985. (Jt. Ex. 1, pp. 4-9) Claimant received ongoing medical treatment until December 22, 1985, when he was released from care by Douglas Reagan, M.D. No activity restrictions were placed upon claimant, and no impairment ratings were offered at this time. (Jt. Ex. 1, pp. 10-19) Claimant returned to work on December 23, 1985, and performed the same job duties as he was performing at the time of his March, 1985 injury. On March 5, 1986, claimant returned for treatment of a painful left shoulder. Dr. Reagan's notes include the following information: Mr. Bromert returns for a new problem at this time, but on his return we have asked him how his hand is feeling.... .... His new problem is that of painful left shoulder. He is left handed and has problems with the left shoulder. He states that since his return to work in the last part of December he has had increasing left shoulder pain. This is mostly along the lateral joint line and also the biceps tendon area. He feels the pain began when he fell from his original injury when he hurt his wrist, and has persisted since then, but his wrist has been more of a problem. (Jt. Ex. 1, p. 20). Follow-up treatment ensued during the next several months, and included injections, various prescription medications, and physical therapy. (Jt. Ex. 1, pp. 21-24) At some point, questions arose as to whether claimant's shoulder and neck problems were associated with his initial fall. Dr. Reagan responded that in light of claimant's history, "the shoulder injury is a result of his injury of March 1, 1985." (Jt. Ex. 1, p. 24) In October of 1986, Dr. Reagan offered the following opinion: In March, 1986, the patient had increasing problems with his shoulder. He states that from the original injury he had pain in the shoulder which was not very great and that it just recently began to flare up. At that point, subacromial bursitis was suspected. He subsequently had conservative management for the shoulder. On May 7, 1986, he had an injection which did give him some improvement. He continued then, on May 28, with Feldene and physical therapy. He continues to have shoulder pain which is mild. Based on his history, I feel that this is work related probably caused by his fall and aggravated by his return to work. (Jt. Ex. 1, p. 26). Heritage continued to pay for medical benefits for treatment to the left shoulder. Mr. Bromert continued to experience difficulty with the left shoulder, and sought additional treatment from Dr. Reagan. In November of 1986, results of an arthrogram of the shoulder suggested a tear in the rotator cuff. (Jt. Ex. 1, pp. 27, 29) Conservative treatment to the shoulder continued during the next several months, and claimant continued to work. In November of 1988, claimant underwent surgery to the left shoulder. (Jt. Ex. 1, pp. 30-42) Heritage continued to pay for medical benefits, and paid healing period benefits to claimant for the time he was off of work, recovering from the surgery. This is the first time claimant missed work due to the left shoulder condition. On January 26, 1989, claimant was released to return to work, and was restricted from lifting more than five pounds with his left upper extremity. (Jt. Ex. 1, p. 44) Once Mr. Bromert returned to work, he continued to see Dr. Reagan due to persistent neck and left shoulder problems. Further testing was recommended, and an EMG demonstrated carpal tunnel syndrome and ulnar tunnel syndrome on the left side. Claimant was referred for more physical therapy treatment. (Jt. Ex. 45-76) In August of 1990, Heritage sought a second opinion from John Koch, M.D. (Jt. Ex. 1, 77-81) A summary is provided at page 83 of joint exhibit 1: Mr Bromert's difficulties were distinctly identified in my communication to you, indicating problems in the neck, shoulder and wrist. My communication also indicated that only the wrist difficulty was related to the March 1, 1985 injury. ...If you are only interested in the impairment as related to the March 1985 injury, then you should focus attention to the impairment of the right upper extremity as a result of fracture of the right carpal navicular, which had been treated by the surgery. If you are interested in effects that result from aggravation by work, you would tend to those features relative to the cervical spine and the shoulder. In November of 1990, Heritage stopped paying claimant workers' compensation benefits of any and all kind. In April of 1991, Dr. Reagan opined that Mr. Bromert had sustained a 12 percent permanent partial impairment to the body as a whole due to the left shoulder problem and subsequent surgery. In April of 1992, Heritage and Mr. Bromert entered into an agreement for settlement, wherein Heritage paid 125 weeks of permanent partial disability benefits. The date of the last payment was November 14, 1994 according to the settlement documentation. The specific terms of the agreement can be found at joint exhibit 7. Simultaneously, Heritage filed a motion pursuant to Iowa Code section 85.21, which was approved by the agency, regarding their right to reimbursement of benefits paid. (Jt. Ex. 6) On November 12, 1992, Heritage filed a petition with the division of industrial services. Pursuant to Iowa Code section 85.21, Heritage requests reimbursement of benefits paid for the left shoulder from subsequent workers' compensation carriers. Heritage argues that the shoulder injury did not arise out of and in the course of Mr. Bromert's work during the time it provided workers' compensation coverage. Union and Liberty Mutual have denied any responsibility for any reimbursement(s), and argue that no compensable injury occurred during their coverage periods, and/or that Heritage failed to file a claim within the applicable statute of limitations, which they further argue is two years from the date of the injury. Mr. Bromert has given one recorded statement (dated March 13, 1985 [transcribed October 10, 1994]); one sworn statement (dated February 26, 1992); and one deposition (dated November 17, 1994) with respect to this case. In his initial statement, which was 12 days after the accident, Mr. Bromert indicated that due to the fall at work, he had injured his right wrist, and suffered from pain in the groin area. There is no mention of left shoulder pain, or injury to the left shoulder. (Jt. Ex. 3). In his sworn statement, taken almost seven years after the work incident, claimant stated that he believed he injured his left shoulder when he fell on March 1, 1985. (Jt. Ex. 4, pp. 41_43). In his deposition, Mr. Bromert reiterated that he believed the left shoulder problems were caused by the fall. (Jt. Ex. 5, p. 33) Douglas Reagan, M.D., the authorized treating physician in the case, was deposed on November 23, 1994. He confirmed his belief that claimant's shoulder complaints and physical problems were not caused by the March 1, 1985 injury. Dr. Reagan bases his opinion primarily on the fact that the medical records do not reflect any shoulder complaints from Mr. Bromert prior to March 5, 1986, which is the date Mr. Bromert sought treatment for the shoulder from Dr. Reagan. (Jt. Ex. 2, p. 34) Heritage entered into a full commutation settlement with Mr. Bromert in April of 1992. Under the terms of the agreement, Heritage agreed to pay claimant 125 weeks of permanent partial disability benefits. Heritage continued to deny that it was the insurance carrier responsible for payment of any workers' compensation benefits due to claimant for the left shoulder. (jt. ex. 7). While the petitioner, Heritage admits that the handling of this particular claim was substandard, the undersigned is unable to find fault with the overall manner in which the petitioner monitored the claim. The injured worker was paid workers' compensation benefits. Iowa Code section 85.21 provides an avenue to reimbursement to a company who should not have paid benefits on a claim. Claimant was involved in traumatic accident on March 3, 1985. He was treated for almost one year for injuries to his right wrist. He was off of work until December of 1985, when he returned to his regular job duties. Prior to his return to work, and even after his return to work, he received follow-up medical treatment. Not one medical record entry cites to, points to, or references in any way shape or form that claimant was complaining of left shoulder pain or discomfort. In his initial statement, claimant did not indicate that he had hurt his left shoulder in the fall. The emergency room records do not make any references to a painful left shoulder. No examination was performed on the left shoulder, and no x-rays were taken of the left shoulder. ANALYSIS AND CONCLUSIONS OF LAW The first issue to address is whether claimant sustained an injury to his left shoulder on March 3, 1985 or on March 1, 1986. 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 alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). All parties reminded this writer of two significant cases. In cases involving the cumulative injury rule, the Supreme Court has determined that an injury occurs when an employee, because of pain or physical inability, can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985). The manifestation of an injury can occur when an injured worker first seeks medical treatment for the physical ailment. Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992). However, the Court rejected the notion that the manifestation of a disability will always be the date on which an injured worker first seeks medical consultation for a physical condition, "since by their very nature, repetitive-trauma injuries often will take years to develop to the point where they will constitute a compensable workers' compensation injury." Tasler at 827-28. Following a somewhat lengthy period of recovery from his traumatic accident at work, claimant returned to work in December of 1985. He was unable to fully use his right hand and upper extremity due to the surgery which had been performed on his right wrist. As a result, he used his left arm more in order to fully complete his job tasks. Claimant never sought treatment for the left shoulder until March of 1986, a full year after the fall from the ladder which produced the broken right wrist. While the undersigned recognizes that when workers sustain traumatic injuries that require immediate attention (such as a broken wrist) they may not mention other physical complaints that are not as serious, but she is not convinced that for one year, Mr. Bromert felt pain in his left shoulder, and then finally decided to seek medical treatment. Additionally, in Mr. Bromert's initial statement, he mentions other injuries which he sustained in the fall. He does not mention any physical complaints with respect to his shoulder. It was not until Mr. Bromert returned to work, in a full duty capacity, that his shoulder began to bother him. In March of 1986, the pain became so bad that he sought medical treatment. However, claimant was able to continue to perform all of his regular job duties. To the undersigned, the injury involving Mr. Bromert's left shoulder is a classic cumulative trauma injury. Once claimant returned to his regular job duties in December of 1985, he was required to perform extensive overhead work, such as installing pipes. He performed these job duties for more than three years, and eventually, missed work due to the repetitive traumas. In November of 1988, claimant's left shoulder became so painful, and was not responding to several years' worth of conservative treatment, that Mr. Bromert was required to undergo surgery, and take time off of work. As a result, the injury date, pursuant to both McKeever and Tasler, is November 15, 1988. Even Dr. Reagan stated that he believed claimant' work, once claimant returned to work in December of 1985, aggravated a preexisting condition to the point that claimant was no longer able to work, and had to undergo surgery. As the agency has stated so many times, a claimant who has a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in a disability, is entitled to recover workers' compensation benefits for the aggravation. See, Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962). The undersigned has also looked to what she feels is the most credible statement given by Mr. Bromert, which is his initial statement taken seven days after the traumatic fall. He did not indicate that he felt any pain or discomfort in the left shoulder. Likewise, he did not relate any pain or discomfort in the left shoulder during his initial, and follow-up visits to the emergency room personnel, or any subsequent authorized treating physicians. As a result, the undersigned finds that the evidence supports a finding that claimant's left shoulder injury was a cumulative injury which is attributed to his work duties, and the manner in which he was performing his work duties when he returned to work in December of 1985. The next issue to address is whether Heritage filed its petition for reimbursement of benefits paid within the applicable statute of limitations. Iowa Code section 85.21 governs reimbursement of benefits, and states, in relevant part: 3. When liability is finally determined by the industrial commissioner, the commissioner shall order the carriers or employers liable to the employee or to the employee's dependent or legal representative to reimburse the carriers or employers which are not liable but were required to pay benefits. Benefits paid or reimbursed pursuant to an order authorized by this section do not require the filing of a memorandum of agreement. However, a contested case for benefits under the chapter or under chapter 85A or 85B shall not be maintained against a party to a case or dispute resulting in an order authorized by this section unless the contested case is commenced within three years from the date of the last benefit payment under the order. The commissioner may determine liability for the payment of workers' compensation benefits under this section. The only statute of limitations which can apply pursuant to this section is a three-year window from the date of the last payment. Clearly, Heritage filed its petition within the applicable time. As a side issue, it is argued that Heritage seeks reimbursement for benefits paid prior to the filing of the section 85.21 application. The undersigned is unable to find any provision, either under the applicable statute, or in case law, which mandates that the application must be signed, filed and approved before an insurance company's right to reimbursement is valid. As a result, Heritage shall be reimbursed for all benefits paid for the left shoulder which were not paid during the time Heritage provided insurance to the employer. What is somewhat troubling to the undersigned is that the responsible party, Liberty Mutual Insurance Company had no input as to the terms of the settlement. However, there was no indication that any of the parties involved in the 85.21 petition believed that the actual terms and amount of the settlement were unfair or excessive. One can only conclude, then, that all parties felt the terms of the settlement, and the money received by Mr. Bromert were fair and reasonable. ORDER THEREFORE, it is ordered: That claimant sustained a new injury on November 15, 1988; That respondent, Liberty Mutual Insurance Company was the insurance carrier for Trausch/Commercial Equipment Company at this time; That Heritage Mutual Insurance Company filed its petition within the applicable statute of limitations. That Heritage shall be reimbursed for payments made with respect to the left shoulder; Signed and filed this ____ day of December, 1994. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Roger L Ferris Attorney at Law 1900 Hub Tower 699 Walnut St Des Moines IA 50309 Mr James C Huber Attorney at Law 500 Liberty Bldg Des Moines IA 50309 Mr Cecil L Goettsch Mr Steven M Augspurger Attorneys at Law 801 Grand Ave Ste 3700 Des Moines IA 50309 5-4200 Filed December 29, 1994 PATRICIA J. LANTZ BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ IN RE: RICHARD BROMERT, HERITAGE MUTUAL INS. CO., Petitioner, vs. File No. 788831 TRAUSCH CO., n/k/a COMMERCIAL EQUIPMENT A R B I T R A T I O N COMPANY, INC., D E C I S I O N Employer, and UNION MUTUAL INSURANCE CO., FIREMAN'S FUND INSURANCE CO., LIBERTY MUTUAL INSURANCE CO. Respondents. ________________________________________________________________ 5-4200 Responsible insurance company ordered to reimburse workers' compensation benefits paid by another insurance company pursuant to Iowa Code section 85.21. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA FIGLAND, Surviving Spouse of Chester Figland, FILE NO. 788896 Claimant, A P P E A L D E C I S I O N ACE LINES, INC., Employer, and LIBERTY MUTUAL INSURANCE CO. Insurance Carrier, Defendants. The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. ISSUES The issues on appeal are: Whether claimant has proved that claimant~s decedent sustained an injury (heart attack) that arose out of and in the course of his employment. FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed June 14, 1990 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. On February 7, 1985, Chester Figland, decedent, died of a heart attack. At the time of his death, he was 47 years of age and employed as an over-the-road semi truck driver with Ace Lines, Inc. Decedent was survived by his wife of 29 years, Linda Figland, and four children. All of the children had reached their majority and were living outside of the home at the time of death. Claimant',s sole source of support was her husband at the time of his death. Claimant and decedent were living together as man and wife at the time of death. Claimant has not remarried and is currently working in a factory earning $7.00 an hour. FIGLAND V. ACE LINES, INC. Page 2 Decedent worked for Ace from December 1975, as an "owneroperator" until his death. Decedent's usual route was in the Midwest and usually was home on weekends. Decedent normally drove by himself. Decedent was very obese, weighing close to 300 pounds at the time of death. However, this was not unusual for decedent as he weighed approximately 260 to 270 pounds for over 30 years prior to his death. Decedent was advised on more than one occasion by his physicians to lose weight. In 1979, decedent had a heart attack resulting in a small infarction or death of a small portion of his heart muscle. He received treatment at that time from Gene Van Zee, M.D., and a cardiologist, Liberato Iannone, M.D. Decedent was off work for six weeks after this attack but returned to full duty. Claimant weighed 272 pounds at the time of this heart attack. Decedent quit smoking after this attack but resumed smoking in 1983 or 1984. Decedent also had a history of high blood pressure. Decedent remained under the care of Dr. Van Zee after recovery from the 1979 attack. According to DOT physicals, decedent was on medication for his heart problems between 1979 and the date of his death. In his last physical, decedent indicated to the physician that he saw Dr. Van Zee every three months. On January 28, 1985, decedent was treated for a rib injury when a truck tire exploded and he was taken off work. According to claimant, decedent decided on his own to return to work despite the fact that he was not fully recovered from this injury. Decedent, at that time, stated that he needed the money and wanted to return to work. Decedent left home for his last road trip on February 3, 1985, at 6:30 p.m. He drove to Arkansas and arrived at 3:30 a.m. on February 4, 1985. He left at 1:00 p.m. on February 4, 1985 and arrived in Delhi, Louisiana at 7:30 p.m. the same day. He left Delhi at 9:30 a.m. on the next day, February 5, 1985 and drove nine and one half hours stopping at midnight. The next morning, February 6, 1985, he left at 8:30 a.m. and arrived in Indianapolis, Indiana at 5:00 p.m. Upon his arrival in Indianapolis, decedent parked his truck at Kroger Grocery Warehouse where he was to unload the next morning. His load at the time was 500 boxes of toilet paper, each box weighing approximately 37 pounds. On the night of February 6, 1985, decedent telephoned claimant explaining that he had to drive on ice and rain that day and had blown a tire on the truck. He said that he was tired but expressed no other physical complaints. He then spent the night in his sleeper compartment which was heated. The morning of February 7, 1985, was very cold, approximately two degrees Fahrenheit and windy. However, the dock at Kroger was enclosed. The temperature inside the dock area was approximately 35 degrees Fahrenheit. An office area in the dock was further enclosed and the temperature in this area was 65 to 70 degrees Fahrenheit. Decedent had taken with him two winter coats and was wearing one of these coats when he went inside the dock area that morning. In the unloading process that morning at FIGLAND V. ACE LINES, INC. Page 3 Kroger, semi truck drivers were expected to unload the boxes on the truck placing the