BEFORE THE IOWA INDUSTRIAL COMMISSIONER WALLACE HUBBARD, Claimant, VS. FILE NO. 790707 IOWA STATE PENITENTIARY, A R B I T R A T I 0 N Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration commenced under section 85.59 of the Code by Wallace Hubbard, an inmate, against Iowa State Penitentiary, and the State of Iowa. The case was heard at Burlington, Iowa on November 6, 1986, and was fully submitted upon conclusion of the hearing. The record consists of testimony from Wallace Hubbard and Donald J. Lynch. The record also includes claimant's exhibits 1, 2, 3 and 4. Final ruling upon defendants' exhibit A was deferred until the issuance of this decision. Exhibit A is the written report of an investigation of the incident upon which Hubbard's claim is based. It contains a summary of statements from witnesses and also transcripts of tape recorded statements from witnesses. The report was prepared as part of the regularly conducted and regularly recorded activities of the Penitentiary. It would ordinarily be excluded from evidence by the operation of Iowa Rule of Evidence 803(8)(B)(ii). The exhibit contains statements from persons who were not subject to cross-examination. If cross-examination has not and cannot be conducted, it is difficult to make a finding that a full and true disclosure of the facts had been made without cross-examination. Chapter 86 of the Code gives the industrial commissioner and the deputies appointed by the commissioner the responsibility and authority to administer the workers' compensation laws of this state. Section 86.8(1) of the Code specifically gives the commissioner the duty to establish and HUBBARD V. IOWA STATE PENITENTIARY Page 2 enforce all necessary rules for carrying out the purposes of Chapters 85, 85A and 87 of the Code. Division of Industrial Services Rules 343-4.20 through 4.23 deal with the prehearing and assignment process. Rule 343-4.22 specifically provides for the entry of an order which controls the subsequent course of action of the case. Paragraph 6 of the hearing assignment order clearly states, in part, O...all other written evidence shall not be admitted as exhibits at the hearing unless they have been timely served upon an opposing party as ordered herein.O The assignment order required service to be made within 10 days following the date of the order. This was clearly not accomplished. Timely objection was made. That objection is sustained. Defendants" counsel's brief urges that the service was late by only a few days and that the tremendous case load of the attorney handling the case and the clerical staff in the Attorney General's office prevented immediate attention to the matter. If inadequate staffing levels exist, the results of such must impact upon the party responsible for determining those staffing levels. If timely service of the exhibit had been made, claimant could have sought a continuance of the case or to depose the witnesses whose statements are contained in the exhibit. When served only seven days prior to trial, claimant's counsel was fully within his rights to decide to object to the evidence rather than to make a belated attempt at a last minute continuance or a last minute deposition of the witnesses. He clearly had no obligation to inform defense counsel that he intended to make the objection if the exhibit was, in fact, offered at hearing. As previously stated, the objection to exhibit A is sustained and exhibit A is part of the record of this case as an offer of proof only. Its contents will not be considered when deciding this case. HUBBARD V. IOWA STATE PENITENTIARY Page 3 ISSUES The primary issue in this case is whether compensation is disallowed due to the injury being the result of a willful act of a third party directed against Hubbard for reasons personal to Hubbard as provided by Code section 85.16(3). The parties stipulated that Hubbard is an inmate and that benefits, if payable, arise under Code section 85.59. It was further stipulated that claimant's disability is a 13 percent loss of use of the left am which entitles him to 32.5 weeks of compensation for permanent partial disability in the event the injury is found to be compensable. Stipulations appear in the record to cover all other material issues. ANALYSIS From the stipulations and record made, it is clear that Wallace Hubbard was an inmate at the Iowa State Penitentiary on August 14, 1984. He was living at a prison farm at the time. His injury occurred on one of the prison farms where he had been working with a crew cutting weeds. Hubbard testified that toward the end of the work day he and another inmate identified as "Thomas" began to engage in horseplay. Hubbard testified that he informed Thomas that he was about to be paroled and that Thomas then kicked Hubbard in the back. Hubbard stated that the two scuffled but no one was hurt. Hubbard testified that they resumed working and that approximately one-half hour later when he was returning his tools to the storage shed, Thomas came out from behind a tractor and swung a blade striking his left arm. Claimant was taken to the Iowa State Penitentiary Hospital and later transferred to the University of Iowa Hospitals and Clinics in Iowa City. The cut on claimant's arm included an injury to the ulnar nerve which has not fully recovered and has left claimant with weakness, decreased sensation and loss of grip strength. The impairment was rated by James V. Nepola, M.D., as 13 percent of the upper extremity (Exhibit 4). Claimant testified that he thought Thomas was mad at him because he was going to be paroled. He further stated that after he and Thomas had wrestled things got out of hand but that he thought it was then over. Hubbard denied beating up Thomas or hitting him on that day when the incident occurred. Section 85.59 provides workers' compensation benefits to an inmate "...while that person works in connection with the maintenance of the institution or in an industry maintained therein..." Work on the prison farm was clearly an activity which would bring claimant within the coverage afforded by the workers' compensation statutes. The defense provided by Code section 85.16(3) is an affirmative defense which must be established by the state. Reddick v. Grand Union Tea Co., 230 Iowa 108, 115, 296 N.W..800, 803 (1941). The normal rule regarding the burden of proving that an injury arose out of and in the course of employment should apply to a case of this nature with the employment being considered as the activities described in section 85.59. "An injury occurs in HUBBARD V. IOWA STATE PENITENTIARY Page 4 the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971), Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d l28 (1967). Rest breaks are a common part of employment. So long as the individual remains on the employer's premises, he is generally considered to be within the course of his employment during a rest period. Watters v. Backman Steel Works, Thirty-third Bienniel Report, Iowa Industrial Commissioner 60 (App. Decn. 1977). An employee who, of his own volition, initiates or engages in horseplay or practical joking maybe outside the course of his employment while engaging in such horseplay. Ford v. Barcus, 261 Iowa 616, 155 N.W.2d 507 (1968). Lawyer & Higgs, Iowa Workers' Compensation -- Law and Practice, section 6-8. The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. MaryOs Corp.,255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "arising out of" refer to causal connection. The injury must be a natural incident of the work. It . must be a rational consequence of a hazard connected with the work. Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979). It can be urged under the positional risk doctrine that every injury that occurs while a worker is in the course of his employment also arises out of the employment. I Larson Workmen's Compensation, section 10.00 at et.seq. A school district employee who was shot by a mentally inbalanced fellow employee has been awarded benefits. Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979). The basis of the court's ruling was that since the employment placed Cady in a position of contact with the mentally deranged co-employee, the injury arose out of the employment. It could be urged that the fact that the work assignment on the prison farm placed Hubbard in contact with Thomas makes any injury inflicted by Thomas upon Hubbard an injury that arose out of the employment. The issue of dealing with whether or not assaults arise out of and in the course of employment is covered in I Larson Workmen's Compensation, section 11.00 at et.seq. The rule states: Assaults arise out of the employment either if the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work. A few jurisdictions deny compensation if the claimant himself was the aggressor; most HUBBARD V. IOWA STATE PENITENTIARY Page 5 reject this defense if the employment in fact caused the fight to break out. An increasing number accept the idea that the strain of enforced close contact may in itself provide the necessary work connection. Assaults for private reasons do not arise out of the employment unless, by facilitating an assault which would not otherwise be made, the employment becomes a contributing factor. Assaults by lunatics, drunks, and children have generally been found to arise out of the employment, and the same has been held by some courts in the case of unexplained or mistaken-identity assaults, although there is authority to the contrary. The injury in this case did not arise from an attempted robbery, an argument over the work in which Hubbard and Thomas had been engaged or from an irrational act committed by a mentally impaired individual. Thomas and Hubbard were in as close contact with each other in their residential area as they were when in the work area. According to claimant's testimony, he had been engaging in horseplay with Thomas and the horseplay had gotten gut of hand. Later, Thomas struck him with a blade causing the injury. The only motive for the attack that is suggested in the record is that Thomas was disgruntled with the fact that Hubbard was going to be paroled. Such circumstances have no relationship whatsoever to the work of cutting weeds on the prison farm. They are clearly a matter personal to the individuals concerned. Other inmates were present but it is only Thomas and Hubbard who were involved in the altercation and events which led up to the injury. The evidence fails to show that the injury to claimant's arm arose out of the employment. It is likely that the horseplay in which he had engaged precipitated Thomas' subsequent attack. It is further found that the attack was a willful act committed by Thomas due to a reason personal to Thomas and Hubbard upon Thomas being informed that Hubbard was going to be paroled. FINDINGS OF FACT 1. On August 14, 1984, Marcus Thomas struck Wallace Hubbard on the left arm with a blade that produced a severe laceration and resulted in the permanent disability that currently exists in Hubbard's arm. 2. Shortly prior to the time of the attack, Wallace Hubbard and Marcus Thomas had engaged in horseplay that included wrestling or scuffling on the ground. Hubbard had voluntarily participated in the horseplay. 3. The scuffling was prompted, at least in part, by Hubbard informing Thomas that he was going to be paroled. 4. The attack that Thomas made upon Hubbard was made for reasons personal to Thomas and Hubbard and had no connection, whatsoever, with the work that either of them performed on the prison farm. CONCLUSIONS OF LAW 1. Wallace Hubbard has failed to prove by a preponderance HUBBARD V. IOWA STATE PENITENTIARY Page 6 of the evidence that the injury to his left arm arose out of a hazard connected with the work he performed in connection with the maintenance of the prison farm. The injury is therefore not compensable under section 85.59 of the Code. 2. It has been proven by a preponderance of the evidence that the attack by Marcus Thomas upon Wallace Hubbard was a willful act directed against Hubbard for reasons personal to Hubbard and Thomas. No compensation is therefore allowed in accordance with section 85.16(3) of the Code. 3. The positional risk doctrine does not make all injuries suffered by inmates compensable under Chapter 85 of the Code. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that costs of this proceeding are assessed against claimant. Signed and filed this 26th day of January, 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road Keokuk, Iowa 52632 Mr. James R. Redmond Assistant Attorney General Hoover State Office Bldg. Des Moines, Iowa 50319 1105; 1106; 1402.30 1403.30; 1603 Filed January 16, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER WALLACE HUBBARD, Claimant, VS. FILE NO. 790707 IOWA STATE PENITENTIARY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 1105; 1106; 1402.30; 1403.30; 1603 Claimant was an employee of the ISP who was struck on the arm by another inmate resulting in a permanent ulnar nerve injury and permanent partial disability of the arm. The injury resulted from an intentional attack by another inmate. The events leading up to the attack included some horseplay, wrestling and scuffling between the two inmates which got out of hand. It also appears to have been prompted by claimant telling the other inmate that he was going to be paroled. The only reason for the attack suggested by the claimant was that the other inmate was mad because claimant was going to be paroled. It was found that the attack arose out of the horseplay which had gotten out of hand and in which claimant had been a willing participate. It was further found that the attack resulted from the other inmate having some emotion toward claimant as a result of the fact that claimant was telling him that he was going to be paroled soon. It was held that claimant failed to prove that the injury arose out of and in the course of employment under section 85.59. It was further held that the evidence showed that the attack was made for reasons personal to the two individuals, without any relationship to the work, and that compensation was barred by section 85.16(3). BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN TATZER, Claimant, File No. 790730 vs. A R B I T R A T I O N COOPER TIRE & RUBBER COMPANY, D E C I S I O N Employer, F I L E D and JAN 04 1990 CONTINENTAL INSURANCE COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by John Tatzer against his former employer, Cooper Tire & Rubber Company, and its insurance carrier, Continental Insurance Company. The case was heard and fully submitted at Davenport, Iowa on the 29th day of March, 1989. The record in this proceeding consists of testimony from John Tatzer, Joseph Zizzi, Janice Tatzer, Thomas Griffith, and Kathy Wagner. The record also contains jointly offered exhibits 1 through 26. ISSUES Claimant alleges that a heart attack which he suffered is an injury which arose out of and in the course of his employment and seeks compensation for permanent total disability. Claimant asserts the odd-lot doctrine to assist in establishing his disability. The issues to be determined are whether the heart attack is an injury which arose out of and in the course of employment; determination of the extent or degree of permanent disability that was proximately caused by the alleged injury. It was stipulated that in the event of an award, claimant's entitlement to healing period benefits would run from April 20, 1983 through January 8, 1984, except for the period of August 1, 1983 through September 23, 1983 when.claimant actually worked. It was stipulated.that any permanent partial disability should be payable commencing January 8, 1984. It was further stipulated that in computing the rate of weekly compensation, claimant was paid $32,194.29 per year and that he was married and entitled to four exemptions. It was further stipulated that in the event of an award, defendants were entitled to credit under Code section 85.38(2) in the Amount of $4,510.03. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. John Tatzer is a 59-year-old married man who lives at St. Petersburg, Florida with his wife Janice. They have two adult sons who are both disabled. Tatzer is a 1949 high school graduate. Thereafter, he attended one year of business training in Pittsburgh, Pennsylvania. Over the years, he has attended various seminars dealing with the tire business. Claimant commenced employment after high school as a corre-spondence clerk for Lee Tire & Rubber Company in Pittsburgh, Pennsylvania. He became office manager and then was inducted into the Army. When claimant returned from military service, he was placed into a sales position where he sold tires, batteries and accessories in the North Pittsburgh area. Claimant stated that with Lee, each salesman had a particular territory and that other salesmen were prohibited from working outside their respective territories. Claimant stated that Goodyear purchased Lee in approximately 1966. Claimant remained with Goodyear as a regional manager for one year. Claimant stated that while he was with Goodyear, salesmen's boundaries and territories were strictly observed. In 1966, claimant commenced employment with Pennsylvania Tire Company as a territory manager. He was subsequently promoted to regional manager of the Midwest. Claimant stated that the product developed a bad reputation, that the company fell on hard times, and eventually went bankrupt. Claimant stated that with Pennsylvania Tire Company sales territory boundaries were honored by the sales staff. In 1970, claimant became a district manager or salesman for McCreary Tire Company. He remained with McCreary until 1979 when the company fell on hard times. Claimant stated that with McCreary, sales territory boundaries were observed. In 1979, claimant was contacted by Tom Griffith and obtained a sales position with the Falls Division of Cooper Tire & Rubber Company. Claimant described Cooper Tire & Rubber Company as containing several divisions including Cooper Tire Division which sold Cooper brand tires, Falls Division which sold Falls brand tires, the oil company division which made Atlas tires for Standard Oil Company, and the Private Brands Division which contracted to make tires for some other business. Some of the other private brands of tires which were manufactured by Cooper included Hercules and El Dorado. Claimant stated that the Falls Division operation consisted primarily of selling large quantities of tires to large retailers or wholesalers while the Cooper Division dealt with smaller retailers. Claimant stated that it was his understanding that salesmen from the Falls Division were not to attempt to sell Falls products to tire dealers who were carrying the Cooper line and that Cooper salesmen were not to attempt to sell Cooper tires to dealers who were handling the Falls line of tires. Claimant stated that his territory included North Dakota, South Dakota, Minnesota, Wisconsin, part of Iowa, and part of Illinois. He stated that when he obtained the territory, sales were very low. He stated that he had only six accounts, two of which were good accounts. He stated that one of the good accounts was in Eden Prairie, Minnesota and the other in Mitchell, South Dakota. Claimant stated that he concentrated on developing accounts in the Chicago, Illinois area and was somewhat successful. Claimant stated that he developed Tri-State Tire and Cassidy Tire in Chicago, Roth-Keller in Fargo, North Dakota, Suburban Tire in Lombard, Illinois, and several others. Claimant testified that initially he was successful in increasing sales. He stated that he felt good economically and otherwise. Claimant's performance appraisals found in exhibit 21 confirm that claimant was a hard, dedicated worker and that he was successful in increasing the amount of sales in his territory. The supervisor's comments for the performance appraisal which appears to be dated August 27, 1982 state: "John has performed well under adverse conditions in his area. He seems more comfortable with the job." In that same appraisal, claimant's weakness were noted. One of the comments states, " . . . shouldn't let things bother him as much, especially things he has no control over." The performance appraisal for the period running from September 22, 1982 to September, 1983 covers the period of time when claimant had the heart attack and was off work recuperating. The appraisal is remarkable in that on the fourth page claimant received a low rating in the composure and stability section of the job skills division. On the following page, claimant's comments state, "Distributors and dealers in my major areas had their worse first quarter in history, due to many factors, and reversal has been slow." One of the last pages in exhibit 21 is a letter dated February 3, 1984 from Tom Griffith to John Tatzer. It shows that 1983 sales were much lower than 1982 sales had been. From the letter it is not possible to determine whether the years noted are calendar years or fiscal years. Claimant testified that in late 1982, due to the recession and other economic hardships which were affecting the Midwest, sales in his area became harder to make. He stated that a lot of independent dealers went out of business which caused claimant's dealers to lose business and in turn reduced their purchases. Claimant stated that the independent group which sold Hercules tires, which were also built by Cooper, had undercut the Falls prices and had taken away business and accounts from the retail dealers who the Falls distributors supplied. Claimant stated that Cooper tire salesmen were attempting to sell Cooper tires to dealers who carried the Falls line, despite the supposed prohibition against Cooper salesmen taking business away from Falls salesmen. Claimant testified that his affected distributors were irate. Claimant stated that he sought assistance with the problem from Tom Griffith, but that no actual assistance was rendered to resolve the problem. Claimant stated that there were misshipments. Claimant stated that in general his distributors were losing business which in turn would cause him to lose income. Claimant stated that the situation was stressful. Claimant stated that only two weeks prior to the time of his heart attack he had been in discussion with the owner of Modern Tire, one of his major distributors, regarding the loss of business to the Hercules line of tires and also the competition from Cooper salesmen. Claimant stated that prior to 1982, he had a cordial working relationship with his distributors, but that the competition from Cooper salesmen and other Cooper-manufactured tires became a source of constant phoning and complaints. Claimant stated that it was stressful to work for a company that was cutting him out. Claimant testified that on Tuesday, April 19, 1983, he left his home at Clinton, Iowa at approximately 6:00 a.m., drove to the Quad Cities Airport, and then flew to O'Hare. Claimant stated that during his one-hour layover, he phoned three of his distributors and also phoned Kathy Wagner at the company office about a problem with an order. Claimant then flew on to Minot, North Dakota. Claimant stated that the customer who was to pick him up was very late and that while waiting, he phoned his distributors and Kathy Wagner regarding problems. Claimant stated that after working he returned to the Holiday Inn motel at approximately 8:30 p.m., had supper, two martinis, returned to his room, made notes of his activities of the day, and planned the following day. Claimant stated that he went to bed at approximately 9:30, but awoke at approximately 5:00 a.m. feeling like he was getting the flu. Claimant stated that he went back to bed and then woke up again at 7:00 or 8:00, without feeling any better. Claimant stated that he called the company office and reported that he was not feeling well, but still planned to make his 12:30 flight to Fargo to attempt to make amends with a disgruntled distributor. Claimant stated that while lifting his suitcase, he experienced a severe crushing sensation and pain in his chest. Claimant estimated that the suitcase when fully loaded with clothing and product manuals weighed in the range of 60-70 pounds. Claimant stated that the incident with the suitcase happened at about 9:30 or 10:00 and that following it, he really felt bad. He stated that he took off his shirt, went into the bathroom, and vomited. Eventually he was taken to the local hospital by motel personnel. Claimant was hospitalized in Minot under the primary care of Henry Meijer, M.D., and Michael Domanski, M.D., consultant. The final diagnosis when claimant was discharged on May 4, 1983, sixteen days later, was that claimant had acute inferior lateral myocardial infarction, congestive heart failure, supraventricular dysrhythmia, ventricular ectopy, pericarditis plural pericarditis and coronary artery disease, diffuse. Claimant was discharged in order to return to the care of his primary physician, James A. Lehman, M.D., of Clinton, Iowa (exhibit 5, pages 26). Claimant was admitted to St. Joseph Mercy Hospital,in Clinton, Iowa on May 9, 1983 where he remained until May 13, 1983. The final diagnosis from that period of hospitalization lists coronary artery heart disease recent circumferential apical wall myocardial infarction, April 20, 1983, unstable angina with pericarditis stable now, chronic obstructive pulmonary disease due to heavy smoking, alcohol abuse, hiatus hernia by history, history of surgery on broken hand many years ago, hypertension, secondary to his acute myocardial infarction (exhibit 1, pages 54 and 55). On June 15, 1983, claimant underwent heart catheterization at St. Lukes Hospital in Davenport, Iowa. He was found to have a total occlusion of the right coronary artery, near total occlusion of the proximal left coronary artery and moderately severe occlusion of the left circumflex artery. The disease was so severe that his treating cardiologist, Saadi Albaghdadi, M.D., recommended against bypass surgery (exhibit 6, pages 2, and 6-8). On July 23, 1983 claimant was admitted to St. Joseph Mercy Hospital in Clinton, Iowa for feelings of discomfort. Claimant testified that he returned to work in August and September of 1983, but that while he was in Montgomery, Illinois, he got sick and was taken to Mercy Hospital in Aurora, Illinois. Claimant was then transported to Swedish American Hospital in Rockford, Illinois where he underwent triple coronary bypass surgery (exhibit 7, pages 20-22, 44-46, 51-53 and 73-75). Claimant stated that following the surgery, he remained off work until January 8, 1984, although he did attend a company meeting in Florida. Claimant stated that when he returned