BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHRISTINE LANMAN, Claimant, VS. File Nos. 793562 & 710341 EVERCO INDUSTRIES, A R B I T R A T I 0 N Employer, D E C I S I O N and WESTCHESTER FIRE & MARYLAND CASUALTY CO., Insurance Carrier, Defendants. INTRODUCTION These are arbitration proceedings brought by Christine Lanman, claimant, against EVERCO Industries, employer and its insurance carriers, Westchester Fire and Maryland Casualty Co., defendants. The cases were heard by the undersigned on November 9, 1989, in Ottumwa, Iowa. The record consists of the testimony of claimant. The record also consists of the testimonies of Berna Coons, Jesse Garrett, Doug Chambers, Mike Burkert and Joann Spencer. The record is also comprised of Exhibits 1-17. ISSUES As a result of the prehearing report and order submitted and approved on the ninth day of November, 1989, the issues presented by the parties are: With respect to file number 710341 there is only one issue remaining. A ruling on a motion for partial summary judgment was filed by Deputy Industrial Commissioner Michael G. Trier. The ruling determined that: This matter comes before the undersigned upon the Motion for Partial Summary Judgment filed by defendants on September 23, 1988. The file does not contain a resistance. The materials submitted with the motion LANMAN V. EVERCO INDUSTRIES Page 2 clearly show that claimant was last paid weekly compensation on December 16, 1983, a date more than three years prior to the.time the petition was filed on December 18, 1987. The record also reflects that defendants have not filed a denial of compensability for the injury of August 4, 1982, the one for which weekly compensation benefits have been paid up to and including December 16, 1983. IT IS THEREFORE ORDERED that defendants' Motion for Partial Summary Judgment is sustained and claimant's only claim with regard to the injury of August 4, 1982 is for section 85.27 benefits. This claim, file number 710341, remains open and pending for purposes of determination of the claimant's entitlement [sic] to section 85.27 benefits which are related to the alleged injury of August 4, 1982. With respect to file number 793562, the issues presented by the parties are: 1. Whether there is a casual relationship between the injury and any permanent disability; 2. Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits; 3. Whether claimant is entitled to medical benefits under section 85.27; and, 4. Whether claimant is entitled to penalty benefits under section 86.13 (4). STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That claimant sustained an injury on April 1, 1985, which arose out of and in the course of employment with employer; 3. The time off work for which claimant now seeks either temporary total disability or healing period benefits, is stipulated to be from July 6, 1985; September 23, 1986 through October 3, 1986; and July 18, 1988 through February 28, 1989 (33.2 weeks after credit of 2.1 weeks referenced in section 10 is given); LANMAN V. EVERCO INDUSTRIES Page 3 4. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole and the commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be the first day of March, 1989; 5. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $212.29 per week; 6. Sick pay/disability income in the amount of $1,950.00, medical hospitalization expenses in the amount of $17,120.86; and, 7. Defendants paid claimant 17 4/7 weeks (2 1/2 represents overpayment) of compensation at the rate of $212.29 per week prior to hearing. FACTS PRESENTED Claimant is 40 years old. She commenced her employment with defendant in 1981 as a Grade I laborer. Several years later, claimant bid into a Grade 1A job. According to claimant, this position was more skilled and claimant held it until the end of 1984. Then claimant was transferred to Department 1300 where she was required to perform overhead work but no heavy lifting. Claimant testified that on the date of the injury, she was working in the packing department as a Grade II laborer. She related she was moving barrels and while she was moving the first barrel, she felt a hard, burning stabbing pain in her lower back at the waistline. Claimant indicated she reported the injury to her supervisor, Kenny Paxton, and that she left work on April 1, 1985. She returned to work on the second and continued working through September 23, 1986. Claimant testified she eventually had back surgery on July 7, 1988 and that she returned to work on March 1, 1989, as a Grade I order filler. Further, claimant reported that on April 1, 1985, she was earning $8.37 per hour, and that as of the date of the hearing, she was making $8.79 per hour. Claimant also related she had not missed any work because of her back since her return on March 1, 1989. Berna Coons testified for claimant. Ms. Coons indicated claimant's physical condition appeared much worse after April 1, 1985, than before that date. The witness stated she observed claimant and claimant appeared stiff after April 1, 1985. Jesse Garret also testified for claimant. He testified he observed claimant lifting parts both before and after April 1, 1985, and that claimant needed assistance with lifting after the injury date. LANMAN V. EVERCO INDUSTRIES Page 4 Doug Chambers testified. He also reported he observed claimant during the summer of 1985. He stated claimant appeared to be in pain. Mike Burkert testified for defendants EVERCO and Maryland Casualty. He stated he had-been employed by Maryland Casualty for five years and that he was a senior claims representative. Mr. Burkert reported he had handled claimant's file. Mr. Burkert reported weekly benefits were paid intermittently to claimant because William R. Boulden, M.D., initially determined in March of 1987 that claimant's alleged disability was not related to the April 1, 1985 incident. Mr. Burkert testified that Dr. Boulden later changed his opinion and then determined claimant's alleged disability was work related. However, Mr. Burkert, according to his testimony, decided the insurance carrier would use Dr. Boulden's initial opinion in paying benefits. Joann Spencer testified for defendant EVERCO. She stated she had been employed by EVERCO for five years as the company nurse. Ms. Spencer testified she instituted first aid cards for each employee and that she had first seen claimant at the nurse's station on October 31, 1984. The witness related that claimant visited the nurse's station on April 1, 1985, because of "an old back injury." Ms. Spencer also reported she had had contacts with Mr. Burkert relative to this claim. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on April 1, 1985, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 1, 1985, is casually related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of casual 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 casual connection. LANMAN V. EVERCO INDUSTRIES Page 5 Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a casual connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, LANMAN V. EVERCO INDUSTRIES Page 6 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager,,253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965) ; Almquist, 218 Iowa 724, 254 N.W. 35 (1934). When a worker sustains an injury, later sustains another injury, and subsequently seeks to reopen an award predicated on the first injury, he or she must prove one of two things: (a) that the disability for which he or she seeks additional compensation was proximately caused by the first injury, or (b) that the second injury (and ensuing disability) was proximately caused by the first injury. DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 (Iowa 1971). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are LANMAN V. EVERCO INDUSTRIES Page 7 matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). ANALYSIS The first issue to address is whether the injury of August 4, 1982, gave rise to medical benefits under section 85.27. It is the determination of the undersigned that defendant insurance carrier, Westchester Fire, is not liable for any section 85.27 benefits. Claimant has not proven by a preponderance of the evidence there is a connection between the 1982 injury and the medical treatment incurred subsequent to the April 1, 1985 injury date. Dr. Boulden, the medical expert, did not opine that the 1982 injury gave rise to the medical treatment received after April 1, 1985. Dr. Boulden determined there were both epidural fibrosis and spinal stenosis after the surgery in 1982. However, the fibrosis and stenosis were asymptomatic until the injury on April 1, 1985. The injury on April 1, 1985, was an intervening cause. Dr. Boulden stated in his deposition relative to the April 1, 1985 injury date: A. The -- basically we went -- I went into the fact that -- that the preexisting problem's there, the LANMAN V. EVERCO INDUSTRIES Page 8 underlying condition was there but that the trauma made it symptomatic, and we were referring to the trauma of April 1 of 1985. I felt that she had an increased disability rating because the persistent-recurrent nature of her symptom complex because the symptoms had not stayed suppressed. In other words, if she only had an aggravation, then the symptoms shouldn't come back. However, her sy-mptoms waxed and waned, as we've used that term before in this context. I felt that five percent increase in disability was on and above the disability that she had had in relation to the previous disk surgery. (Exhibit 13, page 20, lines 3-19) According to Dr. Boulden's testimony, the 1985 injury aggravated the preexisting 1982 injury. (Ex. 13, pp. 26-27, 11. 