BEFORE THE IOWA INDUSTRIAL COMMISSIONER DOUGLAS G. MUNDEN, Claimant, File No. 800797 vs. A R B I T R A T I O N BIL MAR FOODS OF IOWA, INC., D E C I S I O N Employer, F I L E D and JUN 22 1989 AMERICAN MOTORISTS INSURANCE, IOWA INDUSTRIAL COMMISSIONER COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Douglas G. Munden, claimant, against Bil Mar Foods of Iowa, Inc., employer (hereinafter referred to as Bil Mar), and American Motorists Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on June 17, 1985. On October 25, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and Dale Carver. The exhibits received into the evidence at the hearing are listed in the prehearing report except for exhibit 5 which was excluded at hearing. According to the prehearing report, the parties have stipulated to the following matters: 1. On June 17, 1985, claimant received an injury which arose out of and in the course of his employment with Bil Mar. 2. The extent of claimant's entitlement to healing period benefits consists of a period of time from July 10, 1985, through November 5, 1985, a total of 17 weeks. 3. The work injury is a cause of permanent disability and this disability is a scheduled member disability to the hand. 4. If permanent disability benefits are awarded, they shall begin as of January 1, 1986. 5. Claimant's rate of weekly compensation for this injury is $118.82. ISSUES The parties submitted the following issues for determination in this proceeding: I. The extent of claimant's entitlement to weekly benefits for permanent disability; and, II. The extent of claimant's entitlement to medical benefits. STATEMENT OF THE FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement should be viewed as preliminary findings of fact. Claimant testified that he began to experience pain and swelling in his wrists and hands while working as a meat packer for Bil Mar. Claimant states that he was assigned to pulling turkey breasts on a repetitive basis. Claimant said that the plant nurse wrapped his wrists daily. Bil Mar management testified that all of their meat packing employees are wrapped daily to prevent injury. They added that claimant had been assigned to perform this work for only a brief period of time before experiencing problems. They contended that it was not unusual for new employees in the breast pulling jobs to experience these programs for a temporary period of time until their bodies become adjusted to the work. Company records also indicate that claimant told the plant doctor during his preemployment physical that he had arthritis problems in his hands in previous meat packing employment. At the hearing, claimant denied having any prior hand problems before the Bil Mar employment and states that he was in good health when he started. Claimant first sought treatment for his hand trouble while working for Bil Mar from a company authorized physician, Mark Schultz, D.O. Dr. Schultz diagnosed carpal tunnel syndrome and prescribed use of a wrist splint and medication. Claimant also, at that time, complained to Dr. Schultz of right shoulder and elbow problems and neck pain. Dr. Schultz treated claimant until mid-July 1985, when he referred claimant to J. D. Fellows, M.D., an orthopedic surgeon. Dr. Fellows likewise diagnosed carpal tunnel syndrome in the right wrist and initially attempted nonevasive therapy and steroid injections to treat this problem. However, eventually Dr. Fellows performed in September 1985, a surgical carpal tunnel release on the right hand after electrical studies revealed a mild nerve compression. In October 1985, claimant complained to Dr. Fellows of generalized right sided pain in the arms, shoulders and right chest wall which Dr. Fellows attributed to functional causes. In December 1985, claimant still complained of neck pain and he was referred by Dr. Fellows to Arnis B. Grundberg, M.D., for evaluation. Dr. Grundberg found both residual right carpal tunnel syndrome and cervical radiculopathy following his examination of claimant. Claimant was then referred by Dr. Fellows to A. Kleider, M.D., a neurosurgeon, who, in turn, referred claimant to B. E. Krysztofiak, M.D., for electrical testing. From this testing, Dr. Kleider concluded that claimant had a C7 cervical radiculopathy. A myelogram was then performed by Dr. Kleider which ruled out a disc problem in the upper spine. Dr. Krysztofiak recommended physical therapy for the right sided pain. Testing by Dr. Krysztofiak indicated that claimant had no residual compression from right carpal tunnel syndrome. Early in 1986, claimant began receiving chiropractic care from Rex J. Jones, D.C. Dr. Jones attributed claimant's problems to recurrent carpal tunnel syndrome and expressed an opinion that claimant was in need of further decompression surgery. He also diagnosed residual causalgia or sympathetic reflex peripheral neuropathy. Dr. Jones did not explain the nature of any of these conditions in his reports. What conditions or area of claimant's body actually received chiropractic manipulation and supportive therapy from Dr. Jones is not clear in the records and was not explained by claimant in his testimony or in the file from Dr. Jones submitted into evidence. In March 1986, Dr. Jones reported that he believed claimant's disability is greater than his impairment rating due to claimant's low education and limited employment background. In July 1986, Dr. Jones informed claimant's attorney that further surgery of claimant's carpal tunnel syndrome was needed to prevent future damage. On April 4, 1986, claimant's attorney received a letter from a claim representative of defendant insurance carrier stating that the carrier rejected the claim that claimant's neck and right upper extremity problems were work related and denied payment of the bills submitted, including those from the Marian Health Center and the testing bills by Drs. Kleider and Krysztofiak. In December 1986, claimant was last seen by Dr. Fellows who noted continued complaints of pain in both hands and extremities which radiated into the shoulders and neck. Dr. Fellows, at that time, concluded that claimant had no permanent neurological disorder from carpal tunnel syndrome. Dr. Fellows then prescribed treatment for the right sided pain in the form of physical therapy from K. Van Wyk, LPT, which claimant received in December 1986 and January 1987. In October 1987, Dr. Fellows reported that it did not appear to him that claimant had permanent neurological damage from carpal tunnel syndrome. In May 1987, Steven L. Wolfe, M.D., speciality, if any, unknown, reported that he likewise diagnosed carpal tunnel syndrome but ruled out from the myelogram study a higher lesion in claimant's neck. He could not find causal connection of claimant's original problems to his current complaints in both hands, shoulders and headaches. In September 1987, claimant was evaluated by Joel Cotton, M.D., a neurologist. Dr. Cotton could not find evidence of any disability, neurological or otherwise. This doctor also did not feel that further treatment or chiropractic care was needed. In June 1988, claimant was evaluated by John J. Dougherty, M.D., an orthopedic surgeon. Dr. Dougherty agreed with Dr. Cotton and could not find anything significant in claimant's right hand. He could not relate any of claimant's neck or shoulder problems to the carpal tunnel syndrome or to claimant's employment at Bil Mar. Dr. Dougherty stated that claimant might be entitled to no more than one to two percent permanent partial impairment. Claimant testified that he did not receive any relief from treatment to date. He testified that he has lost right hand grip strength and demonstrated that he could only partially close his right hand and cannot make a fist. He states that he has pain into the neck from driving and right leg and low back pain as well. He complains that he still has night pain and can only sleep three hours a night. He said that he continues to receive chiropractic care but that this treatment provides only temporary relief. Claimant is currently working in another packinghouse as a forklift truck driver. APPLICABLE LAW AND ANALYSIS I. Claimant stipulated that the type of permanent disability in this case is a scheduled member disability to the hand. The issue of whether the injury may or may not have extended beyond the hand was only academic given this stipulation. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). From the evidence submitted, it is found as a matter of fact that the work injury was a cause of a 1.5 percent loss in the use of the hand. Claimant was most recently evaluated by Dr. Dougherty who indicated that claimant's disability does not exceed this amount. A failure of electrical studies to objectively demonstrate nerve compression is not necessary to a permanent disability award in the experience of this agency. Claimant's testimony, as to the extent of his hand problems, could not be fully accepted. Claimant did not appear credible at hearing and his testimony concerning his past hand problems were inconsistent with prior statements made to physicians in this case. Consequently, there was a heavy reliance by the undersigned upon the medical expert testimony. Based upon the above finding of impairment, claimant is entitled as a matter of law to 2.85 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(1) which is 1.5 percent of 190 weeks, the maximum allowable number of weeks for an injury to the hand in that subsection. According to the prehearing report, claimant has already been paid an excess of this amount and no further weekly benefits can be awarded. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is entitled to an order of reimbursement only if claimant has paid those expenses. Otherwise, claimant is entitled to an order directing the responsible defendants to make such payments. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). Claimant has shown entitlement to payment of the entire cost of the testing of Dr. Kleider and Dr. Krysztofiak. Defendants have no right to refuse to pay for the cost of diagnostic testing performed by a physician or a physician to which claimant was referred by an authorized physician even where the results of the testing show no causal connection to the injury. See Butcher v. Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 (Appeal Decision 1983). Likewise, defendants have no right to refuse to pay for treatment prescribed by an authorized physician absent clear notice to the claimant that such treatment is not authorized. Notice to claimant's attorney that any further treatment for neck or arm pain would not be paid was not given until April 4, 1986, in this case. Failure to pay for previously authorized treatment violates the principles of equitable estoppel. Such principles have been applied by this agency in other issues such as statute of limitations. See Paveglio v. Firestone Tire & Rubber Co., 167 N.W.2d 636 (Iowa 1969). Therefore, defendants will be ordered to pay for the electrical and myelogram testing by referred physicians. The physical. therapy ordered by Dr. Fellows will not be ordered paid as it involved treatment of right arm and neck pain after notice was given that such treatment was not authorized. Also, these conditions are not found to be work related according to the greater weight of evidence in this case. With reference to the chiropractic care received by claimant in this case, although defendants have denied the causal connection of such care to the work injury and do not have the right to chose the.care, the undersigned cannot determine from the records what condition was actually treated by Dr. Jones. If it were for right sided pain involving the neck and right arm, such treatment is not the responsibility of defendants as those conditions are not found to be work related in this decision. Therefore, without a showing of what chiropractic treatment modalities were given by Dr. Jones for claimant's right carpal tunnel syndrome, it cannot be assumed that such care involved right carpal tunnel syndrome and the claim for chiropractic care must therefore be denied. Given claimant's award for medical benefits in this case, costs will be assessed against defendants. FINDINGS OF FACT 1. The work injury of June 17, 1985, was a cause of a 1.5 percent permanent partial impairment to the right hand. Claimant continues to experience mild carpal tunnel syndrome problems in the right hand following carpal tunnel release surgery. Claimant had problems with his hands prior to his employment at Bil Mar. 2. The following medical expenses are fair and reasonable and were incurred by claimant for reasonable and necessary treatment of his carpal tunnel condition caused by the work injury of June 17, 1985: Marian Health Center 1-07-86 $332.00 Ex. 3 Marian Health Center 1-15-86 624.50 Ex. 1 B. Krysztofiak, M.D. 1-28-86 90.00 Ex. 6 Sioux City Neurosurgery, P.C., 1/15-16/86 225.00 Ex. D No causal connection could be found from the bills from Kenneth Van Wyk, LPT, (Ex. C) and those of R. J. Jones, D.C., (Ex. 4). CONCLUSIONS OF LAW Claimant has established under law entitlement to the medical benefits awarded below. Claimant failed to establish entitlement to additional disability benefits. ORDER 1. Defendants shall pay the medical expenses found causally connected in finding number 2 above. Claimant shall be reimbursed if he has paid any of these expenses. Otherwise, defendants shall pay the provider directly. 2. Defendants shall receive credit for previous payments of benefits under a non-occupational group insurance plan if applicable and appropriate under Iowa Code section 85.38(2). 3. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 4. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 22nd day of June, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David A. Scott Attorney at Law 407 Grand Ave. P. 0. Box 3046 Spencer, Iowa 51301 Mr. Thomas M. Plaza Attorney at Law 200 Home Federal Bldg. P. 0. Box 3086 Sioux City, Iowa 51102 51803; 2501 Filed June 22, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER DOUGLAS G. MUNDEN, Claimant, File No. 800797 vs. A R B I T R A T I 0 N BIL MAR FOODS OF IOWA, INC., D E C I S I 0 N Employer, and AMERICAN MOTORISTS INSURANCE, COMPANY, Insurance Carrier, Defendants. 51803 - Non-precedential - extent of permanent partial disability Claim for additional disability benefits denied as claimant was paid weekly benefits in excess of his entitlement. 2501 - Medical benefits, employer duty to furnish - duty to pay Held that employers have no right to deny payment for care or diagnostic proceedings given upon referral by an authorized physician absent a notice to claimant that such care is not authorized even if the care or diagnostic procedures are later found not to be causally connected to the injury. Principles of equitable estoppel are applicable to such situations. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RANDY AXIOTIS, : : Claimant, : : vs. : : File No. 800819 NORTHERN CEDAR SERVICE CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Randy Axiotis, against his employer, Northern Cedar Service Company, and its insurance carrier, Aetna Casualty & Surety Company, defendants. The case was heard on August 2, 1990, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant. Additionally, the record consists of joint exhibits 1-6 and administrative notice was taken of the official file, including rate. issues The issues to be determined are: 1) the nature and extent of claimant's permanent disability; and, 2) the appropriate rate for weekly benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 29 years old, married and has two children. He has held a variety of positions. Over a five year period he has held approximately 10 positions, all of which have been in the $5.00 per hour range. Most of the positions have been in construction or in operating heavy equipment and trucks. On August 2, 1985, claimant was involved in a work related injury. He was driving a grain truck for defendant-employer. While turning a corner, the load shifted in the truck and the truck capsized. Claimant was thrown in the cab. He hit his body inside the truck injuring his chest and lower back. Page 2 Claimant sought medical attention from S. J. Laaveg, M.D., who treated claimant conservatively. After conservative treatment, Dr. Laaveg rated claimant as having a three percent permanent partial impairment rating. The physician also restricted claimant from carrying more than 50 pounds, from lifting from the floor 35 pounds and from prolonged sitting or standing of over three to four hours at any one time. Because claimant continued to experience difficulties with his back, defendant-insurance carrier referred claimant to William R. Boulden, M.D., an orthopedic surgeon. As a result of Dr. Boulden's recommendations, an anterior lumbar interbody fusion was performed in July of 1986. A few weeks later, a level two decompression laminectomy was performed. Claimant participated in a work hardening program subsequent to his two surgeries. Dr. Boulden restricted claimant from engaging in bending, stooping, lifting, or twisting his back. Claimant was placed in a medium to heavy job category. Dr. Boulden assessed a 20 percent permanent partial impairment rating. For a matter unrelated to this proceeding, claimant was incarcerated at Rockwell City. This took place from July 7, 1987 until May 29, 1988. After his incarceration, claimant then obtained various jobs in industry and construction. At the time of the hearing, claimant had been employed for one month for Anderson Construction. Claimant had been hired as a laborer for $7.00 per hour. conclusions of law This division has jurisdiction of the subject matter of the proceeding and the respective parties. The fighting issue in this case is the nature and extent of claimant's disability, if any. 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 basic 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, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. 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 Page 3 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, 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 disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). 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). In the case before this division, claimant is functionally impaired. Dr. Boulden, after claimant's two back surgeries, has assessed a 20 percent functional impairment rating to claimant. Dr. Boulden has also imposed Page 4 permanent restrictions on claimant. However, claimant may still perform work in the light, medium, or heavy categories. Claimant has sustained a loss of earning capacity. He is still capable of handling jobs in the heavy work cat egory. On the date of the hearing, claimant was able to perform duties as a construction laborer for more money than he had earned while working for defendant-employer. Claimant is also capable of factory work. Claimant's prior work record has been sporadic, at best. He has had a history of multiple jobs for only short periods of time. Many of his jobs have been temporary or for only the duration of a project. Claimant has also had a history of unemployment. There are breaks in his work history where claimant has had no employment. Subsequent to his work injury, claimant has been less than motivated to engage in vocational rehabilitation. He has only minimally cooperated with Jack E. Reynolds, vocational specialist. Claimant is not interested in obtaining his GED. He is not interested in learning a particular trade or pursuing the auto mechanic skills he has obtained in Rockwell City. Therefore, based upon the principles of law previously cited, it is the determination of the undersigned that claimant has a 25 percent permanent partial disability. Section 85.34(1), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or (3) has achieved maximum medical recovery. The indus Page 5 trial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Co., Vol. 2-1, State of Iowa Industrial Commissioner Decisions 485 (1984). With respect to this case, claimant has been in the healing period from August 2, 1985 through April 18, 1986 and from July 19, 1986 through April 24, 1987. The healing period consists of 77.143 weeks. Claimant is entitled to weekly compensation for the same period. The final issue to address is the rate at which claimant is to be compensated. Claimant alleges he is to be compensated at the gross weekly wage rate of $169.23 with the weekly benefit rate of $117.04. This is based on an estimation of $2,200.00 for the 13 weeks prior to claimant's injury by Rodney Kann, vice president of defendant-employer. Defendants contend in their brief that claimant should be paid as follows: Calculation of Rate Randy Axiotis was employed at Northern Cedar from June 18, 1985 through August 2, 1985, or seven weeks. Therefore, the deputy must determine the amount the Claimant would have earned had he been employed by Northern Cedar for the six weeks preceding June 18, 1985. The Claimant's actual earnings during the seven weeks that he was employed by Northern Cedar are detailed in Exhibit No. "6". The average weekly earnings of the Claimant at the time of the injury, based on his seven weeks of actual employment, were $139.65. This average is based on the following: Period Hours Worked Earnings 6/18-7/21 42 $ 210.00 7/2-7/15 52 260.00 7/16-7/29 77.5 387.50 * 7/30-8/2 24 120.00 195.5 $ 977.50 -7 -7 27.93 $ 139.65 * Two overtime hours included at straight time rather than time and a half. The parties have stipulated that Randy Axiotis was married with three exemptions at the time of the injury. Therefore, the appropriate rate of compensation using the benefit schedule for 1985 is $99.13. The seven weeks of actual employment were typical and indicative of the amount of work that would have been available for the Claimant at Northern Cedar during the six preceding weeks. The Claimant testified that the summer of 1985 was rainy and, because the work of Northern Cedar occurs outdoors, the laborers were not able to work full 40-hour weeks. The Claimant testified that the