boxes onto pallets furnished by the dock workers. Dock workers would then remove loaded pallets from the truck using forklift trucks. Prior to the scheduled time to begin unloading, 7:00 a.m., decedent had partially loaded a pallet with boxes. He then was called into the office area by the dock supervisor for Kroger, Hank Whitten, to process the load's paperwork. While in the office, decedent was observed by Whitten and other Kroger employees to be short of breath, pale and sick. Decedent complained of chest pains. Upon inquiry, decedent explained that he had a heart attack six years prior and that cold weather affected him that way. Decedent said that he would be all right as soon as he got the cold air out of his lungs. Whitten suggested that decedent sit down and relax. [In a statement taken the day after decedent's death Whitten indicated that decedent seemed "a little reluctant" to sit down. (Exhibit 11)] Decedent initially refused but was later observed resting in the office by a forklift driver, Bob Niedenthal. [Niedenthal corroborated that Whitten suggested decedent sit down and relax.] Decedent then left the office when the dock crew began working at 7:00 a.m. ***** Niedenthal was assigned to be decedent's forklift driver that morning and he subsequently removed the loaded pallet with approximately 15 to 20 boxes from behind decedent's trailer. When Niedenthal returned a short time later to see if decedent had loaded another pallet, he noticed decedent down on the floor of the trailer in apparent distress. He then called for help and Kroger's emergency medical technician arrived at the scene. A few minutes later the fire department and paramedics arrived and all worked to revive decedent. Unfortunately, these efforts failed and decedent was pronounced dead at 8:59 a.m. ***** Decedent had a preexisting heart condition and arteriosclerosis which narrowed the opening of the right main coronary artery. ***** A blood clot developed at this opening which almost completely blocked the blood supply to a large portion of the heart. ***** [Claimant testified in her deposition that decedent was not under any unusual stress prior to leaving on his last trip (Ex. 1, pp. 24-25). She also testified that the decedent felt he had to go on the trip even though he had a rib injury (Ex. 1, p. 38). Following his heart attack in 1979 decedent was treated by Dr. Iannone, a cardiologist. Dr. Iannone testified that he had last seen deceden,t in 1979 (Ex. 5, p. 23). He indicated that the blood clot in this heart attack occurred at a different place in the artery than decedent's prior heart attack. He also stated that it was difficult to say when the blood clot on the date of death started forming. He opined that decedent's work was FIGLAND V. ACE LINES, INC. Page 4 probably what caused the clot to form (Ex. 5, p. 17). He also testified that the blood clot that occluded the right main coronary artery of decedent on the date of his death was less than a day old (Ex. 5, p. 13). Paul From, M.D., whose specialty is internal medicine, also offered testimony in this case. He indicated it was difficult to say when the occlusion actually occurred (Ex. 6, p. 21). He also stated that he didn't know if the decedent's work caused his heart attack (Ex. 6, p. 30). Neither Dr. Iannone nor Dr. From treated the decedent for the heart attack that caused his death. Dr. Iannone's opinions of causal connection can be given more weight because of his specialty in cardiology. However, he indicated that the blood clot that caused the myocardial infarction was less than a day old and that it was difficult to say when it started forming.] CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union Count~, 188 N.W.2d 283 (Iowa 1971). Determining whether a heart attack superimposed upon a preexisting circulatory or heart condition arose out of employment is divided into two parts: the legal test and the medical test. Under the legal test the law defines what kind of exertion satisfies the test of arising out of the employment. The exertion may be physical or emotional. Duffield v. Iowa State Penitentiary, Appeal Decision, September 21, 1988, file no. 771083; Swalwell v. William Knudson & Son. Inc., II Iowa Industrial Commissioner Report 385 (App. 1982). Under the medical (factual) test, the doctors must say whether the exertion in fact caused the heart attack. Both tests must be met. See lB Larson Workmen's Compensation Law, 38.83(a) at 7-312 through 319. There are two or three legal standards in Iowa which define the kind of exertion necessary to satisfy the legal test of arising out of employment. The court in Sondaq v. Ferris Hardware, 220 N.W.2d 903, 905, (Iowa 1974), describes two standards: In the first situation the work ordinarily requires heavy exertions which, superimposed on an alreadydefective heart, aggravates or accelerates the condition, resulting in compensable injury. ... FIGLAND V. ACE LINES, INC. Page 5 ... See lA Larson's Workmen's Compensation Law 38.83, p. 7-172: "If there is some personal causal contribution in the form of a previously weakened or diseased heart, the employment contri bution must take the form of an exertion greater than that of nonemployment life. * * * Note that the comparison is not with this employee's usual exertion in his employment but with the exertions of normal nonemployment life of this or any other person.~' (Emphasis in the original.) (Citations omitted.) In the second situation compensation is allowed when the medical testimony shows an instance of unusually strenuous employment exertion, imposed upon a preexisting diseased condition, results in a heart injury. Athird possible legal standard comes from language in Sondag, 220 N.W.2d 903, and Varied EnterPrises, Inc. v. Sumner, 353 N.W.2d 407, 409 (Iowa 1984). This challenge appears to be tied to our reference in Sondag, 220 N.W.2d at 905, to the following observations expressed in lA A. Larson, The Law of Workmen's Compensation section 38.64(c), at 7- 145 (1972): The most obvious relevance of this element [continuing exertion after symptoms] is in showing causal connection between the obligations of the employment and the final injury; for if the workman, for some reason, feels impelled to continue with his duties when, but for these duties, he could and would have gone somewhere to lie down at once, the causal contribution of the employment to the aggravation of the condition is clear. The first issue to be determined in deciding the instant case is whether claimant has proved that one of the standards of the legal test has been satisfied. The first standard of the legal test is whether the decedent's work exertion was greater than normal nonemployment life. The comparison is not with decedent's usual exertion in his employment but with the exertions of normal nonemployment life of this or any other person. lB Larson, Workmen's Compensation Law, ~ 38.83(b) 7-321. Decedent moved 15 to 20 FIGLAND V. ACE LINES, INC. Page 6 boxes of product weighing approximately 37 pounds each. These boxes were placed on pallets adjacent to the boxes. The temperature in the work area was approximately 35 degrees and it was out of the wind. The decedent wore a jacket while performing the work. The loading activity occurred in about five minutes. This work exertion was not strenuous. Normal nonemployment life has some exertion. Life is not normally devoid of physical activity. The product in this case was moved a short distance. This agency has previously held that loading bundles ranging in weight from 45 pounds to 78 pounds at the rate of approximately one bundle every one and one-half minutes for a period of an hour was not exertion greater than nonemployment life. See Alexander v. Great Plains BaG Corp., Appeal Decision, October 7, 1989, File No. 768340. It cannot be said from this record that decedent's work activities on February 7, 1985 exceeded exertions of normal nonemployment life. Claimant has not met the first standard of the legal test. The second standard of the legal test is whether the decedent's work exertions were greater than normal work. There is very little in the record on what the decedent's normal work exertions were. It appears that decedent was a truck driver who would at times facilitate unloading the product he was hauling. This work appears to involve loading product onto pallets. The decedent was engaged in normal work activity for a short period of time. His exertions on February 7, 1985 were not unusually strenuous employment exertions. Claimant has not met the second standard of the legal test. The third standard of the legal test is whether decedent felt impelled to continue working after the onset of a possible heart attack. There is no evidence that the decedent was forced or felt a compulsion to continue working after the onset of symptoms. Claimant testified that decedent was not under any unusual stress prior to leaving on his last trip. Witnesses at the scene indicated that decedent felt he would be better when he warmed up. A Kroger employee (Whitten) suggested that decedent rest and go some place warmer. The only possible evidence of any compulsion felt by decedent was Whitten's statement that decedent felt a "little reluctant" to sit down. The evidence does not show that decedent was impelled to continue working after the onset of symptoms. Claimant has not met the third standard of the legal test. Claimant has not proved any of the three standards of the legal test. Claimant has not met the legal test. Decedent's heart attack did not arise out of and in the course of his employment. Claimant must satisfy both the legal and the medical tests. Because claimant has not satisfied the legal test consideration of the medical test will be for discussion purposes only. In the medical test claimant has the burden of proving by medical evidence that the exertion in fact caused the heart FIGLAND V. ACE LINES, INC. Page 7 attack. Dr. Iannone's opinion indicates that decedent's myocardial infarction was probably caused by his work. The greater weight of evidence in this case shows that the work exertion in fact caused the decedent's heart attack. It is clear that claimant's myocardial infarction was chronologically proximate to his work exertions. The autopsy supports Dr. Iannone's opinion. In summary, claimant met the medical (factual) test and but not the legal test for proving that decedent's myocardial infarction arose out of and in the course of his employment. Decedent's myocardial infarction did not arise out of and in the course of his employment. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant take nothing from these proceedings. That defendants shall pay the costs of this matter including the transcription of the hearing. Signed and filed this 3RD day of September, 1992. BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Phillip Vonderhaar Attorney at Law 840 Fifth Ave Des Moines IA 50309-1398 Mr. James C. Huber Attorney at Law 500 Liberty Bldg Des Moines IA 50309 1100; 1108.10; 2202 Filed September 3, 1992 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA FIGLAND, Surviving Spouse of Chester Figland, Claimant, FILE NO. 788896 ACE LINES, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1100: 1108.10: 2202 Claimant must satisfy both a legal test and a medical test in order to prove that a heart attack superimposed upon a preexisting condition arose out of and in the course of employment. The legal test can be satisfied by meeting one of three legal standards: work exertion greater than nonemployment life; work exertion greater than normal work exertion; or employee impelled to continue exertion after onset of symptoms. The medical test is satisfied if medical evidence shows that the exertion in fact caused the heart attack. In this case claimant's decedent was a truck driver. He unloaded approximately 15 boxes of product weighing approximately 35 pounds each. The temperature in the work area was 35 degrees and out of the wind. He did not feel impelled to continue work after the onset of symptoms. Decedent's work exertions were not greater than normal nonemployment life. Decedent's work exertions were not greater than his normal work exertions. Testimony of a cardiologist who opined the work exertion caused the heart attack met the medical test. Claimant met, medical (factual) test but not the legal test of whether the decedent's heart attack arose out of and in the course of his employement. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA FIGLAND, Surviving Spouse of Chester Figland, Claimant, File No. 788896 vs. A R B I T R A T I O N ACE LINES, INC., D E C I S I O N Employer, F I L E D and JUN 14 1990 LIBERTY MUTUAL INSURANCE CO., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Linda Figland, claimant, against Ace Lines, Inc., employer (hereinafter referred to as Ace), and Liberty Mutual Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of the death of claimant's spouse, Chester Figland (hereinafter referred to as decedent) on February 7, 1985. On February 28, 1990, 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 and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. At hearing, claimant objected to the testimony of Gary Shilling. This objection was sustained at hearing but an offer of proof was allowed and Shilling testified on the record. In her brief, claimant withdrew the objection. Therefore, the testimony of Gary Shilling was received into the evidence and considered in arriving at this decision. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee/employer relationship existed between the decedent and Ace at the time of death. 2. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $241.98. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant's death on February 7, 1985, arose out of and in the course of his employment with Ace. II. The extent of claimant's entitlement to death and burial benefits and related medical expenses. FINDINGS OF FACT Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: On February 7, 1990, Chester Figland, decedent, died of a heart attack. At the time of his death, he was 47 years of age and employed as an over-the-road semi truck driver with Ace. Decedent was survived by his wife of 29 years, Linda Figland, and four children. All of the children had reached their majority and were living outside of the home at the time of death. Claimant's sole source of support was her husband at the time of his death. Claimant and decedent were living together as man and wife at the time of death. Claimant has not remarried and is currently working in a factory earning $7.00 an hour. Decedent worked for Ace from December 1975, as an "owner-operator" until his death. Decedent's usual route was in the Midwest and usually was home on weekends. Decedent normally drove by himself. Decedent was very obese, weighing close to 300 pounds at the time of death. However, this was not unusual for decedent as he weighed approximately 260 to 270 pounds for over 30 years prior to his death. Decedent was advised on more than one occasion by his physicians to lose weight. In 1979, decedent had a heart attack resulting in a small infarction of death of a small portion of his heart muscle. He received treatment at that time from Gene Van Zee, M.D., and a cardiologist, Liberato Iannone, M.D. Decedent was off work for six weeks after this attack but returned to full duty. Claimant weighed 272 pounds at the time of this heart attack. Decedent quit smoking after this attack but resumed smoking in 1983 or 1984. Decedent also had a history of high blood pressure. Decedent remained under the care of Dr. Van Zee after recovery from the 1979 attack. According to DOT physicals, decedent was on medication for his heart problems between 1979 and the date of his death. In his last physical, decedent indicated to the physician that he saw Dr. Van Zee every three months. On January 28, 1985, decedent was treated for a rib injury when a truck tire exploded and he was taken off work. According to claimant, decedent decided on his own to return to work despite the fact that he was not fully recovered from this injury. Decedent, at that time, stated that he needed the money and wanted to return to work. Decedent left home for his last road trip on February 3, 1985, at 6:30 p.m. He drove to Arkansas and arrived at 3:30 a.m. on February 4, 1985. He left at 1:00 p.m. on February 4, 1985 and arrived in Delhi, Louisiana at 7:30 p.m. the same day. He left Delhi at 9:30 a.m. on the next day, February 5, 1985 and drove nine and one half hours stopping at midnight. The next morning, February 6, 1985, he left at 8:30 a.m. and arrived in Indianapolis, Indiana at 5:00 p.m. Upon his arrival in Indianapolis, decedent parked his truck at Kroger Grocery Warehouse where he was to unload the next morning. His load at the time was 500 boxes of toilet paper, each box weighing approximately 37 pounds. On the night of February 6, 1985, decedent telephoned claimant explaining that he had to drive on ice and rain that day and had blown a tire on the truck. He said that he was tired but expressed no other physical complaints. He then spent the night in his sleeper compartment which was heated. The morning of February 7, 1985, was very cold, approximately two degrees Fahrenheit and windy. However, the dock at Kroger was enclosed. The temperature inside the dock area was approximately 35 degrees Fahrenheit. An office area in the dock was further enclosed and the temperature in this area was 65 to 70 degrees Fahrenheit. Decedent had taken with him two winter coats and was wearing one of these coats when he went inside the dock area that morning. In the unloading process that morning at Kroger, semi truck drivers were expected to unload the boxes on the truck placing the boxes onto pallets furnished by the dock workers. Dock workers would then remove loaded pallets from the truck using forklift trucks. Prior to the scheduled time to begin unloading, 7:00 a.m., decedent had partially loaded a pallet with boxes. He then was called into the office area by the dock supervisor, Hank Whitten, to process the load's paperwork. While in the office, decedent was observed by Whitten and other employees to be short of breath, pale and sick. Decedent complained of chest pains. Upon inquiry, decedent explained that he had a heart attack six years prior and that cold weather affected him that way. Decedent said that he would be all right as soon as he got the cold air out of his lungs. Whitten suggested that decedent sit down and relax. Decedent initially refused but was later observed resting in the office by a forklift driver, Bob Niedenthal. Decedent then left the office when the dock crew began working at 7:00 a.m. and finished loading the pallet he had previously partially loaded. Niedenthal was assigned to be decedent's forklift driver that morning and he subsequently removed the loaded pallet with approximately 15 to 20 boxes from behind decedent's trailer. When Niedenthal returned a short time later to see if decedent had loaded another pallet, he noticed decedent down on the floor of the trailer in apparent distress. He then called for help and Kroger's emergency medical technician arrived at the scene. A few minutes later the fire department and paramedics arrived and all worked to revive decedent. Unfortunately, these efforts failed and decedent was pronounced dead at 8:59 a.m. Decedent's heart attack began when he started to have chest pains and shortness of breath while in the dock office. Decedent had a preexisting heart condition and arteriosclerosis which narrowed the opening of the right main coronary artery. At the time of the attack, a blood clot developed at this opening which almost completely blocked the blood supply to a large portion of the heart. When decedent chose to continue working after the onset of symptoms, this was the worst thing that he could do. The subsequent work caused more demand on the heart and need for more blood and oxygen. This worked aggravated and worsened the damage process going on at the time of the start of the attack. Although claimant had many preexisting problems relating to excessive weight, high blood pressure, smoking and lack of exercise which predisposed him for heart problems, the work was a significant precipitating factor in his death. In arriving at the findings of the previous paragraph with reference to the development of the heart attack and its connection to the claimant's work on February 7, 1985, the undersigned gave greater weight to the opinions of Dr. Iannone, the cardiologist, rather than those of Paul From, M.D. Dr. Iannone had treated claimant previously. As a cardiologist he had received greater training and has more expertise in the treatment and diagnosis of cardiac problems. Whereas Dr. From, although head of a cardiology department, was an internist and was not qualified to perform many of the standard heart treatment procedures. Also Dr. Iannone's views were clear. He stated as follows on page 30 of his deposition: "So a ten- or twelve-hour difference as to when the clot starts is not as relevant as the precipitating factor that causes him to die, which is, in my opinion, the work." Dr. From's views, as discussed in his deposition, were very unclear and equivocal. Dr. From essentially testified that he could not determine the cause of claimant's heart condition but admitted that studies show that work after the onset of symptoms does cause additional damage. From the evidence presented, the undersigned could not find that the exertion decedent experienced while loading a few boxes onto the pallet just before his death constitutes heavy exertion or exertion more than would be experienced in every day nonemployment-life. Decedent only lifted at most 15 to 20 boxes of product weighing 37 pounds each from the back of the truck onto two pallets lying immediately adjacent to the boxes. The requested medical benefits, exhibit 13, which total $670.70 are the expenses of decedent's last illness leading to his death. The Teamster's Local No. 147, Health and Welfare Fund, paid $537.76 of this amount and the balance was paid by claimant. Claimant paid more than $1,000.00 to bury her husband. CONCLUSIONS OF LAW I. Claimant has the burden by preponderance of the evidence to show that her husband's death arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. 