15-5) Additionally, Dr. Boulden determined there were problems other than the fibrosis and stenosis. He expanded his diagnosis to include a degenerating disk at L3-4 and a herniated disk at T10-11 on the left side. Dr. Boulden opined to a reasonable degree of medical certainty that these problems were also caused by the April 1, 1985 injury. (Ex. 13, pp. 26-27, 11. 15-5). Dr. Boulden did not believe the expanded diagnosis was causally related to the 1982 injury. Nor did any other expert establish there was a casual connection between the 1982 injury and the medical treatment sustained after April 1, 1985. Therefore, defendant Westchester Fire is not liable for any section 85.27 benefits. For the same reasons as stated above, it is determined that claimant has sustained the requisite casual connection between the injury of April 1, 1985 and claimant's claimed disability. The injury of April 1, 1985, has given rise to medical benefits under section 85.27. It is the determination of the undersigned that defendant Maryland Casualty is liable for the following medical expenses: Dr. Mietzner $ 80.00 Dr. Boulden 6,169.00 Surgery Center of Des Moines 1,625.00 Dr. Berg 90.00 Des Moines Anesthesiologists 1,128.00 Iowa Lutheran Hospital 10,607.28 19,699.28 LANMAN V. EVERCO INDUSTRIES Page 9 Also claimant is entitled to mileage for trips to Des Moines in the amount of 502 miles at the rate of .21 per mile. This totals $105.42. The next issue to address is whether claimant is entitled to permanent partial disability benefits. Dr. Boulden opined claimant was functionally impaired. He assigned an impairment rating of 15 percent to the body as a whole. Five percent of the impairment rating was assigned to the injury of April 1, 1985. The remaining 10 percent impairment rating was attributable to the 1982 injury. (As an aside, 10 percent permanent partial disability benefits have previously been paid to claimant per Westchester Fire and these are not at issue). Dr. Boulden did release claimant to return to work on March 1, 1989. However, the physician placed various restrictions upon claimant. She is restricted from repetitive bending and twisting and from using her back to lift. Claimant is also restricted from repetitive lifting of no more than 25 or 30 pounds, but she is able to engage in occasional lifting of objects weighing greater than 30 pounds. Claimant has returned to her employment. She is 40 years old. She is a Grade I order filler. According to claimant's own testimony, she is "getting along fairly well." She has a lighter job than the one she had on April 1, 1985. Claimant testified she has never bid into a Grade 2 position which is at a higher rate of pay. Claimant is currently earning $8.79 per hour. she has also received a $400.00 bonus. At the time of her injury, claimant was earning $8.37 per hour. Claimant indicated she has received all raises pursuant to the collective bargaining agreement. There is no evidence defendant employer has downgraded claimant because of her back condition, or that claimant has been refused an upgrade. Clai-mant's refusal to bid into a Grade 2 position is a personal decision. No medical expert has determined claimant is incapable of handling a Grade 2 job. Claimant's earnings are greater now than before the April 1, 1985, injury date. However, claimant's earning capacity is somewhat reduced given the permanent restrictions placed upon her. Therefore, it is the determination of the undersigned that claimant has an industrial disability of 20 percent. Ten percent of the disability is attributable to her injury in 1982. The remaining 10 percent is attributable to the April 1, 1985 injury date. It is also the determination of the undersigned that claimant is entitled to healing period benefits. The parties have stipulated to the dates in question. The total time period LANMAN V. EVERCO INDUSTRIES Page 10 reflects 35.3 weeks as stipulated less 2.1 weeks for stipulated overpayment. The final issue to address is whether claimant is entitled to penalty benefits from defendant-Maryland Casualty. Section 86.13 of the Iowa Code provides in relevant portion: If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied. Under section 86.13, benefits are not awarded for medical expenses. The section 86.13 benefits are only applicable to weekly compensation benefits. Zahn v. Iowa State Men's Reformatory, IV Iowa Industrial Commissioner Report 409 (1983). If it is alleged that an employer wrongfully withholds weekly compensation benefits from a claimant, the claimant must establish the benefits were withheld unreasonably in order for the claimant to receive additional benefits under section 86.13. Curtis v. Swift Independent Packing, IV Iowa Industrial Commissioner Report 88 at 93 (1984). In a previous decision before the Division of Industrial Services, a hearing deputy has ruled that it was reasonable for an employer to withhold benefits when the employer was not alerted to occurrences which would notify a reasonable person that benefits would be due or when there was no work time lost. McCormack v. Sunsprout, I-1 Iowa Industrial Commissioner Decisions 142 at 144 (1984). In a separate decision before the Division of Industrial Services, the same deputy industrial commissioner awarded benefits under section 86.13. Here there was an unreasonable delay since there were no contradictions in the claimant's claim. Willis v. Ruan Transport Corporation, IV Iowa Industrial Commissioner Report 395 at 396 (1984). In the Willis case at 396 the deputy wrote: ...Reports and letters from the doctor are consistent with claimant's statements regarding his injury. There were no ambiguities and inconsistencies in claimant's claim. Withholding benefits was arbitrary and unreasonable. The five percent award based on Iowa Code section 86.13 will be attached to healing period only. Although the evidence presented clearly relates claimant's permanent impairment to his injury, defen- LANMAN V. EVERCO INDUSTRIES Page 11 dants will be given the benefit of the doubt as to whether or not a failure to pay permanent disability also was unreasonable.. Claimant had prior back troubles and conceivably some portion of his impairment might have been related to those difficulties or to a preexisting arthritis rather than to his injury. See also Walter L. Peterman v. American Freight System, File No. 747931 (Arbitration Decision August 10, 1988). Claimant has met her burden of proving that defendant Maryland Casualty did unreasonably withhold her weekly compensation benefits. Initially, it would not have been unreasonable for defendant Maryland Casualty to deny weekly compensation. Dr. Boulden, in his letter of November 25, 1986, wrote: I am writing this letter in reference to Christine Lanman for recent treatment of her epidural fibrosis and spinal stenosis. This is a continuation from her first surgery and is directly related to that surgery for the disc. Therefore, I hope this clears up any confusion. (Ex. 11, p. 134) Later, Dr. Boulden modified his opinion of November 25, 1986. Mike Burkert, claims representative, testified that on March 26, 1987, he and the company attorney met with Dr. Boulden for the purpose of discussing claimant's condition. Mr. Burkert stated that Dr. Boulden informed them that the injury on April 1, 1985, was only a temporary aggravation of claimant's preexisting condition. Dr. Boulden, in his deposition, testified he had no reason to doubt that was what Mr. Burkert assumed was said, but that what his opinion really reflected was: A. I don't know if I really changed my opinion. I'm saying that, as I've said earlier today, she's now developed a chronic recurrent cyclic pain response and that April 1 of '85 aggravated it. It's aggravated the preexisting condition. (Ex. 13, p. 62) Then in his letters of May 1, 1987 and July 8, 1987, Dr. Boulden opined: LANMAN V. EVERCO INDUSTRIES Page 12 5-1-87 ... It is my feeling that the injury of April 1, 1985 aggravated an underlying condition of spinal stenosis and epidural fibrosis. If I can be of.any further help, please feel free to contact me. ... It is my feeling that the epidural fibrosis and spinal stenosis has added a 5% increase to her disability that she had at the time that she had a simple discectomy. Many times this spinal stenosis is as a result of the previous disc surgery and may not be caused by further trauma. However in this case I feel the trauma has made the symptom complex symptomatic even though the underlying condition may have occurred without the trauma and probably was existing before the trauma. Therefore my conclusion would be that this 5% disability increase is based on the fact that the underlying spinal stenosis and epidural fibrosis which is more than likely pre-existing is now symptomatic. If I could be of any further help, please feel free to contact me. Additionally, as of June 28, 1988, Dr. Boulden signed claimant's application for long term disability payments. On the face of the application Dr. Boulden wrote: Is condition due to injury or sickness arising out of patient's employment? (If "Yes" explain). x Yes No developed back pain while moving a barrel at work. The same application was also signed by the company nurse, Joann Spencer, RN. At this juncture, defendant Maryland Casualty should have reviewed its position. Defendant did not look into the rationale behind Dr. Boulden's modified