hours he worked during the 7-week period were consistent with the hours worked by the other employees of Northern Cedar during the two months prior to his employment. Page 6 The Claimant will no doubt argue that the rate should be based on representations made by the Employer in the First Report of Injury filed herein. In Section 41 of the Report, the Employer is asked to estimate what the Employee would have earned if employed for 13 weeks. Obviously, the evidence presented at hearing should control rather than an estimate made at the time of the injury. After reviewing the evidence, including exhibit 6, and after taking administrative notice of the file with respect to wage information, the undersigned determines that claimant's weekly benefit rate is calculated as follows under section 85.36(7). Claimant did not work the 13 weeks preceding his injury. He worked the following six weeks including the week of his injury: 6-18 to 7-1 42 hours $ 210.00 7-2 to 7-15 52 " 260.00 7-16 to 7-29 77.5 " 387.50 * 7-30 to 8-2 24 " 120.00 195.5 $ 977.50 7 weeks 7 = 139.65 gross 27.93 hours worked weekly wages per week * (No overtime figured) Using the Guide to Iowa Workers Compensation Claim Handling, dated July 1, 1985, the appropriate weekly benefit rate for a married individual with three exemptions is $99.13 per week. Claimant is entitled to be compensated at this weekly benefit rate. Page 7 order THEREFORE, IT IS ORDERED: Defendants are to pay one hundred twenty-five (125) weeks of permanent partial disability benefits at the rate of ninety-nine and 13/l00 dollars ($99.13) per week for the periods April 19, 1986 to July 18, 1986 and from April 25, 1987. Defendants are to also pay healing period benefits for seventy-seven and one-four-three (77.143) weeks from August 2, 1985 through April 18, 1986 and from July 19, 1986 through April 24, 1987. Defendants shall receive credit for all benefits previously paid and not credited. Interest shall be paid pursuant to Iowa Code section 85.30. Costs of the action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this rule 343 IAC 3.1. Signed and filed this ____ day of March, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert W. Pratt Attorney at Law 6959 University Ave Des Moines IA 50311 Ms. Lorraine J. May Attorney at Law 4th Floor Equitable Bldg Des Moines IA 50309 1803 Filed March 13, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : RANDY AXIOTIS, : : Claimant, : : vs. : : File No. 800819 NORTHERN CEDAR SERVICE CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ Claimant was awarded a 25% permanent partial disability for his back injury. Claimant was functionally impaired in the amount of 20%. Claimant had sustained some loss of earning capacity. Claimant was prohibited from engaging in repetitive bending and twisting. Claimant was not especially motivated. His prior work record was sporadic. Claimant was able to perform as a construction laborer subsequent to his surgery. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEON MCNEAL, Claimant, File No. 800944 vs. A R B I T R A T I O N IOWA DEPARTMENT OF D E C I S I O N TRANSPORTATION, Employer, F I L E D and NOV 20 1989 STATE OF IOWA, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Leon McNeal against the Iowa Department of Transportation and state of Iowa wherein claimant seeks compensation for permanent partial disability resulting from an accident and injuries that occurred on July 24, 1985. The case was heard and fully submitted at Davenport, Iowa on March 27, 1989. The record in this proceeding consists of testimony from the claimant, jointly offered exhibits 1 through 25 and defendants' exhibits A and B. The only issue for determination is the extent of claimant's entitlement to compensation for permanent partial disability. It should be noted that the claimant had a third party claim based upon the accident from which his injuries arose, which claimant settled for $12,500. Of that amount, $6,148.11 was paid to the state of Iowa in satisfaction of its lien for workers' compensation benefits which had been paid in the total amount of $8,197.48. The difference between the two figures appears to represent legal costs incurred in obtaining the third party recovery. 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 offered may show are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Leon McNeal is a 39-year-old married man who lives at Davenport, Iowa. He has a tenth grade education, but has taken some college courses since the accident which is the subject of this proceeding. In 1984, he took a semi-truck driving course. He has also had other training relative to jobs he has held. Claimant's prior work history included approximately 15 years working as a machine operator in factories. He has worked as a cook, a mental health officer at the Iowa Security Medical Facility, and as an activities person in a home. Claimant had been laid off from his regular employer, John Deere, and obtained employment with the Iowa Department of Transportation. Claimant's job title was equipment operator I. He performed a number of activities, however, including work with hand tools such as shovels, jackhammers and wrenches in addition to actually operating pieces of equipment. On July 24, 1985, claimant was riding in a truck on the shoulder of Interstate 80 picking up debris when the truck was struck in the rear by another vehicle. Claimant was thrown from the truck. Claimant was taken by ambulance to St. Lukes Hospital in Davenport, Iowa. The ambulance attendants indicated that he did not seem to be seriously injured (exhibit 4). While hospitalized, various diagnostic tests were conducted. A CT scan showed evidence of injury to the posterior margin of claimant's left kidney. X-rays did not identify any injury to claimant's bones or other tissues. Claimant was discharged on July 26, 1985 (exhibit 5a). Claimant underwent a course of treatment initially under the direction of John A. Stoner, M.D., and then came to be treated by Ralph H. Congdon, M.D. Claimant was treated conservatively and was administered physical therapy. With the passage of time, his complaints and symptoms were reduced and claimant was released to return to work without restrictions effective December 16, 1985 (exhibit B). Upon returning to work, claimant's symptoms increased and Dr. Congdon placed claimant back into physical therapy. Claimant's symptoms again improved, but, according to claimant, never completely resolved. Claimant remained employed by the Department of Transportation until November 13, 1986 when an incident while he was working under a truck allegedly caused pain in his hands and arms. Claimant has not since been released to return to work or sought employment. Claimant is afflicted with hypertension, diabetes and renal insufficiency. The primary treatment for those conditions has been received at the University of Iowa Hospitals and Clinics. A physician indicated that the accident of July 24, 1985 did not produce claimant's kidney condition. It was believed that the kidney condition resulted from claimant's hypertension (exhibits 6d and 17b). Michael J. Finan, M.D., a rheumatologist, has characterized claimant as having chronic pain syndrome which has its origin in soft tissue injury (exhibit 11c). James H. Hahn, M.D., has also characterized claimant as having chronic pain syndrome with diffuse myalgias (exhibits 14c and d). Claimant has been evaluated by neurologist Daniel B. Johnson, M.D., who found no specific neurological abnormalities, but indicated that he suspected claimant had posttraumatic syndrome with chronic pain (exhibit 18d). Claimant has been examined by psychiatrist D. V. Domingo, M.D., who has indicated that claimant has mild depression with a borderline IQ as well as his various physical afflictions (exhibit 23d). Claimant was evaluated by Scott B. Neff, D.O., on July 21, 1986. Dr. Neff indicated that claimant has sore muscles, but no significant impairment or disability (exhibit 10). Claimant's primary treating physician has been orthopaedic surgeon Ralph H. Congdon, M.D. Dr. Congdon issued a report on September 16, 1986 in which he stated that claimant has a seven percent impairment of the whole body based upon loss of motion which has resulted from the injuries that were sustained on July 24, 1985 (exhibit 1f). When subsequently deposed, Dr. Congdon confirmed that rating (exhibit 1g, page 16). When deposed, Dr. Congdon was no longer actively treating claimant's back. He expressed the opinion that claimant's back condition had plateaued in approximately September of 1986 (exhibit 1g, page 35). Dr. Congdon stated that his impairment rating had been made in accordance with the AMA guides (exhibit 1g, page 48). Claimant testified that he has not had a single day without pain since the accident of July 24, 1985. He stated that his right leg is now becoming more difficult to manage and that his body is in an overall weakened condition. Claimant stated that the pattern of his pain is that it becomes intense over the back of his head, that muscles tighten in his neck, shoulder blades, mid-back and down his right leg. He stated that his range of neck motion is reduced and that if he tries to extend the range of motion, he develops tremendous headaches. Claimant testified that he had been a good athlete when he was in school and formerly played ball with his children, but that he is no longer able to perform that type of activity. Claimant attributes his depression to his continuing pain which none of the physicians have been able to successfully treat. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of July 24, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 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). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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. Dr. Congdon has rated claimant as having a seven percent impairment while Dr. Neff has found none. They are the only two physicians who have provided impairment ratings. Claimant was released to return to work without restrictions. However, from reading Dr. Congdon's notes, it appears that claimant was advised to avoid activities which worsened his symptoms. Claimant was involved in a serious accident. He was subjected to a quite significant impact. Even Dr. Neff, who examined claimant approximately a year after the accident, did not dispute that claimant had continuing soreness and discomfort. The consensus of opinion among the physicians who have treated claimant for his back complaints is that he has developed chronic pain. The objective testing which has been done with regard to claimant's back has failed to identify any particular abnormality. The characterization of the injury as a soft tissue injury or chronic muscle strain is accepted as being essentially correct. Such conditions, without objective findings of impairment other than subjective stiffness and discomfort, do not warrant a large industrial disability award. In this case, claimant did return to work for several months, albeit with the assistance of physical therapy treatment. The fact that claimant required physical therapy in order to maintain his employment is strong evidence that some degree of permanent disability resulted from the accident. It corroborates Dr. Congdon's rating. This case is made more complex by the hypertension, diabetes, and renal insufficiency which afflicts claimant. The record also contains indications that claimant exhibited symptoms which might have been consistent with a cardiac problem. Claimant has been diagnosed as having carpal tunnel syndrome. Of all the conditions which have been shown to afflict the claimant, only those regarding his back have been shown to be related to the July 24, 1985 accident. When all the material factors of industrial disability are considered, in particular claimant's education and work history, coupled with his continuing spinal complaints, repeated courses or physical therapy, lack of any identified objective abnormalities and the lack of any medically directed activity restrictions, it is determined that claimant has a ten percent permanent partial disability as a result of the July 24, 1985 accident. This finding includes the result of the depression which Dr. Domingo diagnosed and considered claimant's injuries to be primarily chronic soft tissue injuries. FINDINGS OF FACT 1. On July 24, 1985, Leon McNeal was a resident of the state of Iowa employed by the Iowa Department of Transportation. 2. McNeal was injured on July 24, 1985 when the truck in which he was riding was struck in the rear by another vehicle, causing claimant to be thrown out of the truck. 3. As a result of the injuries sustained in that accident, Leon McNeal has chronic continuing pain and discomfort affecting his neck and back. The injuries are soft tissue injuries which are not readily identified using conventional medical diagnostic testing. Claimant has developed chronic pain and depression as a result of the accident. 4. Claimant's other medical problems, namely hypertension, diabetes, renal insufficiency, carpal tunnel syndrome, dental problems, throat problems, and any cardiac condition have not been shown by the evidence to have resulted from or been substantially aggravated by the July 24, 1985 accident. 5. The injuries sustained on July 24, 1985 impaired claimant's physical abilities consistent with the rating made by Dr. Congdon, but did not make him unable to resume his employment as an equipment operator for the Department of Transportation. 6. Claimant did require physical therapy in order to maintain and perform his duties as an equipment operator subsequent to the accident. 7. Claimant has sustained a ten percent loss of his earning capacity as a result of the permanent injuries sustained in the July 24, 1985 accident. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant sustained a ten percent permanent partial disability as a result of the injuries he sustained on July 24, 1985. He is entitled to receive 50 weeks of compensation under the provisions of Iowa Code section 85.34(2)(u). 3. The employer is entitled to credit under the provisions of Iowa Code section 85.22 in an amount equal to $3,802.52 less a proportionate share of the legal fees and expenses incurred in obtaining that third party recovery. ORDER IT IS THEREFORE ORDERED that defendants pay claimant fifty (50) weeks of compensation for permanent partial disability at the stipulated rate of one hundred seventy-two and 92/100 dollars ($172.92) per week payable commencing December 16, 1985. The entire amount thereof is past due and owing and shall be paid in a lump sum together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants are entitled to credit pursuant to Iowa Code section 85.22 for the balance of the third party recovery, less reasonable legal fees and expenses. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants as follows: Deposition transcript fee $222.40 Dr. Congdon, expert witness fee 150.00 Orthopaedic Surgery report fees 60.00 J. R. Lee report fee 30.00 Total $462.40 IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 20th day of November, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John H. Westensee Attorney at Law 1703 2nd Avenue Rock Island, Illinois 61201 Mr. John Baty Assistant Attorney General Iowa Department of Transportation Ames, Iowa 50010 51402.30, 51803 Filed November 20, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEON MCNEAL Claimant, vs. File No. 800944 IOWA DEPARTMENT OF A R B I T R A T I O N TRANSPORTATION, D E C I S I O N Employer, and STATE OF IOWA, Insurance Carrier, Defendants. 51402.30, 51803 After being rear-ended in the employer's truck and thrown from the vehicle, claimant developed chronic back complaints which were determined to have their origin in soft tissue injuries. Claimant awarded ten percent permanent partial disability. Claimant had a number of other physical afflictions which were found to not be related to the accident. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEON McNEAL, Claimant, File No. 800944 vs. O R D E R IOWA DEPARTMENT OF N U N C TRANSPORTATION, P R O Employer, T U N C and F I L E D STATE OF IOWA, MAY 31 1989 Insurance Carrier, Defendants. INDUSTRIAL SERVICES INTRODUCTION This matter comes before the undersigned upon the Petition for Adjudication of Interest Due, Credits and Total Dollar Amount Due on Arbitration Decision filed on behalf of the claimant on April 23, 1990 and the answer thereto filed on behalf of the employer on May 1, 1990. FINDINGS OF FACT Leon McNeal was injured on July 24, 1985. Following that injury, he was paid temporary total disability compensation for 20 4/7 weeks in the total amount of $3,556.80. The employer also paid medical expenses under section 85.27 in the amount of $4,640.68. As a result of the decision entered November 20, 1989, claimant was awarded 50 weeks of permanent partial disability compensation in the amount of $8,646.00. The total benefits payable to or on behalf of Leon McNeal under Chapter 85 of The Code are therefore $16,843.48. Those benefits exceed the amount of the third party recovery, $12,500.00. The employer paid the costs in the amount of $462.40 on January 2, 1990. The employer paid the sum of $5,375.81 to the claimant on January 8, 1990. In connection with the third.party recovery, a memorandum of agreement was entered into by Raymond J. Conklin, as attorney for Leon McNeal, and by Dick Andrews, on behalf of the employer. At the time the agreement was entered into, the employer had paid the 20 4/7 weeks of temporary total disability and the $4,640.68 in medical benefits. The total paid at that point was $8,197.48. As part of that agreement, the employer was refunded the full amount that it had then expended, less 25% for attorney fees incurred in obtaining the third party recovery. Under that same document, litigation expenses of $134.00 and attorney fees of $1,562.50 were then deducted with the balance of $4,655.39 being paid to Leon McNeal. Upon examining the record and the arbitration decision entered November 20, 1989, it is determined that a computational or scrivener's error appears in the conclusions of law wherein the amount of the employer's credit is fixed at $3,802.52. The correct amount is actually $500.00 more, namely, $4,302.52. The correct amount is determined by subtracting from the $12,500.00 third party recovery the sum of $8,197.48 for which the employer's subrogation rights had been satisfied. It should be noted that the memorandum of agreement dealing with the third party settlement does not contain any provision which addresses the possibility of further recovery for permanent partial disability from the employer or the future relationship between the parties. It further appears that there was some type of negotiated settlement due to the fact that the total amount of fees paid to McNeal's attorney is approximately 25% of the amount received by McNeal. The distribution of the $12,500.00 does not contain any actual payment of fees to McNeal's attorney consistent with the reduction of the employer's total expenditures from $8,197.48 to $6,148.11. CONCLUSIONS OF LAW It could reasonably be asserted that the memorandum of agreement entered into at the time of the third party settlement was a final agreement and that the employer would not be entitled to any further credits in the event that additional benefits under Chapter 85 of The Code were payable. The other reasonable assertion is that the agreement was made based upon the conditions which existed at that time and was not intended to have any particular prospective impact. The clear provisions of Code section 85.22 provide for full and complete subrogation rights. Since the memorandum does not contain an express waiver regarding future benefits, it is concluded that the agreement will be construed in a manNer consistent with section 85.22. It is therefore concluded that the memorandum of agreement satisfied $8,197.48 of the employer's subrogation interest against the $12,500.00 third party recovery. The fact that the apparent 25% reduction for attorney fees was apparently paid tO McNeal, rather than the attorney does not warrant reopening of the agreement which the parties made. Both are bound by that agreement. The remaining portion of the third party settlement which remains available to be applied to the employer's subrogation interest is $4,302.52. Since the workers' compensation benefits payable in this case exceed the amount of the third party recovery, the employer is entitled to the benefit of the entire third party settlement, less attorney fees. The statute does not speak to the issue of litigation expenses, but it is concluded that expenses of litigation which are incurred in obtaining the third party recover are either included within the meaning of attorney fees or those expenses of obtaining the recovery are deducted in arriving at the recovery from which the employer may be indemnified. To do otherwise could result in a situation where an injured employee, who successfully pursues a third party recovery and obtains an amount approximately equal to the amount paid to or on behalf of the employee under Chapter 85 of The Code, would actually end up with less than what the employee would have received if no attempt had been made to pursue the third party claim. For example, if $25,000.00 of workers' compensation benefits had been paid and the employee, through the third party claim, recovered and collected a judgment in the amount of $25,000.00, but in doing so incurred litigation expenses for investigators, experts and so forth in the amount of $5,000.00, a literal reading of the statute would result in the employee having expended $5,000.00 in litigation expenses, all of which inured to the benefit of the employer who would be entitled to recover the entire $25,000.00 recovery less only the attorney fees involved in obtaining that recovery. Such a result is unconscionable and contrary to the often-stated beneficent purpose of the workers' compensation statutes. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981); Cedar Rapids Community School v. Cady, 278 N.W.2d 298 (Iowa 1979); Comingore v. Shenandoah Artificial Ice, Power, Heat & Light Co., 208 Iowa 430, 437, 226 N.W. 124 (1929). Any other construction would place the employee in a worse economic position than he would have experience if he had not pursued the third party claim while at.the same time greatly benefiting the employer. In this case, the employer is entitled to be indemnified in the amount of $4,302.52 less the amount of attorney fees and litigation expenses properly attributable to that $4,302.52. In view of the beneficent agreement entered into contemporary with the third party settlement, the amount which was actually received by McNeal exceeds the amount of the remaining available credit. It is determined that the proper method for allocating the attorney fees and litigation expenses between McNeal and the employer is to apportion them based upon the total amount of the available credit and the total amount which was payable to McNeal before the fees and expenses had been deducted. The amounts are therefore $4,302.52 for the employer and $6,351.89 for McNeal. McNeal's portion is the difference between the total of the $12,500.00 third party recovery and the amount actually paid to the employer under the original agreement. The employer's interest is 67.74% of the total. The employer is therefore responsible for 67.74% of the litigation expenses and attorney fees. As shown in the original agreement, the fees and expenses total $1,696.50. Sixty-seven point seven four percent of $1,696.50 is $1,149.21. The final amount of the credit available to the employer is therefore $3,153.31. This is arrived at by subtracting $1,696.50, the amount of the employer's share of the attorney fees and litigation expenses, from $4,302.52, the amount available for the subrogation credit. Under Code section 85.30, interest is computed from the date each weekly payment came due until the date of actual payment. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). When a partial payment is paid on an amount, the payment is first applied to the interest which has accrued and the remaining part of the payment is applied to reduce the principal of the amount. Interest then accrues on that principal balance until the next payment is paid. Fockler v. Beach, 32 Iowa 187 (1871); Smith, Twogood & Co. v. Coopers, 9 Iowa 376 (1859); Huner v. Doolittle, 3 G Greene 76, 54 Am. Dec. 489 (Iowa 1851). Unpaid costs do not accrue interest. Arnold v. Arnold, 140 N.W.2d 874 (Iowa 1966). The record in this case does not disclose the precise date that the amounts paid under the memorandum of agreement for the third party settlement were paid to McNeal and the employer. The agreement was filed with this agency on April 15, 1987. That date is therefore determined to be the date of payment of the $3,153.31. The method of computation of interest shown in the 1989 benefit schedule issued by the Division of Industrial Services is used in making these computations. The effective date of payment of $3,153.31 was April 15, 1987. At that time, the entire 50 weeks of permanent partial disability compensation was accrued as 50 weeks had ended November 30, 1986. The factor in the schedule for 50 weeks of compensation is 2.3558. Interest accrued during those 50 weeks computes to $407.36. From December 1, 1986 until April 15, 1987 is 19 and 3/7 weeks or 136 days or 37.26% of a year. The interest on the 50 weeks of compensation at 10% per annum for the 136 days from December 1, 1986 to April 15, 1987 is $322.15. When added to $407.36, the sum is $729.51. Therefore, of the $3,153.31 credited effective April 15, 1987, $729.51 is attributable to interest which was then accrued and the balance of $2,423.80 is applied toward permanent partial disability compensation. When subtracted from the total award of $8,646.00, the unpaid balance of permanent partial disability was $6,222.20. The sum of $5,375.81 was paid on January 8, 1990. When interest is computed on $6,222.20 at the rate of 10% per annum for the period running from April 16, 1987 through January 8, 1990, a span of 2.734 years, the interest accrued to January 8, 1990 is $1,699.90. When the accrued interest is subtracted from the $5,375.81 payment, the remaining unpaid permanent partial disability compensation is $3,675.91. Interest on $3,675.91 computed from January 9, 1990 to June 1, 1990, a span of 143 days or 39.18% of a year, is $143.99. It is therefore concluded that as of June 1, 1990, the employer will owe Leon McNeal the total sum of $3,819.90. If paid prior to June 1, 1990, that total should be reduced by $1.01 for each day prior to June 1 that the payment is made. If paid subsequent to June 1, 1990, the total should be increased by $1.01 for each day is payment is delayed after June 1, 1990. ORDER IT IS THEREFORE ORDERED that the employer pay Leon McNeal the additional sum of three thousand eight hundred nineteen and 90/100 dollars ($3,819.90) payable June 1, 1990. If not paid on June 1, 1990, interest shall be added to the total sum stated at the rate of one and 01/100 dollars ($1.01) per day for each day that payment is delayed after June 1, 1990. IT IS FURTHER ORDERED the costs of this proceeding are assessed against the employe Signed and filed this 31st day of May, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John H. Westensee Attorney at Law 1703 2nd Avenue Rock Island, Illinois 61201 Mr. John Baty Assistant Attorney General Iowa Department of Transportation 800 Lincoln Way Ames, Iowa 50010 3400, 3800 Filed May 31, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER LEON McNEAL, Claimant, File No. 800944 vs. 0 R D E R IOWA DEPARTMENT OF TRANSPORTATION, N U N C Employer, P R 0 and T U N C STATE OF IOWA, Insurance carrier, Defendants. 3400, 3800 Employee obtained third party recovery and entered into agreement with employer which returned 75% of the workers' compensation benefits the employer had paid to the date of the settlement, i.e., temporary total disability/healing period and section 85.27 benefits. The agreement did not mention future workers' compensation benefits. Employee then pursued claim against employer and recovered 50 weeks of permanent partial disability. 3400 Held. The agreement controlled the temporary total disability/healing period and 85.27 benefits and was not to be reopened. The 50 weeks was subject to section 85.22. The term "attorney fees" includes expenses of litigation such as fees for investigators and experts. Those fees were apportioned to the balance of the third party recovery actually received by claimant to provide a credit against the permanent partial disability award. 3800 Interest computed according to longstanding rule that partial payments are applied first to accrued interest and the remainder to reduce the permanent partial disability award. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BEVERLY J. WHITSEL, Claimant, File No. 801042 VS. A P P E A L MARIAN HEALTH CENTER, D E C I S I O N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE Claimant appeals from an arbitration decision awarding temporary total disability benefits as the result of an alleged injury on July 12, 1985. The record on appeal consists of the transcript of the arbitration hearing; claimant's exhibits 1 through 9; and defendant's exhibits A and B. Both parties filed briefs on appeal. ISSUES Claimant states the following issues on appeal: 1. The deputy commissioner erred in determining that the claimant's July, 1985 back injury at MHC was not the cause of a permanent disability and in determining the amount of healing period and medical expense resulting therefrom. 2. The deputy commissioner erred in determining that claimant's bilateral carpal tunnel syndrome was not job related and in refusing to award medical benefits, healing period/temporary total disability and permanent partial disability relative thereto. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and the evidence. WHITSEL VS. MARIAN HEALTH CENTER Page 2 ANALYSIS The analysis of the evidence in conjunction with the law is adopted. FINDINGS OF FACT 1. Claimant sustained an injury which arose out of and in the course of her employment on July 12, 1985, when she fell and did the "splits." 2. Claimant worked part time until July 29, 1985, when she sought medical treatment and eventually came under the care of John J. Dougherty, M.D. 3. Claimant was taken off work until released to return without restriction on August 29, 1985. 4. Claimant returned to work but maintained she was unable to work and therefore left work again September 9, 1985. 5. Dr. Dougherty again released claimant to return to work November 23, 1985, but claimant declined to do so asserting she could not work. 6. Claimant continues to assert she is completely unable to work. 7. Claimant suffered from a preexisting back condition for which she had sought treatment. 8. Claimant was obese at the time of her fall and suffers from a thyroid deficiency. 9. Claimant has no permanent impairment nor permanent work restriction as a result of her fall on July 12, 1985. 10.Claimant temporarily aggravated, as a result of her fall on July 12, 1985, a preexisting condition. 11.Claimant was diagnosed as having bilateral carpal tunnel syndrome on September 12, 1985, and asserts an injury arising out of and in the course of her employment. 12. Claimant's treating physician gave varying opinions on causation, which included an opinion that claimant's weight and thyroid condition may be 100 percent responsible for her carpal tunnel condition; an opinion that claimant's carpal tunnel condition was almost invariably related to her work; and an opinion that claimant's condition was related to her work. WHITSEL VS. MARIAN HEALTH CENTER Page 3 13. Claimant's bilateral carpal tunnel syndrome is only possibly related to her employment. 14. Claimant had a gastric bypass May 22, 1986, after which she reduced her weight to approximately 110 pounds but which did not improve her back condition. 15. The care of Horst Gunter Blume, M.D., and the expenses incurred for bilateral carpal tunnel surgery and gastric bypass surgery were not authorized. CONCLUSIONS OF LAW Claimant has failed to establish an injury of September 12, 1985, that arose out of and in the course of employment. Claimant has established a temporary aggravation of a preexisting condition as a result of the work injury of July 12, 1985. Claimant has established entitlement to temporary total disability benefits for the periods from July 29, 1985 through August 28, 1985, inclusive, and September 9, 1985 through November 23, 1985, as a result of the work injury of July 12, 1985. Claimant has established entitlement to all disputed medical expenses incurred with William P. Isgreen, M.D. Claimant has failed to establish the work injury of July 12, 1985, resulted in any permanent disability. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendant is to pay claimant fifteen and two-sevenths (15 2/7) weeks of temporary total disability benefits at the stipulated rate of one hundred ninety-three and 71/100 dollars ($193.71) for the periods from July 29, 1985 through August 28, 1985, inclusive, and September 9, 1985 through November 23, 1985, inclusive. That defendant shall receive credit for all disability benefits previously paid. That defendant shall pay all disputed medical expenses incurred with Dr. Isgreen. WHITSEL VS. MARIAN HEALTH CENTER Page 4 That payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That defendant pay the costs of the arbitration proceeding and claimant shall pay the costs of this appeal. That defendant file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 28th day of April, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Gary L. Johansen Attorney at Law 508 Davidson Building Sioux City, Iowa 51101 Mr. Frank T. Harrison Attorney at Law Terrace Center, Suite 111 2700 Grand Avenue Des Moines, Iowa 50312 51100-51801-52501 Filed April 28, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER BEVERLY J. WHITSEL, Claimant, File No. 801042 VS. A P P E A L MARIAN HEALTH CENTER, D E C I S I 0 N Employer, Self-Insured, Defendant. 51100 Claimant failed to establish an injury arising out of and in the course of her employment. 51801 Claimant established entitlement to temporary total disability benefits for one of her two injuries. 52501 Claimant established entitlement to medical benefits for the fees of a doctor an authorized physician referred her to. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BEVERLY J. WHITSEL, Claimant, File No. 801042 vs. A R B I T R A T I 0 N MARIAN HEALTH CENTER, D E C I S I 0 N Employer, Self-Insured, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Beverly Whitsel, claimant, against self-insured employer, Marian Health Center, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury or alleged injury sustained July 12, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner December 1, 1987. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Willard Whitsel, her husband, and Barbara Cowell; claimant's exhibits 1 through 9, inclusive, and defendant's exhibits A and B. Both parties have submitted posthearing briefs. ISSUES It must be noted initially that at the beginning of claimant's case counsel advised claimant was asserting two separate injuries: First the injury of July 12, 1985 which affected claimant's back; and second, an alleged injury of September 12, 1985 which resulted in bilateral carpal tunnel syndrome surgeries. Pursuant to the prehearing report and order submitted and approved December 1, 1987, the following issues are presented for determination: 1. Whether claimant sustained an injury which arose out of and in the course of her employment (with regard to the bilateral carpal tunnel syndrome only); 2. Whether the injury or alleged injury is the cause of the disability on which claimant now bases her claim (defendant does not dispute the work injury to claimant's back was the cause of a temporary disability. It is disputed whether the bilateral carpal tunnel syndrome is causally related to WHITSEL V. MARIAN HEALTH CENTER Page 2 claimant's employment); 3. The nature and extent of claimant's entitlement to weekly disability benefits, if any; and 4. Claimant's entitlement to certain medical benefits provided by Iowa Code section 85.27. FACTS PRESENTED Claimant testified she began working for defendant employer in May 1977 first as a dietary aide, then as a cook, and last as a lead cook. Claimant was injured in October 1977, when she shut a cooler door with her "behind.O She was off work for a period of time and when she returned in approximately January 1978, her treating physician opined there was no evidence of permanent impairment resulting from the work injury. Claimant injured her ankle in February 1978 in a nonwork-related incident. She explained she was off work for approximately five months and during this time experienced back pain. Claimant eventually underwent an ankle fusion and testified that when she returned to work after surgery (sometime in 1983) she was in "good shape to work" and had no impairment rating from her physician. Claimant testified that she is five feet, one inch tall, that she had been obese at the time she was hired by defendant employer weighing approximately 200 pounds, and that she has suffered from a thyroid deficiency since 1963 which is treated with medication and which she did not believe interfered with her ability to work. Claimant sustained an injury which arose out of and in the course of her employment on July 12, 1985 when she fell on a wet spot at defendant employer's kitchen and did the "splits." Claimant explained she was in "excruciating" pain up and down her spine, in her back and neck. She stated she left work after talking with her supervisor, took the weekend off, and although she returned the following Monday, was still in pain, had to go home early, and could not do all the duties assigned to her. Claimant testified she continued reporting to work and leaving early each day until July 29, 1985, when, for the first time, she sought medical treatment at the emergency room of defendant employer. Claimant stated that the original physician she saw did not keep her from work, but when she was referred to John J. Dougherty, M.D., he told her she could not work. Claimant described pain up and down her spine and headaches which prevented her from doing anything. Claimant testified that by late August 1985, she was dissatisfied with the care given her by Dr. Dougherty as he told her to return to work, that he could find nothing wrong with her and because she found him to be rude, inconsiderate, mean and she had no faith in him. Claimant therefore contacted defendant employer and requested to see another physician. (See claimant's exhibit 8. Claimant testified that she wanted another treating physician. Exhibit 8 refers to a "second opinion." Claimant maintains she wrote what she was told by defendant's employee benefits representative.) Claimant explained she was referred by defendant to William P. Isgreen, M.D., who conducted a WHITSEL V. MARIAN HEALTH CENTER Page 3 neurological examination and diagnosed bilateral carpal tunnel syndrome, sent her for a CT scan and provided her with a "no work slip." Claimant was referred to A. Kleider, M.D., surgeon, who performed a right carpal tunnel decompression on October 9, 1985 and a left carpal tunnel decompression on October 23, 1985. Claimant explained a numbness and aching she previously felt in her hands were gone after surgery although she still had an inability to lift. Claimant stated that in October 1985, when her weight reached 210 pounds, Dr. Isgreen recommended a gastric bypass. Claimant described that she could not lift, "could not do anything" and was still in pain despite the medication she was taking. Claimant testified that in November 1985 defendant employer sent her back to Dr. Dougherty who again released her to return to work after taking x-rays. Claimant did not, however, return to work at that time. In February 1986, Dr. Isgreen referred claimant to Larry D. Foster, M.D., who performed a gastric bypass on May 22, 1986. By February 1987 claimant reached her current weight of approximately 110 pounds. Claimant stated Dr. Isgreen left his Sioux City practice without releasing her to return to work and, when claimant contacted defendant employer in late summer 1986 to see if she was still employed, claimant explained she was told the employer understood she was to have returned to work in November 1985 and that since she failed to produce any statement explaining her failure to return, her employment status was unclear. Claimant admitted, however, that even if defendant employer had told her to return at that time, she could not have so returned as she did not feel capable of performing any type of work. Although she had lost a substantial amount of weight, claimant did not feel it improved her back condition at all and thought that she still cannot work in her present condition. Claimant acknowledged on cross-examination that she has neither applied for nor looked for any work because she "can't work" and when defendant had her meet with a vocational rehabilitation professional, claimant indicated her medical situation had to be resolved first before anything could take place. Barbara Cowell testified that she has known claimant for 42 years and during the last two years has seen her four or five times each week. She explained that it has been her observation that claimant, because of pain, cannot take walks anymore, cannot lift her grandchildren, cannot bend, cannot fix dinner, cannot help with the dishes, and that claimant must lie down frequently. Willard Whitsel testified that claimant cannot do housework, that she required frequent stops when they travel together, that claimant has trouble resting, and that claimant is not lazy having done work before. Claimant was first seen by John J. Dougherty, M.D., of Orthopaedic Associates, of Sioux City, on July 31, 1985, who after examination and x-rays rendered a diagnosis of "apparent dorsal sprain superimposed upon increased kyphosis,with degenerative changes in her back, pain in the back, etiology ? with some early cervical spondylosis and headaches, etiology ?, probably on a tension basis." (Claimant's Exhibit 1, part III, page 50) Dr. Dougherty noted claimant had complaints of pain in WHITSEL V. MARIAN HEALTH CENTER Page 4 her back nine years previous, that she was once seen by a psychiatrist, and that while in Arizona she saw two chiropractors because her back was bothering her. Dr. Dougherty stated: It would be my opinion at this point in time that this patient who is obese, who has some degenerative changes, has not sustained any significant injury. However, I also think that it's going to be a difficult problem to get her back to work .... She is hard to evaluate and I'm sure there is a psychosomatic overlay here based on the multiple complaints she has .... I just sense the fact that trying to get her back to work will be somewhat of a difficult problem. Although basically, I don't think she sustained any significant injury. (Cl. Ex. 1, pt. III, p. 51) Claimant was released to return to work without restrictions on August 29, 1985. She was next seen by Dr. Dougherty on November 22, 1985, who again concluded: In my opinion, this patient could be back to work. I think she does have a degenerated disc at L-5, S-1. Certainly doesn't appear that any surgical intervention is indicated. She is swaybacked and obese, probably has a chronic lumbosacral strain, but I think there is very much of a psychosomatic problem here also. (Cl. Ex. 1, pt. III, p. 54) Claimant was examined by William P. Isgreen, M.D., a neurologist, on September 12, 1985 whose impression was low back syndrome, cervical syndrome, aggravated by bilateral carpal tunnel syndrome and morbid obesity. Dr. Isgreen recommended keeping claimant off work for two or three weeks but added: I am not optimistic about getting this lady back to work quickly. There are too many other problems going on here to be terribly convinced that we