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 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 along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In this jurisdiction, claimants or decedents or spouses of claimants with a preexisting circulatory or heart condition has been permitted, upon proper medical proof, to recover workers' compensation under at least three concepts of work related causations. See generally Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). In the first situation, the work ordinarily requires heavy exertions which, superimposed on an already defective heart, aggravates or accelerates the condition resulting in compensable injury. In the second situation, compensation is allowed when the medical testimony shows an instance of unusually strenuous employment exertion as compared to nonemployment life, imposed upon a preexisting disease condition, resulting in heart injury. Third, heart damage caused by continued exertions required by the employment after the onset of a heart attack is compensable. For example, if a workman for some reason feels impelled to continue his duties when, but for these duties, he could have gone somewhere to lie down at once, the causal contribution of employment to the aggravation of the condition is clear. Sondag, 220 N.W.2d at 904. Also, in order to be compensable, there is no absolute requirement that a claimant or decedent be motivated to continue working in the face of a known health deprivation in order to produce a compensable situation. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). In the case sub judice, claimant failed to established that the exertion her husband experienced in loading the boxes shortly before his death was heavy or unusual exertion. This exertion was of such short duration that it can be experienced in every day life. Therefore, the first and second tests under Sondag were not met. However, claimant felt impelled by his employment to continue working after symptoms began which, according to the most experienced expert in this case, aggravated and worsened the outcome of the attack leading to claimant's death. Although decedent probably was not aware of the risk he was taking in continuing to work, had he taken the advice of the dock supervisor and not continued to work, Dr. Iannone felt that the outcome would have been different. Although decedent had significant prior heart problems and substantial risk factors prior to his death, apportionment is not proper or possible in these cases. Varied Enterprises, Inc., 353 N.W.2d at 411. THEREFORE, claimant demonstrated by a preponderance of the evidence that the death of her husband on February 7, 1985, arose out of and in the course of his employment at Ace. II. As claimant has shown that the death of her husband arose out of and in the course of his employment, the extent of entitlement to benefits must be determined. First, the employer is liable for the expenses of the deceased employee's last illness, Iowa Code section 85.27 and 85.29; for burial expenses of decedent not to exceed the sum of $1,000.00, Iowa Code section 85.28; and, to the Second Injury Fund in the amount of $4,000.00, if the employee died with dependents or $15,000.00, if no dependents survived the deceased employee, Iowa Code section 85.65. Secondly, weekly benefits are also available from the employer for surviving dependents of a deceased employee. Such benefits are paid in the same amount and manner as work injuries or occupational diseases except that the benefits are paid to the surviving spouse for life or until remarriage or to dependent children or incapacitated adults dependant upon the decedent at the time of death, if the spouse does not survive the decedent. Iowa Code section 85.43. A surviving spouse is conclusively presumed dependent unless there has been a willful desertion of decedent by the spouse. Iowa Code section 85.41(1), Iowa Code section 85.A.6. In the case sub judice, given the findings as to dependency, claimant is entitled to weekly benefits for life or until she remarries and to reimbursement for the medical and burial expenses she has paid. Defendants will also be ordered to pay to the Second Injury Fund the sum of $4,000.00. ORDER 1. Defendants shall pay to claimant weekly benefits at the rate of two hundred forty-one and 98/100 dollars ($241.98) per week until her death or until she remarries, whichever occurs first. 2. Defendants shall pay the medical expenses listed in the prehearing report requested by claimant, exhibit 13. Claimant shall be reimbursed for those expenses paid by her and defendants shall reimburse the Teamsters Union Health and Welfare Fund for the amounts paid by it. 3. Defendants shall pay accrued weekly benefits in a lump sum. 4. Defendants shall pay to claimant the sum of one thousand and no/100 dollars ($1,000.00) for reimbursement of burial expenses. 5. Defendants shall pay to the treasurer of the State of Iowa as custodian of the Second Injury Fund the sum of four thousand and no/100 dollars ($4,000.00) to be credited to the Second Injury Fund. 6. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. Defendants shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. 8. Defendants 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 14th day of June, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Phillip Vonderhaar Attorney at Law 840 Fifth Ave Des Moines, IA 50309-1398 Mr. W. C. Hoffmann Attorney at Law 500 Liberty Bldg Des Moines, IA 50309 1108.10 Filed June 14, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA FIGLAND, Surviving Spouse of Chester Figland, Claimant, vs. File No. 788896 ACE LINES, INC., A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., Insurance carrier, Defendants. 1108.10 - Heart Attack Case Causal connection found when decedent chose to continue working after the onset of symptoms which in the opinion of the most qualified medical expert testifying the case aggravated the heart attack and was the precipitating factor leading to his death. Widow benefits awarded for life. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JANE BEDET, Claimant, File No. 789006 vs. A R B I T R A T I O N CHASE BAG COMPANY, D E C I S I O N Employer, F I L E D and MAY 11 1988 AMERICAN MOTORISTS INS. IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Jane Bedet, claimant, against Chase Bag Co., employer, and American Motorist Insurance Co., insurance carrier, defendants for benefits as a result of an alleged injury on February 8, 1985. A hearing was held in Storm Lake, Iowa on March 28, 1988 and the case was fully submitted at the close of the hearing. The record consists of the testimony of Jane Bedet (claimant), Donald Bedet (claimant's husband), Gladys Christians (employer's witness), Randy Freerks (plant manager), Chester R. Sprague (employer's supervisor) and Joint Exhibits one through nine. Both attorneys submitted excellent briefs. STIPULATIONS The parties stipulated to the following matters. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the time off work for which claimant now seeks temporary disability benefits is from February 11, 1985 to March 26, 1985. That the rate of compensation, in the event of an award, is $162.76 per week. That the provider of medical services and supplies would testify that the fees charged for medical services and supplies are fair and reasonable and defendants are not offering contrary evidence. That defendants claim no credit for benefits paid prior to hearing under either an employee nonoccupational group health plan or as workers' compensation benefits. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on February 8, 1985 which arose out of and in the course of employment with employer. Whether the alleged injury was the cause of either temporary or permanent disability. Whether claimant is entitled to temporary or permanent disability benefits, and if so, the nature and extent of benefits. Whether claimant is entitled to certain medical expenses. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the pertinent evidence. Claimant was 29 years old at the time of the alleged injury. She has a high school education and one and one-half years of college. She is currently enrolled in college and has 12 more hours to go in order to obtain an AA degree in General Education. Past employments include sales clerk, soldering and packaging candy. Claimant started with employer in December of 1980. Her jobs have been (1) table stacker (2) inspector of the sewing line (3) inspector of the small bag department and (4) feeder of the bottom line. Claimant started as a feeder of the bottom line in November of 1984. Most of these jobs required movements with her hands and arms. Claimant testified that prior to this alleged injury that she had no trouble with her arms. Claimant testified that her regular hours were from 7:30 a.m. until 4 p.m. On Friday, February 8, 1985, claimant went to work at the usual time at approximately 7:20 a.m. to 7:25 a.m. She stated that she was injured as she entered the locker room to put her coat and lunch in her locker. Claimant testified that she went to the door and pushed it open with her right shoulder. At that very same moment another employee was coming out of the locker room and pulled the door open from the other side. Claimant said this caused her to stumble forward into the locker room. As she stumbled forward, she quickly raised her right arm to shield her face from striking the wall inside the door. The wall was only two and one-half feet or three feet inside the door. Claimant testified that she brought her arm up to approximately eye level instinctively and very quickly. She added that in the process she dropped her purse and water jug that she was carrying in her left hand. She picked up her property and went to work as usual. She had no trouble at that time. When claimant got home from work that night she had a throbbing pain in her right arm. Her right arm was stiff and she could not move it. It bothered her all night. The following morning claimant went to see Robert O. Eiselt, D.O., because she felt that he would see her on Saturday and because she wanted to see him because she had seen him before. Claimant said that Dr. Eiselt told her that she injured the bursa in her arm and gave her a note not to work which reads as follows: 2-9-85 To Whom It Concern: Mrs. Jane Bedet has injured her right bursa. The cartilage has been severely damaged from overuse of the right arm and shoulder. She is being given physio-therapy and depro-medral for her Bursitis. She may need, or will have to rest the shoulder for several weeks and be treated. (Exhibit 3K) Claimant testified that she gave this note to her supervisor, Chester Sprague, on Monday, February 11, 1985. Sprague gave her a different job reclaiming bags. She said that she did this for about two hours by using her left hand most of the time. Then Sprague told her to go home. She asked why she had to go home. She testified that she was told it was because she could not do that job. Claimant said that she asked why another injured employee was allowed to do it and she was not. She related that she was told that they do not discuss the situation with other employees. Claimant testified that she went home. Next, she called the company and asked to see the company doctor and she was told to go see S. R. Helmers, M.D. Claimant saw Dr. Helmers on Tuesday, February 12, 1985. Dr. Helmers was both a company doctor and also a family physician of claimant. Dr. Helmers' office note for this date reads as follows: 2-12-85 Bedet, Jane Complains of right shoulder pain. Saw a D.O. physician in Spirit Lake and received an unknown injection in it on Saturday, two days ago. Has tenderness with motion. Has inability to abduct the arm. X-ray was done of shoulder. IMP: Acute right shoulder inflammation, generalized. (Ex. 3I) The x-ray report from Dr. Helmers visit reads as follows: INTERPRETATION: 2-12-85 Bedet, Jane #5502 Right shoulder: No fracture identified. No dislocation. (Ex. 3J) Dr. Helmers gave claimant a note taking her off work which reads as follows: "Due to acute shoulder inflammation, Jane Bedet may not currently use her right upper extremity for work. I expect this disability to last 1-2 weeks." (Ex. 3H). Dr. Helmers later confirmed in a letter to defendants' attorney that he did not ask claimant for a detailed history of her complaint on the day that he saw her on February 12, 1985 (Ex. 3B). Claimant testified that she gave this note to Jan Runia at work on February 12, 1985. Claimant added that she did not talk to anyone else but simply delivered the note and went home. Claimant continued to see Dr. Eiselt. She saw him a total of 13 times on February 8, 9, 13, 16, 19, 21, 23, 25, and March 6, 13, 19 for office visits, ultrasound treatments and osteopathic manipulative therapy treatments (Ex. 3L). Claimant testified that Dr. Eiselt then referred her to David L. Hoversten, M.D., an orthopedic surgeon in Sioux Falls, South Dakota. Dr. Hoversten's first office notes on February 26 read as follows: Jane is a 29 yr old who was well until 8 Feb 1985. She fell, striking her shoulder against the bathroom door. She continued to work. She had a lot of pain and saw the doctor the next day and since then has not worked because of severe pain in her right shoulder. She says her job requires a lot of lifting and work with that right shoulder and it just has not been recovered to the point she could work. The exam shows pain and restricted passive motion of that right shoulder. She has limited internal as well as external rotation. She does have strong abduction of the shoulder. IMPRESSION: Post-traumatic bursitis, rt shoulder. (Ex. 3F) Dr. Hoversten gave claimant a slip excusing her from work for three weeks on February 26, 1985 (Ex. 3G). He found her to be much better on March 26, 1985. At that time, she had a full range of motion and returned to work on that date (Ex. 3E and F; Ex. 1, page 7). Dr. Eiselt wrote an undated letter to the claimant herself as follows: Jane Bedet, Ocheyedan, Iowa is a 29 yr. old who was in good health until Feb. 8, 1985. On that date she fell when she was working at the Chase Bag Company in Sibley, Iowa. In falling she struck her right shoulder against the bathroom door causing her to fall to the floor. Someone had opened the door from the other side causing Jane to fall into the locker room. Jane continued to work that day. When she called me Feb. 8th she was in a great deal of pain. I saw her in my office on Feb. 9th. She was unable to go to work because of the severe pain in her right shoulder. Her job required her to lift heavy boxes or bags. I treated Jane with ULS, microtherm, and diathermy in 9 subsequent visits I also injected 2cc depro medrol and 2cc xylocaine into the shoulder on 2 visits. I then referred her to the Orthopedic Associates in Sioux Fails, S. Dak. She was referred back to me for PT. I treated her 4-times before she returned to Sioux Falls. Although the shoulder is well enough to return to work, it may cause some trouble in her later years. (Ex. 3L) At the hearing claimant testified that she did not strike her shoulder on the door or on the wall. She stated that she did not fall to the floor. Nevertheless, both Dr. Eiselt and Dr. Hoversten reported that claimant had struck her shoulder against the door. Dr. Eiselt in addition, reported that claimant fell to the floor. Claimant admitted that she gave a telephone statement to an insurance company representative, Bob Flaherty, on March 18, 1985. In that statement she stated that she did not hit anything with her shoulder and that she did not fall to the floor (Ex. 2, pp. 3 & 5). Claimant made no explanation at the hearing for these various accounts of how the injury actually occurred. Nor did claimant try to reconcile these various different accounts of how the alleged injury occurred. Claimant's counsel wrote to Dr. Hoversten on April 18, 1986. He quoted excerpts of claimant's recorded telephone statement with Flaherty in which claimant said that she did not fall to the floor, that she did not hit anything, and that she did not contact anything with her right shoulder. Dr. Hoversten was then asked in writing if that factual situation would or could have caused claimant's injury (Ex. 5). Dr. Hoversten replied to claimant's counsel as follows on April 28, 1986. I received your letter dated 18 April 1986 about Mrs. Jane Bedet. In it you ask if the above described history were true, could Mrs. Bedet have injured her shoulder without actually hitting anything. Yes, she could have. A sudden stress as she had where she would suddenly fling her arm up to protect her against hitting her face when she fell would cause a severe impingement of the shoulder bone against the arm bone and result in this type of bursitis. I think her history is entirely compatible with her resulting injury. (Ex. 3D) Dr. Hoversten also made a written report on May 27, 1987 after he saw claimant again approximately two years after the original alleged injury. He said that claimant complained of shoulder pain when she worked with her arm at shoulder level or in an elevated position. He added that occasionally it aches at night. His clinical examination disclosed some crepitation grating noise in the subacromial bursa. X-rays of the bony structures were relatively normal. He ordered an arthrogram which revealed a small tear of the rotator cuff near the insertion of the supraspinatous to the humerus. He said the tear was quite small and confined to scarring of the bursa. Surgery was not recommended at the time of his report but might be necessary in the next five to ten years. Dr. Hoversten felt that claimant had a 25 percent permanent functional impairment of the right upper extremity which he said converted to 15 percent of the body as a whole. Dr. Hoversten acknowledged that this rating was not clearly spelled out in the AMA Guides to the Evaluation of Permanent Impairment, second edition. Instead, he said it was based upon his general knowledge of shoulder function and the weakness and pain that a rotator cuff tendon can cause (Ex. 3C). Dr. Hoversten also testified by deposition on January 14, 1988. He said that he saw claimant again on May 28, 1987. She still had a full range of motion and x-rays were still essentially negative; however, claimant had a crepitus sound and Dr. Hoversten was suspicious of why a bursitis would last two years. Therefore, he ordered an arthrogram which disclosed a small rotator cuff tear near the insertion of the supraspinatous to the humerus. Dr. Hoversten explained that bursitis and rotator cuff injury could give the patient the same pain (Ex. 1, pp. 8 & 9). Dr. Hoversten said after the arthrogram that he thought the earlier bursitis had disappeared and that claimant's current problem was the rotator cuff or a hole in the tendons in the top of her arm bone (Ex. 1, p. 11). The arthrogram report reads as follows: 5/28/87 RIGHT SHOULDER ARTHROGRAM: There is a very small amount of extravasation of contrast material outside of the upper lateral aspect of the shoulder joint thought to be due to a small rotator cuff tear. (Ex. 1, deposition ex. 2) Dr. Hoversten testified that a sudden active abduction of a healthy shoulder is unlikely to cause a rotator cuff tear. If claimant had a previous impingement through repeated rubbing of the ligament and the bony bridge then a sudden abduction could cause a rotator cuff tear. Any activity which causes the shoulder to rub a lot could weaken it (Ex. 1, pp. 15 & 16). Dr. Hoversten said that a tear, or hole, in the tendon is permanent. It can widen and enlarge in later years. Much