to work, restrictions were placed upon him by his physicians. These included that he avoid extreme cold, heavy lifting and stress. He was given prescription medication and was also advised to control his diet. Claimant's employment was terminated on April 30, 1984. He stated that he was told he was fired because he was unable to do the job. Claimant stated that he had been able to see some of his accounts and contacted others by phone. He stated that while he was off work, his accounts had deteriorated and that he had been unable to regain the lost sales. Claimant worked for Dunlop Tire & Rubber Company as a territory sales representative from October, 1984 until February of 1985. Claimant stated that he got sick again, however, and was fired. Claimant testified that he then moved to St. Petersburg, Florida in conformance with the recommendation of his physician to avoid extreme cold He stated that he worked approximately one month for a tire company in Florida, but was fired due to his health problems. Claimant testified that he is currently physically unable to do much. He stated that he engages in no sports or exertion. He stated that he can walk some, but that his ankles swell if he is on his feet a lot. Claimant listed a number of prescription medications which he currently takes. Claimant stated that he is presently unable to perform physical labor, or to handle the stress of a sales job. He feels that his memory is impaired. Claimant stated that he feels he is unable to perform an office job. Claimant testified that Donald Pell, M.D., has been his treating physician for his heart problems since he has lived in Florida. Since moving to Florida, claimant has been hospitalized for chest pain on more than one occasion (exhibits 8 and 15). Claimant stated that he has never been treated or seen by Ernest 0. Theilen, M.D., or Paul From, M.D. Claimant's history of chest pain and chest complaints dates back to September 8, 1979 when he was admitted to St. Joseph Mercy Hospital in Clinton, Iowa. The diagnosis on discharge was chest pain of undetermined etiology (exhibit 1, page 8). Claimant was seen at Jane Lamb Memorial Hospital in Clinton, Iowa in 1980, 1981 and 1982 for chest pain. A note from 1980 which appears at the bottom of page 4 of exhibit 11 states in part: "There is really nothing that suggestive of coronary artery disease. . . . I'm fairly convinced . . . that this is of gastrointestinal origin. He had been given antacids and nitroglycerin for his symptoms." The final diagnosis from an admission of August,18, 1981 included gastritis, acute and chronic anxiety and musculoskeletal chest pain. The records of that admission make reference to claimant having been evaluated for heart problems and having a positive stress test (exhibit 11, pages 1 and 2). At the bottom of page 7 of exhibit 11 the following statement appears: "I tried to assure the patient again that this is not a heart problem causing his chest pains." A note of February 20, 1982 however notes that claimant has organic heart disease, severe two-vessel coronary artery disease, angina pectoris and anxiety neurosis (exhibit 11, page 9). Near the top of page 6 of exhibit 11, reference is made to claimant having been under a lot of business pressure recently. The date of that entry is unclear, but it is sometime during calendar year 1980. Claimant was hospitalized in Pittsburgh, Pennsylvania on August 15, 1982. The discharge notes indicate that there was a probability that claimant had significant coronary artery disease, but that he had not had a myocardial infarction (exhibit 3, pages 4-6). In September of 1982, claimant underwent a coronary angiogram at the University of Iowa Hospitals in Iowa City. He was diagnosed as having severe two-vessel coronary artery disease with complete occlusion of the proximal left anterior descending artery and with 90 percent occlusion of the large dominant right coronary artery (exhibit 4, pages 46-49). Claimant stated that neither his mother, father nor sisters have had any heart attacks or known heart conditions. Claimant stated that he has been a smoker for several years and that his drinking has been moderate, except for festive occasions. Claimant stated that prior to the time he worked for Cooper, his smoking habit had been intermittent, but that when with Cooper, he started smoking cigarettes in the range of one to one and one-half packs per day. Claimant stated that the only real stress in his life is that which came from his job. He stated that the disease which disables his two adult sons is not really a stress for him because his wife handles most of the problems. He stated that he is concerned about them, but that they have the best medical care which is available and that they have regard for him. Claimant stated that as early as September of 1982 he was aware that he had a heart condition. He stated that he knew that he had to be with Cooper Tire for five years in order to be fully vested in the company pension plan. He stated that at his age he felt that the Cooper job would be the last chance for him to obtain a regular pension. Claimant stated that he worked longer hours in trying to regain lost sales. He stated that demands were placed on him by Tom Griffith to increase sales. Claimant stated that the tire business is very competitive and that problems with orders and misshipments occur throughout the industry, but that the frequency of problems with Cooper was greater than average. Claimant stated that the problems which had existed with the general competition in the tire business when he had been employed prior to his employment with Cooper and even the failing of some of the businesses was not particularly stressful for him. He stated that he simply moved on to another job. Claimant stated that he felt that problems which were out of his hands were very stressful because he could not do anything about them. Claimant acknowledged that in January and February of 1983, he received an award from the company for making the highest percentage of his sales quota. Joseph Zizzi, a Chicago tire dealer, confirmed that Cooper tire salesmen tried to sell Cooper tires to dealers who handled Falls tires during the timespan of 1979 through 1983. He also confirmed that it was uncommon for one division of a tire company to try to take business away from another division of that same company. Janice Tatzer, claimant's spouse of more than 30 years, stated that prior to claimant's April, 1983 heart attack he was unrestricted and could do anything that anyone else could do. She stated that he had a very good memory. Janice stated that claimant now tires easily at times and is forgetful. She attributes his memory loss to a lack of oxygen to his brain resulting from heart damage. She stated that he engages in little physical activity as he is unable to be on his feet very much. She stated that she and their sons do most of the chores around their home and that claimant reads a lot. Janice stated that claimant was never overweight and had never demonstrated a high cholesterol level. Janice stated that claimant's bypass surgery did not restore him to the state of health which had existed prior to the heart attack. Janice stated that claimant normally smoked less than one pack of cigarettes per day and seldom smoked at home, except after supper. She stated that he drank little. She considered their marriage to be good. Janice related that claimant often talked about his accounts and always wanted to be the best. She stated that he was highly motivated. Janice felt that the stress from claimant's work started to get bad in the year he had the heart attack. She stated that his quota had been increased and that he felt he was not getting cooperation from the company in servicing his accounts. She stated that in the last months before his heart attack, he was more driven and appeared to worry more. She stated that she noticed the strain on him. She stated that during the last two months before the heart attack, he had complained more of having an upset stomach and that he was more restless at night. Janice stated that while at home on the weekend prior to the heart attack, claimant had not gone anywhere. She stated that he did paperwork and prepared for the work of the coming week. She stated that he was not feeling well and did not look good when he left home Monday.morning. She had attempted to convince him to stay at home, but he refused. Janice stated that claimant liked tire sales, was very competitive and enjoyed the competition. She stated that prior to the heart attack, however, claimant knew that he needed new business, but was having trouble keeping his old accounts. She stated that a lot of the problems were beyond his control. Exhibit 26 was identified as a list prepared by claimant of his activities and business problems during the period of approximately two months prior to the heart attack. Thomas Griffith, the vice president of sales for Cooper Tire & Rubber Company, was the national sales manager for its Falls Division from 1979 until 1989. Griffith was claimant's supervisor. Griffith stated that increasing quotas is standard in any sales operation and that stress is the nature of the sales game. He stated that some people thrive on it, while others leave. Griffith stated that approximately 50 percent of the Cooper Tire & Rubber Company production is in its house brands of Cooper and Falls where the company can control where tires are sold, but that the other 50 percent of its production goes to private brands which it contracts to build for others and that there is no control over the distribution of those tires. Griffith agreed that Falls salesmen were not to call on Cooper accounts and that Cooper salesmen were not to call on Falls dealers. Griffith reported that Cooper Tire & Rubber Company is a Fortune 500 company and is the fastest growing tire company in the industry. He stated that it has the highest profit percentage of any company in the tire industry. Griffith felt that the problems which claimant had related were overstated. He stated that claimant's production during the last months of 1982 was considerably over quota. He stated that claimant's primary weakness as a salesman, however, was that he worried too much about things that were beyond his control. Griffith saw no increase in the common misshipment type of problems in late 1982 or early 1983. Kathy Wagner expressed the opinion that the problems with misshipments and similar events that affected claimant were not unusual in either nature or frequency. Claimant has been seen, evaluated and treated by a number of physicians. Dr. Meijer, who practices internal medicine and was claimant's primary treating physician at Minot, North Dakota, declined to express an opinion regarding the cause for claimant's heart attack (exhibit 10). Robert H. Harner, M.D., of Rockford Cardiology Associates, Ltd., was one of claimant's treating physicians. In a report dated June 10, 1985, he stated: Enclosed are my office records and hospital notes of Mr. John Tatzer. The patient's documented history is as recorded in his narrative. He works long hours but if long hours of work are due to one's own desire, there is no great stress to it other than the physical stress. However if one is under stress including loss of job, loss of job security, loss of identity and severe either real or perceived stress, one might see increased smoking, increased coffee consumption etc., etc., all of which would be detrimental to one's health. He was under a great deal of stress in his working environment. He was a heavy smoker. The combination of stress plus smoking may increase platelet stickiness and lead to an increased incidence of acute myocardial infarction. Acute myocardial infarctions seem to occur more on Mondays and Saturdays or when one is more relaxed. Why that is, no one really knows for sure. There is no doubt in my mind that a combination of his lifestyle, work habits, smoking habits, cholesterol and blood pressure helped lead to his acute myocardial infarction. One can always say, and that is his argument, that they are related. The other argument is, that it is a natural process which occurs in a normal aging male population and does not have anything to do with stress. The stress would increase his hypertension. The hypertension and smoking would increase his atherosclerosis. Long hours per se would not cause a myocardial infarction but it certainly could aggravate the situation. Aggravation of the hypertension along with his other habits certainly could accelerate his tendency toward acute myocardial infarction. (Exhibit 12, page 1) James A. Lehman, M.D., who specializes in internal medicine in Clinton, Iowa, was claimant's primary treating physician in the Clinton area. Dr. Lehman felt that claimant's angina attacks were related to stress rather than exertion and reported that the stress which claimant had related to him during the course of treatment was job stress (exhibit 22, pages 10 and 11). Dr. Lehman indicated that sales can be a stressful occupation. He stated that claimant had mentioned stress dealing with his sons on one or two occasions in addition to the job stress, but that claimant had never mentioned marital stress (exhibit 22, pages 28-31). Dr. Lehman described claimant as a "type A" personality and that his reaction to stress