Page 1 before the iowa industrial commissioner ____________________________________________________________ : BETTY HAMMER, : : Claimant, : : vs. : : File Nos. 888785 & 821621 CLARINDA TREATMENT CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendant. : ___________________________________________________________ introduction These are arbitration proceedings brought by Betty Hammer, claimant, against the Clarinda Treatment Center, employer, and the State of Iowa, self-insured, defendant. The cases were heard by the undersigned on January 17, l990, in Council Bluffs, Iowa. During the hearing, claimant withdrew her claim under file number 821621. The matter is hereby considered dismissed. The record consists of joint exhibits 1 to 102. Additionally, the record consists of the testimony of claimant, as well as the testimonies of Dorothy Journey, Greg Hammer, Becky Shilhanek and Laura Harms. issues As a result of the prehearing report and order submitted and approved on January 17, l990, the issues presented by the parties are: 1. Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial or total disability benefits; and, 2. Whether claimant is entitled to medical benefits under section 85.27. stipulations Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged Page 2 injury; 2. That claimant sustained an injury on November 7, 1985, which arose out of and in the course of employment with employer; 3. That the alleged injury is a cause of temporary and permanent disability; 4. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole; 5. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $182.49 per week; 6. Defendant paid and is entitled to a credit under section 85.38(2) for previous payment of the following benefits under a non-occupational group plan: long-term disability income in the amount of $8,115.58; and, 7. Defendant paid claimant 141 6/7 weeks of compensation at the rate of $182.49 per week prior to hearing. facts presented Claimant is 51 years old. She has a GED and she has taken college course work, but she holds no degree. Claimant commenced her employment with defendant on September 6, l976. She was hired as a mental health worker/resident treatment worker. Claimant described her duties as supervising residents, giving medication, transporting residents and generally caring for residents. According to her testimony, claimant was required to lift a minimum of 150 pounds, turn residents, feed and bathe them and minimize altercations with residents. Claimant related the work injury on November 7, l985. She reported there was an altercation between a resident and her. The resident was ambulatory and he buckled his knees while claimant was transporting him. Claimant stated she supported the patient back to his room with another employee. Claimant reported she felt excruciating pain in her low back and down her leg, but she continued to work. Claimant testified she eventually had surgery on April 6, l986. She indicated she returned to work on October 11, l986 where she was assigned to the substance abuse unit, a lighter duty position. Claimant stated she worked on this unit until October of 1988, when she reported to her supervisor that her pain was intolerable and claimant was unable to continue working. Claimant related she had a second surgery on October 7, 1988 and that this surgery only relieved claimant's leg pain. Claimant testified she attempted therapy through Back Page 3 Care, Inc., but she was unable to complete therapy on one of the machines. As a consequence, claimant reported she was dropped from the program, but she was not told she could return to work. Claimant also testified she returned to the treatment complex so she could be placed on a recall list. She stated she was terminated on March 6, l989 and that she was notified by letter that her position was filled and she was no longer on the payroll. Claimant testified she had not sought employment in either Clarinda or in Omaha because she was not a reliable employee and she was unfit to look for work. She reported she had not sought employment since April of 1986. She also reported she was not able to engage in vocational rehabilitation or to work in any capacity. Dorothy Journey testified at the hearing. She stated she was a good friend of claimant. She also testified that on September 11, l986, at the Leisure Lounge, claimant waltzed for approximately one minute but she voiced complaints of pain and stopped. Greg Hammer, son of claimant, testified. He testified that since October of 1988, claimant's activities had been limited. She, according to his testimony, could only walk for a 30 minute duration. Becky Shilhanek testified for defendant. She stated she had been the director of nursing at Clarinda for four to five years and she was claimant's supervisor. Ms. Shilhanek indicated she was aware of both of claimant's surgeries. The director of nursing testified claimant informed her she was in constant pain and could not take the sitting and standing on the alcohol and drug unit. Ms. Shilhanek indicated a position on the alcohol and drug unit did not require bending and lifting and an employee was free to move about the unit. The director of nursing further indicated claimant was released to return to work in April of 1989, but claimant did not do so. Rather, claimant obtained benefits through the long-term disability policy and she was dropped from the payroll effective with the date of the disability benefits. According to Ms. Shilhanek, claimant had recall rights whenever she was released from her physician's care. Finally, the witness testified that claimant could have returned to work in the substance abuse unit. Laura Harms testified she was claimant's supervisor from April of 1988 to October of 1988 and claimant's duties at this time were of the light duty nature. Ms. Harms testified claimant never appeared to be suffering from back pain