are going to get her back into the work force. Our only salvation is that she has a good job and she enjoys working. (DefendantOs Exhibit A, page 17) The CT scan performed at the request of Dr. Isgreen showed mild degenerative changes in the lumbar region and a mid-line disc bulge at L5-S1 with some pressure on the thecal sac. In December 1985, Dr. Isgreen reported: As you know from the CT scan, the lady does have disc disease with a bulge at the L5/Sl level with pressure on the sack [sic]. While I don't think it's a surgical problem, particularly with the lady's weight, it certainly is a significant defect, and explains her symptoms. I think it would be my feeling to have a permanent partial impairment on the lady and be done with the WHITSEL V. MARIAN HEALTH CENTER Page 5 issue. I don't think there is any way that we are going to carry her along and get her back to work as a cook. maybe if she shed an enormous amount of weight there would be a chance of getting her back to some sort of work, but I don't think it's realistic to think she is going to go back to work. (Def. Ex. A, p. 22) In response to claimant's request for clarification, Dr. Isgreen wrote to claimant's counsel on January 9, 1986: There is little question that the lady has degenerative back disease. It is my contingent that the lady's problem at the moment with pain, is mainly because of the bulge at the L5, Sl level, and irritation of the thecal sac. That may have well existed before her fall, but if it did, it was not symptomatic. (Def. Ex. A, p. 24) Dr. Isgreen initially diagnosed bilateral carpal tunnel syndrome in September 1985, indicating that the condition preceded the injury to the back. Dr. Kleider, who performed the surgery, noted that claimant had problems with numbness and aching for about four or five years. Dr. Isgreen opined on September 12, 1985: The lady represents to my mind double jeopardy syndrome, in that in the arms she has bilateral carpal tunnel which has made the neck worse. This is not unusual predicament, and we see this all the time. The carpal tunnel has preceded the injury to the back, but generally is work related. In this lady's case, that statement, however, may be not totally accurate since her weight and even thyroid state may have predisposed her to carpal tunnel. They may even be 100 per cent responsible. (Def. Ex. A, p. 15) On October 1, 1985, Dr. Isgreen stated: The presence of carpal tunnel in this particular case is a bit difficult to get at. It's not unusual to see this sort of a problem in people who do repetitive work, and in Mrs. WhitselOs case, it may be indeed work related. When there are problems in the neck, the back problems can become even more problematic. (Def. Ex. A, p. 19) On the same date, he stated: I am not convinced in my mind of minds that carpal tunnel is work related. There is no question that the lady's weight and general structure may have something WHITSEL V. MARIAN HEALTH CENTER Page 6 to do with it, but it's also unusual that carpal tunnel is not related to repetitive movements and activities such as the lady does on her job. (Def. Ex. A, p. 20) And finally, on December 10, 1985, he wrote to claimant's counsel: The problem of the carpal tunnel I think is work related. I say that with reasonable medical probability and from my standpoint that means better than fifty per cent. I would even go higher than that and say that it is certainly a 75 to 80 per cent chance that it's related to her activities. One could approach the problem in the other direction and maintain again with reasonable certainty that a person doing housework rarely develops carpal tunnel unless there are endocrine or other reasons for doing so. It's almost invariably work related and certainly that is my opinion here. (Def. Ex. A, p. 21) Horst G. Blume, M.D., who saw claimant July 7, 1986 opined that claimantOs carpal tunnel syndrome in both hands was directly related to the claimant's work activity as.she described and that she had a partial disability to the right hand of five percent and to the left hand of five percent. Claimant was seen on April 3, 1987 by Dr. Blume who concluded: Although I have limited information in regard to the extent of a disc pathology in the lumbar spine area, I would say that she has approximately 8% permanent partial impairment to the body as a whole as a result of the injury to the low back from the fall on July 12, 1985, which aggravated a preexisting low back pain with a new symptomatology of radicular pain into the right leg, within reasonable medical probability. It is also my opinion within reasonable medical probability that the patient has a 2% permanent partial impairment to the body as a whole to the cervical spine, as a result of the same accident on July 12, 1985, over and above any previously existing condition. The patient has requested my help but as you know you do not have any authorization for me to do any diagnostic testing or treatment. (Def. Ex. A, p. 32) On the request of defendant, claimant was evaluated by David J. Boarini, M.D., neurological surgeon, who examined her, reviewed previous x-rays and CT scans and reported: Mrs. Whitsel suffered a minor back injury in July of 1985. I can find no evidence of a serious abnormality WHITSEL V. MARIAN HEALTH CENTER Page 7 at this time. Her examination is entirely normal and I don't believe there is any residual effect from the fall she suffered at that time. I would make no further recommendations for therapy, except that she should begin a more aggressive set of low-back exercises. I think she can return to work without restriction at any time. I don't believe any further tests are indicated. (Def. Ex. A, p. 27) 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 must prove by a preponderance of the evidence that her injury arose out of and in the course of her employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In the course of employment means that the claimant must prove her injury occurred at a place where she reasonably may be performing her duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the WHITSEL V. MARIAN HEALTH CENTER Page 8 employment and the injury. Crowe v. DeSoto Consolidated School District, 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 July 12, 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. 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 760-761 (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 causal 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). Iowa Code section 85.33(l) provides: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Iowa Code section 85.27 provides, in part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall WHITSEL V. MARIAN HEALTH CENTER Page 9 allow reasonably necessary transportation expenses incurred for such services. ANALYSIS Claimant has made a claim for two separate injuries, one a body as a whole as a result of a fall on July 12, 1985 and one an alleged injury resulting in bilateral carpal syndrome in September 1985. While defendant agrees claimant's fall in July 1985 arose out of and in the course of her employment, claimant must establish that the bilateral carpal tunnel syndrome arose out of and in the course of her employment because defendant makes no such admission with regard to this alleged injury. As stated above, arising out of suggests a causal relationship between the employment and the alleged injury. Few medical professionals have expressed opinions on this issue. The opinion of Dr. Blume is given less weight because of the amount of information given to him by claimant who "had difficulty in remembering the course of her pain." Dr. Isgreen, who was claimant's treating physician for some time, rendered varying opinions beginning with a conclusion that claimant's weight and thyroid state may have predisposed her the carpal tunnel and they may be even 100 percent responsible to concluding that the carpal tunnel is "almost invariably work-related." A possibility of causal connection is not sufficient; a probability is necessary. When Dr. Isgreen's opinions are read together, they present no more than a possible connection between the work and the carpal tunnel syndrome. Further, Dr. Isgreen presents no rationale for his change of opinion and does not relate a clear understanding of claimant's former job responsibilities. Claimant appears to be arguing that since nothing else is likely to have caused the carpal tunnel syndrome she is entitled to compensation benefits. Yet, claimant's own treating physician refers to the possibility that it was caused by the thyroid condition and/or her weight. While claimant's argument may help her establish a possible causal relationship, it does not establish a probable causal relationship. For these reasons, therefore, claimant has failed to establish she sustained an injury which arose out of and in the course of her employment. There can be no dispute that claimant, prior to her fall on July 12, 1985, suffered from back pain. Medical reports contain references to back difficulties in 1977 with visits to chiropractors for back pain. There is no dispute, however, that claimant fell on July 12, 1985 and as a result sustained an injury. The essential question for resolution is whether claimant sustained any permanent impairment or permanent disability as a consequence of that fall. Claimant's initial treating physician, John J. Dougherty, released her to return to work August 29, 1985, opining that claimant did not sustain any significant injury although he admits, as early as one month post initial medical treatment, that it would be a difficult problem to get claimant back to work. Dr. Dougherty reiterates this opinion on December 24, 1985 stating that claimant has a degenerative disc at L5-Sl and that she could be back at work. Dr. Isgreen, whose opinion is subject to serious question because of his varying opinions relating to WHITSEL V. MARIAN HEALTH CENTER Page 10 claimant's bilateral carpal tunnel syndrome, opined on January 9, 1986 that the bulge at L5-Sl may have existed before her fall although it was not symptomatic. Because of the questionable nature of Dr. Isgreen's opinion, his opinions with regard to claimant's back are given less weight. In light of his own medical report, Dr. Blume's opinion is also subject to serious question. On September 19, 1987, he explained that he agreed with Dr. Skorey that the lumbar myelogram which was done on June 26, 1987 did not show any abnormal findings but that the CT scan showed evidence of a ruptured lumbar disc at L5-Sl. It was Dr. Blume's opinion that claimant had a ruptured lumbar disc at L5-S1 confirmed by myelogram and CT scan which was responsible for her low back pain. However, a review of Dr. Skorey's report dated June 26, 1987, does not supply any basis for Dr. BlumeOs opinion. Dr. Skorey stated, with regard to the myelogram, that the lumbar region felt well with no evidence of any defect. With regard to the CT scan, Dr. Skorey stated that there was no evidence of a herniated disc from L4 to Sl. Consequently, the opinion of Dr. Blume