opinion. Nor did defendant seek a second opinion. The company unreasonably withheld benefits. Therefore, it is the decision of the undersigned that claimant is entitled to penalty benefits in the amount of 50 percent of the benefits from March 1, 1989, the date the permanent partial disability benefits were to commence. Interest on the section 86.13 benefits is awarded from the date of this decision. See also: Raymond Denning v. Hyman Freightways, Inc. and Excalibur Insurance Co., File No. 751584 (filed on May 23, LANMAN V. EVERCO INDUSTRIES Page 13 1989), and Barbara S. Stanley v. Wilson Foods Corporation, File No. 753405 (filed on May 30, 1989). FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based upon the stipulations, the evidence presented, the previous arbitration decision and the principles of law previously stated, the following findings of fact and conclusions of law are made: Finding 1. Claimant's back injury on April 1, 1985, was an intervening event which aggravated claimant's condition from a previous work injury on August 4, 1982. Conclusion A. Claimant's back injury on April 1, 1985, materially aggravated claimant's condition from her preexisting work injury of August 4, 1982. Conclusion B. Defendant Westchester Fire is not liable to claimant for any benefits under section 85.27. Conclusion C. Claimant takes nothing additional as a result of her injury on August 4, 1982. Finding 2. Claimant's injury on April 1, 1985, resulted in an additional functional impairment of five percent of the body as a whole. Conclusion D. Claimant has proven by a preponderance of the evidence that the injury of April 1, 1985, is casually related to claimant's claimed disability. Conclusion E. Claimant has met her burden of proving she has a 10 percent permanent partial disability attributable to her work injury of April 1, 1985, and that she is entitled to healing period benefits. Finding 3. Claimant has incurred medical expenses and mileage as a result of her work injury on April 1, 1985. Conclusion F. Medical expenses in the sum of $19,699.28 and mileage in the sum of $105.42 are due under section 85.27. Finding 4. Defendant Maryland Casualty denied benefits unreasonably to claimant. Conclusion G. Claimant has met her burden of proving she is owed penalty benefits under section 86.13 in the amount of 50 percent of the permanent partial disability benefits due from March 1, 1989. LANMAN V. EVERCO INDUSTRIES Page 14 ORDER THEREFORE, with respect to file number 710341, claimant will take no additional benefits from EVERCO and Westchester Fire. THEREFORE, with respect to file number 793562, defendants are to pay unto claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of two hundred twelve and 29/100 dollars ($212.29) per week as a result of the injury on April 1, 1985. Defendants are to also pay unto claimant thirty-five point three (35.3) weeks of healing period benefits at the rate of two hundred twelve and 29/100 dollars ($212.29) per week as a result of the injury on April 1, 1985. Defendant Maryland Casualty is to also pay unto claimant fifty (50) weeks of section 86.13 penalty benefits at fifty percent (50%) of the rate or one hundred six and 15/100 dollars ($106.15) per week and with interest from the date of this decision. Defendants EVERCO and Maryland Casualty are responsible for medical benefits in the sum of nineteen thousand six hundred ninety-nine and 28/100 dollars ($19,699.28) and mileage in the sum of one hundred five and 42/100 dollars ($105.42). Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants are to be given credit for all benefits previously paid claimant as stipulated by the parties. Costs of file number 710341 are assessed to claimant. Costs of file number 793562 are assessed to defendants EVERCO and Maryland Casualty. Defendants shall file a claim activity report upon payment of this award. Signed and filed this 23rd day of March, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER LANMAN V. EVERCO INDUSTRIES Page 15 Copies To: Mr. J. Nicholas Russo Attorney at Law 615 Iowa State Bank Bldg Iowa City IA 52240 Mr. Harry W. Dahl Attorney at Law 974 73rd, Suite 16 Des Moines IA 50312 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg Des Moines IA 50309 1803; 2500; 4000 Filed March 23, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHRISTINE LANMAN, Claimant, VS. File Nos. 793562 & 710341 EVERCO INDUSTRIES, A R B I T R A T I 0 N Employer, D E C I S I 0 N and WESTCHESTER FIRE & MARYLAND CASUALTY CO., Insurance Carrier, Defendants. 2500 Defendants were not liable for medical benefits for a 1982 work injury when there was an intervening work injury in April of 1985. Defendants liable for medical benefits and mileage because of work injury which occurred in April of 1985 and which aggravated preexisting condition. 1803 Claimant was awarded a 10 percent permanent partial disability attributable to an April of 1985 work injury. Claimant returned to work as a laborer. According to her own testimony she was "getting along fairly well." Claimant had a lighter position than the one she had on the day of the April 1985 injury. Claimant was earning greater wages and a bonus upon her return to work and she had received all raises pursuant to the collective bargaining agreement. 4000 Benefits under section 86.13 were awarded to claimant from a defendant insurance carrier. The carrier had unreasonably withheld benefits after the only physician involved modified his opinion and found a casual relationship between the April 1985 work injury and claimant's alleged condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN E. HUSTON, Claimant, VS. FILE NOS. 794131 & 774965 THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO., A R B I T R A T I 0 N Employers, D E C I S I 0 N and FIREMAN'S FUND INSURANCE COMPANIES and ARGONAUT INSURANCE COMPANIES, Insurance Carriers, Defendants. INTRODUCTION This involves two arbitration proceedings brought by John E. Huston, the first against Waldinger Corporation and Fireman's Fund, its insurance carrier; the second is against National Sheet Metal and Argonaut, its insurance carrier. Claimant seeks benefits based upon an injury that occurred September 6, 1984 and an alleged injury of April 16, 1985. The case was heard in Des Moines, Iowa on November 13, 1986 and was fully submitted upon conclusion of the hearing. The record in this proceeding consists of testimony from John E. Huston, claimant's exhibits 1 through 3, defendant Waldinger's exhibits B, F and G and defendant National Sheet MetalOs exhibits A and B. ISSUES The issues presented by the parties are determination of whether claimant sustained an injury that arose out of and in the course of his employment on April 16, 1985. Further issues deal with whether claimant is entitled to compensation for permanent partial disability based upon either or both of the alleged dates of injury, claimant's entitlement to benefits under section 85.27 from either of the respective defendants and costs. The rate of compensation is an issue with regard to the September 6, 1984 injury but it is stipulated to be $309.29 per week with regard to the April 16, 1985 injury. SUMMARY OF EVIDENCE HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 2 The following is only a brief summary of pertinent evidence. All evidence received at hearing was considered when deciding the case. John E. Huston is a construction supervisor for the State of Iowa who was formerly employed as a sheet metal worker through the union. On September 6, 1984, while working for the Waldinger Corporation, a punch press was accidentally activated and punctured claimant's left hand at a point between and proximate to the knuckles. X-rays showed a spiral fracture of the midshaft of the fifth metacarpal without displacement, angulation or other deformity (Exhibit 1, page 7). Surgical debridement, irrigation, exploration and closure of the laceration was performed by John Ganske, M.D., (Ex. 1, p. 4). Claimant went through a relatively unremarkable period of recovery. On October 29, 1984, Dr. Ganske noted claimant to have a grip strength in his left hand that was about 10 to 15 percent less than the right hand. On that date claimant still had some impairment in flexion of his little finger at the M.P. joint. On November 30, 1984, Dr. Ganske noted that claimant had almost complete return of motion, no external deformity and a normally maturing scar. He felt that the grip strength in claimant's left hand was probably back to normal. Claimant was then released from treatment (Ex. 1, pp. 12 & 13). Claimant testified that he went back to perform light duty work after having been released by Dr. Ganske. Defendant Waldinger's exhibit F indicates that claimant returned to work December 12, 1984. After returning to work claimant returned to Dr. Ganske on December 26, 1984 and January 11, 1985. He voiced complaints of decreased strength and pain in his left hand (Ex. 1, p. 13). Claimant testified that he had experienced increasing problems with the hand in early 1985 and saw Dr. Pakiam on one occasion when Dr. Ganske was out of town. Claimant testified that he left Waldinger for a period of time and then obtained employment with National Sheet Metal. Claimant did not disagree with an entry on Waldinger exhibit G which indicated that he was laid off from Waldinger on March 29, 1985. Claimant testified that he obtained employment with National Sheet Metal on April 3, 1985 through the union hall. Defendant National exhibit B confirms that