Page 1 before the iowa industrial commissioner ____________________________________________________________ : SANDY STOWE, : : Claimant, : : vs. : : File No. 820910 JOHN MORRELL & CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Sandy Stowe, claimant, against John Morrell & Co., employer, and National Union Fire Insurance Company, insurance carrier, as defendants. Claimant alleges that she sustained a compensable injury to her back on April 11, 1986, and seeks compensation for an industrial disability. The case was heard at Sioux City, Iowa on March 7, 1991. The case was considered fully submitted upon conclusion of the hearing, although leave was granted so that the parties could file briefs. The record in this proceeding consists of the testimony of claimant, Cecil Cunningham, D.O., Dennis Howrey, Vicki Witkowski, and Christine Huisman; and, joint exhibits 1-88, and claimant's exhibits 1-6 and 9-12. Claimant elicited live testimony from Cecil Cunningham, D.O. Dr. Cunningham was identified on claimant's witness list, which was properly served on defendants fifteen (15) days prior to the hearing, as required by the hearing assignment order. However, defendants raised an objection to that portion of Dr. Cunningham's testimony which changed his original opinion, based upon claimant's failure to supplement answers to interrogatories thirty (30) days prior to the hearing. Defendants argue that allowing claimant's medical expert to change his opinion at the hearing is highly prejudicial. Discovery requests in a workers' compensation case are Page 2 governed by rule 343 IAC 4.35 and Iowa Rules of Civil Procedure 121-134. As noted on the hearing assignment order, under paragraph 7, "The service of witness lists pursuant to this Order does not modify the requirements of Iowa Rule of Civil Procedure 125(c) to supplement responses to discovery as to experts not less than thirty (30) days prior to the hearing." Claimant argues that Dr. Cunningham's testimony, which does go beyond the scope of the reports and opinions provided to defendants prior to the hearing, should be admissible because to exclude said testimony would "eliminate the testimony of a witness who could be helpful to the claimant." Claimant relies upon the Iowa Supreme Court case of Lambert v. Sisters of Mercy Corporation, 369 N.W.2d 417 (Iowa 1985). In Lambert the supreme court held that the trial court abused its discretion by excluding the testimony of defendants' expert because the defendants had failed to supplement answers to interrogatories and identify the expert and summarize his testimony. Claimant's reliance on Lambert is misplaced. In Lambert, two defendant doctors originally designated an expert witness, and limited the expert's testimony to review of a fetal monitor strip. At the trial, these two defendants were dismissed from the case on a directed verdict. The remaining defendant hospital then attempted to designate the same expert witness, and limit his testimony to review of the fetal monitor strip. The plaintiffs objected, stating that to allow the expert to testify violates the Rules of Civil Procedure, which require the parties to supplement answers to interrogatories. In Lambert, the expert in question had been properly designated by the defendant doctors and his testimony regarding the fetal strip had been summarized. Therefore, plaintiffs could claim no surprise, and they had adequate opportunity to depose the expert prior to trial. Lambert, 369 N.W.2d at 422. In the instance case, claimant has attempted to supplement the testimony to be provided by the expert witness the day of the hearing. Defendants have claimed prejudice and surprise, in that they were given no opportunity to formulate their position based on the evidence available. See, Kilker v. Mulry, 437 N.W.2d 1 (Iowa App. 1988). Claimant urges that exclusion of Dr. Cunningham's testimony is an abuse of discretion. In Lambert, the court stated that exclusion of an expert witness is justified only when prejudice would result. Other suggestions for sanctions included continuation of the trial or limitation of testimony. Lambert, 369 N.W.2d at 421. In the case at bar, at the hearing, Dr. Cunningham's testimony was limited to his opinions formed prior to the discovery deadline of January 2, 1990. Claimant did not Page 3 supplement her answers to interrogatories, and did not ask for an extension of the discovery deadline. Furthermore, claimant did not ask for a continuance of the hearing. As a result, Dr. Cunningham's testimony regarding any treatment provided claimant after the discovery deadline (which is his report dated August 3, 1989) was properly excluded. issues In accordance with the hearing assignment order and the prehearing report, the following issues were presented for resolution: 1. Whether claimant received an injury on April 11, 1986 which arose out of and in the course of her employment; 2. Whether there is a causal relationship between the alleged injury and the disabilities; 3. Whether claimant is entitled to temporary total disability or healing period benefits, or permanent partial or permanent total disability benefits; 4. Whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27; and, 5. The reasonableness of the medical expenses incurred by the claimant. The prehearing report also indicates that defendants raise the affirmative defense of an untimely claim pursuant to Iowa Code section 85.26. However, a review of the file shows that this issue was not preserved at the prehearing conference, and as a result, the undersigned is without authority to analyze and rule on this issue. See, Joseph Presswood v. Iowa Beef Processors, (appeal decision November 14, 1986). (An issue not noted on the hearing assignment order is waived). Page 4 findings of fact The undersigned deputy, having heard the testimony, and having reviewed all of the evidence received, finds the following facts: Claimant, Sandy Stowe, was born on January 25, 1958. She has worked for the defendant employer since January 12, 1981. Claimant has worked primarily on the production lines, and filed claims for workers' compensation benefits for injuries sustained on four separate occasions during 1981 through 1985. Claimant settled these claims under Iowa Code section 85.35. It is noted that during this time, claimant underwent several cervical and lumbar areas of the spine, as well as the right upper extremity. (Joint Exhibit 76) Claimant was off of work between 1984 and 1985 due to fusions at the lower lumbar spine and hips. She remembers that her medical restrictions were no repetitive bending or stooping, and no lifting of greater than five pounds, although at some time her lifting restriction was raised to between 20 and 30 pounds. In early 1986, claimant was placed on a job packing ribs, which entailed filling a box weighing between 30-40 pounds and carrying the box to a pallet. She also made the cardboard boxes which was a repetitive job, constructing boxes more than 100 times per day. She bid for a pork chop loin line job which also consisted of packing meat, stacking it in a basket, and carrying the box to a pallet. Claimant testified that on April 11, 1986, she fell while carrying a box from one room to another room. Claimant stated that as she fell she hit her low back, and tried to break the fall with her left knee. She reported to the nurse. She was referred to the company doctor, Joe Krigsteen, M.D. His notes indicate that she had sustained a contusion and sprain of the left knee. He treated with an Ace bandage and ice packs, and prescribed Vicodin. She was to return to work on April 14, 1986. (Jt. Ex. 39) Claimant was re-examined by Dr. Krigsteen on April 15, 1986. At that time, she was walking with a limp, and requested to see a chiropractor for her hip. Dr. Krigsteen ordered x-rays of the pelvis which showed a defect of the crest of the ilium on the right where previously bone had been removed for the lumbar fusion performed several years before. Dr. Krigsteen was Page 5 concerned about claimant's back, and made the following assessment on April 