is also given little weight. Finally, Dr. Boarini saw claimant in February 1987 and opined that claimant suffered a minor back injury in July 1985 and that he could see no evidence of any abnormality at the time of the examination. It is determined that the opinion of Dr. Dougherty, claimant's original treating physician, and the opinion of Dr. Boarini are entitled to greater weight. As a finding of permanent disability generally invokes an initial determination of permanent impairment or permanent restriction of work activity and neither of these physicians find any impairment nor invoke any permanent restriction in claimant's work activity, it is determined that claimant has not sustained her burden that the work injury of July 12, 1985 is the cause of the disability on which she now bases her claim. At most, claimant has established only that the work injury of July 12, 1985 was the cause of a temporary aggravation of a preexisting condition for which she is entitled to be compensated. Pursuant to Iowa Code section 85.33(l), claimant is entitled to temporary total disability benefits until she has returned to work or is medically capable of returning to employment substantially similar to the employment to which she was engaged at the time of her injury. It is determined claimant met the requirement of this section on December 22, 1985 when Dr. Dougherty stated "this patient could be back to work." Therefore, claimant is entitled to temporary total disability benefits for the period from July 29, 1985 through August 28, 1985, inclusive, and September 9, 1985 through November 23, 1985 as a result of the work injury of July 12, 1985. Pursuant to Iowa Code section 85.27, the employer is obligated to furnish reasonable services and supplies to treat an injured employee and has the right to choose the care. Defendant initially authorized the care of Dr. Dougherty and by acquiescence the care of Dr. Isgreen. Therefore, claimant is entitled to payment for medical services as a result of their care. As claimant has not established that the surgery for bilateral carpal tunnel syndrome was as a result of an injury arising out of and in the course of her employment, defendant cannot be held liable for the expenses incurred therefor. Claimant's surgery for gastric bypass was also not authorized. WHITSEL V. MARIAN HEALTH CENTER Page 11 Dr. Isgreen made this recommendation to claimant, did not mandate such treatment and, since this expense clearly was not an emergency and claimant did not seek authorization therefor, claimant is not entitled to payment for those disputed medical expenses. Finally, by claimant's own admission, Dr. Blume's care was not authorized. Consequently, defendant cannot be held liable for any expenses arising out of his treatment. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury which arose out of and in the course of her employment on July 12, 1985, when she fell and did the "splits." 2. Claimant worked part time until July 29, 1985, when she sought medical treatment and eventually came under the care of John J. Dougherty, M.D. 3. Claimant was taken off work until released to return without restriction on August 29, 1985. 4. Claimant returned to work but maintained she was unable to work and therefore left work again September 9, 1985. 5. Dr. Dougherty again released claimant to return to work November 23, 1985, but claimant declined to do so asserting she could not work. 6. Claimant continues to assert she is completely unable to work. 7. Claimant suffered from a preexisting back condition for which she had sought treatment. 8. Claimant was obese at the time of her fall and suffers from a thyroid deficiency. 9. Claimant has no permanent impairment nor permanent work restriction as a result of her fall on July 12, 1985. 10. Claimant temporarily aggravated, as a result of her fall on July 12, 1985, a preexisting condition. 11. Claimant was diagnosed as having bilateral carpal tunnel syndrome on September 12, 1985 and asserts an injury arising out of and in the course of her employment. 12. Claimant's treating physician rendered varying opinions from claimant's weight and thyroid state may be 100 percent responsible for the carpal tunnel to the condition, which is almost invariably work related, was work related. 13. Claimant's bilateral carpal tunnel syndrome is only possibly related to her employment. 14. Claimant had a gastric bypass May 22, 1986, after which she reduced her weight to approximately 110 pounds but which did WHITSEL V. MARIAN HEALTH CENTER Page 12 not improve her back condition. 15. The care of Dr. Blume and the expenses incurred for bilateral carpal tunnel surgery and gastric bypass surgery were not authorized. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has failed to establish an injury of September 12, 1985 that arose out of and in the course of employment. 2. Claimant has established a temporary aggravation of a preexisting condition as a result of the work injury of July 12, 1985. 3. Claimant has established entitlement to temporary total disability benefits for the periods from July 29, 1985 through August 28, 1985, inclusive, and September 9, 1985 through November 23, 1985, as a result of the work injury of July 12, 1985. 4. Claimant has established entitlement to all disputed medical expenses incurred only with Dr. Isgreen. 5. Claimant has failed to establish the work injury of July 12, 1985 resulted in any permanent disability. WHITSEL V. MARIAN HEALTH CENTER Page 13 ORDER THEREFORE, IT IS ORDERED: Defendant is to pay claimant fifteen and two-sevenths (15 2/7 weeks of temporary total disability benefits at the stipulated rate of one hundred ninety-three and 71/100 dollars ($193.71) for the periods from July 29, 1985 through August 28, 1985, inclusive, and September 9, 1985 through November 23, 1985, inclusive. Defendant shall receive credit for all disability benefits previously paid. Defendant shall pay all disputed medical expenses incurred with Dr. Isgreen. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. A claim activity report shall be filed upon payment of this award. Costs of this action are assessed against defendant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 11th day of May, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Gary L. Johansen Attorney at Law 508 Davidson Building Sioux City, Iowa 51101 Mr. Frank T. Harrison Attorney at Law Terrace Center, Suite 111 2700 Grand Avenue Des Moines, Iowa 50312 1108.50; 1402.40 1800 Filed May 11, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER BEVERLY J. WHITSEL, Claimant, File No. 801042 vs. A R B I T R A T I 0 N MARIAN HEALTH CENTER, D E C I S I 0 N Employer, Self-Insured, Defendant. 1108.50; 1402.40 Claimant was injured when she fell at work. While being treated for back pain, doctor diagnosed bilateral carpal tunnel syndrome. Doctor gave varying opinions as to causation. Held claimant failed to meet her burden of proof that carpal tunnel was caused by her work. 1800 Claimant's injury was found only to have caused a temporary aggravation of a preexisting condition. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BEVERLY J. WHITSEL, : : Claimant, : : vs. : File No. 801042 : MARIAN HEALTH CENTER, : : R E M A N D Employer, : Self-Insurecd, : D E C I S I O N Defendant. : : ___________________________________________________________ STATEMENT OF THE CASE The above captioned matter originally came on for hearing before the undersigned deputy industrial commissioner on December 1, 1987. The decision which resulted from that proceeding held that claimant established a temporary aggravation of a preexisting condition as a result of the work injury of July 12, 1985, but had failed to establish the work injury resulted in any permanent disability. The decision was affirmed on appeal to the industrial commissioner. Claimant sought judicial review in the Iowa District Court for Woodbury County and then filed an application for leave to present additional evidence. The court granted claimant's application and thus the matter was remanded to the undersigned through the industrial commissioner by the court. This matter, therefore, came on for remand hearing on April 4, 1991, at the county courthouse in Woodbury County. The record was fully submitted at the time of the hearing. The additional record consists of joint exhibits 1 through 8. issues The issues to be decided are whether the additional evidence which was submitted at the hearing on April 4, 1991, now establishes claimant's entitlement to permanent partial disability as a result of the July 12, 1985 injury and whether claimant is entitled to medical expenses pursuant to Iowa Code section 85.27. Page 2 FINDINGS OF FACT The undersigned deputy industrial commissioner, having considered all the evidence submitted, finds that: Neither a further review of the evidence submitted at the time of the initial hearing nor the additional evidence presented at hearing on April 4, 1991, provides support to alter the initial decision entered on May 11, 1988. The additional findings which Dr. Skorey acknowledges are present on the 1988 MRI neither account for claimant's symptoms nor establish a causal connection to the injury of July 12, 1985. Further, the medical treatment which claimant underwent since the time of the December 1, 1987, hearing was not authorized, did not improve claimant's symptoms and was not as a result of the July 12, 1985 injury. conclusions of law An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). As the evidence presented fails to provide support to alter the decision entered May 11, 1988, it is concluded that claimant has failed to establish the work injury of July 12, 1985, resulted in any permanent disability. Iowa Code section 85.27 provides, in part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The medical treatment which claimant underwent since the time of the December 1, 1987 hearing was not authorized, did not improve claimant's symptoms, and was not as a result of the July 12, 1985 injury. Therefore, no award of medical expenses may be made. Page 3 order THEREFORE, it is ordered: The decision of the undersigned deputy industrial commissioner entered May 11, 1988, remains as filed. Signed and filed this ____ day of September, 1991. ______________________________ DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Gary L Johansen Attorney at Law 508 Davidson Bldg Sioux City IA 51101 Mr Bryan J Arneson Attorney at Law 340 Ins Exch Bldg Sioux City IA 51101 Mr Frank T Harrison Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 5-2906 Filed September 30, 1991 Deborah A. Dubik before the iowa industrial commissioner ____________________________________________________________ : BEVERLY J. WHITSEL, : : Claimant, : : vs. : File No. 801042 : MARIAN HEALTH CENTER, : : R E M A N D Employer, : Self-Insurecd, : D E C I S I O N Defendant. : : ___________________________________________________________ 5-2906 District court directed the taking of additional evidence. The evidence, once considered, did not alter the original decision entered.