exceeded that of most people (exhibit 22, pages 8, 9 and 36). Dr. Lehman stated that stress was a significant factor in causing claimant's myocardial infarction (exhibit 22, pages 18-23, 59-64). He agreed, however, that claimant was at high risk for having a myocardial infarction at some point (exhibit 22, page 55). Dr. Albaghdadi characterized claimant as an overachiever and worrier (exhibit 23, pages 5 and 6). He stated that the activities which claimant had engaged in as part of his employment on the day preceding his heart attack were a possible cause for angina and the myocardial infarction (exhibit 23, pages 13-22). Dr. Albaghdadi stated that stress can induce a myocardial infarction in a patient who has angina (exhibit 14, page 1). Dr. Albaghdadi felt that claimant's work stress was a substantial factor in producing the myocardial infarction and that the stress of the day of the heart attack was simply the straw which broke the camel's back (exhibit 23, pages 23 and 24, 30-32). Dr. Albaghdadi rated claimant as having a 50 percent permanent impairment, of which 30 percent was due to the heart attack, while the balance was due to other causes (exhibit 14; exhibit 23, page 36). Donald M. Pell, M.D., a specialist in internal medicine who is currently claimant's treating physician, stated that individuals of the so-called "type A" personality who are successful seem to have no problems, but that those,who ar,e unsuccessful have problems (exhibit 25, page 24). Claimant was a person who would not function well if he were not being successful (exhibit 25, pages 46-48). Dr. Pell stated that stress is a factor in producing myocardial infarctions. He felt that stress had precipitated claimant's myocardial infarction (exhibit 25, pages 14-19, 69 and 70). Dr. Pell felt that claimant had been under more stress than usual prior to the heart attack and that having events occur which were beyond his control was particularly stressful for him (exhibit 25, page 45; exhibit 15, page 14). Dr. Pell stated that at the present time claimant is unable to do anything and is not employable (exhibit 25, pages 12-14; exhibit 15, page 13). Dr. Pell also indicated that the medical history obtained from the patient at the hospital emergency room cannot be relied upon to be accurate (exhibit 25, pages 6 and 26). Paul From, M.D., who practices internal medicine in Des Moines, Iowa, examined records dealing with claimant's heart attack and coronary condition. He felt that the stress which claimant had been under in his work was not unusual and that therefore there was no causal connection between the employment and the heart attack (exhibit 16, page 7). Claimant's medical records were reviewed by Ernest O. Theilen, M.D., a cardiologist who is a professor of internal medicine at the University of Iowa and the director of the coronary care unit for approximately seven years. Dr. Theilen expressed the opinion that claimant's myocardial infarction was the natural progression of his coronary artery disease and that stress was not a factor in producing the myocardial infarction. He stated that when claimant awoke on the morning of April 20, 1983, he was already experiencing early symptoms of the infarction (exhibit 24, pages 18-21; exhibit 17). Dr. Theilen agreed, however, that stress can induce a myocardial infarction, although it must be acute stress (exhibit 24, page 36). APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 20, 1983 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). In this case, it is clear that John Tatzer had a previously diseased heart and that he suffered a heart attack on April 20, 1983. From the record, there appears to be little bona fide dispute with the fact that claimant is now severely disabled as a result of his cardiac condition. The crucial issue in this case is whether claimant's employment, in particular the stress of the employment, was a proximate cause for producing the heart attack which has now led to his state of total disability. For a cause to be proximate, it must be a substantial factor in producing the result, but it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). The legal standard for compensability of a heart attack where the heart is previously weakened or diseased has been long established. Sondag v. Ferris Hardware, 220 N.W.2d 903 905 (Iowa 1974). Compensability is allowed when medical testimony shows an instance of unusually strenuous employment exertion or when the employment contributes exertion that is greater than that of nonemployment life. The comparison is not with the particular employee's usual exertion in his employment, but with the exertions of normal nonemployment life of the employee or any other person. The standard for comparison is not particularly definite. There are those individuals who, in their nonemployment life, run in marathons, rebuild their homes, mow lawns, shovel snow, play tennis and engage in a number of forms of quite substantial exertion. On the other hand, there are those who live in apartments or condominiums and do nothing more strenuous than walk on what is essentially level ground between the front door of their home and their vehicle, never carrying more than a few pounds of weight at any time. With regard to emotional stress, there are some individuals who live a very complacent life off the job. They get along well with their spouse.and neighbors. They are financially secure and even get along well.with their in-laws. Other individuals live in a state of constant turmoil with ongoing altercations with the neighbors, harassment from bill collectors, and a great deal of domestic discord. The undersigned is of the opinion that normal nonemployment life brings with it such levels of physical exertion as mowing one's own yard, carrying groceries, shoveling snow, playing golf, and performing other activities which provide a moderate level of physical exertion, albeit exertion which is performed at a rate dictated by the individual. Normal nonemployment life includes disagreements with neighbors and family. It includes dealing with disagreeable individuals at inconvenient times. It is important to note that the level of stress or exertion which is considered to be unusual is not the stress which is normal in the tire sales industry. It is the stress of normal nonemployment life with which the comparison is made. The medical opinions which are expressed in the record of this case are quite illustrative of the divergence of opinion in the medical community regarding the cause of heart attacks. Sales is certainly a stressful occupation. A successful salesman is usually quite highly motivated and competitive. Claimant seems to fit that description quite well. As indicated by Drs. Pell and Harner, salesmen do not generally seem to be adversely affected by the stress when they are successful. It is when things are not going well that stress seems to take its toll. The downturn in the Midwest economy which occurred in approximately 1983 is well known. It is well known that many businesses, particularly farm-related businesses, closed at that time. Claimant testified to business closings, sales falling off and similar events which were commonplace in the Midwest at that point in time. On the other hand, the record also reflects that claimant was given awards for high productivity in January and February of 1983. The record reflects that claimant worked only approximately six months during calendar year 1983. His year end results for sales were down 37.3% in 1983 from what he had achieved in 1982. From the record, it is not possible to determine how much of the reduction was due to the sagging economy rather than the fact that claimant was simply not working. The fact remains, however, that claimant did work in a high stress occupation. The physicians all seemed to agree, even Drs. From and Theilen, that stress can produce a myocardial infarction. Those who work in occupations which present a high risk of physical injury are not denied compensation for those injuries due to the fact that "it goes with the territory." There is likewise no reason to deny workers' compensation for stress-induced injuries where the individual has worked in an occupation which is inherently stressful. It is therefore determined that the stress from John Tatzer's employment as a tire salesman for Cooper Tire & Rubber Company was a substantial factor in causing him to have a myocardial infarction which he had on April 20, 1983 at Minot, North Dakota. Lifting the suitcase only magnified the symptoms of the already ongoing infarction. It is likely that he would have eventually experienced such an event at some point in time due to his underlying coronary artery disease, but it is determined that the stress from his employment caused it to occur at the time and place that it actually occurred. It is therefore determined that the heart attack is an injury which arose out of and in the course of employment. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112,,1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basis element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Claimant has made three attempts to resume gainful employment since the heart attack. All have been unsuccessful. There is no indication in the record of this case that there is any job in the competitive general employment market which he is capable of performing due to his coronary condition. It is clear that he has been significantly impaired due to the heart attack which occurred. It is likewise probable, however, that the preexisting blocked vessels had also provided substantial impairment. There is, however, no practical way from the record which was made to apportion the disability. It must all therefore be assessed to the defendants. Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Even if there were some sufficient evidence in the record to apportion out the amount of disability which was preexisting, the fact remains that claimant has been rendered totally disabled. There is no practical way that a deduction can be taken for preexisting disability other than to impose a waiting period before commencing payment of permanent total disability compensation. To do so would violate the principles of the workers' compensation system in that it would deny benefits at a time when benefits are needed. It is not possible to reconcile such an occurrence with the often-stated beneficent purpose of the workers' compensation act. According to the stipulation made by the parties, claimant's annual salary was $32,194.29. The gross weekly earnings are therefore determined under Iowa Code section 85.36(5). The result is $619.12 per week. Since claimant is married with four exemptions, the rate of compensation from the 1982 benefit booklet is $361.32. This claim is for physical injury resulting from emotional or mental stress. It is therefore appropriate to consider the case as one where the theory of recovery is emotional trauma resulting in physical injury. It is found, nevertheless, that the inherent nature of claimant's work as a salesman provided stresses of much greater magnitude than the day-to-day mental stresses and tension which are common to all employees. The injury is therefore determined to be compensable if the Wisconsin standard which has been adopted by the commissioner is applied. Desgranges v. Dep't of Human Servs., file number 760747 (App. Decn., August 19, 1988); Swiss Colony v. Dep't of Industry, L & H. R., 240 N.W.2d 128 (Wisc. 1976); School Dist. #1 v. Dep't of Industry, L & H. R., 215 N.W.2d 373 (Wisc. 1974); Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976). The result is therefore the same. The heart attack is determined to be a compensable injury. FINDINGS OF FACT 1. The stress which claimant experienced in his employment as a result of a weak Midwestern economy, lagging sales, misshipments, irate distributors and the resulting potential for loss of income and loss of employment was a substantial factor in producing the myocardial infarction which claimant suffered on April 20, 1983. 2. The stresses which claimant had experienced during the few months immediately preceding the heart attack were not necessarily of substantially greater magnitude than the stresses which were normal for the claimant's job, but they were of greater magnitude than the stresses of normal nonemployment life and were also of greater magnitude than the day-to-day mental stresses and tensions which all employees must experience. 3. Prior to the time of the heart attack, claimant was capable of performing adequately in a competitive employment setting. Since the heart attack, he has not been able to be sufficiently productive to be employed in any type of occupation for which he is reasonable suited through training or experience. 4. At the present time, claimant, as a result of his coronary condition, is limited to an extremely sedentary, nonstressful lifestyle. 5. Subsequent to April 20, 1983, claimant was gainfully employed for approximately 7 5/7 weeks during August 1 through September 23, 1983; from January 8, 1984 until April 30, 1984, a span of 16 2/7 weeks; from October, 1984 through February, 1985, a span of 21 4/7 weeks; and 4 weeks while in Florida ending September 3, 1985 when he was admitted to St. Anthony's Hospital. 