of his rating of 25 percent permanent functional impairment of the right upper extremity was based on his experience of what claimant might encounter in the future rather than the strict application of the AMA Guides (Ex. 1, pp. 18 & 19). Dr. Hoversten reiterated that it is very conceivable that either striking or not striking the shoulder could result in bursitis of the shoulder (Ex. 1, p. 21). Dr. Hoversten did verify that claimant told him on two occasions that she struck her shoulder on the bathroom door (Ex. 1, pp. 23 & 24). Dr. Hoversten conceded that claimant had never told him that she injured her arm simply by raising it quickly. This version came from claimant's attorney a year or so after the actual event (Ex. 1, pp. 23 & 24). Dr. Hoversten testified that he relied on claimant's account of how the injury occurred. He believed she was telling the truth (Ex. 1, pp. 23-28). He felt that whether claimant hit the door or did not hit the door, the basic event was the same. He stated that it was not markedly different. He said that either event could have caused her injury. A worn through tendon could be injured by a shoulder abduction of the arm (Ex. 1, pp. 28 & 29). On cross-examination Dr. Hoversten granted that the actual permanent functional impairment, without taking into consideration the future possible trouble that claimant would have, would be only three to five percent rather than 25 percent of the right upper extremity because she has almost complete use of her arms except for the pain that she endures. He added that things may develop in the future which may get it up to 25 percent impairment. It depends on future events (Ex. 1,.p. 33). Claimant was examined by John L. Dougherty, M.D., an orthopedic surgeon, on October 2, 1987. He examined most of the exhibits in this case and personally examined the claimant. He found that both arms were essentially the same (Ex. 4, pp. 10-12). The crepitus was not significant and was about equal in both arms (Ex. 4, p. 12). He found a little calcification of the greater tuberosity on the right than was seen in earlier films. His diagnosis was pain in the right shoulder with a questionable mild tear in the rotator cuff (Ex. 4, pp. 13-15). Dr. Dougherty said he would be surprised if the history claimant gave would cause a small tear in the rotator cuff, especially in a female age 30-31 (Ex. 4, pp. 15 & 16). He felt that any impairment would be minimal and not more than five percent of the right upper extremity. He added that using the AMA Guides, which are based mostly on range of motion, claimant would have practically zero impairment (Ex. 4, pp. 16 & 17). Dr. Dougherty also pointed out the inconsistency in Dr. Eiselt's reports where on one occasion he said that claimant damaged her bursa from overuse and in another report he says she struck her shoulder against the door and fell to the floor (Ex. 4, p. 19). Dr. Dougherty did not think he could relate the history she gave (using her arm suddenly) to a rotator cuff tear (Ex 4, p. 18). It would be more likely to come from using her arm or working with the arm. But in a 30 year old woman it would require some marked trauma. He did not think a tear would occur in a 30 year old woman from overuse (Ex. 4, p. 21). Dr. Dougherty disagreed with Dr. Hoversten's opinion that lifting her arm to shield her face could cause an injury like this (Ex. 4, p. 24). He said that claimant would not need any further treatment (Ex. 4, p. 30). In the statement which claimant gave to Flaherty on March 18, 1985, and again in her testimony at the hearing she said that Gladys Christians was the person coming out of the locker room as she was going in. Gladys Christians testified that she has worked for employer for 15 years, seven months and 11 days. She was employed there on February 8, 1985, the date of this alleged injury. She has no recollection of the incident that claimant relates. The witness did not see claimant get injured. The witness did not see claimant stumble, fall or drop her purse or water jug. She did not see claimant hit the door or fall to the floor. Christians testified that she never talked to claimant about an injury of any kind. Christians testified that she herself has been injured twice. Once she injured her eye. Another time she injured her knee. She reported these incidents, she was believed, and the injuries were handled promptly and properly by employer. Claimant said that she did return to work on April 17, 1985. She has continued to work there ever since. She testified that she has been able to perform the job of feeding the bottom line even though she does have problems in doing it. Her shoulder gets stiff and sore off and on if she over uses it or if the weather is damp and cold. It is worse in the spring and the fall. She takes aspirin and Tylenol for pain relief about once a week up to three times a day. Working with her hand or arm elevated overhead causes the most weakness and pain. Claimant testified that Dr. Hoversten said she could have surgery but he recommended against it at this time. Claimant testified that Dr. Dougherty's examination was rough and made her arm real sore afterwards. Claimant denied any other incident before or after this incident that might have injured her shoulder. Claimant testified that she has been attending college since November of 1984. She hopes to obtain an Associate of Arts degree in General Education. Claimant admitted that the bags which she transfers from the table to the conveyer are light. They only weigh one pound more or less. Claimant testified that she was earning about $5.96 per hour at the time of the alleged injury and that she was earning $6.30 per hour at the time of the hearing. Donald Bedet, claimant's husband, testified that he is a ten year employee of employer. He sees his wife for lunch at work. She complains that her shoulder is sore and she gets tired after four to five hours of work. She takes aspirin for the pain approximately two or three times a week. He stated that claimant can no longer bowl since this injury occurred. He contended that employer had a poor reporting procedure for work related injuries. They write it up according to their own version irrespective of what the employee tells them. Furthermore, an employee who gets hurt also gets chewed out. Claimant testified that initially Dr. Eiselt did not ask how this injury occurred. She told him on one of her later visits like the second or third visit. She could not recall whether Dr. Helmers asked her how it occurred or not or whether he took a history. The report of Dr. Hoversten said that claimant fell striking her shoulder on the bathroom door and also that she did a lot of heavy lifting and work with her right shoulder (Ex. 3F). Claimant said that she brought in the note from Dr. Eiselt on Monday, February 11, 1985, and said that she had a problem with her shoulder. She cannot recall if she told the employer why her shoulder hurt. Claimant said that she first saw Randy Freerks on Friday, February 15, 1985. He had not been there until then. She did not believe that she told him how it happened. She said he became angry with her. He told her that she was not a good employee. He told her that she did not have a workers' compensation claim. She said that Freerks did not tell her why she did not have a workers' compensation claim. He just said that she did not. Claimant felt that Freerks was unnecessarily abusive to her. Claimant could not recall when she first told employer that she had a work injury. It might have been on Monday, February 11, 1985 or Tuesday, February 12, 1985 when she asked if she needed a note to get back to work. She thought possibly she had reported it by February 15, 1985 when Freerks chewed her out. Claimant could not recall why she asked Jan Runia if she could see a company doctor on February 12, 1985. Randy Freerks testified that he is plant manager. He is a 17 year employee of employer. He was plant superintendent on February 8, 1985 the date of the alleged injury. He was in charge of production and personnel at that time. He learned of the situation sometime during the week of February 11, 1985. He could not recall if claimant said it was work related on February 15, 1985 or not. Freerks said that he first learned it was claimed as a work related injury on February 27, 1985 by reading the undated medical report of Dr. Eiselt. A first report of injury was then filed the following day on February 28, 1985. He testified that prior to February 28, 1985 employer had no knowledge of a work-related injury. Freerks said that he called Dr. Eiselt and confirmed that claimant saw him on Saturday, February 9, 1985. Freerks called Dr. Helmers and confirmed that claimant did not tell him that work caused her injury. Freerks stated that all injuries are to be reported promptly no matter how slight. They are to be reported to the supervisor. He explained that the employee who got chewed out for reporting an injury was an individual who in his opinion was accident prone. Freerks denied that he yelled at, hollered at or chewed out claimant. Freerks stated that claimant had two prior claims and she reported them promptly and they were handled properly by the employer. Chester A. Sprague testified that he is a 29 year employee of employer. He was claimant's supervisor on February 8, 1985. He said he first learned that claimant was alleging a work-related injury just two weeks before the hearing when he was asked to testify. He testified that claimant never reported a work-related injury to him. He contended that he keeps good notes and documents everything. He checked his records and found no report of a work injury. He said the employees know how to report work-related injuries. They know they need a slip from the doctor to return to work after being off work. He said that if claimant said she brought her note from the doctor on February 11, 1985 then he would accept that she did so. If she had stated that she had a work-related injury at that time he would have inquired and found out how she was injured. He stated that he got two slips from claimant taking her off work. Neither slip said it was a work-related injury. If claimant had reported a work-related injury he would have made a record of it and reported it to his boss immediately. Claimant asserts medical expenses as follows: 1. Dr. Robert 0. Eiselt - Statements Total: $475.00 2. Orthopaedic Associates - Statements Total: 243.00 3. Medical X-Ray Center - Statements Total: 129.50 TOTAL MEDICAL EXPENSES SOUGHT BY CLAIMANT: $847.50 Claimant seeks costs as follows: 1. May Reporting Services, Inc. $117.15 2. Dr. Hoversten, M.D. Deposition 408.30 TOTAL $525.45 Defendants seek the following costs: Defendants' Costs: 1. Cassel, Inc. - $125.00 - Court Reporter costs for Dougherty deposition dated 10/14/87. 