21, 1986 in a letter to the defendant employer: I think this patient could return to the work she has been doing prior to the present injury. However, it is my opinion that she presents a definite hazard with her 20% disability and back fusion. She should either seek other work which does not require her to walk while at work because if she is re-injured, it will be difficult to treat her effectively. Most employed people who have had back surgery as this patient has had do present a definite hazard to the employer. (Jt. Ex. 41, Page 2) Prior to the April 11, 1986 incident, claimant had sought treatment at St. Lukes Regional Medical Center in Sioux City, Iowa for severe back pain. She was examined by C. Farrell, M.D., and was assessed as having right sciatica. She was given various prescriptions, and was to follow-up with Cecil Cunningham, M.D. (Jt. Ex. 38, PP. 1-6) Other records from the employer indicate that claimant had constant complaints about physical problems during 1986. (Jt. Ex. 44, PP. 1-3) Eventually, claimant stopped work in January of 1987. (Jt. Ex. 52) The record is virtually silent as to any medical treatment received by claimant during 1987. However, there are several exhibits which indicate claimant had sustained an injury to her eye and was treated accordingly. (Claimant Exs. 9-12) And, Dr. Cunningham performed some services on February 6, 1987, which appear to be unrelated to claimant's case. (Jt. Ex. 73) Additionally, on February 14, 1987, claimant was treated for severe stomach pain. (Jt. Ex. 46) The next medical treatment claimant received was on February 19, 1988, when she was treated at St. Lukes Regional Medical Center in Sioux City, Iowa. Claimant was admitted to the emergency room, complaining of left leg pain. Those records indicate that she developed sciatica in the left sciatic nerve "four weeks ago". She was given Dilaudid in the left arm. She obtained complete relief from the pain, but returned to the hospital several hours later, requesting additional medication. Again, she was given an injection of Dilaudid, and was referred to Horst Blume, M.D. (Jt. Ex. 47, PP. 1-7) Claimant was again examined on February 22, 1988, and a computed tomography test showed abnormalities of the lower lumbar spine. (Jt. Ex. 48) Eventually, claimant underwent surgery on March 10, 1988. Initial notes indicate that an MRI found a ruptured disc at the L-5, S-1 level. Interestingly, the hospital records also state that, "up until 5 weeks ago she was Page 6 completely free of pain, no leg pain." Claimant was released from the hospital on March 18, 1988. (Jt. Ex. 49, PP. a-aa, P. 5). Apparently claimant continued to have some physical ailments, and received an epidural flooding at the L5 level on September 12, 1988. (Jt. Ex. 56, P. 1) Claimant was evaluated by Joel Cotton, M.D., on June 2, 1989. Upon examination, his impression was that claimant's neurological examination was normal except for an absent left ankle jerk and positive straight leg raising test on the left. He noted numbness in the entire left lower extremity which he could not explain. In Dr. Cotton's opinion, she had no definite weakness in the muscles of either lower extremity. He gave her an additional five percent permanent impairment of the body as a whole in addition to her prior impairment of 28 percent. He also adhered to prior restrictions placed upon claimant. (Jt. Ex. 57, PP. 1-3) Dr. Cunningham, the physical who has treated claimant on an ongoing basis for the past several years, made the following assessment on August 3, 1989: Her condition remained quite stable through 1986 and 1987, until she suffered a serious aggravation of her condition in approximately January of 1988. I am unaware of any injuries between 1986 and January of 1988, which would attribute to her problem. During the period of 1986 and 1987, for the most part she had only a few and infrequent complaints and these were much less than she had in late 1985 and before. She had surgery again on L5/S1 March 10, 1988, and this was probably ruptured sometime in January of 1988, but the cause of the rupture at the time is unknown by me. (Jt. Ex. 59, P. 1) analysis and conclusions of law The first issue to be addressed is whether claimant sustained an injury on April 11, 1986 which arose out of and in the course of her employment. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on April 11, 1986 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course Page 7 of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. Claimant's testimony and the evidence previously cited to seem to indicate that she did sustain a fall while she was working on April 11, 1986. She was performing her required job duties, during her regular shift hours, in a manner consistent with the type of work performed at the plant. As a result, it is found that claimant did receive an injury which was in the course of her employment with the employer. And, claimant has proven by a preponderance of the evidence that there was a direct causal connection between her injury and the requirements or duties contemplated by the employer, which will translate into a finding that her injury arose out of her employment. However, there are two components to claimant's case, one being the injury to the knee, and the other being the injury to claimant's back. It is found only that claimant's knee injury arose out of and in the course of her employment. To support a finding that claimant's subsequent back problems and the third surgery she underwent in 1988 is causally related to the fall she had on the employer's premises would be contrary to the weight of the evidence presented. Claimant's own treating physician, Dr. Cunningham, was unaware of any precipitating event which caused the ruptured disc which was the basis for the surgery. She did not receive any treatment for her back during 1987. The evidence shows that claimant was pain free until January of 1988. There is nothing in the record which would support a finding that claimant's back injury arose out of and in the course of her employment due to the injury she sustained on April 11, 1986. As a result, defendants are obligated to pay only for the medical treatment claimant receive to treat her knee. There is no showing of permanency to the left lower extremity, and claimant is entitled to no type of disability benefits for this injury. Claimant takes nothing from these proceedings as they relate to her back condition. order THEREFORE, it is ordered: That defendants are obligated to pay only for medical treatment provided for the treatment of claimant's left Page 8 knee. That claimant take nothing from these proceedings with respect to the back injuries. That defendants shall file a claim activity report as required by rule 343 IAC 3.1(2). That defendants shall pay the costs of this proceeding. Signed and filed this ____ day of July, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Robert L Sikma Attorney at Law 402 Benson Building Sioux City Iowa 51101 Mr Thomas M Plaza Attorney at Law 701 Pierce St Ste 200 PO Box 3086 Sioux City Iowa 51102 5-1100 Filed July 11, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : SANDY STOWE, : : Claimant, : : vs. : : File No. 820910 JOHN MORRELL & CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE : INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100 Claimant, who had a history of back problems and no prior surgeries, sustained a fall at work. The greater weight of the evidence showed that claimant sustained only a bruised knee from the fall, although she argued that she reinjured her back when she fell. Claimant was not credible, and took nothing from these proceedings. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SCOTT ERICKSON, Claimant, File No. 821055 vs. D & B AUTO RADIO, INC., A R B I T R A T I O N Employer, D E C I S I O N and KEMPER INSURANCE, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Scott Erickson, claimant, against D & B Auto Radio, Inc., employer, and Kemper Insurance, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an alleged injury sustained on February 26, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner April 26, 1988. It was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant, Carl Erickson, his father, Carolyn Nordstrom, Dr. Kirk Witherspoon, Scott Swanson, Mike Robertson, and Bob Aldin; joint exhibits 1 through 23, inclusive; and, claimant's exhibits 24, 25 and 26 which were received without objection. ISSUES Pursuant to the prehearing report and order submitted and approved April 26, 1988, the following issues are presented for resolution: 1. Whether claimant sustained an injury which arose out of and in the course of his employment; 2. Whether the alleged injury is the cause of the disability on which claimant now bases his claim; 3. The extent of claimant's entitlement to weekly disability benefits, if any; 4. Claimant's entitlement, if any, to benefits provided pursuant to Iowa Code section 85.27; and, 5. The applicability of the odd-lot doctrine. ERICKSON V. D & B AUTO RADIO, INC. PAGE 2 FACTS PRESENTED Claimant began working for defendant employer, an automotive and electronics company that repairs automobile electrical components, in February 1985 as a route driver whose responsibilities were to pick up and deliver components from various locations. Claimant testified he was initially hired to drive the Quad City route which consisted of six stops and took about one-half day or less to complete but as the company grew his route grew so that by February 1986, he was driving 250 to 300 miles on the Quad City route Monday, Wednesday and Friday, plus driving the Tri-State route on Tuesday and Thursday which consisted of 310 to 350 miles and approximately 28 stops. Claimant stated he drove in all kinds of weather, that in order to make all his stops he found it necessary to speed, and that he was given a radar detector to avoid speed traps. Claimant acknowledged he was never told to exceed the speed limit but that "driving faster was strongly inferred." Claimant expressed a strong dissatisfaction with the maintenance of his vehicle, with some of the policies of the employer which he perceived to be dishonest and with what he believed was the employer's dislike of overtime. Claimant had what was perceived to be a substantial fear of breaking the law in any way because of the manner in which he was raised, the fact his father is a law enforcement officer and a desire to have a career in law enforcement himself. Claimant was involved in an accident November 13, 1985 when another car pulled out in front of him and he tried to spin sideways to avoid a collision. Claimant stated that no one was injured, that the accident was not his fault, and that following this incident his feelings of being tired and "burned out" began to get worse. Claimant testified he took some time off from driving after this accident but, because the employer could not spare another driver, he began driving regularly again after about a month. Claimant testified that he began to perceive he was striking pedestrians with his car or causing other vehicles to run off the road, that his mind would wander so as to question whether he had stopped at traffic lights or a stop sign and to imagine that each time he hit a bump it was a body. He stated he would then go back to check the area but once there he would forget why he had gone back or would be afraid to look because of what he might see. Claimant described his perception of constant pressure that he was getting behind in his route which intensified when he took so much longer to complete the route after checking and rechecking where he had been. Claimant testified he believed he was speeding and that at times he would go 70 or 80 miles per hour although he wondered if perhaps he "dreamed everything" and admitted that towards the end of his employment he did not know what he was doing. Claimant stated he thought he was told he was getting too much overtime although at the time of his deposition he would acknowledge only that excessive overtime was "hinted at" and that he was never "sat down and scolded about it." Claimant recalled that on February 26, 1986, he was driving the Quad City route, that he was "turning around and around, going back and forth" convinced that he was killing people, crying and that he stopped at a church where he called his parents, totally distraught. Claimant explained he believed he was going "crazy," that he did not know what was happening to him ERICKSON V. D & B AUTO RADIO, INC. PAGE 3 but that he had felt that day that something was going to happen to him. Claimant acknowledged that it is difficult for him to remember what went on in November and December 1985 and January and February 1986 and that he wonders if he made up the speeding although he does recall rushing around. Claimant stated he left work then on February 26, 1986 and eventually asked Dr. Kirk Witherspoon, with whom he was treating, for a release to return to work on March 14, 1986. Dr. Witherspoon provided claimant with a release to return to work with a restriction of no driving. Claimant returned to work for defendant employer in a position involving shipping and receiving type work and offered that he did and redid the work he was assigned and that he left again when he began to believe once again he might hurt somebody. Claimant recalled that he saw an article by Dr. Dewat Chaudhry in the newspaper which described some of the symptoms he was experiencing and from that article set up an appointment with Dr. Chaudhry. Although Dr. Chaudhry suggested hospitalization for claimant, claimant rejected such a suggestion. Claimant stated that since his discharge from employment with defendant employer May 23, 1986, he secured temporary employment at Rink's Frozen Food Center where he marked "x's and oOs" on livestock and where he was assigned to wrapping meat. Claimant described wrapping and rewrapping the meat and an inability to work in the slaughterhouse because of what went on there. Claimant also described part-time employment testing soil which he was capable of doing some days but during which he described feelings of paranoia. Claimant opined he is not capable of holding a regular job and finds this part-time position appropriate because it does not require such things as time records and he can do what he can as best he can. On cross-examination, claimant stated he could not recall any offer from the employer to come in off the road outside of when he first started and helped out a little on installation. However, claimant felt work inside was also stressful to him. Claimant admitted he was commonly paid for all hours reported, that he was never suspended or disciplined and that at times his job was boring although "mostly [he] was sick of it." When asked if there was any specific incident which may have caused him to complain of stress, claimant responded that he "imagined" he did so complain. Claimant stated he had "checking" tendencies in high school which did not affect his life but which seemed to get worse as he got older and that when he was driving a snowplow for the state of Illinois prior to his employment with D & B Auto Radio, he was able to perform his job without doing any checking. Claimant explained he was used to driving in the winter, that he was not bothered by snow and that when he was plowing he had "all the time in the world" as he was not on any schedule. Carolyn Nordstrom testified she has known claimant since May 1982 when they began dating and that she found claimant to have normal behavior with normal habits, to be a well adjusted person and a confident driver. Ms. Nordstrom stated she began to notice a change in claimant in the fall of 1985 because he seemed tired all the time, upset about work and feeling "pushed" and burned ERICKSON V. D & B AUTO RADIO, INC. PAGE 4 out. Ms. Nordstrom described claimant as shaky, hardly able to talk and crying when he became upset. She stated claimant became obsessed with his job and that he told her he was so tired when he was driving that he would forget going through certain areas and believed he was