and that claimant was dancing the jitterbug on the day before her first surgery. applicable law Page 4 An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton, 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). Page 5 For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non-compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining Page 6 regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). analysis The first issue to address is the extent of permanent partial disability benefits to which claimant is entitled. R. Schuyler Gooding, M.D., a treating physician, assessed a 15 percent functional impairment to claimant's condition. However, his rating was performed after the first surgery and before the second one. Frank P. LaMarte, M.D., determined claimant had an 18 percent functional impairment. Dr. LaMarte also determined claimant was employable with the following instructions: 1. No frequent or continuous bending, twisting or stooping. 2. No lifting greater than 15 pounds more than six times per hour. 3. Ability to alternate sitting and standing as needed. 4. Work four hours per day, five days per week, for the first month and advance one hour each day per month, as tolerated, until she has reached an eight hour day. Another treating physician, Leslie C. Hellbusch, M.D., determined claimant had a 25 percent functional impairment. He opined claimant was under the subsequent restrictions: I have recommended that she have a permanent twenty pound lifting restriction and that she should have no repetitive bending of her lower back. It would be best for her to be allowed to move from a sitting to a standing position and vice versa on the job as needed. She has had some experience working on "substance abuse" and states that she can do this type of work and that it is within the restrictions placed on her. I have encouraged her to gradually increase her walking activity and have encouraged her to try to get back to work in April of 1989. Ernest M. Found, Jr., M.D., and assistant professor at the Spine Diagnostic and Treatment Center at the University of Iowa Hospitals and Clinics did not assess a functional impairment. He did recommend the following: 1) During your functional capacity assessment you declined to do many of the activities in spite of having been told that your lack of participation would be documented. Because you completed so few of the tasks that are required for such an evaluation, we have no information on which to base recommendations regarding your current abilities or limitations. 2) During your cardiovascular evaluation, you Page 7 were tested on the treadmill, however, after three minutes at a very minimal level, you stopped the test because you stated that you were unable to maintain the expected pace on the treadmill due to your back discomfort. Our therapist was not able to do an adequate test, however, based on your performance during this testing, you would be suitable for only light work tasks. 3) You could improve your overall health by discontinuing smoking. 4) We are unable to do an impairment rating because of your lack of compliance with the testing. Should you need such a rating, it would be more appropriate to set up an appointment with the surgeon who performed your prior surgeries. 5) We have no recommendations for your future treatment. John C. Goldner, M.D., did not provide a functional impairment rating. Nevertheless, he opined: "Claimant was capable of function[ing] in a job that would be consistent with her education, training and experience. I do not feel that this should involve lifting or bending and I have completed the medical questionnaire which you provided me in this regard. I feel her condition likely will remain stable although it possibly could improve somewhat, perhaps with the use of medications..." After reviewing the medical opinions of the above, it is the determination of the undersigned that claimant has a functional impairment of 18 percent. Claimant asserts she is permanently and totally disabled under Guyton. Such is not the case. Claimant is capable of obtaining employment in a well known branch of the labor market. Claimant's long standing treating physician released claimant to work in the substance abuse unit at Clarinda on April 29, l989. No physician stated claimant was incapable of working. Claimant did not return to work. This was a personal decision. She did not even complete the requisite forms so she could be placed on a recall list at Clarinda. Only James T. Rogers, a certified professional counselor, opined claimant is unemployable. He attributed the unemployability to claimant's subjective complaints of pain and not to objective findings. Not much weight is accorded to Mr. Rogers' opinion as he saw claimant on only one occasion. Claimant is definitely not motivated to return to her former position. Nor is she motivated to seek other employment. Claimant is not even motivated enough to continue her physical therapy. Claimant has two years of college, yet she has made no attempt to return to school. Page 8 From the evidence presented, it appears claimant's "anger, frustration and bitterness" (Exhibit 1) have interfered with any progress she could obtain. All of claimant's records are filled with comments such as, "Betty is very much focused on her pain..." (Ex. 3), and: [I]t is my impression that the anger, frustration and bitterness that Betty Hammer feels at the Iowa Workers' Compensation system, the Clarinda Mental Health Institute, and the medical system is completely dominating her thoughts at this time and she simply could not today, break free from this bitterness and anger to discuss any sort of an approach which would help to make her more functional. (Ex. 1) Therefore, in light of the foregoing, it is the determination of the undersigned that claimant has a permanent partial disability to the body as a whole in the sum of 