2. Dr. John J. Dougherty - $450.00 - charges for deposition given 10/14/87. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on February 8, 1985 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury which arose out of and in the course of employment with employer. When claimant saw,Dr. Eiselt on Saturday, February 9, 1985 the day after the alleged injury, she did not tell him how the alleged injury occurred. Her recollection is that she did not describe the alleged injury until the second or third time that she saw him. On Monday, February 11, 1985, when claimant brought the note from Eiselt taking her off work, she cannot recall if she reported a work-related injury to employer or not. Sprague said that claimant delivered two notes to him but never did report a work-related injury to him. Sprague said that claimant knew that injuries were to be reported promptly. If she had reported an injury, then he would have told his superior and treated this as a work-related claim. Claimant testified that she asked Jan Runia if she could see the company doctor on Tuesday, February 12, 1985 but claimant could not recall if she told Runia it was for a work-related injury or not. On Tuesday, February 12, 1985 claimant saw Dr. Helmers, the company physician. Claimant testified that she could not recall if she told Dr. Helmers that she had a work-related claim or not. Dr. Helmers said that he did not take a history and he made no notes of how her complaints originated (Ex. 3B). He also gave claimant a note to be off work which she took to employer. Claimant said that she could not recall if she reported a work-related injury or not when she delivered this note to employer. Sprague confirmed that he did receive two notes taking claimant off work but on neither occasion did claimant inform him that she sustained a work-related injury. Sprague said that neither slip said that the time off was due to a work connected injury. Claimant saw Freerks on February 15, 1985 but she could not recall if she reported a work-related injury to him or not at that time. She could not recall telling Freerks how the injury occurred. Claimant could not recall when she told employer that she had a work-related injury. She speculated that it might have been February 15, 1985. Freerks said that he first learned claimant was claiming a work-related injury when he read a medical report from Dr. Eiselt. A first report of injury was filed the following day on February 28, 1985. Dr. Eiselt's first report dated February 9, 1985 stated that claimant injured her right bursa and the cartilage had been severely damaged from overuse of the right arm, and shoulder (Ex. 3K). Then Dr. Eiselt wrote an undated letter to claimant that the etiology of this alleged injury was that she fell and struck her shoulder against the bathroom door causing her to fall to the floor (Ex. 3L). Claimant saw Dr. Hoversten on February 26, 1985. He reported and testified that claimant told him on two occasions that she fell striking her right shoulder against the bathroom door (Ex. 1, pp. 23 & 24). She did not mention falling to the floor (Ex. 3F). Claimant told Flaherty in a recorded telephone interview on March 18, 1985 that she did not fall to the floor. She did not hit anything with her right shoulder and that her shoulder did not come in contact with anything (Ex. 2, pp. 3 & 5). At the hearing on March 28, 1988 claimant related that she did not strike that locker room door with her shoulder and that she did not hit the wall inside the door and she did not fall to the floor. She testified that she simply raised her right arm instinctively and abruptly to protect her face from stumbling into the locker room wall. She testified that she felt no pain or any other trouble at that time. Claimant also said that she dropped her purse and water jug that she was carrying in her left hand. Gladys Christian, the person that claimant said opened the door from the inside of the locker room and came out at the time that claimant was going in, testified that she has no recollection of this incident. Claimant never reported it or discussed it with her. Christian did not see claimant stumble or pick up her purse or water jug off the floor. After reviewing all of the nonmedical evidence it cannot be determined that claimant ever personally reported this injury to employer or any employer representatives based upon the testimony of all the live witnesses including claimant herself. Claimant knew the injury reporting procedures and had successfully reported two other claims earlier. Dr. Eiselt first reported an overuse injury. Then he changed that to a fall striking the locker room door with her shoulder which caused her to fall to the floor. Dr. Helmers had no history and claimant could not recall if she gave him one. Dr. Hoversten said that either event could have caused claimant's shoulder rotator cuff tear. However, he did say that in order for a quick abduction motion to cause such a tear would require a previous impingement through repeated rubbing of the ligament and the bony bridge. The evidence in this case does not disclose any prior impingement in the claimant's shoulder. On the contrary, claimant testified that she had no prior shoulder problems. Dr. Hoversten also stated that a rotator cuff tear from a quick motion of the arm could happen and that it was very conceivable. Dr. Hoversten did not testify that it did happen. He did not testify that it probably did happen. He only stated that it was possible or conceivable. There was no medical evidence that it actually did happen or probably did happen this way. In addition, Dr. Dougherty testified that the history that claimant gave could not cause a tear in the rotator cuff of a woman age 30 to 31 (Ex. 4, pp. 15, 16 & 18). He said that a rotator cuff tear in a person this age would require some marked trauma (Ex. 4, p. 21). He found that the crepitus was not significant and it was almost the same in both arms (Ex. 4, pp. 10-13). Dr. Dougherty disagreed with Dr. Hoversten. Dr. Dougherty said that lifting the arm to shield her face would not cause a rotator cuff tear, bursitis or adhesive capsulitis (Ex. 4, pp. 23 & 24). Dr. Dougherty testified that claimant.should not need any future treatment (Ex. 4, p. 30). Based on the foregoing evidence claimant failed to sustain the burden of proof by a preponderance of the evidence that she sustained an injury which arose out of and in the course of her employment with employer on February 8, 1985. Claimant failed to promptly report a work-related injury at the time it occurred. She could not recall when, if or how and to whom she reported this alleged injury even though she had numerous opportunities to report it. Dr. Eiselt first reported the alleged injury as an overuse injury. Then he reported in a letter to claimant herself, bearing no date, that the injury occurred by striking her shoulder against the door which caused her to fall to the floor. Claimant then gave a statement that she did not strike the door, fall to the floor or contact anything. She testified that she only raised her right arm suddenly in a protective move. The only possible witness to this incident, Christian, had no recollection of any of the events described by claimant. Claimant never reported to Christian what had happened. Claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury which arose out of and in the course of her employment on February 8, 1985. Since claimant has not proven an injury arising out of and in the course of employment, then, it is not necessary to discuss causal connection to disability or entitlement to weekly compensation or medical benefits. Claimant's costs are not allowed. Rather costs,are assessed against claimant since claimant is the nonprevailing party. Division of Industrial Services Rule 343-4.33 The expert witness fee for Dr. Dougherty is limited to $150.00 by Iowa Code section 622.72. FINDINGS OF FACT THEREFORE, based upon the evidence presented the following findings of fact are made. That claimant did not promptly and properly report a work-related injury. That claimant gave several differing versions of how the alleged injury occurred. That claimant made no attempt in her testimony at the hearing to explain or reconcile these various versions of how the accident occurred. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law the following conclusion of law is made. That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury which arose out of and in the course of her employment with employer on February 8, 1985. ORDER THEREFORE, IT IS ORDERED: That claimant take nothing from this proceeding. That the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33 including the costs presented by defendants at the hearing in the amount of two hundred seventy-five dollars ($275.00). That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 11th day of May, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harold Dawson Attorney at Law 315 9th St. Sibley, Iowa 51249 Mr. Thomas Plaza Attorney at Law PO Box 3086 Sioux City, Iowa 51102 1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40 Filed May 11, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JANE BEDET, Claimant, vs. File No. 789006 CHASE BAG COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AMERICAN MOTORISTS INS. Insurance Carrier, Defendants. 1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40 Claimant alleged that she sustained a rotator cuff tear by abruptly raising her arm to shield her face when someone coming out of the locker room pulled the door open just as claimant had leaned her shoulder against the door to enter the locker room. At first claimant did not describe an incident to the doctors. Then she gave differing versions. She could not recall if or when she actually reported a work-related injury to employer. Claimant did not endeavor to explain any of these many inconsistencies by her testimony at the hearing. The woman coming out of the locker room was unaware of any incident and claimant never reported an incident to her. Held: Claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury which arose out of and in the course of employment.