hitting people as he drove or making them drive off the road. Ms. Nordstrom relayed that claimant was worried about the overtime hours he was working, that claimant was concerned about what his supervisor said and their satisfaction or dissatisfaction with his job performance, that claimant believed he could think evil thoughts and cause people harm including wishing people to hell and that claimant's confidence waned during this period of time. Ms. Nordstrom testified that she and claimant had their "ups and downs" in their relationship which were not always related to his job explaining that his job might have brought them closer together. Ms. Nordstrom indicated she and claimant broke up on February 10, 1988 as a result of claimant's problem because they "could not have a relationship on top of" those problems. Ms. Nordstrom explained she always found claimant to be conscientious but not to the extreme and that claimant was always rechecking things, for example, not trusting himself to make sure everything was off in the house before he would leave. On cross-examination, Ms. Nordstrom testified claimant has a belief in God and lived under a fairly strict moral code, that claimant never seemed to be bored with his job, that claimant "loved driving a lot" and that claimant was a confident, "cocky" driver who was "proud" of doing crazy things while driving. Ms. Nordstrom described a type of "ritual" claimant performed before he would get up from the floor after watching television. She stated claimant would pat the floor, stand up and wave his arms and that when she commented on this custom, he told her he did not realize he was doing it. Carl Erickson, claimant's father, testified claimant has no history of depression, panic attacks or obsessive disorders, that claimant was a good student when he wanted to be, that prior to claimant's illness he did not observe any compulsive behavior and that when claimant got sick it was a complete shock to him. Mr. Erickson stated that when claimant went to work for defendant employer he noticed no change in claimant's behavior and if he thought claimant was sleeping less or having a little problem at work he was not concerned because "everybody does." Mr. Erickson testified it was not until after claimant was hospitalized that he became aware of claimant's concern over running people off the road or causing accidents and that although he tried to convince claimant otherwise and took every action to prove to claimant that his fears were unfounded, claimant could not be easily persuaded. Mr. Erickson testified that when claimant eventually returned to work he could tell something was wrong and that claimant told him he had to re-read the numbers he was working on numerous times to convince himself he was doing things correctly. Mr. Erickson stated claimant seemed better when he was not working and that claimant was discharged because he could not do the job for defendant employer. Mr. Erickson expressed his belief that claimant feels "guilty about a lot of things" that claimant is like a "yo-yo," that he doubts ail that he does, is afraid of the unfamiliar, that he has problems driving, is afraid of hurting people and that claimant cannot do anything around the house without checking things over and over. Mr. Erickson ERICKSON V. D & B AUTO RADIO, INC. PAGE 5 described claimant as a perfectionist, that while claimant may have gone around checking things before his hospitalization it did not strike him as odd and that he did not know that claimant had any obsessive traits before February 1986. Scott Swanson testified that he began employment with D & B Auto Radio June 25, 1986 and that he drives five days per week on the Quad City and Tri-State routes as claimant did at the time he was employed with defendant employer. Mr. Swanson stated he drives the Quad City route Monday, Wednesday and Friday and that it takes him eight and one-half to nine hours to complete the 50 stops and 300 miles and that he drives the 43 stops,400 mile Tri-State run on Tuesday and Thursday. Mr. Swanson explained he feels no stress on the job, that he is paid for his overtime hours without question and that the 1986 Cavalier station wagon which he was given to drive is in good condition and is fixed as boon as possible if there is a problem. on cross-examination, Mr. Swanson stated he takes two or three minutes at each stop.that he "runs" about 58 miles per hour and that in the two years he has been employed he received five speeding tickets. Mr. Swanson denied that anyone ever encouraged him to speed and stated he felt he had plenty of time to make the route. Mike Robertson testified that he has been employed by D & B Auto Radio since June 1986 and that he drives the Muscatine run of 400 miles and 40 stops on Tuesday and Thursday for a total of 9 to 9.5 hours and the Des Moines run on Monday, Wednesday and Friday which takes from 10 to 10.5 hours to complete the 450 miles and 31 stops. Mr. Robertson estimated he works approximately 50 hours per week, that he is always paid his overtime hours and that he was never told he had to get the routes done within an eight hour day. Mr. Robertson testified he has received three traffic tickets, the last one in June 1987, that he is not required to speed, that his vehicle is in good condition and that it receives regular maintenance. Mr. Robertson denied feeling any stress from his job. Bob Aldin testified he has worked for D & B Auto Radio for over three years as a technician for two different periods and as a branch manager from April 1985 until November 1986. Mr. Aldin stated that he had little contact with claimant when claimant first began his employment but that when he helped claimant he found him to be "real conscientious," asking three or four times what to do to make sure he got it right. Mr. Aldin denied being aware of any other drivers having any stress-related problems and maintained that although claimant asked for more money, claimant never complained to him that the job was stressful. Mr. Aldin testified to his awareness that claimant was taking longer to do his job but denied claimant ever told him why. Mr. Aldin explained that radar detectors are in all company vehicles (the company sells them), that no driver was ever told to speed and that it was understood routes take longer than eight hours to complete so there was no attempt to force a driver to get done in eight hours. Mr. Aldin testified claimant's car was a new 1985 Cavalier wagon which was regularly maintained and that claimant was never sent out in an unsafe car. Mr. Aldin stated claimant was offered a "driveway position" in installation which claimant did not accept, that claimant was offered a sales job and that when claimant wanted to return to work following the ERICKSON V. D & B AUTO RADIO, INC. PAGE 6 diagnosis of his illness a position in shipping and receiving was made available to him. Mr. Aldin described claimant's actions in counting and recounting things again, that claimant was taking "an awful long time" to do the job and finally that he was not involved in the decision to discharge claimant. Kirk Witherspoon, Ph.D., clinical psychologist, testified he first saw claimant on February 27, 1986 with claimant giving a list of symptoms including extreme depression, agitation, being "full of considerable self doubt" and that he was having a great deal of difficulty working. Dr. Witherspoon advised he administered the MMPI, on which, according to validity scales configuration, claimant appeared to answer the questions truthfully, and the Forer Structured Sentence Completion Test. Dr. Witherspoon stated his initial diagnosis had to do with judging that claimant was quite depressed with much agitation and then: As the depression eased a little bit as time went on, the thinking, the obsessive-compulsive thinking and behavior seemed to be the most problematic or troublesome aspect of his functioning so that took a little greater prominence, but that doesn't mean he still didn't get depressed. It is a question is it the chicken or the egg, they