20 percent. This finding is based upon: 1) the aforementioned considerations; 2) based upon the personal observation of claimant; 3) based upon claimant's testimony; and 4) based upon agency expertise (Iowa Administrative Procedures Act 17A.14(s). The next issue to address is the extent of entitlement to healing period benefits. It appears undisputed. Claimant was off work from April 4, l986 to October 11, 1986, (27 weeks) and from October 17, l988 to the present but claimant was able to return to work on April 24, l988, per Dr. Hellbusch. It is the determination of the undersigned that claimant is entitled to 55.429 weeks of healing period benefits. The final issue to address is the extent of medical benefits under section 85.27 to which claimant is entitled. Claimant is seeking payment for the following: 1. Methodist Hospital 8303 Dodge Street Omaha, NE 68114 (8/11/88) $ 455.00 (9/9/88 - 9/14/88) 554.00 (10/7/88 - 10/11/88) 3,240.04 2. Midwest Neurosurgery, P.C. 8111 Dodge Street, Suite 339 Omaha, NE 68114 (8/11/88 - 10/7/88) 2,742.00 3. The Pathology Center 8300 Dodge Street Omaha, NE 68114 (10/7/88) 42.70 4. Center for Diagnostic Imaging 8303 Dodge Street Page 9 Omaha, NE 68114 (8/11/88) 155.00 (9/9/88) 211.00 (10/7/88) 24.00 5. The University of Iowa Hospitals and Clinics (11/30/89) 67.75 TOTAL $7,491.49 The expenses appear necessary and reasonable. It is true claimant did not notify defendant until the "eleventh hour" of her pending surgery by Dr. Hellbusch. Nevertheless, defendant did not voice any complaints to treatment by Dr. Hellbusch or any of the above. It is the decision of this deputy industrial commissioner that defendant acquiesced to the medical treatment. Therefore, defendant is liable for the above expenses. findings of fact and conclusions of law WHEREFORE, based upon the stipulations, the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: Finding 1. Claimant withdrew file number 821621 during the hearing. Conclusion A. Claimant takes nothing from file number 821621. Finding 2. Claimant has proven by a preponderance of the evidence that she has a functional impairment of 18 percent as a result of her work injury on November 7, l985. Finding 3. Claimant had surgeries in 1986 and in 1988. Finding 4. Claimant was released to return to work on April 24, l989, by her treating physician, Dr. Hellbusch. Finding 5. Claimant did not return to work on April 24, l989, or on any date subsequent. Finding 6. Claimant is capable of maintaining meaningful employment. Conclusion B. Claimant has met her burden of proving she has a 20 percent permanent partial disability attributable to her work injury on November 7, l985. Conclusion C. Claimant has met her burden of providing she is entitled to healing period benefits for 55.429 weeks. Finding 7. Claimant has incurred medical expenses as follows: 1. Methodist Hospital 8303 Dodge Street Omaha, NE 68114 Page 10 (8/11/88) $ 455.00 (9/9/88 - 9/14/88) 554.00 (10/7/88 - 10/11/88) 3,240.04 2. Midwest Neurosurgery, P.C. 8111 Dodge Street, Suite 339 Omaha, NE 68114 (8/11/88 - 10/7/88) 2,742.00 3. The Pathology Center 8300 Dodge Street Omaha, NE 68114 (10/7/88) 42.70 4. Center for Diagnostic Imaging 8303 Dodge Street Omaha, NE 68114 (8/11/88) 155.00 (9/9/88) 211.00 (10/7/88) 24.00 5. The University of Iowa Hospitals and Clinics (11/30/89) 67.75 TOTAL $7,491.49 Conclusion D. Defendant is liable for the aforementioned medical expenses. order THEREFORE, with respect to file 821621, claimant will take nothing from these proceedings. THEREFORE, with respect to file 888785, defendant is to pay unto claimant one hundred (100) weeks of permanent Page 11 partial disability benefits at the stipulated rate of one hundred eighty-two and 49/l00 dollars (182.49) per week as a result of the injury on November 7, l985. Defendant is to also pay unto claimant fifty-five point four-two-nine (55.429) weeks of healing period benefits at the stipulated rate of one hundred eighty-two and 49/l00 dollars ($182.49) per week as a result of the injury on November 7, 1985. Defendant is responsible for medical benefits in the sum of seven thousand four hundred ninety- one and 49/l00 dollars (7,491.49). Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants are to be given credit for all benefits previously paid claimant as stipulated by the parties. Costs of file number 821621 are assessed to claimant. Costs of file number 888785 are assessed to defendant. The following costs are allowed: 1. August 1988 to Midwest Neurosurgery for medical report - $80.00; 2. September 1988 to Midwest Neurosurgery for medical report - $40.00; 3. November 17, l988 to Iowa Industrial Commissioner for filing fee - $65.00; 4. March 9, 1989 to Blair and Associates for deposition - $59.15; 5. March 17, 1989 to Midwest Neurosurgery for medical report - $30.00; 6. October 18, l989 to Midwest Neurosurgery for medical report - $20.00; 7. October 20, 1989 to Midlands Rehabilitation for evaluation and report - $150.00; 8. January 12, 1990 to Blair and Associates for deposition $31.00; 9. January 15, 1990 to Kwik Kopy for photocopies of Exhibits - $164.94 TOTAL - $640.09 Defendant shall file a claim activity report upon payment of this award. Page 12 Signed and filed this ____ day of March, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 13 Copies To: Mr. Sheldon M. Gallner Attorney at Law 803 Third Ave P O Box 1588 Council Bluffs IA 51502 Ms. Joanne Moeller Assistant Attorney General Hoover State Office Bldg Des Moines IA 50319 BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARLAN J. BRADY, Deceased, MARIE BRADY, Surviving Spouse, File No. 821622 Claimant, A R B I T R A T I O N vs. D E C I S I O N IOWA STATE PENITENTIARY, Employer, F I L E D and JAN 25 1990 STATE OF IOWA, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration which was initially commenced by Harlan J. Brady and has subsequently been continued by his