6. The opinions of claimant's treating physicians regarding work stress being a contributing factor to the myocardial infarction is accepted as correct. They are more familiar with claimant's case than the physicians who merely reviewed records. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The heart attack which claimant suffered on April 20, 1983 is an injury which arose out of and in the course of his employment with Cooper Tire & Rubber Company. 3. Claimant is permanently and totally disabled within the meaning of Iowa Code section 85.34(3) and is entitled to receive compensation for permanent total disability payable commencing April 20, 1983 and continuing thereafter for so long as claimant remains totally disabled, except for an interruption of 7 5/7 weeks commencing August 1, 1983 when the employer paid wages to claimant. 4. Claimant's rate of compensation is $361.32. ORDER IT IS THEREFORE ORDERED that defendants pay claimant weekly compensation at the rate of three hundred sixty-one and 32/100 dollars ($361.32) per week payable commencing April 20, 1983 and continuing thereafter for so long as claimant lives and remains permanently and totally disabled. IT IS FURTHER ORDERED that defendants are entitled to credit against the foregoing award in the amount of four thousand five hundred ten and 30/100 dollars ($4,510.30) as stipulated. Defendants are also entitled to credit for the time when claimant was employed consisting of seven and five-sevenths (7 5/7) weeks commencing August 1, 1983. IT IS FURTHER ORDERED that all past due accrued amounts be paid in a lump sum together with interest at the rate of ten percent (10%) per annum pursuant to Iowa Code section 85.30 computed from the date each payment came due to the date of actual payment. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED 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 4th day of January, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James M. Hood Attorney at Law 302 Union Arcade Building Davenport, Iowa 52801 Mr. Craig A. Levien Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 1108-10, 1108.20, 1402.30 1704, 1804, 1806, 2202 Filed January 4, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN TATZER, Claimant, vs. File No. 790730 COOPER TIRE & RUBBER COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and CONTINENTAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1108.10, 1108.20, 1402.30, 1704, 1804, 1806, 2202 Claimant, who had preexisting coronary artery disease, had a heart attack while traveling for his employer. Claimant worked in an occupation which was by its nature quite emotionally stressful. The amount of stress which immediately preceded the heart attack was not clearly shown to be substantially greater than that which was normal for the occupation. It was held that the level of stress was, however, greater than the stresses of normal nonemployment life and also greater than the day-to-day stresses and tensions which all employees must experience. It was held that the injury arose out of and in the course of employment. Claimant awarded permanent total disability where it was not possible to apportion the disability. Employer was granted credit for the weeks during which claimant had attempted to resume working following the heart attack. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : CHARLES A. THOMPSON, : : Claimant, : File No. 790945 : vs. : A R B I T R A T I O N : EATON CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ On November 14, 1988, Charles Thompson, (claimant) filed a petition for arbitration as a result of an injury to claimant's thumb occurring on March 15, 1985. Eaton Corporation (Eaton or defendant) was identified as employer and is self insured. On August 19, 1991 these matters came on for hearing in Des Moines, Iowa. The parties appeared as follows: the claimant in person and by his counsel Dennis Hanssen of Des Moines, Iowa and Eaton by its counsel Alan Bjork of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant. 2. Joint exhibits 1-14. 3. Claimant's exhibit A. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The claimant sustained an injury on March 15, 1985, which arose out of and in the course of employment. c. The alleged injury is a cause of temporary disability. d. The alleged injury caused a permanent disability. e. All healing period benefits have been paid. f. The commencement date for any additional permanent partial disability, is December 23, 1987. g. The rate of compensation, in the event of an award, is $237.98 per week based on a gross weekly wage of $380.00. Claimant is married and had no dependents at the time of the Page 2 injury. He is entitled to two exemptions. h. All medical benefits have been paid. i. Defendants claim a credit for all healing period benefits paid and 57 weeks of permanent partial disability benefits at the rate of $237.98 per week prior to hearing. ISSUE The only issue for resolution is the extent of claimant's permanent partial disability; is the disability to the thumb or to the hand. FINDINGS OF FACT 1. At the time of the hearing, claimant was 61 years old. He was employed by Eaton as a mechanic. Claimant began working for Eaton in May of 1978. 2. In 1970, claimant had a injury to his right thumb while he was working on a farm. As a result of that injury, claimant's right thumb was amputated at the mid metacarpal phalangeal joint. 3. On March 15, 1985, claimant had an injury to his left thumb when a transmission case fell on his thumb and crushed it. The transmission case struck claimant's thumb ahead of the last joint. Prior to this time, claimant had had no problems with his left thumb or hand. Because of the injury to claimant's right thumb he had become left hand dominant. 4. As a result of that injury, claimant was treated in Shenandoah and then his care was transferred to William W. Smith, M.D., in Omaha. Dr. Smith cast the hand but this procedure did not heal the fracture in claimant's thumb. Dr. Smith referred claimant on to Chester Q. Thompson, M.D. 5. Dr. Thompson had examined claimant on June 10, 1985. He noted that as a result of the crush injury, claimant had a comminuted fracture across the interphalangeal joint resulting in a comminuted fracture. By June, the joint had become fairly stiff and was not useable. At that point, claimant had very little use of his hands because of the amputation on the right and the crush injury on the left. Dr. Thompson then referred claimant to Mayo Clinic for the purpose of a toe to thumb transfer to lengthen the right stump of his thumb so that the right hand would be functional. 6. Claimant was examined by George B. Irons, M.D., at Mayo Clinic and various options were discussed. Claimant eventually chose to have his left thumb surgically corrected with an osteotomy and pollicization of the right index finger to claimant's thumb to create a thumb on his right hand. The surgery for the left thumb was accomplished on August 14, 1985 and the surgery on the right hand was performed on August 26, 1985. Thereafter, claimant had a course of physical therapy for both hands. Page 3 7. In November of 1985, claimant began to complain of discomfort in his left thumb. The pins that had been inserted during the course of surgery in August were working their way into the joint resulting in a very tender left thumb. Claimant was re-evaluated at Mayo Clinic on February 25, 1986. The discomfort in his thumb was identified as being consistent with a non-union of the fracture in his thumb. At that juncture, claimant had a second surgery on his thumb with a bone graft from bone harvested from the distal radius of the forearm. 8. In April of 1986, claimant had an x-ray of his left thumb and the interphalangeal fusion showed a favorable healing of the fractured portion. Claimant was given a release to return to work. Dr. Irons did recommend that claimant have a troublesome pin removed by a local doctor. The pin was removed on May 12, 1986. 9. On June 27, 1986, Dr. Thompson gave claimant a disability evaluation for his right and left hands. Dr. Thompson indicated that claimant had a 95 percent loss of the left thumb and a 38 percent impairment of the hand. Dr. Thompson noted that the left thumb interphalangeal joint had a 45 percent impairment and the metacarpal phalangeal joint had a 27 percent impairment and the permanent ulnar branch of the digital nerve had numbness of 23 percent. This resulted in a 38 percent impairment rating to the hand. 10. On August 13, 1986, claimant saw Thomas P. Ferlic, M.D., for continuing pain complaints in his left thumb. Dr. Ferlic noted that claimant had painful motion in the interphalangeal joint and that the metacarpal phalangeal joint had only 20 degrees of motion. He also noted that claimant had very poor sensibility over the entire volar aspect of the thumb. He further noted that claimant had no opposition power or power to bring in the thumb into the fifth finger. As a result of these observations and the evaluation that Dr. Ferlic performed, claimant had a combined disability of the whole hand of 35 percent. Dr. Ferlic went on to note that the x-rays showed a thumb with an unfused joint. 11. In October of 1986, claimant had a third surgery on his left thumb. A pin was removed, a new bone graft from the bone bank was made and then new wires were put into place to fuse the left thumb. By January of 1987, Dr. Ferlic had concluded that claimant had a solid fusion in his thumb and that he appeared to be healing without difficulty. However, when claimant returned for a follow-up check in September of 1987, he complained of pain in his thumb. Dr. Ferlic again opined that there was probably a non-union in the joint. Apparently, this conclusion was borne out as Dr. Ferlic had to do a fourth surgery to fuse the interphalangeal joint. On December 9, 1987, Dr. Ferlic gave a rating to claimant's thumb. Dr. Ferlic assigned a functional impairment rating of 45 percent of the interphalangeal joint because of the fusion, a 30 percent functional impairment because of changes or limitations to the metacarpal phalangeal joint and a disability of 20 percent because of the involvement of digital nerve as it Page 4 was on the ulnar aspect of the thumb. Dr. Ferlic did not convert this rating to the hand. No other rating was obtained from Dr. Ferlic. 12. On January 26, 1988, Dr. Ferlic was asked to clarify his rating. He believed that claimant's injury caused his ongoing problems with his left thumb. He indicated that claimant's current job duties were not contributing or intensifying the problem with the left thumb. 13. In 1989, Scott Neff, D.O., reviewed claimant's left thumb history. In a letter to claimant's counsel, Dr. Neff indicated that claimant's thumb injury extended into his hand based on the anatomy of the thumb and the source of the hands musculature and power. Dr. Neff believed that claimant's impairment was not confined to the thumb but extended to the left upper extremity. He formed this opinion on the anatomy of the thumb and forearm. Dr. Neff went on to note that the prehensile hand which allows opposition of the thumb to grasp, grip, and pinch gives the hand its unique capabilities. He concluded that damage to the thumb joint which prevents its use involves an impairment to the hand. Dr. Neff confirmed these findings at the time of his deposition. 14. On January 12, 1990, Thomas Bower, in conjunction with Dr. Neff, gave a rating for claimant's left thumb injury. It was their opinion, that the rating should have been to the hand. Mr. Bower and Dr. Neff believed that the rating should have been 45 percent to the hand for the left thumb crush injury. At the time of the rating Dr. Neff and Tom Bower noted that claimant continued to have poor sensibility over the entire volar aspect of the thumb on the left. Additionally, claimant had a decrease in motion of the metacarpal phalangeal joint and painful motion at the interphalangeal joint of the thumb. Dr. Neff noted that when the claimant lost the opposition of the thumb, he lost the function of his hand. Failure to have opposition of the thumb interferes with the function of the hand which prevents the claimant from grasping, pinching or putting his hand around an object. 15. Claimant indicated that without his thumb, he has difficulty dressing himself, he cannot tie shoes, pull zippers or fasten buttons. Claimant cannot grasp with the left hand, he cannot use scissors with his left hand and he cannot put pressure on his thumb. Claimant's thumb is bothered by cold weather. He is now limited to one machine in the plant at Eaton and he indicates that he has no feeling in parts of his thumb and he is unable to do fine manipulations with his hand as a result of this injury because he cannot grip any longer with his thumb. CONCLUSIONS OF LAW Claimant contends that the medical evidence supports the conclusion that the crush injury to his left thumb has gone beyond the thumb and has disabled his whole hand since he has lost the ability to grasp and to use his thumb as an Page 5 opposable thumb. Claimant argues that the loss of function in the greater scheduled member requires compensation of the greater scheduled member. Eaton argues that claimant's disability is limited to the thumb and relies on Morrison v. Wilson Foods, 1 Iowa Industrial Commissioner Report 244 (1980), to support its position. The claimant has the burden of proving by a preponderance of the evidence that the injury of March 15, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). A cause is proximate if it is a substantial factor in bringing about the result. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). There only needs to be one cause; it does not have to be the only cause to make the claim compensable. Blacksmith, 290 N.W.2d at 354. The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different, specific injuries. Barton v. Nevada Poultry Co., 110 N.W.2d 660, 663 (Iowa 1961); Soukup v. Shores Co., 268 N.W. 598, 601 (Iowa 1936). Where there is an injury to a specific part of claimant's body, such loss shall be compensable only to the extent provided by the statute. Thus by legislative edict, where the result of an injury causes the loss of a foot, or eye etc, such loss, together with its ensuing natural results upon the body, is declared to be a permanent partial disability and entitled only to the prescribed compensation. Barton, 110 N.W.2d at 663. However, an injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment to a greater scheduled member. Such impairment may in turn form the basis for a higher rating. Page 6 Barton, 110 N.W.2d at 663-64 (Iowa 1961); Dailey v. Pooley Lumber Co., 10 N.W.2d 569, 573 (Iowa 1943); See generally, Soukup, 268 N.W. at 601. If a claimant contends that the injury to the scheduled member results in a loss to a greater member, the claimant has the burden of proving that the injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 130 N.W.2d 667, 669 (Iowa 1964). In this instance, the medical evidence suggests that claimant has a loss of motion and a sensory loss that is limited to the thumb. The fusion in claimant's thumb prevents him from opposing his thumb. There is no evidence that the fusion has caused an ailment that extends to the hand, however, and he has not shown by sufficient evidence that an ailment does extend into the hand. Kellogg v. Shute & Lewis Coal Co., 130 N.W.2d 667, 669 (Iowa 1964); Gilbert v. Second Injury Fund, File No. 826659, Slip Op. (Iowa Ind. Comm'r Arb. September 29, 1989)(Final Agency Action); See also, Wilkins v. IBP, Inc. and Second Injury Fund, File Nos. 895553, 890606, 940622, 910549, 910550, 910551, Slip op. 11 (Iowa Ind. Comm'r Arb. August 15, 1991)(Final Agency Action)(Gamekeepers thumb condition did not extend into hand); Strohmeyer v. Dubuque Packing Co., III Iowa Indus. Comm'r Rep. 244 (1982)(Thumb injury did not extend into the hand). The reasoning in the Gilbert opinion is compelling and is adopted here. In Gilbert, Deputy Rasey noted that the claimant has the burden of showing that the ailment afflicting the lesser scheduled member must extend into the greater scheduled member to find disability in that member. There is a difference between the functional deficit caused by a loss of a lesser scheduled member on the greater scheduled member and an ailment extending into the greater member, the requirement of Kellogg. Deputy Rasey rejected the functional analysis urged by the claimant in Gilbert. Likewise, the functional analysis urged by claimant in this instance is of little use in determining whether claimant's injury extends into the hand. Support for this conclusion is grounded in the statute itself. The Legislature has chosen to treat the loss of the thumb or the loss of the use of the thumb separately. The unique qualities of the thumb have been recognized by the Legislature since more weeks of compensation are paid when the thumb is injured. If the Legislature had intended to include the thumb in the hand, it could have listed only the fingers and the hand. As it is, the Legislature has elected to treat the thumb separately. If the functional analysis urged by the claimant is adopted, the thumb would rarely be compensated separately because of the interrelationship of the hand and the thumb. Any loss of function to the thumb joints or a total loss of the member would always impair the ability of the hand to function. The last rating of Dr. Ferlic also confirms this conclusion. Dr. Ferlic did not convert the claimant's rating to his hand. He simply rated each separate part of claimant's thumb that had been affected by the crush injury and the subsequent fusion Page 7 surgeries. Based on the foregoing, it is determined that claimant suffered a loss limited to his thumb and not to his hand. The functional ratings assigned to claimant's thumb indicate that he has had a 95% loss of the use of his thumb stemming from the crush injury and the fusion surgeries that he has undergone. The evidence does not reveal a higher loss of use than this assessment. No physician indicated that claimant had lost 100% use of his thumb. ORDER THEREFORE, it is ordered: 1. That claimant shall take nothing further from this dispute. Eaton has previously paid ninety-five percent (95%) of sixty (60) weeks for the loss to claimant's thumb. 2. The costs of this action shall be assessed to defendant pursuant to rule 343 IAC 4.33. Page 8 Signed and filed this ____ day of June, 1992. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Dennis L Hanssen Attorney at Law Terrace Center Ste 111 2700 Grand Avenue Des Moines Iowa 50312 Mr Alan Bjork Attorney at Law 1300 Des Moines Building Des Moines Iowa 50309 5-1803.1 Filed June 15, 1992 ELIZABETH A. NELSON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHARLES A. THOMPSON, Claimant, File No. 790945 vs. A R B I T R A T I O N EATON CORPORATION, D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 5-1803.1 Claimant did not prove that a crush injury to his left thumb extended to his left hand. Claimant argued that he could no longer use his hand because of the injury. This analysis was rejected consistent with the holding in Kellogg where an ailment must extend into the greater member in order to be compensated and in reliance with the language of the Code section. Claimant was awarded 95 percent for the loss to his thumb. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT E. THOMAS, Claimant, vs. File No. 791130 SIOUX CITY STOCKYARDS CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and ZURICH-AMERICAN INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Robert E. Thomas, claimant, against Sioux City Stockyards Co., employer, and Zurich-American Insurance Co., insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained March 23, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner December 3, 1985. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of the claimant, Harry White, Bruce Gunsolly, Herb Fischer, Mae Prather, and Rodney Livings; claimant's exhibits 1 through 24, inclusive, and defendants' exhibits A through E, inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved December 3, 1985, the following issues are presented for determination: 1. Whether claimant's work injury is the cause of the disability on which claimant now bases his claim; 2. The extent of claimant's entitlement, if any, to permanent partial disability benefits stipulated to be an industrial disability; and 3. The claimant's appropriate rate of compensation. At the time of hearing, defendants attempted to raise the issue of future medical benefits under Iowa Code section 85.27, which issue was not raised at the time of prehearing, was not on the hearing assignment order, and was not added to the hearing assignment order by a request to amend the same. Pursuant to the industrial commissioner's decision in Joseph Presswood v. Iowa Beef Processors, (Appeal Decision filed November 14, 1986), holding an issue not noted on the hearing assignment order is waived, the undersigned has no jurisdiction to consider the issues surrounding Iowa Code section 85.27. FACTS PRESENTED Claimant testified he began working for defendant employer in approximately 1981 and that he has worked there as a night yard man earning $5.25 per hour, a day yard man earning $5.00 per hour, a loader-operator earning $6.75 per hour, and a relief scalemaster earning $7.03 per hour. Claimant admitted to being involved in a 1980 car accident wherein his chest hit the steering wheel and his knee hit the dashboard and a 1983 incident at work when he was kicked in the left hip by a steer. Claimant denied any neck or back pain as a result of either incident maintaining that prior to his work injury of March 23, 1985, his activities were not limited in any way. Claimant sustained an injury which arose out of and in the course of his employment March 23, 1985 when he fell approximately 15 to 20 feet off of a flatbed semi while trying to pull off a bale of hay which then hit him on the top of his head. Claimant thought he was unconscious for a minute or two and testified that his neck was in Oreal bad pain," that he drove himself home and that thereafter his wife took him to the Marion Health Center emergency room. Claimant saw the company doctor (Morgan) the following Monday and was given a cervical collar which he wore continually for the next year and periodically since then. After approximately six weeks when he did not feel his pain was subsiding, claimant was referred to Alan Pechacek, M.D., with whom he has regularly treated since. Claimant explained he was given a TENS unit, medication and about six months of physical therapy, which provided only temporary relief as he continued to experience pain in his neck and lower back. Claimant testified that Dr. Pechacek released him to return to work in August 1986, but that "no way" could he return to work at the stockyards. Claimant explained that since his release to return to work, he has worked for Domino's Pizza first as a delivery person and then as a manager in training, as an assistant manager for Scotty's Restaurant, and that he is currently employed at Breaman Paper Company earning $4.25 per hour as a salesperson and delivering products. Claimant stated he is still under medical care although he has not seen Dr. Pechacek since approximately August 1987, and that he did not know if he will be going to his next appointment. He described his current condition as basically the same as it has been in the past--not necessarily worse but not necessarily better. Claimant is not currently on any prescribed medications, takes Tylenol as needed and does no particular exercises. Claimant acknowledged he attended a football game October 23, 1987 with a friend. He described wearing pants, a shirt, a sweater, and a coat of tan or gray color. Claimant testified that the seats in the stadium had no back support and that it was therefore necessary for him to move positions every so often and to get up and walk around. Claimant acknowledged that during the course of what he described as an exciting game, he may have jumped up, extending his arms over his head, but that he Opaid for it" suffering pain as a result. Harry White testified he was a high school classmate of claimant and attended the football game with claimant in October 1987. White stated that he sat next to claimant and that claimant had to move his whole body to look in either direction THOMAS V. SIOUX CITY STOCKYARDS CO. Page 3 since he could only move his head a slight amount. White recalled that they had to walk around at halftime because claimant complained of headaches and backaches and that although they went out after the game for a beer, they had to go home between 10:00 and 10:30 p.m. because of claimant's complaints of pain. White also testified he lived with claimant and claimant's family from March through May 1986 during which time claimant did no lifting or yard work. Bruce Gunsolly testified he is the manager of the Domino's Pizza establishment which employed claimant and that he was responsible for training claimant. He described claimant's job there as pizza making and general cleanup with some driving (delivery) and lifting of dough that comes in trays. Gunsolly explained he thought claimant performed his job satisfactorily in the morning but that his condition deteriorated as the day wore on and that "practically every day" it was necessary for claimant to sit down and rest. Gunsolly explained it was his understanding that claimant was discharged from this employment because of an unsatisfactory attendance record and because he could not keep up with the management training program although it was neither his responsibility nor did he have the authority to discharge claimant. Herb Fischer testified he has known claimant for about four years and was regularly able to observe him at family gatherings. Fischer explained that before claimant's injury, claimant was able to assist in a landscaping project with no evidence of discomfort but that since his injury, claimant appears to be in discomfort while sitting in a chair, complains of headaches and takes aspirin. Fischer explained he and claimant are part of a card group which meets about once per month for five hours and that it has been his observation that claimant has the ability to move his neck approximately 45 degrees but that (as a general rule) claimant moves his back rather than turn his head. Mae Prather testified she is currently employed as a rehabilitation specialist with International Rehabilitation Associates and was retained by defendants in this case to work with claimant. She explained her goal originally was to return claimant to the same job he held at the time of his injury, believing that that was claimant's goal as