go hand in hand. (Transcript, page 14) Dr. Witherspoon acknowledged there were some things in claimant's background that could be described as obsessive or compulsive but to a mild, not debilitating, degree and not to the extent that claimant was more prone to the disorder than anyone else. Claimant described his symptoms to Dr. Witherspoon as: A. He came to me saying in essence that he had --he was extremely depressed, he was agitated, he was just full of considerable self-doubt and complaining that he was having a great deal of difficulty working. He wanted very much to work, but he couldn't work very well because he was having much trouble driving and the trouble he was having was associated with his fear that he may harm someone and he would go back and double check and double check the route over and over and he was having semi-delusional thoughts that he not quite fully believing that these things were there, but he talked about seeing what he thought were ghosts, maybe there were these ghosts that he had run over and did he run over somebody and what he was doing he was obsessing and ruminating and worrying constantly about what he had been doing or hadn't been doing such that he was having tremendous difficulty even doing his job and wanted very much to work, but at the same time was just becoming completely debilitated, was losing confidence in himself tremendously, and was very conflicted about it. (Tr., pp. 7-8) Dr. Witherspoon testified: ERICKSON V. D & B AUTO RADIO, INC. PAGE 7 Q. Doctor, based on your training, your education, your experience, your diagnosis of Scott Erickson, the history that you obtained from Scott Erickson, do you have an opinion based upon a reasonable degree of professional certainty as to whether Scott Erickson's mental difficulties as you have described them stemmed or were caused by I should say the stress that he had at work? A. Primarily, yes, I would say 80 to 90 percent of it was caused by that. (Tr., pp. 19-20) Dr. Witherspoon relayed his current diagnosis of claimant as suffering from obsessive-compulsive disorder from a psychokymic disorder where he undergoes unipolar mood swings dipping down into depression and back up to normal and, in addition, claimant is suffering from an anxiety neurosis and perhaps a mixed personality disorder with compulsive features, inadequate features, and affective features. Based on the fact claimant is not now "doing tremendously better than he was" two years ago, Dr. Witherspoon was not optimistic on claimant's prognosis. Dr. Witherspoon was unequivocal in his opinion that the cause of claimant's current problems was his employment. When asked whether the depression from which Dr. Witherspoon feels claimant is suffering is caused by the obsessive-compulsive disorder, Dr. Witherspoon stated: ERICKSON V. D & B AUTO RADIO, INC. PAGE 8 So what I am trying to tell you is that I think there's a very complex interplay between feelings and thoughts and that they can affect one another, that the depression affects the -- or causes the obsessive-compulsive thinking or vice versa, I think they tend to go hand in hand. (Tr., p. 44) Dr. Witherspoon went on to testify: Q. ...Do you know of any single source of medical or psychological literature that says anxiety or depression can cause obsessive-compulsive disorder? That is an organic problem with a patient, isn't it? A. What is an organic problem? Q. Obsessive-compulsive disorder, that isn't caused by stress or it isn't caused by depression, is it? A. What I am trying to say is that thoughts and feelings co-exist. To say one causes the other is speculation. I don't think I can speculate that. I think it can be either way. .... Q. Do you have any single piece of medical literature or psychological literature which states that stress can cause obsessive-compulsive disorder? A. Not offhand, no. (Tr. pp. 44-45) Dr. Witherspoon admitted he operated on the assumption that: Q. You are using this as an assumption and I think you testified, Mr. Witherspoon, that it would be wrong for virtually anyone to do the type of job that Scott was asked to do at D and B Auto Radio, is that correct? A. Under the circumstances that he was forced to undergo. Not that everybody would necessarily react the way he did. My understanding was other people would get in that job for a period of time and the particular route he was on and would quit after a short period of time. Q. Do you know why they quit? A. No. Q. Have you talked to any of those drivers? A. No, I have not. Q. Have you talked to anybody at D and B Auto Radio ERICKSON V. D & B AUTO RADIO, INC. PAGE 9 that -- A. No, I have not. Q. So again that's an assumption you have made in this case and if that assumption is untrue, then again that would seriously throw doubt upon your opinions in this case? A. Regarding my belief that it was caused by -- Q. By stress. A. I honestly don't think it would. Q. It doesn't matter how significant the stress is, you are convinced that whatever stress he had at D and B Auto Radio was the cause of this stress. A. For him, yes, and the way he interpreted. Q. What I am asking you does that opinion depend on how significant objectively that stress was at work? A. Well, yes and no. I mean, you know, if it were proven to be absolutely unfounded, you'd certainly have to take a hard look at what the heck he was responding to and I know that is a part of what you are going to be taking a look at in addition to what I have. (Tr., pp. 49-50, 52) When asked whether he agreed with the statement "there is no satisfactory etiologic explanation for the occurrence of excessive compulsive neurosis," Dr. Witherspoon responded: A. Well, that's a good question. As a general statement, yes. It doesn't mean it can generalize from the statement to each specific instance. There's a big difference there. I don't think that necessarily would apply to each specific instance. I don't think it applies to Scott's case, for example. (Tr., pp. 59-60) Dr. Witherspoon's testimony concluded: Q. ...Is it your opinion in this case, Doctor, that Scott has an obsessive-compulsive disorder or that he has obsessive-compulsive underlying personality? A. I guess both. Q. I would like to read you a couple things again. This is from a treatise, the chapter is written by Thomas Insel who is Unit Chief, Clinical Neuropharmacology Branch, National Institute of Mental Health, Bethesda, Maryland. The book is entitled Psychiatric Clinics of North America. It is volume eight, number one. ERICKSON V. D & B AUTO RADIO, INC. PAGE 10 Let me ask you, first of all, he describes what is a second type of obsessive-compulsive disorder and ask you if this agrees with your reading of Scott. A second presentation for OCD involves pathologic doubt with compulsive checking. Typically the checker fears the gas jets have been left on or that a bump in the road was a body, doubts that reveal a concern with violence. Although some uncertainty about carelessness, particularly carelessness that could lead to catastrophic consequences is common in us all, for the obsessional this uncertainty takes on a gnawing, malignant quality. Checking, which is enough to result in normal uncertainty, often only contributes to the obsessional's doubt. "For instance, if after checking, a bump in the road does not appear to be a body, then the obsessional fears that the body may have been knocked into the bushes. Ultimately by some inscrutable means, the patient resolves a particular doubt only to have it replaced by a new obsessional preoccupation. "Checkers live as if they are the guilty party perpetually in search of a crime and unsurprisingly they frequently describe a strict religious upbringing." Is that consistent with what you saw in Scott Erickson in this case? A. Yes, it is. Q. Would you also agree with the following from that treatise, "Finally, it needs to be emphasized that for nearly all patients with OCD, pharmacologic management is only one dimension of what must be a multidimensional treatment approach. As the symptoms are likely to be chronic, the context in which