surviving spouse, Marie Brady, against the Iowa State Penitentiary and state of Iowa. The case was heard and fully submitted at Burlington, Iowa on July 13, 1989. The record in the proceeding consists of testimony from Marie Brady, now known as Marie Brady Holmes, John Henry and Stephen Korb. The record also contains claimant's exhibits 1 through 28 and defendants' exhibits A and C through S. ISSUES Claimant alleges that Harlan J. Brady sustained an injury in the form of a heart attack on March 31, 1986 which arose out of and in the course of his employment and seeks compensation for weekly disability from the date of that injury until September 14, 1986, the date of Harlan J. Brady's death. Claimant seeks death benefits under section 85.31. The primary issue identified by the parties for determination is whether Harlan J. Brady's death is a result of an injury which arose out of and in the course of his employment. It was stipulated that in the event defendants are held liable, claimant is entitled to recover weekly compensation for healing period from March 31, 1986 until September 14, 1986 and that the appropriate rate of compensation is $317.53 per week. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Harlan John Brady died of cardiogenic shock and ischemic cardiomyopathy on September 14, 1986 at the age of 53 (exhibit 3, page 53). He was survived by his spouse, Bonnie Marie Brady, who is sometimes referred to in these proceedings as Marie Brady or Marie Brady Holmes. He is also survived by adult children. Harlan J. Brady had served in the United States Army for 21 years, 9 months. He retired from the Army on July 31, 1976 holding the rank of Major (exhibit E, pages 171 and 236). He was awarded a 40 percent disability from the Veterans Administration as a result of his service connected left kidney removal and obstructive pulmonary disease (exhibit E, page 275). Following his retirement from the Army, Harlan Brady worked briefly as a self-employed counselor. On January 7, 1977 he commenced employment at the Iowa State Penitentiary as a correctional counselor I where he was involved in the case management of inmates and conducted group and individual counseling with them (exhibit E, pages 272 and 279). Harlan was eventually promoted to the position of correctional counselor II. After being rejected on several occasions, he was promoted to the position of psychologist I effective March 26, 1982 (exhibit E, pages 161 and 163). Harlan Brady was again promoted effective September 10, 1982 to the position of treatment services director, a position which is sometimes referred to in the record of this case as "unit manager." (Exhibit E, pages 159 and 160.) The position of treatment services director is a supervisory position with various duties as shown in the performance plans which are found in exhibit E. He was in charge of two cell houses in the prison. Marie Brady Holmes, Harlan Brady's surviving spouse, was also employed at the Iowa State Penitentiary. She was initially a substance abuse counselor, but was subsequently made an administrative assistant to the warden. Marie Brady became involved in litigation with the warden. Both she and Harlan experienced stress from the litigation. Marie Brady testified that prior to the time of his death, she and Harlan believed that a move was underway to create a basis for firing Harlan. Harlan had been disciplined for an incorrect decision concerning the custodial treatment of an inmate (exhibit E, page 48; exhibit 11, pages 90-92). Marie stated that it was the only time he had ever been disciplined. Marie testified that Harlan had been sued by inmates on a number of occasions shortly prior to his death (exhibit 11, pages 72-89). Marie testified that Warden Crispus Nix had told her that a contract had been taken out to have Harlan killed. Marie stated that she and Harlan both believed what the warden had told her and that Harlan was upset by it. Marie stated that Harlan began to act more cautiously. She stated that there had been a hostage situation in the prison in one of the cell houses and that Harlan had been told that his cell house was going to be the next location for an uprising. She stated that he had requested that the warden authorize a shakedown of the cell house for which Harlan was responsible, but that the warden refused the request. Marie Brady stated that while Harlan was hospitalized at the University of Iowa Hospitals in Iowa City, he discussed things with her and spoke of a meeting which involved John Henry, Stephen Korb, Jerry Menadue and Jim Helling during the morning of his last day of work. Marie stated that Harlan was of the opinion that Jerry Menadue had been involved in some type of gang activity and was possibly the hit man for the contract which Harlan believed was in existence. Marie stated that Menadue was the parole board liaison at the penitentiary and had been incarcerated for violent crimes at the penitentiary in the past. Marie stated that Harlan told her that he felt chest pains start during that meeting. Marie stated that on March 31, 1986 Harlan feared for his life. She stated that he was under more stress than was normal for his job. She stated that the stress level was greater than it had been approximately four months earlier. Marie Brady has a bachelor's degree in psychology and also the equivalent of a master's degree in public administration. She stated that she obtained the studies which appear in the record as exhibits 6, 7, 8, 9, 10 and 11 as part of a research project which the warden had directed in response to a request from the employee union for a stress management program. Marie stated that during the weekend prior to March 31, 1986, Harlan had been spending his time trying to keep her stable as a result of her reaction to the litigation in which she was involved with the warden and also with her difficulties from the Raynaud's