well, but that that goal had to be abandoned when it was determined that claimant was not physically capable of returning to that position. Prather opined that in order for claimant to be able to perform the sedentary work which would be within his restrictions, he may require some additional education since claimant has a lack of transferable skills. Prather closed claimant's file in October 1986 once claimant secured employment but reopened it in the spring of 1987. Prather stated that she is still providing services to claimant as of the time of the hearing, but that claimant was not available for home visits. She opined that the results of the MMPI may be correct in that claimant may be internalizing problems which, as a consequence, leads to physical symptoms. Rodney Livings testified he is a vice president of defendant employer, that during the second quarter of 1985 claimant was earning $6.79 per hour as a loader-operator and that at the time THOMAS V. SIOUX CITY STOCKYARDS CO. Page 4 of his injury, claimant was performing the job of a loader-operator. William P. Isgreen, M.D., specialist in neurology, testified he first saw claimant April 30, 1986 with a history of pain in his neck and shoulders (dorsal area of the spine) from the date of his work injury to present. Dr. Isgreen conducted a two-part examination at that time: A general examination which was normal and a neurological examination which disclosed an individual with a normal posture to the neck and spine and no area of apparent knotting or trigger sensitivity but a great deal of discomfort on palpation. Dr. Isgreen stated there was no sensory abnormality, no reflex alterations, and no evidence of atrophy (meaning loss of bulk) in any of the muscle groups that could be reasonably attributed to any damage in the neck with the strength intact in the arms and legs. He noted claimant's volitional movements of the neck were limited at that time to about five degrees in all of the cardinal planes explaining: A. ....The cardinal planes would be lateral movement, that is, tipping the head toward a shoulder, rotation of the head toward the shoulder around the spine, and then putting the chin on the chest, or looking up at the ceiling. Q. Now from a neurological standpoint, what's significant about the patient being unable to perform such a function? A. Well, one begins to question, Mr. Deck, that sort of restriction of movement, because it's really a nonphysiologic sort of response. People whose spines are fused can have oftentimes much better mobility than five degrees. It indicates a reluctance or an unwillingness or a cooperation problem on the part of the patient more, I felt at that time, than evidence of structural or physiologic damage. (Defendants' Exhibit E, page 12) When Dr. Isgreen could not find any objective viable abnormalities on examination, he diagnosed claimant as having a "so called functional or characterological cervical syndrome" meaning that the perpetuation of the complaints was better accounted for on psycosocial and characterological elements than on any structural abnormalities. Dr. Isgreen ordered hospitalization for the purposes of doing a myelogram, CT scan and a personal profile (Minnesota Multiphasic Personalty Inventory or MMPI), the latter in order to see if his notion of characterological problems or conflicts were matched by the results of the test. The cervical myelogram showed: Spot films of the lumbar and lower dorsal areas are unremarkable. In the neck there is good filling of the cervical sac. Chord shadow is normal in width. Nerve root sheaths appear to be fill well without evidence of significant defect. The area of C7-Dl is a little light but we see this pretty well on the oblique films. THOMAS V. SIOUX CITY STOCKYARDS CO. Page 5 No significant myelographic defects are identified. Crosstable lateral film again shows the angulation of the spine of C3. The appearance almost suggests attempted or partial fusion of the spinous process of C3 and C4. Flexion and extension series would be helpful or perhaps lateral tomograms to better evaluate this. CONCLUSION: 1. Cervical myelogram appears within normal limits. 2. The appearance of the spinous process of C3 may well represent attempted fusion of the C3-4 spinous processes. (Claimant's Exhibit 5) The cervical spine showed: Questionable deformity of articular pillars of C3 with some posterior wedging. Could be traumatic or developmental. This includes the spinous process of C3. Questionable deformity of articular pillars of C6 which may be developmental. (Cl. Ex. 5) The CT scan of the cervical spine revealed: Contrast is seen in the thecal sac. Chord shadow is unremarkable. Patient is slightly obliqued in the scanner. Some of this may be muscle spasm or old deformity as there is some scoliosis or tilt seen on the plain films on the AP view. We do not identify any definite evidence of a herniated disc. No destructive processes are identified. (Cl. Ex. 5) The MMPI was administered by James R. Hairston, Ph.D., Department of Psychological Services, Marion Health Center, who concluded: This personality assessment is based primarily on the claimant's voluntary responses to the test items as they appear on the Minnesota Multiphasic Personality Inventory (MMPI). Profile. The most elevated two-point clinical code (1/3) within Mr. Thomas' personality profile suggests that many of his efforts are ineffectively directed toward trying to ward off anxiety. This client is using somatic complaints to avoid thinking of or dealing with psychological problems. This client may be converting his psychological problems into physical complaints that localize the difficulty outside of himself. He may be overlay [sic] pessimistic, whinny, and complaining. Depression and anxiety are not overtly expressed, no matter how concerned the client is about poor physical THOMAS V. SIOUX CITY STOCKYARDS CO. Page 6 functioning. Narcissistic and dependent features are likely to be seen. This client lacks insight into his own behavior and is very resistant to interpretations that there could be psychological involvement in his physical complaints. He is more likely to show hypochondriacal features than hysterical features. His physical complaints are usually nonspecific and vague and likely to involve backaches, gastrointestinal complaints and so on. (Def. Ex. C) Dr. Isgreen felt Dr. Hairston's interpretation of the MMPI confirmed his initial diagnosis of cervical pain syndrome felt largely to be functional and on May 16, 1986, Dr. Isgreen wrote: [T]he neck x-rays present a curious problem. Initially they were read as normal, but there is no question that there is a mild abnormality there. It's not dramatic,.but there is abnormality in the spinous process [sic] of C3. The fall and the description on the part of the man certainly fits spinous process injury, and it could well be that we are seeing attempted fusion of the C3 to the C4 spine, as well as some mild compression of the C3 pillars. According to the AMA Guidebook of 1984, defect in one of the posterior elements is worth three per cent to the body as a whole. If we are generous to the man, we will give him a defect of two of the posterior elements, and add those together and get six per cent. One might allow another one or two per cent for what may be some compression at the C6 pillar, but this is a bit chancy. The bottom line then is a permanent-partial impairment number of about seven to eight per cent to the body as a whole. .... There are no further neurodiagnostic studies that I would suggest. There is nothing in the way of further treatments that I have to offer. Nor can I think of anything that would be effective at this point in time. Because of the x-ray picture, it probably is not a bad idea to get him out of the labor arena and into something a little more sedentary. (Cl. Ex. 6) Explaining the impairment rating and his recommendation, Dr. Isgreen testified: Q. I want you to assume that Dr. Pechacek has rejected the disability determination based upon X-ray findings THOMAS V. SIOUX CITY STOCKYARDS CO. Page 7 and instead bases his opinion on range of motion of the neck. I would ask you: Have you based your opinion and diagnosis on range of motion as a small criterion for disability? A. I have not. Q. Why not? A. Because I did not feel that the range of motion was physiologically reproducible and explainable on a structural basis. .... Q. Doctor, what do you mean by "the labor arena"? A. Well, I felt that given the configuration of the neck and the possibility that it could have been traumatically induced, that repeated neck movement in the work place, particularly heavy labor, may be productive of symptoms which would interfere with his usual and customary activities. (Def. Ex. E, p. 41, 56) THOMAS V. SIOUX CITY STOCKYARDS CO. Page 8 On the request of claimant's counsel, William S. Thoman, M.D., of the Sioux City Radiological Group, reviewed claimant's x-rays and films of myelography in order to render an opinion with regard to the etiology of any defects found in the films. Dr. Thoman stated: The subluxation at the level C3/4 could be either a developmental defect or induced by trauma. I do not believe the 1970 x-rays, taken when the patient was 8 years old, are helpful in making that determination. Certainly the condition could be a direct result of the patient having fallen approximately 20 feet onto a hard surface with a bale of hay then striking him on the head. Given that history, my opinion would be that there was ligamentous injury as a result of the fall which is the reason for the subluxation of C3 on C4. (Cl. Ex. 11) Medical records of Alan Pechacek, M.D., reveal claimant was first seen May 14, 1985 and was regularly treated through August 11, 1987 without any significant improvement, as entry after entry states claimant continues to do about the same. In July 1986, Dr. Pechacek wrote: I do not believe that Mr. Thomas has achieved a point of maximum recovery. He's not shown any trends towards additional improvement for a long time. So far as an impairment determination is concerned, I have done one based on his most recent office visit of July 7, 1986. My determination is based on the AMA Guides to the Evaluation of Permanent Impairment, and on Mr. Thomas's [sic] neck range of motion. I believe that Dr. Isgreen's determination was based on x-ray findings. At least that was my impression based on the information shown me by Mr. Thomas. Since it is likely that the abnormalities seen on his x-ray studies are the result of a congenital-developmental process, rather than being the result of his cervical spine trauma, I don't think that it's appropriate to use the x-rays for criterion for determination of his impairment. Therefore, I have based my determination on his limited neck motion. On that basis, I feel that Mr. Thomas has a 19% impairment of the whole person. (Cl. Ex. 9) Claimant was to return to see Dr. Pechacek three months after his last visit on August 11, 1987; however, Dr. Pechacek is last entry in his medical records states: 10-24-87 On Friday, October 23, 1987, I attended a football game between Sioux City Heelan and Sioux Falls O'Gorman at Memorial Field in Sioux City. I was standing on the top row of seats towards the west end of the north bleachers. At half-time, I observed Mr. Thomas, the patient, walk across from east to west at the bottom of the bleachers, approximately 20-25 rows below me. There was no trouble with visibility, and THOMAS V. SIOUX CITY STOCKYARDS CO. Page 9 having seen the patient 24 times in the office since May of 1985, I had no difficulty recognizing who the patient was. Also, someone in the stands sitting near me said something to that affect[sic] that "there goes Bob Thomas," thereby further confirming my identification of the patient. I noted that as he walked across in front of me that he was walking quite naturally and was able to turn his head towards each side looking towards the field or towards the stands. I observed him walk to the end of the bleachers and then go across the west end of the field to the south bleachers and take a seat about the 8th to 10th row on about the 30 yard line. He was seated toward the west end of the south bleachers. I was somewhat surprised to see the patient at a football game on a cool chilly October evening. At the start of the game it was cold and the temperature was probably in the upper 40's or near 50. As the evening and the game progressed, it became colder such that by the end of the game the temperature was probably in the middle to upper 30's or close to 40. The patient was wearing a medium weight jacket, taupe in color, somewhat similar in appearance to corduroy material. He had no hat or gloves. I make this point because usually with the type of problems that Mr. Thomas complains of have increased discomfort in their neck muscles when exposed to cold. I then decided that I would pursue this further and crossed over the west of the football field to the south bleachers. I re-identified where he was sitting. I then took a seat about 7 rows above him and in a position where I could have an unobstructed view of the patient. I observed him directly thru the entire third quarter of the ball game, which took approximately 30 minutes to play. He was sitting with a friend wearing a dark blue jacket that was seated to his left. I noted that