testimony. Claimant stated that he had pain and loss of strength in the hand when he began working for National. He stated that his job involved bench work cutting out lines and fitting metal from sheets. He testified that while using both hands to cut through three thicknesses of metal material it felt as though his left hand popped and he experienced the onset of pain. Claimant drove to the Mercy Medical Center Emergency Room where he was treated by Dr. Bell and advised to place ice packs on the hand and see Dr. Ganske on the following day. Claimant testified that he was unable to see Dr. Ganske for two or three days and that he was then sent to Lutheran Hospital for additional x-rays. Claimant testified that he incurred and paid expenses in the amount of $35 with Dr. Bell, $43 for the Lutheran Hospital x-rays, $23 from the Mercy Hospital Emergency Room. Claimant testified that after reviewing the x-rays from Lutheran, Dr. Ganske told him to return to work. Claimant HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 3 related that he told Dr. Ganske that he was unable to do so and Dr. Ganske then advised that claimant obtain a second opinion. The x-ray report, Waldinger exhibit B, shows the x-ray to have been taken on April 19, 1985. Dr. Ganske's office notes found at exhibit 1, page 14 show claimant to have been seen by Dr. Ganske on April 19, 1985. A report from Dr. Ganske which is undated but appears to have been issued in late April, 1985, states that he examined claimant on April 18 and obtained x-rays on April 18, 1985. The date of this report is believed to be incorrect since it is inconsistent with the other records concerning those activities (Ex. 1, p. 18). Dr. Ganske indicated in the report that he felt claimant was capable of performing substantially the same work that he was doing in September, at the time of injury. The progress note of April 19, 1985, indicates that Dr. Ganske felt no new injury had occurred. Claimant testified that he knows something happened to his hand on April 16, 1985 because that night it became swollen. He felt that the Waldinger injury was serious, very painful and characterized it as more serious than any injury he had previously suffered. He stated that the sensation loss and pain in the left hand started at the time of the Waldinger injury but that the complaints worsened and became more severe when he returned to work following the injury. The claimant testified that he left employment with National Sheet Metal on April 26, 1985 due to lack of work and the fact that layoffs were starting. This is confirmed by defendant National's exhibit B. Claimant testified that two to three months later he commenced employment with the State of Iowa. This is confirmed by Waldinger exhibit G which shows payment of unemployment benefits through July 23, 1985. Claimant sought a second opinion from Arnis B. Grundberg, M.D. Dr. Grundberg, upon examining x-rays, appeared to be uncertain with regard to the age of the fracture of the fifth metacarpal neck but in his impression indicates that it is healed. He diagnosed claimant as having compression of the ulnar nerve in his left wrist and left carpal tunnel syndrome (Ex. 1, pp. 21 & 22). Dr. Grundberg indicated that claimant should be off work from May 17, 1985 until Friday, May 24, 1985 (Ex. 1, p. 19). Dr. Ganske concurred with Dr. Grundberg's diagnosis and recommendation for surgery for left carpal and cubital tunnel syndromes (Ex. 1, pp. 14 & 23). Claimant testified that the charges in the amount of $135 with Physiatry Associates were for nerve conduction tests used in diagnosing the carpal tunnel syndrome. On March 19, 1986, claimant underwent left carpal tunnel surgery performed by Dr. Ganske. On April 16, 1986, Dr. Ganske indicated that claimant would be totally healed in approximately two additional weeks. Reference to a calendar shows that date to be April 30, 1986 (Ex. 1, p. 49). Claimant testified that after the surgery had been performed it seemed to have provided improvement but that now the two small fingers on his left hand still lose sensation, become numb and are more sensitive to cold than his right hand. He complained HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 4 that he has difficulty feeling and gripping with his left hand. He complained of pain in the long finger on his left hand. Claimant stated that the carpal tunnel surgery was paid by the state group insurance plan, Share. In the report from late April, 1985 (Ex. 1, p. 18) Dr. Ganske indicated that any impairment in claimant's left arm or hand would be minimal. In a report dated April 16, 1986, issued following the carpal tunnel surgery, Dr. Ganske indicated that he did not expect claimant to have any permanent impairment. The record does not reflect ratings from any other physicians on the issue of permanent impairment. Claimant testified that the hours worked as shown in Waldinger exhibit F were abnormal. He stated that work was slow and the number of hours he had worked were unusually low during that period. Claimant testified that he was married and has four daughters and one step-son but that none of the children were dependent on him at the time of the injury. APPLICABLE LAW AND ANALYSIS The employer, Waldinger, admits the occurrence of the punch press injury. National Sheet Metal does not, however, admit that any injury occurred on April 16, 1985. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 16, 1985 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). Claimant's appearance and demeanor were observed when he testified. He is found to be a credible witness. It is found that he did sustain an injury that arose out of and in the course of his employment with National Sheet Metal on April 16, 1985 in the manner which claimant described. The Waldinger Corporation urges that claimant's healing period ran from the date of injury through December 11, 1984. This computes to a span of 13 5/7 weeks. Review of the evidence shows that claimant did return to work on December 12, 1984 which therefore terminates the healing period provided by section 85.34(l). Claimant's brief period of layoff between his employments with Waldinger and National Sheet Metal is not shown to be related to disability. Claimant was then injured while employed by National Sheet Metal on April 16, 1985. He was off work under medical authorization until seen by Dr. Ganske on April 19, 1985. The injury with National Sheet Metal is found to have simply been a temporary aggravation of the preexisting condition that resulted from the punch press injury. Accordingly, claimant's compensation is limited to one day of temporary total disability. Since the claimant was injured while employed by National Sheet HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 5 Metal he is also entitled to the expenses of treatment for that injury. These include the expenses incurred with Lutheran Hospital ($49), Dr. Bell ($35) and Mercy Hospital ($23). In accordance with exhibit 3, National Sheet Metal and Argonaut are likewise responsible for payment of 20 miles in transportation expenses for the travel to Methodist Hospital on April 16, 1985 and the travel to Dr. Ganske on April 19, 1985. This amounts to $4.80. The total medical expenses are therefore $111.80. As previously indicated the injury at National Sheet Metal was found to be only a temporary aggravation of the preexisting condition that resulted from the punch press injury. The only evidence in the record that suggests that the injury of April 16, 1985 was a significant injury is found at Waldinger exhibit B, an x-ray report which states that the irregularity of the head of the fifth metacarpal probably represents an acute or recent fracture. Dr. Ganske, who is found to be the most familiar with claimant's hand injuries, was of a contrary opinion. Dr. Ganske's impression of the injury of April 16, 1985 as being quite minor is accepted as correct. Dr. Ganske expressed the opinion that the carpal tunnel syndrome was related to the punch press injury (Ex. 1, pp. 24 & 50). The record contains no conflicting opinions. Dr. Ganske's opinion is reasonable and is accepted as correct. The expenses claimant incurred with Dr. HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 6 Pakiam and Younkers Rehabilitation (also referred to in the record as Physiatry Associates), are the responsibility of Waldinger and Fireman's Fund. The total of those charges is $144.49. The record shows claimant to have been off work from the date surgery was performed on March 19, 1986 and that healing would have been substantially completed on April 30, 1986. This is a span of six and one-seventh weeks for which Waldinger and Fireman's Fund are responsible for payment of healing period compensation. During the time claimant was having the carpal tunnel syndrome diagnosed, Dr. Grundberg indicated that he should be off work from May 17 through May 24, 1985. This is an additional span of one and one-seventh weeks from which the defendant Waldinger and Fireman's Fund are responsible. The services provided by Dr. Grundberg are found to be related to the carpal tunnel syndrome rather than the National Sheet Metal injury. Claimant seeks compensation for permanent partial disability involving his left hand. He suggests a rating of 10 percent. The only evidence in the record which supports his contention must be gleaned from the statement of Dr. Ganske found at exhibit 1, page 18 which states that "...there should be minimal, if any, impairment of the function of his hand or arm.O On April 16, 1986 (Ex. 1, p. 49), Dr. Ganske indicated "I do not expect that he will have any permanent impairment.O It is uncertain whether the second statement from Dr. Ganske refers only to the carpal tunnel syndrome for which treatment had just been completed or whether it referred to the condition of the entire left hand. Division of Industrial Services Rule 343-2.4 makes the Guides to the Evaluation of Permanent Impairment published by the American Medical Association a prima facie indication of permanent partial disability for scheduled member disabilities. The Guides are not, however, the exclusive method of rating disabilities. The claimant's testimony and demonstrated difficulties may be considered in determining the actual loss of use which is compensable so long as loss of earning capacity is not considered. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Claimant left the sheet metal trade for lower paying work with the state. When claimant's credibility and demonstrated difficulties are considered it is found that he has a permanent partial disability of five percent of the left hand. As previously indicated, that disability is found to be related to the punch press injury and not the injury of April 16, 1985. He is therefore entitled to receive nine and one-half weeks of compensation for permanent partial disability of the left hand payable commencing December 12, 1984. Defendant Waldinger exhibit F shows claimant's earnings during the 13 weeks preceding the week that contained September 6, 1984 to be $6,194.83. This computes to an average of $474.22 per week. When applied to the appropriate benefit schedule and considering claimant to be married with two exemptions, the rate of compensation for the Waldinger injury is found to be $288.45 per week. In accordance with claimant's testimony Waldinger and Fireman's Fund are also responsible for payment of transportation HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 7 expenses which claimant described as 20 to 24 miles each for two trips to see Dr. Grundberg and one trip each to Lutheran Hospital, Mercy Hospital and Methodist Hospital. This computes to 100 miles and allowance of $24. Claimant's testimony at hearing is adopted over the mileage statements shown in exhibit 3. It should also be noted that the employer, Waldinger, stipulated that claimant was entitled to $36 in mileage payments in addition to the $24 which is hereby awarded. The total would therefore be $60. The rule of law announced in McKeever v. Smith Custom Cabinets, 379 N.W.2d 368 (Iowa 1985) is not applicable to the injury of April 16, 1985. It has not been shown to have been a cumulative trauma injury. To the contrary, claimant testified regarding a specific event of trauma. He had not been asymptomatic immediately prior to the time of that trauma. His symptoms stemmed from the punch press injury of September 6, 1984. FINDINGS OF FACT 1. On April 16, 1985, claimant was injured while cutting sheet metal in the employ of National Sheet Metal Company. 2. Following the injury claimant was medically incapable of performing work in employment substantially similar to that he performed when insured until April 19, 1985 when Dr. Ganske released claimant to return to work. 3. The injury of April 16, 1985 was a temporary aggravation of a preexisting condition that had its origin in the punch press injury claimant suffered while employed by the Waldinger Corporation on September 6, 1984. 4. In obtaining care for the injury of April 16, 1985, claimant traveled 20 miles and incurred expenses for treatment in the total amount of $107. The treatment claimant received is found to be reasonable and necessary treatment for the injury and the charges made therefore are found to be fair and reasonable. 5. The injury claimant sustained while employed by the Waldinger Corporation on september 6, 1984 made claimant incapable of performing work in employment substantially similar to that he performed at the time of injury from the date of injury through December 11, 1984. Thereafter, he was again being medically incapable of performing such substantially similar work from May 17 through May 24, 1985. He was similarly disabled a third time from March 19, 1986 through April 30, 1986. 6. Claimant currently experiences pain, discomfort, numbness, loss of strength and loss of motion in his left hand. The punch press injury with the Waldinger Corporation is a substantial factor in bringing about that condition. The condition constitutes a five percent loss of use of claimant's left hand. HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 8 7. Claimant obtained care from Dr. Pakiam and Younkers Rehabilitation (also referred to as Physiatry Associates), where he incurred charges in the amount of $144.49. The treatment is found to be reasonable and necessary and the charges made are fair and reasonable. 8. In obtaining treatment for the injury claimant traveled 100 miles for which he is entitled to recover $24 in addition to the $30 which Waldinger and Fireman's Fund stipulated was due. The total is therefore $60. 9. Claimant has previously been paid $6,415.53 in weekly compensation by the Waldinger Corporation and Fireman's Fund. CONCLUSIONS OF LAW 1. The injury claimant sustained on September 6, 1984 is a proximate cause of the carpal tunnel syndrome for which he has been treated and of a five percent permanent partial disability of his left hand for which he is entitled to receive nine and one-half weeks of compensation under the provisions of section 85.34 (2)(1). 2. Claimant is entitled to receive 21 weeks of compensation for healing period from the Waldinger Corporation and Fireman's Fund with 13 5/7 weeks thereof payable commencing September 7, 1984, with one and one-seventh weeks thereof payable commencing May 17, 1985 and with six and one-seventh weeks thereof payable commencing March 19, 1986. 3. Claimant is entitled to recover benefits under section 85.27 from the Waldinger Corporation and Fireman's Fund in the amount of $204.49. 4. Claimant's rate of compensation with regard to the injury of September 6, 1984 is $288.45 per week. 5. Claimant is entitled to receive from National Sheet Metal Company and the Argonaut Insurance Company one-seventh week of compensation for temporary total disability at the stipulated rate of $309.39 per week and section 85.27 benefits in the total amount of $111.80. ORDER IT IS THEREFORE ORDERED that the defendant National Sheet Metal Company and the Argonaut pay claimant one-seventh (1/7) week of compensation for temporary total disability commencing April 19, 1985 at the rate of $309.29 per week. IT IS FURTHER ORDERED that the defendant National Sheet Metal and Argonaut pay claimant section 85.27 benefits in the total amount of one hundred eleven and 80/100 dollars ($111.80). HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 9 IT IS FURTHER ORDERED that the Waldinger Corporation and Fireman's Fund pay claimant twenty-one (21) weeks of compensation for healing period at the rate of two hundred eighty-eight and 45/100 dollars ($288.45) with thirteen and five-sevenths (13 5/7) weeks thereof payable commencing September 7, 1984, with one and one-seventh (1 1/7) weeks thereof payable commencing May 15, 1985 and with six and one-seventh (6 1/7) weeks thereof payable commencing March 19, 1986. IT IS FURTHER ORDERED that defendants Waldinger Corporation and Fireman's Fund pay claimant nine and one-half (9 1/2) weeks of compensation for permanent partial disability at the rate of two hundred eighty-eight and 45/100 dollars ($288.45) payable commencing December 12, 1984. IT IS FURTHER ORDERED that defendants Waldinger Corporation and Fireman's Fund receive credit in the amount of six thousand four hundred fifteen and 53/100 dollars ($6,415.53) for weekly benefits previously paid and that all past due amounts which were not paid as ordered herein be paid in a lump sum together with interest pursuant to section 85.30. IT IS FURTHER ORDERED that defendants Waldinger Corporation HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 10 and Fireman's Fund pay claimant two hundred four and 49/100 dollars ($204.49) in medical expenses and travel expenses under section 85.27. IT IS FURTHER ORDERED that the costs of this proceeding in accordance with Rule 343-4.33 are assessed equally among the defendants. Defendants are ordered to file claim activity reports as requested by this agency. Signed and filed this 3rd day of March, 1987. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 1913 Ingersoll Avenue Des Moines, Iowa 50309-3320 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 Ms. Dorothy L. Kelley Attorney at Law 1000 Des Moines Bldg. Des Moines, Iowa 50309-2462 1402.20; 1402.40; 1801 1802; 1804; 2206; 2209 Filed March 3, 1987 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN E. HUSTON, Claimant, VS. File NOS. 794131 & 774965 THE WALDINGER CORPORATION and A R B I T R A T I O N NATIONAL SHEET METAL CO., D E C I S I O N Employers, and FIREMAN'S FUND INSURANCE COMPANIES and ARGONAUT INSURANCE COMPANIES, Insurance Carriers, Defendants. 