phenomenon which afflicts her. Marie Brady remarried on December 31, 1988 and is now known as Marie Brady Holmes. On March 31, 1986, Harlan Brady went to work at his normal time of approximately 8:00 a.m. Later that morning he left work complaining of pain in his neck with possible complaints of pain in his left arm and difficulty breathing. Harlan sought treatment from William H. Whitley, M.D. Dr. Whitley prescribed Motrin for Harlan's stiff neck. Harlan went home, but experienced upper dorsal and chest pain that evening and subsequently returned to the hospital emergency room. At that time Harlan was admitted to the hospital with a diagnosis of an acute inferior myocardial infarction (exhibits 24 and K). After being seen by Artemio C. Santiago, M.D., a specialist in internal medicine, it was decided that Harlan's treatment should be transferred to the University of Iowa Hospitals. Claimant remained at the University of Iowa Hospitals until discharged on May 19, 1986. While there, he was tested extensively. The final diagnosis was acute inferolateral myocardial infarction due to thrombolytic occlusion of the distal right coronary artery; two vessel coronary artery disease; severe left ventricle dysfunction; trivial mitral regurgitation; . . . and cardiogenic shock (exhibits 2 and L). While hospitalized, numerous complications occurred including identification of a colonic adenocarcinoma, acute respiratory distress syndrome, fevers, jaundice and staph infections (exhibit 2, pages 28 and 29; exhibit M). Harlan was readmitted to the University of Iowa Hospitals on June 19, 1986 and subsequently discharged on June 24, 1986. The diagnosis at that time included congestive heart failure with left ventricular ejection fraction of 26 percent as well as those which had previously been made (exhibit 2, pages 30-32; exhibit P). Following his initial discharge from the hospital, Harlan's condition deteriorated progressively. He was considered to be totally disabled. Dr. Santiago reported that claimant had severe congestive heart failure and ischemic cardiomyopathy (exhibit Q; exhibit 2, pages 130 and 131). Claimant was awarded long-term disability benefits through the employer's group carrier (exhibit F). He came to require skilled nursing care (exhibit 16, pages 134-136; exhibit 17, page 163; exhibit N). The treatment notes of his physician showed his deteriorated condition (exhibit 17, pages 144-147; exhibit O). On August 12, 1986, Harlan reentered the hospital where he remained until August 25, 1986 (exhibit H). Harlan was again hospitalized from September 10, 1986 until September 14, 1986, the date of his death (exhibit 17, page 161; exhibit 3, page 53). Jerry Menadue, the parole liaison officer at the penitentiary, stated that he was unaware of Harlan being under any particular stress at work, being the subject of a contract or death threat, requesting a shakedown of the unit, or being taken hostage. Menadue could not recall whether he had been at a meeting with Harlan shortly prior to the time Harlan was noted to have a heart attack (exhibit 28). Testimony of James G. Helling was presented by deposition. Helling was unaware of Harlan ever being a hostage in 1986, of any death threats being made against Harlan, of Harlan ever requesting a unit shakedown or of any particular stress being placed on Harlan at work. Helling did not recall any meeting with Harlan where Harlan complained of neck pains and did not recall Harlan ever being disciplined (exhibit 28). John Henry, deputy warden for operations, was Harlan's supervisor. Henry confirmed that Harlan had been in charge of two cell houses in the prison. Henry was not aware of any death threats being made against Harlan during the last few months prior to March 31, 1986. Henry could not recall Harlan requesting to have a unit shakedown. Henry stated that he had last seen Harlan on about March 31 when Harlan reported being ill and requested to go home. Henry stated that there are common informal meetings and that one could have occurred during that morning. Henry could not recall Harlan expressing any fear of being taken hostage. Henry agreed that inmates have on occasion attacked staff and that the possibility of a hostage situation occurring is a reality. Henry was unaware of any death threats being made against Harlan or of Harlan ever mentioning receiving death threats. Stephen Korb, another unit manager at the Iowa State Penitentiary, testified at hearing and also by way of deposition. Korb stated that he saw Harlan on the morning he became ill and that Harlan seemed to be not feeling well. Korb related that Harlan had stated that his neck hurt. Korb was not aware of any unusual events which had occurred on that day or in prior weeks which may have affected Harlan. He stated that death threats are not uncommon in the penitentiary, but that he did not recall any against Harlan in the weeks preceding March 31, 1986. Roger Lawson, another unit manager, testified by way of deposition, exhibit 28. Lawson stated that he had seen Harlan come in to Henry's office and state that he was not feeling well. Lawson was not aware of any death threats being made against Harlan. He stated that he was unaware of any attempts to cause Harlan to be fired or of any request from Harlan to have his unit shaken down. Crispus C. Nix, Warden of the penitentiary, testified by way of deposition. Nix stated that he was not aware of Harlan being under any unusual mental stress prior to the time of his heart attack. Nix stated that inmate suits occur on an almost daily basis and that it is common for members of the staff to be named in them (exhibit C, pages 5 and 6). Nix further testified that he was unaware of any death threats being made against Harlan and had not told Harlan that there was a contract out on him (exhibit C, pages 7 and 8). Nix denied refusing any request from Harlan to have the unit