during the course of my observations that the patient moved his head and neck quite easily. His head posturing was quite normal and natural. His movements were quite easy on turning side to side or looking around. He was able to apparently joke and laugh with his friend. Since his friend was seated to his left, the patient more often turned his head to the left than to the right. However I observed no difficulty in the patient's head and neck movements that would indicate any apparent neck pain, stiffness, or difficulty during motion. His movements were natural, smooth, and without apparent problems. Also, he was able to sit throughout the time period of observation without any support to his lower back. He had no observable problems with sustained sitting without back support, and showed no movements that indicated that he was suffering from any mid to lower back pain, something that he has complained about repeatedly on his visits. He sat without any unusual posturing, changes in position or posturing nor contorting that would indicate that he was experiencing any pain. THOMAS V. SIOUX CITY STOCKYARDS CO. Page 10 I later moved down lower in the stands to where I was sitting a few rows in front of him, but could still turn easily and observe him. Again, I did not observe any abnormal positioning of his head, neck, or back and any restriction or apparent painful movement. I then walked up the bleachers in front of and beside him to sit a few rows above him. As I came up in front of him, he probably did see me but avoided eye contact and did not acknowledge me verbally or visually. He adopted the same head neck attitude that he usually displays in the office holding his head directed straight forward. His face was expressionless. He tended to look down with his eyes. After I moved beyond him,up into the stands, I then observed him further and again noted no apparent difficulties with his posture or movements of his head, neck, or back. At one time during the game something happened such as a fumble recovery by Heelan. The patient was noted to cheer by partially rising up out of his seat suddenly and raising his right arm with a clenched fist, an obvious movement of cheering for Heelan. This movement was made quite naturally and without any difficulty. This is interesting because the patient indicates in the office he is unable to raise his arms much more than about 135-140 degrees. When in the office he displays marked difficulty to raise his shoulders and arms. This movement that he made at the football game was much higher than he has ever shown in the office. After deciding that I had observed him long enough to satisfy myself, I then walked back down by him. As I stepped by him I looked back to my left looking directly at him. Again his eyes dropped down, his face became expressionless, and his head was held straight ahead, the same positioning and attitude that he usually displays in the office. Again eye contact and acknowledgement of my presence did not occur. I then discontinued my observations and went on about my way. What I observed during this time was in complete contradistinction to what the patient complains about and displays while being seen in the office. I had observed him for probably 45 minutes or more period of time. Based on my observations at the football game, I believe that Mr. Thomas is malingering and faking his symptoms and signs for some other purpose. (Cl. Ex. 3) APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). The claimant has the burden of proving by a preponderance of the evidence that the injury of March 23, 1985 is causally elated to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is THOMAS V. SIOUX CITY STOCKYARDS CO. Page 11 insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). ANALYSIS It is not disputed that claimant sustained an injury March 23, 1985 which arose out of and in the course of his employment or that the injury was the cause of temporary disability during a period of recovery. The essential question presented for resolution is whether, and to what extent, the injury caused a permanent disability to claimant. As stated above, the question of causal connection is essentially within the domain of expert testimony. It is accepted claimant was asymptomatic of back and neck pain prior to March 23, 1985 which may have impaired or interfered with his ability to perform his laborer's job with defendant employer. By the very meaning of the phrase, a person with a permanent impairment can never return to the same physical condition he or she had prior to the injury. It is possible, based on the evidence contained in the record, claimant may have sustained some permanent impairment as a result of the work injury and that he may never return to the same physical condition he was in prior to the injury. Dr. Isgreen, at least, states claimant should remove himself from the labor arena and move into more sedentary work which would tend to establish claimant has some permanent work restrictions. However, in light of claimant's questionable credibility, it is impossible to determine the extent of claimant's permanent disability. Functional impairment is an element to be considered in reduction of determining industrial disability which is the earning capacity, but consideration must also be given to the injured employeeOs age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Dr. Pechacek, the treating physician in this case, originally rated claimant as 19 percent permanently partially impaired based on claimant's subjective representation of his neck range of motion specifically rejecting the x-ray findings and stating that it is likely the abnormalities seen thereon were the result of a congenital-developmental process rather than the result of the trauma of the work injury. Yet, Dr. Pechacek THOMAS V. SIOUX CITY STOCKYARDS CO. Page 12 recants this opinion after observing claimant at a football game. There is no question it was claimant Dr. Pechacek was observing and that his observations were accurate for Dr. Pechacek had no reason to misrepresent what he observed while a myriad of reasons may be offered for claimant's representations or misrepresentations of the state of his physical health. Even accepting claimant's testimony that he "paid for it" the following day, the fact remains claimant could move his neck and his arms above his head while representing to his physicians an absolute inability to do so while under their care. Indeed, at the time of hearing, almost three years after his injury, claimant continued to use his whole body to turn rather than move his neck at all. One is struck by Dr. IsgreenOs statement in his deposition: Q. Doctor, I note that your exam was approximately twelve to thirteen months following the injury in March of 1985. Was that significant, in your opinion? A. Well, one would have expected -- it's a reasonable expectation that any musculoskeletal ligamental strain would have resolved itself better than it did. One could take a heart out and put another heart in and have a more functioning individual than -- with less symptoms than Mr. Thomas after better than a year's time for rest and recovery and recuperation. THOMAS V. SIOUX CITY STOCKYARDS CO. Page 13 (Def. Ex. E, pp. 15-16) Dr. Pechacek leaves us with the opinion claimant is malingering and faking his symptoms and signs for some other purpose. Dr. Isgreen, on the other hand, rates claimant as seven to eight percent permanently partially impaired based on the objective findings of the myelogram and CT scan. Dr. Isgreen specifically rejects considering range of motion because of claimant's limited mobility. However, while Dr. Isgreen may be willing to give claimant "the benefit of the doubt" by stating claimant's spinous process injury is related to the 1985 fall, the law of workers' compensation in Iowa deals in burden of proof rather than benefit of the doubt. As stated above, a possibility is insufficient; a probability is necessary. Further, nowhere in either Dr. PechacekOs or Dr. Isgreen's notes or deposition is any reference made to claimant's 1980 auto accident or 1983 work injury. A question arises as to whether or not a complete and accurate history was given to the physicians by claimant. There are, finally, the opinions of Dr. Thoman who causally connects claimant's fall to what is viewed on the x-ray films but provides no restrictions, limitations or impairment and Dr. Shenk who conducted the test who opines the conditions viewed may be the result of trauma or may be developmental. Claimant asks us to believe his earning capacity has realistically been reduced by at least 57 percent. ($7.00 per hour to $4.00 per hour. (See page 4 of claimant's Post-hearing Brief and Argument) If one were to believe all of claimant's symptoms, this figure may, in fact, be realistic. However, it is simply impossible to believe all or indeed any of claimant's subjective representations of pain and range of motion in light of the medical testimony and claimant's own personal conduct. It is only at the point at which disability can be determined that a disability award can be made. While claimant may have sustained some permanent disability as a result of the work injury of March 23, 1985, claimant has failed to present sufficient credible evidence on which an award of permanent partial disability benefits may be predicated. In other words, because of the serious questions surrounding claimant's credibility, it is impossible to determine the extent of whatever any permanent partial disability may be. There are many elements to consider in making a determination of industrial disability not the least of which involve consideration of claimant's subjective complaints, physical status, abilities and inabilities. The industrial commissioner has said many times an award of industrial disability cannot be based on mere speculation. See e.g. Umphress v. Armstrong Rubber Co. (Appeal Decision filed August 27, 1987). If claimant is not being truthful in representing this subjective status and it is concluded he is not, it is impossible to determine what is claimant's true loss of earning capacity as a result of the work injury. To make such a decision would place the undersigned in the position of relying on mere speculation. Claimant, therefore, will take nothing further as a result of these proceedings. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the THOMAS V. SIOUX CITY STOCKYARDS CO. Page 14 following facts are found: 1. Claimant sustained an injury which arose out of and in the course of his employment March 23, 1985 when he fell approximately 15 to 20 feet off of a flatbed semi while trying to pull off a bale of hay which hit him on the top of the head. 2. Since that date, claimant perceives persistent neck and back pain, extreme limitation of neck motions, and notes little to no improvement in his condition. 3. Claimant's treating physician, Alan Pechacek, M.D., rejects claimant's symptoms opining claimant is malingering and faking his symptoms and signs for some other purpose. 4. Claimant's evaluating physician, William Isgreen, M.D., rejects claimant's limitation of neck motion as a result of characterological or psychosocial elements rather than as a result of structural abnormality and opines claimant's condition, as viewed on the x-rays and films, may be the result of trauma or may be developmental. 5. Notwithstanding his representation to the contrary, claimant does have the ability to move his neck and wave his arms. 6. Claimant was not a credible witness. 7. Claimant has been advised to leave the labor arena and secure more sedentary work. 8. Claimant may have sustained some permanent impairment as a result of the work injury. 9. Claimant failed to present credible evidence which would support an award of industrial disability. CONCLUSION OF LAW Wherefore, based on the principles of law previously stated, the following conclusion of law is made: Claimant has failed to establish his work injury is the cause of any ascertainable permanent disability. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing further from these proceedings. Costs are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 31st day of March, 1988. THOMAS V. SIOUX CITY STOCKYARDS CO. Page 15 DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. G. Daniel Gildemeister Attorney at Law 605 Davidson Building Sioux City, Iowa 51101 Mr. Paul W. Deck, Jr. Attorney at Law 635 Frances Building Sioux City, Iowa 51101 1402.40; 1800 Filed 3-31-88 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT E. THOMAS, Claimant, vs. File No. 791130 SIOUX CITY STOCKYARDS CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and ZURICH-AMERICAN INSURANCE CO., Insurance Carrier, Defendants. 1402.40; 1800 Claimant was injured when he fell from a flatbed semi and a bale of hay hit him on the head. There was a dispute in the medical testimony over whether claimant's condition was a result of trauma or was developmental. Medical experts did not consider claimant's allegations of subjective symptoms to be credible. Claimant was not found to be credible. Held that while claimant may have sustained a permanent impairment as a result of the work injury, there was insufficient credible evidence in the record to support any award of industrial disability as the only basis for an award would be speculation.