1402.20; 1402.40; 1801; 1802; 1804; 2206; 2209 Claimant, a sheet metal worker, suffered a punch press injury to his left hand. He testified that the symptoms never completely resolved but that he did return to work in his trade with difficulty. A few weeks later he experienced a sensation that he described as a "pop" in the hand while using shears to cut several thicknesses of sheet metal. The physicians who treated him were of the opinion that the more recent incident did not produce any significant injury but they did diagnose him as having carpal tunnel syndrome and ulnar nerve compression. Approximately one year later claimant underwent surgical decompression. The only medical evidence in the record related the nerve compression conditions to the punch press injury. That opinion was accepted as correct. The case involved two files and two different employers for the two injuries. The first employer's contention that McKeever applied to make the second employer responsible for the carpal tunnel syndrome was rejected since the injuries were distinct acute traumas and were not cumulative trauma in nature. Claimant had no ratings from any physicians which showed him to have a permanent physical impairment. The most favorable statement from a physician was that his impairment HUSTON V. THE WALDINGER CORPORATION and NATIONAL SHEET METAL CO. Page 2 was minimal, if any. Claimant's testimony regarding pain, loss of grip strength and the fact that he left the relatively high pay of the sheet metal trade in order to enter other employment which did not require strenuous use of the left hand was found to be sufficient to establish that he had suffered a five percent loss of use of the left hand due to the punch press injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : VICKI DENEKAS, : : Claimant, : : vs. : : File Nos. 794353/823077 AALFS MANUFACTURING COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD INSURANCE : COMPANY and EMPLOYERS MUTUAL : COMPANIES, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ _____ STATEMENT OF THE CASE Defendants appeals from an arbitration decision awarding benefits. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits 1 through 77; claimant's exhibits 5, 6, and 8 through 10; and Second Injury Fund's exhibits A and B. All parties filed briefs on appeal. issues Defendants state the issues on appeal are: Whether substantial evidence supports a finding of 65% permanent partial disability relating to the shoulder injury of April 14, 1986. A. The medical evidence shows a number of preexisting conditions resulting in substantial disability for which the defendants cannot be held responsible. B. The claimant's functional impairment, lack of motivation and credibility do not support a finding of 65% permanent partial Page 2 disability. findings of fact The findings of fact contained in the arbitration decision adequately and accurately reflect the pertinent evidence and will not be set forth herein, except that claimant is found to have sustained a loss of 45 percent of her earning capacity as a result of her work injury. conclusions of law The conclusions of law in the arbitration decision are adopted herein, as modified by the following additional analysis: Defendants are not entitled to an apportionment from the award for claimant's preexisting knee condition. The award is limited to the industrial disability caused by the shoulder injury. An apportionment is appropriate only where a prior condition is lighted up, accelerated, or aggravated by a work injury. Varied Enters., Inc. v. Sumner, 353 N.W.2d 407, 411 (Iowa 1984); Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). Even if apportionment of a prior condition unrelated to the present injury were appropriate, there is no indication that the knee injury caused claimant any industrial disability, as opposed to functional impairment. Tussing v. Hormel & Co., 461 N.W.2d 450 (Iowa 1990); Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991). Although claimant's functional impairment is not high, the other factors of industrial disability indicate that claimant has lost a substantial portion of her earning capacity. Claimant has shown motivation to return to work. Claimant's intellectual faculties limit the job opportunities available to her. Claimant cannot return to her prior job. Based on these and all other factors of industrial disability, claimant's industrial disability is found to be 45 percent. WHEREFORE, the decision of the deputy is affirmed and modified. Page 3 ORDER THEREFORE, it is ordered in file number 794353: That defendants Aalfs Manufacturing Company and Employers Mutual Insurance Companies shall pay unto claimant twenty-one point one four three (21.143) weeks of temporary total disability benefits commencing May 7, 1985 at the stipulated rate of one hundred eleven and 53/100 dollars ($111.53) per week and totalling two thousand three hundred fifty-eight and 08/100 dollars ($2,358.08). That defendants shall have credit for all payments made voluntarily prior to hearing. That as all benefits have accrued, they shall be paid in a lump sum with interest pursuant to Iowa Code section 85.30. That the costs of this action, including the costs of appeal, shall be assessed to defendants pursuant to 343 IAC 4.33. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. FURTHER, it is ordered in case number 823077: That claimant shall take nothing from defendant Second Injury Fund of Iowa. That defendants Aalfs Manufacturing Company and The Hartford Insurance Company shall pay unto claimant eighty-eight point one four three (88.143) weeks of healing period benefits commencing April 14, 1986 at the stipulated rate of one hundred seventeen and 04/100 dollars ($117.04) per week and totalling ten thousand three hundred sixteen and 26/100 dollars ($10,316.26). That those defendants shall also pay unto claimant two hundred twenty-five (225) weeks of permanent partial disability benefits commencing March 4, 1988 at the stipulated rate of one hundred seventeen and 04/100 dollars ($117.04) per week and totalling twenty-six thousand three hundred thirty-four and 00/100 dollars ($26,334.00). That defendants shall have credit for all payments made voluntarily prior to hearing. That all accrued benefits shall be paid in a lump sum with interest pursuant to Iowa Code section 85.30. That the costs of this action including, the costs of appeal, shall be assessed to defendants pursuant to 343 IAC 4.33. Page 4 That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas J. Hoffman Attorney at Law 19 First Avenue NW P.O. Box 528 Le Mars, Iowa 51031 Mr. James M. Cosgrove Attorney at Law 1109 Badgerow Building P.O. Box 1828 Sioux City, Iowa 51102 Mr. Brian L. Campbell Attorney at Law 801 Grand Ave., Ste 3700 Des Moines, Iowa 50309 Ms. Shirley Ann Steffe Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 1803 1806 Filed December 31, 1991 Byron K. Orton DRR before the iowa industrial commissioner _________________________________________________________________ : VICKI DENEKAS, : : Claimant, : : vs. : : File Nos. 794353/823077 AALFS MANUFACTURING COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD INSURANCE : COMPANY and EMPLOYERS MUTUAL : COMPANIES, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : _________________________________________________________________ 1806 Affirmed deputy's conclusion that apportionment was not appropriate where claimant's present work injury is an injury to the shoulder, and the prior injury was to the knee. Apportionment under Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984); Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956); and other cases contemplates an apportionment when a prior condition of the same body part or area is lighted up or aggravated by a work injury. Claimant's knee condition was not affected by the work injury to her shoulder. The deputy's award of industrial disability was for the results of this work injury only and apportioning out a prior condition not reflected in the award would not be appropriate. 1803 Award of industrial disability modified to 45 percent where claimant had a low impairment rating, had lost substantial earnings, shown good motivation to return to work, had limited intellectual faculties, and could not return to her prior job. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONDA MEFFERD, Claimant, File Nos. 794522 VS. 762119 FARMLAND FOODS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY AND SURETY COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ronda Mefferd, claimant, against Farmland Foods, employer, and Aetna Casualty and Surety, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act. The original notice and petition in this matter was filed on behalf of claimant on June 4, 1985, alleging "various" injury dates with the "last one on or about April 26, 1985." At the time of hearing, the original notice and petition was amended to add April 9, 1984 as an injury date and to specify that the injuries claimed may be the result of cumulative trauma. Defendants had no objection to the amendments and the same were granted. (It should be noted claimant presented testimony of an alleged arthritic condition as a result of alleged injuries in January 1984 and January 1985. These dates have not been pled, there is an absence of medical verification of the condition, and an absence of medical testimony concerning causal connection. Claimant also presents no argument in her post-hearing statement on these allegations. This office is not omniscient and the issues generated as a result of this testimony will not be addressed.) This matter came on for hearing before the undersigned deputy industrial commissioner December 2, 1987. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of the claimant and joint exhibits 1 through 23, inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved December 2, 1987, the following issues are presented for determination: MEFFERD V. FARMLAND FOODS, INC. Page 2 1. Whether or not claimant sustained an injury arising out of and in the course of her employment; 2. Whether the alleged work injury is the cause of the disability on which claimant now bases her claim; 3. The extent of claimant's entitlement, if any, to permanent partial disability benefits; and, 4. The appropriate rate of compensation for the alleged injury of April 9, 1984. It has been stipulated claimant has received all the temporary total disability/healing period benefits to which she is entitled with the exception of a few days in 1984. However, claimant's request for this additional temporary total disability/healing period benefits has been withdrawn as an issue as claimant was unable to specify the dates involved. (See claimant's posthearing statement, page 2) FACTS PRESENTED Claimant began working for defendant employer in May 1983 first arranging bacon and later as a bacon slicer where she lifted bacon bellies off of a skid and fed the slabs into a slicing machine. Claimant testified that from September to November 1983, she experienced tendonitis in her right hand; that on January 25, 1984, she dropped a box onto her toe; and that in March or April 1984, she felt something "pop" in her back while she was trying to pry apart two frozen bacon bellies. Claimant explained she was off work as a result of this last incident for approximately three weeks and then returned to light duty work although she was still experiencing pain. Claimant explained she had a "flareup" in her toe when she picked up a box and ran into a skid on January 25, 1985. Claimant testified that for at least two weeks prior to April 25, 1985, she was experiencing increased pain in her fingers, wrist, elbow, arms and back and returned to see her physician the following day. Claimant could not cite any particular incident which precipitated her pain. Claimant explained that throughout the next year she continued experiencing problems with her back and arms although she had "been to all different doctors." She testified she began to see a chiropractor again,,had gone through physical therapy and had seen a specialist in Omaha. Claimant quit her job with defendant employer in June 1986 when her physician advised she leave the cold environment and repetitive work of a packing plant. Claimant testified she continues to experience constant sharp pains in her back, arms and left foot which has gotten worse, but she cannot engage in recreational sports and that she has problems sleeping. Claimant has moved to the State of Washington where, along with her husband, she secured work as an apartment manager. Claimant quit that job because the hours and working conditions were inconvenient and acknowledged that she is not now actively seeking employment. The medical records submitted into evidence reveal claimant has been seen by a multitude of doctors. Following the incident on April 9, 1984 which involved the Opop" to claimant's back, MEFFERD V. FARMLAND FOODS, INC. Page 3 claimant was seen by her family physician, R. Mason, M.D., who instructed her to remain off work until April 23, 1984. Claimant saw a Dr. TanCreti after stubbing her toe on January 25, 1985, whom she also saw after complaining of pain in her arms on April 26, 1985. Claimant was thereafter released to light duty work but continued to complain of cramping in her arms and back. Claimant was referred to John Hennessey, M.D., who saw claimant on May 3, 1985 and opined claimant had back strain and tendonitis due to her work as a bacon slicer which required her to do frequent stooping and lifting. Claimant saw Dr. William R. Hamsa on May 17, 1985 whose impression was that claimant had recurrent muscular and ligamentous pain in the cervical spine, shoulders and elbows secondary to employment and recurrent low back pain secondary to employment superimposed upon lumbar lordorsis and transitional vertebrae. Dr. Hamsa stated in his report of May 17, 1985 that: Nothing is indicated except conservative treatment. The patient has basically normal neurological findings in the upper and lower extremities, so I don't feel any further studies are indicated. I think she is either going to have to accept her symptoms and get along as best she can with her job or change her employment to something; that doesn't boter [sic] her. She was given a return to work release for Monday, May 20, 1985. (Joint Exhibit 20) In June 1985, claimant saw Dr. Ronald Soll on referral from Dr. Donald Soll and stated: I feel that the patient most likely has severe proprpioceptive [sic] loss which is causing her to over stress her extremities when doing any kind of significant physical labor. Conceivably, this may be a circulatory problem that has its underlying basis in her dietary habits but other factors also may be involved. (Jt. Ex. 18) Claimant was evaluated April 16, 1986 by Behrouz Rassekh, M.D., who found claimant's physical and neurological examinations to be normal. Dr. Rassekh opined claimant has a mechanical back problem due to musculature ligamentous injury with no disc herniation. Claimant was advised on a program of exercise and released to return to her usual occupation as of April 16, 1986. Claimant was evaluated by Joel T. Cotton, M.D., on June 17, 1986 in reference to pain and numbness. Dr. Cotton opined claimant's discomfort was not on a neurological basis and he neither placed claimant on any mode of treatment or medication nor did he find any reason to restrict her activity. After claimant quit her employment, she was evaluated by Anil K. Agarwal, M.D., F.A.C.S., diplomat of orthopedic surgery, who stated on November 12, 1986: Examination of the cervical spine showed good range of motion. Biceps and triceps reflexes were normal MEFFERD V. FARMLAND FOODS, INC. Page 4 with no motor or sensory losses. There was no paravertebral spasm present. Examination of the lumbar spine also showed good range of motion. Straight leg raising was unimpressive and there was no paravertebral spasm. Toe and heel gait was normal, and knee and ankle reflexes were also normal. Extensor hallucis longus strength was within normal limits. There was no gross motor or sensory loss. There was no neurological deficit present in the upper or lower extremities. X-rays of the cervical spine are within normal limits.... .... The patient lacks any significant objective findings. (Jt. Ex. 2-1) Claimant was seen for evaluation by Horst G. Blume, M.D., on February 11, 1987. It appears from his report that Dr. Blume saw the previous medical reports and did a CT scan on claimant which revealed a minimal bulging disc on the right side at the neuroforamen of mild degree. (The actual CT scan report was not submitted into evidence and claimant had testified she never had a CT scan because defendants would not pay for it.) Dr. Blume opined: It is my opinion within reasonable medical probability that the patient has sustained an injury to the low back with irritation of the rami dorsalis of the posterior nerve roots of the intervertebral joints at the levels of L4/5 and L5/Sl on the right side and at L5/Sl on the left side of mild degree. The osteoarthritis of the facet joint at L5/Sl on the right side either is also the result of the accident of April 9, 1984, or was a pre-existing condition that aggravated this abnormal condition of the facet joints due the accident in April 1984. One also has to make the presumption that the disc pathology found can very well be as the result of previous work activity at Farmland Foods pre-existing from 1983 and became aggravated with the accident in 1984. (Jt. Ex. 1, pp. 1-2) It appears the last physicians to see claimant were Irving Tobin, M.D., orthopedic surgeon, and Robert F. Hood, M.D., neurologist, of Seattle and Tacoma, Washington, on June 12, 1987. Their report of the same date includes a complete history of claimant's treatment and symptoms and shows that a complete physical and neurological examination were done. The report concludes: RECOMMENDATIONS AND DISCUSSION: The patient has a MEFFERD V. FARMLAND FOODS, INC. Page 5 multiplicity of complaints which apparently began shortly after she went to work at Farmland Foods as a bacon slicer. She apparently initially had a left foot injury. She developed complaints referable to her shoulders and forearms. She then had the injury for which we have been specifically requested to examine her, that is the injury of April 9, 1984 when she felt a popping in her back when she was separating two frozen pork bellies. Since that time, she has been seen by a multiplicity of medical specialists. No one has been able to come up with a definitive diagnosis. She reports a recent CT scan was found to be abnormal. It may well have been abnormal, but in the opinion of the examiners in regard to findings today, there are no findings that would suggest a surgically amenable problem in the lumbar area. There is certainly no evidence of nerve root compression. We took the liberty of conducting a complete neuromuscular as well as neurological examination of the extremities and we do not find evidence of any impairment regarding her shoulders, elbows, forearms, cervical, dorsal, lumbar spine, hips, knees or ankles. We do not find any abnormality other than her voluntary restriction of motion because of low back distress. We know of no further diagnostic tests or treatment to suggest. We cannot help but feel that there is a significant degree of functional