shaken down (exhibit C, page 9). Nix agreed that threats are made by inmates daily and that on occasion staff have been injured by inmates. Nix agreed that the penitentiary can be a dangerous place since 40 percent of the inmates incarcerated there have committed some type of murder (exhibit C, pages 11-14). Exhibit 6 is a newsletter published by Iowa state government dated May 21, 1986. The newsletter points out the need for state government managers to deal with employee stress. It refers to an American Heart Association estimate that stress-induced cardiovascular disease costs $26.7 billion annually in the United States. Exhibits 7 and 10 are manuals used for providing stress management training for correctional officers. Exhibit 8 is a study of corrections employees' own perceptions of stress in their workplaces. Exhibit 9 is an analysis of how the corrections environment develops stress in its employees. The document notes that correctional officers have one of the highest rates of heart attacks among occupational groups. Edward F. McKenney, D.O., indicated that Harlan was totally disabled due to congestive heart failure which had resulted from the myocardial infarction (exhibit 23, page 274). Dr. McKenney, one of claimant's treating physicians, declined to express an opinion on the cause of Harlan's coronary artery disease or myocardial infarction. He stated that stress can cause heart disease. Dr. McKenney stated that Harlan did have coronary artery disease and that as a result of that disease, had a myocardial infarction, became disabled and died (exhibit 21, page 271; exhibit R). J. Michael Kioschos, M.D., the Assistant Director of the Cardiovascular Clinic at the University of Iowa Hospitals, was involved in Harlan's treatment. Dr. Kioschos stated that stress does not cause coronary artery disease, but that stress can cause vasoconstriction which can result in myocardial ischemia or necrosis and lead to sudden death. He stated that if Harlan's myocardial infarction occurred when he was under stress, it is possible that the heart attack was job related (exhibits 26 and S). Dr. Kioschos agreed that it was possible that extreme stress over a period of a couple days could trigger a heart attack. Dr. Kioschos went on to state that the type of stress which could cause such a reaction is acute stress, rather than long-term stress. He stated that it would be possible, but unusual, for stress from Harlan's job to have caused the heart attack (exhibit 27, pages 6 and 7). He stated that the most likely cause of Harlan's myocardial infarction was long-standing severe coronary artery disease, a progressive condition which had developed over a number of years. Dr. Kioschos attributed Harlan's coronary artery disease to a positive family history and Harlan having been a heavy smoker (exhibit 27, pages 4 and 5). Dr. Kioschos stated that if Harlan's history immediately preceding the heart attack included experiencing chest pain while raking during the weekend and getting up with a stiff neck on Monday morning, that such is an indication that the heart attack had started on Saturday while Harlan was still at home (exhibit 27, pages 7 and 8). The history of Harlan having experienced chest pain on Saturday while raking the yard is found in exhibits 24 and K. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that Harlan Brady received an injury on March 31, 1986 which arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "arising out of" refer to the cause or source of the injury. McClure v. Union County, 188 N.W.2d 283, 281 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). Aggravation of a preexisting condition is one form of compensable injury. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). In this case it is clear that Harlan Brady had a previously diseased heart and that he suffered a heart attack on or about March 31, 1986. From the record there appears to be no basis for any dispute regarding the fact of the occurrence of the heart attack, its disabling result and the fact that it led to his death. The crucial issue in this case is whether Harlan,Brady's employment, in particular the stress of the employment, was a proximate cause for producing the heart attack which led to his disability and death. For a cause to be proximate, it must be a substantial factor in producing the result. It need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). The legal standard for compensability of a heart attack where the heart is previously weakened or diseased has been long established. It requires both causation in fact and legal causation. Sondag v. Ferris Hardware, 220 N.W.2d 903, 905 (Iowa 1974); Littell v. Lagomarcino Group Co., 235 Iowa 523, 17 N.W.2d 120 (1945); Guyon v. Swift & Co., 229 Iowa 625, 295 N.W. 185 (1940). The first situation in which compensability is allowed is when the evidence shows an instance of unusually strenuous employment exertion. The second is when the evidence shows the employment to contribute exertion which is greater than the exertions of normal nonemployment life. The comparison is not with the particular employee's usual exertion in his employment, but with the exertions of normal nonemployment life of the employee or any other person. The standard for comparison is not particularly definite. The range of exertion of nonemployment life varies tremendously among individuals. There are those who run in marathons while others are predominantly sedentary. The undersigned is of the opinion that normal nonemployment life brings with it moderate levels of physical exertion such as mowing one's own yard, carrying groceries, shoveling snow, playing golf and other activities which provide a similar level of physical exertion. An important factor, however, is that in normal nonemployment life the individual is able to perform the activities at a rate or pace which the individual sets, rather than