they have persisted needs careful attention. Providing a role for the family in the treatment may be critical to ultimate outcome. "In addition, these patients are likely to need long-term support and directive interventions. Encouraging obsessional patients to take risks and push themselves into work or school may yield substantial improvement. "Whatever the ultimate etiology of this intriguing disorder, the people who suffer with obsessions and compulsions are usually guilt-ridden and socially isolated. As with any chronic illness, the psychological complications are profound. Pharmacotherapy is not a substitute for supportive psychotherapy. Ideally both should work together to facilitate change." Would you agree with that? A. Of course. (Tr., pp. 86-89) ERICKSON V. D & B AUTO RADIO, INC. PAGE 11 Medical records show claimant underwent an EEG on February 28, 1986 hie results of which show: CLINICAL INFORMATION: Headaches for years, forehead area with loss of memory. INTERPRETATION: Normal 23 year old waking, drowsing and light sleeping electroencephalogram. (Joint Exhibit 2) Dewat R. Chaudhry, M.D., child and adult psychiatrist, at the Agoraphobia & Panic Treatment Center, opined after seeing claimant on April 21 and 22, 1986, and being advised of a history similar to that provided to Dr. Witherspoon by claimant, that claimant has obsessive-compulsive disorder with panic attacks which he could not substantiate were caused or aggravated by claimant's employment. On December 9, 1987, Dr. Chaudhry reiterated his position to defendants' counsel: Although it is a fact that Mr. Ericson [sic] developed very serious symptoms of psychiatric illness while employed with D & D [sic] Auto Company, I do not feel that the stresses of the job resulted in production of his symptoms. Depression and panic disorder as well as obsessive/compulsive disorder are biological disorders. Individuals are born with genetic vulnerability towards these disorders and these disorders could emerge at any stage in a persons [sic] life. Most common age of onset for panic disorder is late teens to mid thirties. These disorders are responsive to psychopharmacological and behavioral treatments. (Jt. Ex. 13) On December 10, 1987, claimant was seen by Russell Noyes, M.D., of the University of Iowa Hospitals and Clinics, Department of Psychiatry, Psychiatric Hospital, who reported: Prior to seeing Mr. Erickson I reviewed records of contacts with a psychologist, Kurt [sic] Witherspoon, Ph.D. and a psychiatrist, Dewat Chaudhry, M.D. My interview with Mr. Erickson lasted about an hour and a.half. He cooperated fully with the evaluation and gave me what I believe was reliable information. Mr. Erickson reported that he began to develop symptoms of an emotional disturbance in the fall of 1985. At that time he was a route driver for D & B Auto Radio and began to experience tiredness along with concern about his ability to operate a motor vehicle safely. In November of 1985 he was involved in a minor automobile accident, and thereafter developed an obsessional (repetitious and unrealistic) concern with hitting pedestrians or other vehicles while driving. That is, he became fearful that he might actually run over someone or run other vehicles off the road. As this concern increased, he experienced mounting anxiety and pictures began to come into his mind of accidents that might have taken place. As a result, he found ERICKSON V. D & B AUTO RADIO, INC. PAGE 12 himself having to check and recheck to be sure that accidents had not actually occurred. He also began to have trouble sleeping, getting only two or three hours per night. He frequently found himself shaking and had the sensation of racing within his body. He said that he felt weaker and more tired and eventually stopped work in February, 1986. Thereafter he avoided driving and social situations that brought him into contact with others. The latter was in response to another obsessional concern, which was that he might become angry and strike someone. In early 1986 he also experienced depressed mood, worry, loss of interest and poor concentration, together with low self-esteem and crying spells. Panic attacks occurred in relation to obsessional concerns. .... Since the fall of 1985 Mr. Erickson has continued to experience obsessions and compulsions (repetitious, unrealistic thoughts and actions), however, the level of these symptoms and the impairment related to them has fluctuated. His worst periods were between April and July of both 1986 and 1987. During these intervals he suffered significant depressive symptoms and was confined to his home on account of fears. After leaving employment with D & B Auto Radio in February, 1986, he was briefly employed in a slaughterhouse (five weeks) but found the work disagreeable. Currently he is doing reasonably well, though he continues to have obsessive and compulsive symptoms. He continues to have an obsessional concern with the possibility of harming others, but on an average this occupies only 30 to 45 minutes daily. Actual compulsive checking may only involve five to ten minutes. He has days of feeling nervous, especially around people, where he may have thoughts about hitting someone, something he has never done. Consequently, his impairment is rather minimal and he appears capable of working. He credits his improvement to the treatment he has, received through which he lilts learned about his illness and found ways to gain control over.it. .... Mr. Erickson reported that the circumstances of his work as route driver with D & B Auto Radio were stressful and may have been responsible for the development of his symptoms in the fall of 1985. He stated that there was time pressure to complete runs, that he was forced to drive in bad weather, and thus expose himself to unsafe conditions. He felt that vehicles were sometimes unsafe and that he had to drive faster than was prudent. It occurred to him to seek other employment, but he liked the work itself and did not like to think of himself as a quitter. .... My diagnosis is one of obsessive-compulsive ERICKSON V. D & B AUTO RADIO, INC. PAGE 13 disorder. Symptoms of anxiety and depression have also been part of the picture. This illness, which often begins in the early twenties, tends to follow a chronic course although remissions and exacerbations occur in some patients. Treatment consists of medication and behavior therapy, both of which have been administered with apparent success in Mr. Erickson's case. With successful treatment symptoms may be reduced but are rarely eliminated. Mr. Erickson appears capable of working at this time, however it is likely that he will continue to need treatment and, depending upon the level of his symptoms, may wish to try clomipramine, a medication of recognized value for obsessive-compulsive disorder that is not yet available in the United States. Job stress may have been a precipitating factor in Mr. Erickson's illness. Many persons who develop obsessive-compulsive disorder describe precipitating events. These are events, such as the death of a loved one, divorce, financial loss, etc., that most people find stressful. However, most persons do not become ill as a result of such events and they cannot be regarded as a cause of obsessive-compulsive disorder. The cause of this illness is, in fact, not known. Consequently, the stress to which Mr. Erickson was exposed probably did not play a large role in the illness which he developed. It should be noted that this man had minor obsessive and compulsive symptoms and obsessional personality traits prior to the onset ERICKSON V. D & B AUTO RADIO, INC. PAGE 14 of his illness. A vulnerability to obsessive-compulsive disorder appears to have existed prior to 1985. (Jt. Ex. 14) Dan Domingo, M.D., of Moline Psychiatric Associates, Ltd., evaluated claimant and on February 22, 1988, rendered the opinion that: [T]here is no doubt that he is suffering from obsessive-compulsive disorder. His obsessions at this time are much more prominent than his compulsions. Associated with his illness are symptoms of