overlay and if further definitive evaluation considered by the interested parties, we would suggest that she undergo psychological and/or psychiatric evaluation. From the standpoint of musculoskeletal and neurological examinations, her findings are normal. Her condition is fixed and static. No further treatment is indicated. She is capable of gainful employment without restrictions so far as the physical findings are concerned. We cannot explain her complaints of chronic pain. (Jt. Ex. 17) APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on April 26, 1985 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). MEFFERD V. FARMLAND FOODS, INC. Page 6 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 claimant has the burden of proving by a preponderance of the evidence that the injury of April 26, 1985 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. ANALYSIS The first issue on appeal is whether claimant sustained an injury on April 9, 1984 and and on April 26, 1985 (cumulative) which arose out of and in the course of her employment. Claimant's testimony that she heard a "pop" in her back on April 9, 1984 which resulted in immediate pain is unrebutted. The medical reports support claimant's testimony. Therefore, it is determined that claimant has met her burden of proving she sustained an injury arising out of and in the course of her employment on April 9, 1984. The issue of the injury occurring April 26, 1985 (cumulative) is not necessarily as clear. Claimant testified the repeated lifting required of her job rather than any one particular incident caused the pain in her arms and contributed to the continuing pain in her back. Again, however, claimant's testimony is uncontroverted and is supported by the medical evidence. (See e.g. the report of Dr. Hamsa, exhibit 20, who finds claimant's recurrent muscular and ligamentous pain of the spine, shoulders, elbow and low back secondary to employment.) Further, claimant denied any previous back injury and was of sufficiently good health to have passed her preemployment physical with favorable conclusions as to the state of her health. Defendants have not presented any evidence contrary to that presented by the claimant and therefore it is accepted claimant's condition arose out of and in the course of her employment. Since it has been stipulated that claimant has received all of the temporary total disability/healing period benefits to which she is entitled (noting that the issue of additional temporary total disability/healing period benefits has become moot based on claimant's failure to identify the disputed MEFFERD V. FARMLAND FOODS, INC. Page 7 period), the only remaining issue is whether or not claimant is entitled to any permanent partial disability benefits as a result of the work-related injuries. Generally, a claim of permanent disability invokes an initial determination of whether the work injury is the cause of any permanent physical impairment or permanent limitation in work activity. Claimant, during the past three years, has consulted a veritable covey of health care providers including Doctors Mason, TanCreti, Hennessey, Hamsa, Ronald Soll, Donald Soll, Roberts, Edwards, Bendixon, Flood, Rassekh, Cotton, Anderson, Oatman, Agarwal and Blume. None of these physicians have provided either any impairment rating for the claimant nor have they imposed any permanent restrictions on claimant's work activity. Indeed, it appears that none of the physicians (with the possible exception of Dr. Blume who tentatively supports claimant's assertions with regard to her lower back) can even identify any medical reasons for her symptomology. The last physicians to evaluate claimant, Doctors Tobin and Hood, of Seattle-Tacoma, Washington, suggested claimant undergo psychological and/or psychiatric evaluation. Claimant began her course of medical care seeing Dr. Mason who did eventually provide her with a medical certification that she was unable to return to work at the packing plant. Claimant explained in her deposition how she got that certification: Q. Did you ask Dr. Mason to write that note for you? A. No, I didn't. MEFFERD V. FARMLAND FOODS, INC. Page 8 Q. How did he come to write that for you? A. Because I had been to different doctors and I went back to see her and she said I don't know what else to do for you. She said you have been to all different kinds of doctors and she said the only thing I can do is to give you a note to disable you from working at a packing plant. And she said would that be all right and I said I don't know. And she said do you want to think about it and I said you are the doctor, you tell me. I said I'm here trying to find out what is wrong. If you don't think I can do it or shouldn't be doing it, you tell me. And she said that she didn't think that I should be in there and disabled me. And told me I should try taking physical therapy, so I have been doing that. (Claimant's Deposition, pages 9-10) From this (since Dr. Mason's medical records have not been submitted into evidence), it would seem that Dr. Mason, too, could find no medical justification for claimant's symptoms but, so long as claimant continued to assert they were caused by her work, agreed that claimant should discontinue the work. Dr. Blume provides a "disabilityO rating of five percent. Initially, it must be noted that it is not within the domain of the medical expert to determine disability for it is impairment that is this expert's proper subject for comment. Dr. Blume's opinion is therefore given less weight particularly when it is weighed against the medical opinions of all the other physicians in this matter. Further, even Dr. Blume as the only physician to provide what might even remotely be considered an impairment rating, fails to provide any restrictions on claimant's employability or on her work activity. Claimant argues that there are "myriads of injuries caused by repetitious trauma that are not capable of being identified by objective symptoms since there are none--only pain--often disabling" and that the only possible basis of refusing to honor claimant's claim would be if claimant's subjective complaints were found to be incredible which none of the doctors have so found. While the undersigned cannot conclude claimant does not believe she has pain, it must be concluded that claimant has failed to meet her burden that the work injury is the cause of any permanent impairment, the cause of any permanent restrictions in work activity, or the cause of any permanent disability. Therefore, claimant is entitled to nothing further from these proceedings and the other issue need not be addressed. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following facts are found: 1. On April 9, 1984, while trying to pry apart two frozen bacon bellies, claimant felt something "popO in her back resulting in pain. MEFFERD V. FARMLAND FOODS, INC. Page 9 2. For at least two weeks prior to April 25, 1985, claimant experienced increasing pain in her fingers, wrist, elbow, arms and back. 3. Claimant had no medical history of back pain or pain in her arms prior to her employment with Farmland Foods. 4. Claimant's pain was caused by her employment. 5. Claimant continued to experience pain and although she saw a number of physicians none were able to relieve her symptoms nor were they able to find any definite medical justification for those symptoms. 6. Claimant quit her employment in June 1986 after securing medical certification that she was unable to return to work in packing plant. 7. Claimant continues to perceive pain. 8. Claimant has no permanent impairment as a result of her work injuries. 9. Claimant has no permanent work restrictions as a result of her work injuries. 10. Claimant has no permanent disability as a result of her work injuries. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has established she sustained an injury which arose out of and in the course of her employment on April 9, 1984. 2. Claimant has established she sustained an injury which arose out of and in the course of her employment as a result of a cumulative injury on April 26, 1985. 3. Claimant has not established that her work injuries are the cause of any permanent disability. ORDER THEREFORE, IT IS ORDERED: That claimant, having been paid for all the temporary total disability to which he is entitled, shall take nothing further from these proceedings. That each party is assessed its own costs pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 28th day of March, 1988. MEFFERD V. FARMLAND FOODS, INC. Page 10 DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Ms. Lorraine May Attorney at Law 4th Floor, Equitable Bldg. Des Moines, Iowa 50309 1100; 1402.30; 1402.40 Filed March 28, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONDA MEFFERD, Claimant, File Nos. 794522 VS. 762119 FARMLAND FOODS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY AND SURETY COMPANY, Insurance Carrier, Defendants. 1100; 1402.30 Claimant's testimony concerning how her injuries occurred was uncontroverted and supported by medical evidence. Claimant therefore established she sustained injuries which arose out of and in the course of her employment. 1402.40 Although claimant was seen by a veritable covey of doctors, none could provide any impairment rating, and permanent restrictions or limitations in work activity, or identify any medical reasons for her symptomology. Held, claimant failed to establish the work injuries were the cause of any permanent partial disability.