being forced or encouraged to work at a competitively productive rate by an employer or supervisor. There is nothing in the record of this case to show that Harlan Brady engaged in any substantial level of physical exertion connected with his employment on or about March 31, 1986. From the evidence introduced it would appear that the Iowa State Penitentiary would be a somewhat stressful place in which to be employed. The risk of physical harm from inmates is certainly present. The testimony from Marie, however, regarding stresses peculiar to Harlan or stresses which had arisen shortly prior to March 31, 1986 is not corroborated by other evidence in the record. There is simply no corroboration of her testimony regarding a meeting during the morning of March 31, 1986. There is no corroboration of any knowledge of a contract or death threats against Harlan. There is no corroboration of any plan or device to cause Harlan to lose his job. There is no corroboration of her testimony regarding a refusal to have Harlan's unit shaken down. In fact, the bulk of the evidence in the case from Harlan's coworkers and Warden Nix is contrary to Marie's testimony. The record shows Harlan to have received good employee evaluations. The one reprimand imposed against him was done in August of 1985, approximately seven months before the heart attack occurred. The evidence fails to establish that Harlan Brady's employment on March 31, 1986 or during the preceding days provided any unusual stress or exertion in comparison to the stresses and exertions which appear to be relatively normal for the job. There is no corroboration for Marie's statements that the inmate lawsuits particularly bothered Harlan. There is no indication that the state had refused to represent Harlan's interests in those lawsuits. As with physical exertion, emotional stress also provides a wide range of nonemployment stress exposures. Some individuals get along well with their spouse, neighbors and children. They are financially secure. Other individuals live in a state of constant turmoil with ongoing altercations with the neighbors, harassment from bill collectors and a great deal of domestic discord. The undersigned is of the opinion that normal nonemployment life includes disagreements with neighbors and family. It includes dealing with disagreeable individuals at inconvenient times. It is important to note that the basis for comparison of the level of stress is normal nonemployment life, rather than the stresses which are normally found in the employment. It is therefore determined that the stress level to which Harlan Brady was subjected in his employment at the Iowa State Penitentiary was greater than the stresses of normal nonemployment life. Normal nonemployment life does not carry with it a recognized substantial risk of physical harm from individuals who are known to be violent. It does not carry with it the level of stress associated with making decisions which, on a day-to-day basis, can result in litigation being commenced against the person. The stresses of many supervisory positions with many employers with a high level of responsibility and accountability would often exceed the stresses of normal nonemployment life. The penitentiary is no exception. The theory for recovery in this case is actually one of physical injury in the form of a heart attack resulting from emotional or mental stress. It is therefore appropriate to consider this case as one where the theory of recovery is based upon emotional trauma resulting from physical injury. Under the "Wisconsin Rule" a recovery requires that the injury result from emotional trauma or stress which is of greater dimension than the stresses which all employees experience on a day-to-day basis. Desgranges v. Dep't of Human Servs., file number 760747 (App. Decn. August 19, 1988); Swiss Colony v. Dept of Industry L. & H. R., 240 N.W.2d 128 (Wis. 1976); School Dist. No. 1 v. Dep't of Industry L. & H. R., 215 N.W.2d 373 (Wis. 1974); Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976). It would appear from the record made that the stresses experienced by Harlan Brady in his employment were of greater dimension than the stresses which all employees experience on a day-to-day basis. Again, such a situation would be common among many supervisory employees who have a high level of responsibility and accountability. Work in the prison setting would likewise often meet the standard. In order to recover, it is essential that causation in fact, or medical causation be established. The question of causal connection is essentially within the domain of expert medical 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). This case brings with it the well-known controversy among professionals regarding whether or not long-term stress causes coronary artery disease. Dr. Kioschos says it does not, while Dr. McKenney states that it can. Apparently the American Heart Association has adopted the position that stress is a cause of cardiovascular disease as is reported in the "Personnel Wise" newsletter. The evidence in this case which supports the proposition that stress causes coronary artery disease is not well developed. The fact that stress can cause coronary artery disease or a heart attack does not mean, however, that stress caused coronary artery disease in any particular individual. The record in this case demonstrates that Harlan Brady has held a number of highly responsible positions during his career in the Army. As previously indicated in this decision, positions with high levels of responsibility normally carry a relatively high level of stress. Individuals tend to adapt to whatever level of physical or emotional stress or exertion is placed upon them. Harlan Brady had worked at the penitentiary for 11 years. This is evidence that he had adapted to working in the penitentiary environment. Dr. Kioschos attributes Harlan's heart attack to his family history and history of smoking. There is no expert medical opinion in the record which disagrees with Dr. Kioschos in that regard. It is therefore determined that Marie Brady Holmes has failed to introduce evidence showing it to be probable that the heart attack which Harlan Brady suffered on or about March 31, 1986 arose out of or was in any manner caused by his employment at the Iowa State Penitentiary. The burden of proof for causation in fact is probability, not mere possibility. FINDINGS OF FACT 1. Harlan Brady was subjected to stresses in his employment at the Iowa State Penitentiary which were greater than the stresses of normal nonemployment life and which were greater than the stresses which all employees must endure on a day-to-day basis by virtue of merely being employed. 