anxiety, depression, low self-esteem and low self-confidence .... ......The prognosis, of course, of this case is considered cloudy as we do not know the cause of obsessive-compulsive disorder and we don't have any definite treatment for it. (Jt. Ex. 15) W. David McEchron, Ph.D., licensed psychologist, issued a report to defendants' counsel on march 31, 1988, which stated: Your latest documents from Dr. Chaudhry and the University of Iowa were quite helpful concerning Mr. Erickson's diagnosis and the cause of his problems. I firmly agree with the general content of these documents and the points of view expressed by Dr. Chaudhry and Dr. Noyes. It seems clear to me, from reviewing these documents and others, that Mr. Erickson has an Obsessive-Compulsive Disorder which was well established prior to his employment with D & B Auto. It appears to me that during the course of his employment, it is Mr. Erickson's own obsessive-compulsive doubts and processes that are the source of his stress rather than the stress of the job .... There is good research to suggest that there is a biological component in obsessive-compulsive disorders and anxiety attacks. Psychology and psychiatry can debate this issue in terms of the proportions of genetic predispositions and other biological factors, but there appears to be clear agreement that there is a biological component and an environmental or learned one .... Perhaps, one of the biggest stumbling blocks in this situation was Dr. Witherspoon's suggestion to Mr. Erickson that the causation of his anxiety attacks was the stress on the job. It appears to me that Dr. Witherspoon did not look closely enough at the predisposing personality and the dynamic interplay between obsessive-compulsive disorder and his anxiety attacks. Once Mr. Erickson was given this explanation for his difficulties, he probably latched onto it and ERICKSON V. D & B AUTO RADIO, INC. PAGE 15 for Mr. Erickson, it became "the cause".... .... On the Minnesota Multiphasic Personality Inventory given by Dr. Kirk Witherspoon, the profile appears to be an invalid one .... .... The EEG report from Dr. Robinson on February 28, 1986 indicates a history of headaches "for years" in the forehead with accompanying loss of memory. This needs to also be clearly established. The EEG was normal, but the presence of these headaches for years and the memory loss may be highly suggestive that this problem actually was present, but was in a different form prior to the onset of the panic attacks .... .... Dr. Witherspoon's deposition is very interesting. He states that he doesn't see any personality disorder in the MMPI and that the MMPI only reflects stress related symptoms. I am sorry, but I disagree with this very, very strongly. I find it interesting that Scott relapsed when he attempted to return to work and then was allowed to not return to work because of this relapse in symptoms. This may well have reinforced in his mind that the cause of his problems were stress related difficulties. It is also interesting that Dr. Witherspoon saw Scott for 26 sessions and had very little success in treating his disorder, and yet Mr. Erickson was quite successful in moving around the community when he was not attempting to return to work. On Page 50 of the Witherspoon deposition, he admits that the compliance of Mr. Erickson to the treatment afforded to him was questionable. To summarize all of this, it is my thinking that the pre-existence of an obsessive-compulsive personality, with the evolving obsessive-compulsive disorder, prior to D & B Auto employment is clearly established. The failure of the obsessive-compulsive defenses is tho source of the anxiety and stress that precipitated the onset of the panic attacks. (Jt. Ex. 16) APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). The claimant must prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 ERICKSON V. D & B AUTO RADIO, INC. PAGE 16 (1967). In the course of employment means that the claimant must prove his injury occurred at a place where he reasonably may be performing his duties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971). Arising out of suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consolidated School District, 246 Iowa 402, 68 N.W.2d 63 (1955). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. As cited above in Crowe, there must be a causal relationship between the employment and the alleged injury. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 26, 1986 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.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist ERICKSON V. D & B AUTO RADIO, INC. PAGE 17 Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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). As the question of causal connection is essentially within the domain of expert testimony, review is first given to the medical evidence submitted. Five experts have provided opinions on whether the stress claimant perceived in his employment with defendant employer caused his mental condition. All five agree that claimant suffers from obsessive-compulsive disorder compounded by symptoms of anxiety and depression. The undersigned does not doubt that claimant, in fact, suffers from such a disorder. Dr. Dewat Chaudhry, a psychiatrist, stated in two different reports that he could not substantiate claimant's problems were caused or aggravated by his employment. It is interesting to note that claimant himself chose Dr. Chaudhry based on a newspaper article and feeling that Dr. Chaudhry's specialty coincided with his symptoms. Yet, claimant gets no support for his contention from Dr. Chaudhry's opinions. Dr. Dan Domingo, also a psychiatrist, saw claimant on referral from Dr. Witherspoon, claimant's treating psychologist. Dr. Domingo candidly admitted that the cause of obsessive-compulsive disorder is not known and did not in any way relate claimant's symptoms to his employment. Dr. W. David McEchron, who did not see claimant but reviewed claimant's records on request of defendants, is firm in his opinion that claimant's condition was caused by claimant's own obsessive-compulsive doubts and processes rather than by any stress of the job and suggests that good research exists that there is a biological component to obsessive-compulsive disorders and the anxiety attacks. To the undersigned the most interesting opinion rendered in this case is that from Dr. Russell Noyes, of the University of Iowa Hospitals and Clinics, Department of Psychiatry. Dr. Noyes' credentials, as found in his curriculum vitae, show he began his teaching career at the University of Iowa in 1965 and became a full professor of psychiatry in 1978, that he is a member of the American Psychiatric Association, the past president of the Iowa Psychiatric Society, a member of the American Psychopathological Association, the Academy of Psychosomatic Medicine, and the American Academy of Clinical Psychiatrists, in addition to being a widely published author in the areas of personality disorders, anxiety disorders, panic disorders, and obsessive-compulsive disorder. Dr. Noyes had the opportunity both to interview ERICKSON V. D & B AUTO RADIO, INC. PAGE 18 claimant and to review claimant's previous medical records particularly with regard to his contacts with Dr. Witherspoon and with Dr. Chaudhry. Dr. Noyes admits that the cause of obsessive-compulsive disorder is not known and that "the stress to which Mr. Erickson was exposed probably did not play a large role in the illness which he developed." While Dr. Noyes does admit that "job stress may have been a precipitating factor" in claimant's illness, the Iowa Supreme Court ruled in Burt, supra, that a possibility of causal connection is insufficient; a probability is necessary. Dr. Noyes' opinion that job stress may have been a precipitating factor falls far short of probability. The opinions of Dr. Noyes are given greater weight. The most troubling opinion rendered in this case appears to the undersigned to be that of Dr. Witherspoon, claimant's treating psychologist. In Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187 (Iowa 1985), the Iowa Supreme Court stated at 192: We think a rule of law would be unwise that a treating physician's testimony should be given greater weight than that of a later physician who examines the patient in anticipation of litigation. The employer should and does have the right to develop the facts as to a latter physician's employment in connection with litigation, his examination at a later date and not when the injuries were fresh, his arrangement as to compensation, the extent and nature of his examination, his education, experience, training, and practice, and all other factors which bear upon the weight and value of his testimony. The claimant may similarly develop such information as to the treating physician. Both parties may press all of this information to the attention of the fact finder, as either supporting or weakening the physician's testimony and opinion. All these factors, however, go to the value of the physician's testimony as a matter of fact, not as a matter of law. Musselman v. Central Telephone Co., 261 Iowa 352, 360, 154 N.W.2d 128 132 (Iowa 1967); Paulson v. Central Idaho Forest Industries, 99 Idaho 896, 901, 591 P.2d 143, 148 (1979); Arcole Midwest Corp. v. Industrial CommOr, 81 Ill.2d 11, 16, 39 Ill.Dec. 776, 779, 405 N.E.2d 755, 758 (1980); Yocum v. Emerson Electric Co., 584 S.W.2d 744, 748 (Ky.App.1979); Moscarelli v. Moscarelli Funeral Home, 55 A.D.2d 762, 390 N.Y.S.2d 223, 224 (1976); Dick's Delicatessen of Paoli, Inc. v. W.C.A.B., 82 Pa.Cmwlth.1984). Dr. Witherspoon is a clinical psychologist who does not appear to limit his practice to any specialty except that he does not get "into too much" substance abuse. Neither his Masters nor his Doctor theses dealt with personality disorders. His initial diagnosis of claimant was not obsessive-compulsive disorder which he now admits is claimant's primary problem. Dr. Witherspoon was not even aware of the medication available in Canada for the treatment of obsessive-compulsive disorders until so told by claimant who heard it from Dr. Noyes. Dr. Witherspoon seemed unfamiliar with and evasive in his answers about expert treatises on the subject of obsessive-compulsive disorders. Dr. ERICKSON V. D & B AUTO RADIO, INC. PAGE 19 Witherspoon's testimony appears to the undersigned to be inconsistent on a number of points. Defendants' brief correctly points out that when Dr. Witherspoon was asked if a single piece of medical literature or psychological literature states that stress can cause obsessive-compulsive disorder he knew of none. When asked if the literature was overwhelming to the contrary, Dr. Witherspoon gave a lengthy rambling explanation in which he accused psychiatry of being the business of selling medication. Yet, Dr. Witherspoon agrees that claimant should go to Canada and obtain the medication that is available. Dr. Witherspoon concludes at one point that since medication did not work for claimant that obsessive-compulsive disorder is not biological. However, he then readily admits that the psychological treatments which he had been giving claimant over the past two years had not made claimant a lot better and that as a result his prognosis for claimant was not optimistic. The opinions of Dr. Witherspoon are given less weight. While the undersigned is not unsympathetic to claimant's condition as it is unfortunate such a thing should happen to a young man, it must be concluded that the greater weight of medical evidence fails to establish a causal connection between claimant's diagnosed illness and his employment. Expert medical evidence must be considered, however, with all other evidence introduced bearing on the issue of causal connection. Burt, supra. Even absent the medical opinions in this case, the undersigned must conclude that claimant failed to show a causal connection between his employment and his illness. While the undersigned does not doubt claimant believes all to which he testified, his reliability with regard to his memory clearly ERICKSON V. D & B AUTO RADIO, INC. PAGE 20 plays an important part. Claimant candidly acknowledges that he simply cannot remember certain months of his life particularly those when he felt he was most ill. There is no dispute claimant was paid for his overtime hours and that he never received any warning or reprimand that he took too long to complete his job. The employer admitted claimant's route could not be completed within an eight hour day and expected to pay for extra hours. There is no record that the employer expressed any dissatisfaction with claimant's job performance. The undersigned must conclude that claimant's "stressors" were based on his own perceptions, his own obsessive-compulsive doubts and that claimant himself was the source of his own stress rather than his employment. As the supreme court stated in Newman v. John. Deere Ottumwa Works, 372 N.W.2d 199 (Iowa 1985) at 203: OWe find no cases which permit recovery when employment merely provides a stage for the nervous injury." (Emphasis original.) Finally, the Iowa Supreme Court has addressed the legal standard which claimant must have met to sustain a workers' compensation claim in a stress induced mental health claim. In Schreckengast v. Hammermills, Inc., 369 N.W.2d 809 (Iowa 1985), the supreme court affirmed the industrial commissioner's finding that a workers' compensation claimant failed to establish causation in fact between his employment and either the onset of his depressive disorder or exacerbation of existing depressive disorder. At page 810, footnote three of the decision, the court stated: We have recognized that in both civil and criminal actions causation in fact involves whether a particular event in fact caused certain consequences to occur. Legal causation presents a question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by that event. State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Causation in fact presents an issue of fact while legal causation presents an issue of law. Id. As in Schreckengast, claimant has failed to meet his burden of proof and will take nothing further from these proceedings. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Claimant has been diagnosed as suffering from obsessive-compulsive disorder. 2. Claimant's treating psychologist has opined his illness is causally connected to stress claimant perceived in his employment. 3. The greater weight of medical evidence fails to establish a causal connection between claimant's illness and his employment. 4. Claimant did not sustain an injury which arose out of and in the course of his employment. ERICKSON V. D & B AUTO RADIO, INC. PAGE 21 CONCLUSION OF LAW Therefore, based on the principles of law previously stated, the following conclusion of law is made: Claimant failed to establish that he sustained an injury which arose out of and in the course of his employment or that the illness with which he has been diagnosed is causally related to his employment. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing further from these proceedings. Costs are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 23rd day of December, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. John D. Stonebraker Attorney at Law P.O. Box 2746 Davenport, IA 52809 Mr. Craig a. Levien Attorney at Law 600 Union Arcade Bldg. Davenport, IA 52801 1100; 1108 Filed December 23, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER SCOTT ERICKSON, Claimant, File No. 821055 vs. D & B AUTO RADIO, INC., A R B I T R A T I O N Employer, D E C I S I O N and KEMPER INSURANCE, Insurance Carrier, Defendants. 1100; 1108 Claimant was a route driver for defendant employer who perceived stress on the job to have caused his symptoms of obsessive-compulsive disorder. The greater weight of medical evidence failed to show claimant's illness arose out of and in the course of his employment. Even absent any medical causation, the evidence established it was claimant's own perceptions and his own obsessive-compulsive doubts, not his employment, which were the source of his symptom.