2. The evidence introduced in this case fails to show that it is more likely than not that the stresses which Harlan Brady experienced in his employment at the Iowa State Penitentiary were a substantial factor in bringing about the heart attack which he sustained on or about March 31, 1986. 3. The evidence fails to establish that it is probable, rather than merely possible, that Harlan Brady's employment stresses on March 31, 1986 or during the weeks preceding that date were of greater magnitude than the stresses which were normal for his job. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Marie Brady Holmes has failed to prove by a preponderance of the evidence that the heart attack which Harlan Brady suffered on or about March 31, 1986 arose out of or was proximately caused by his employment at the Iowa State Penitentiary. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 25th day of January, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Road P.O. Box 1066 Keokuk, Iowa 52632 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1108.10, 1108.20, 1402.30 Filed January 25, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER HARLAN J. BRADY, Deceased, MARIE BRADY, Surviving Spouse, Claimant, vs. File No. 821622 IOWA STATE PENITENTIARY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 1108.10, 1108.20, 1402.30 Decedent, a cell block manager at the Iowa State Penitentiary, suffered a heart attack and died. It was held that his employment carried levels of stress which were greater than normal nonemployment life and also greater than the stresses which all employees must endure on a daily basis in merely being employed. It was also found, however, that the claimant had failed to prove that those stresses had precipitated decedent's heart attack. The expert medical evidence in the record would not attribute the heart attack to decedent's employment stresses. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEITH E. MOLYNEUX, Claimant, File No. 821627 vs A R B I T R A T I O N LYNN TRANSPORTATION and/or D E C I S I O N CORNIE BOENDER, Employer, and THE HARTFORD INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Keith Molyneux, claimant, against Lynn Transportation and/or Cornie Boender, employer, and Hartford Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on March 3, 1986. This matter came on before the undersigned deputy industrial commissioner June 13, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of claimant and Cornie Boender, under subpoena; claimant's exhibits 1, 2, 4, 5 and 6; and defendants' exhibits A through G, inclusive. On October 21, 1986, an order was entered directing defendant, Cornie Boender, to show cause within 20 days of the filing of the order as to why sanctions should not be imposed for failure to file the analysis of status/certificate of readiness within the specified time period. Defendant Cornie Boender failed to respond to the order to show cause and, therefore, on November 24, 1986, Deputy Industrial Commissioner Larry P. Walshire ordered that the record be closed to further activity or evidence by Cornie Boender pursuant to Division of Industrial Services Rule 343-4.36. ISSUES Pursuant to the prehearing report and order submitted and approved June 13, 1988, the following issues are presented for resolution: 1. Whether an employer-employee relationship existed between claimant and Lynn Transportation and/or Cornie Boender; 2. Whether the work injury (if claimant is found to be an employee) is the cause of any permanent disability; MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 2 3. Claimant's entitlement, if any, to weekly compensation benefits; 4. The applicable rate of compensation; and, 5. Claimant's entitlement, if any, to benefits pursuant to Iowa Code section 85.27. FACTS PRESENTED Claimant testified that after taking a six week course in truck driving at Indian Hills Community College, he began working for Lyle Molyneux & Sons Transportation Company where he hauled grain for one season being paid per load per weight. Claimant explained that following this season, he was asked to work for "Larry Hartwig driving for Lynn's." Claimant testified Mr. Hartwig had one truck which was leased exclusively to Lynn Transportation Company and that after working there approximately eight months he returned to work for Lyle Molyneux for one-half season and then, because he preferred other employment, went to Lynn to inquire "if they knew of anybody that was needing a driver." Claimant recalled that he was told Folkmann & Sons was looking for a driver and that he thus went to Folkmann, filled out a form and drove a Folkmann truck for about eight months being paid on a percentage-per-load basis. Claimant explained he left this position because he was driving as a team, meaning he was splitting not only the driving but also the pay with someone else, and he wanted to go by himself. Claimant testified he then went back to Lynn and asked if they knew "anybody -- any of the owner-operators that were wanting a new driver" at which time he was given Cornie Boender's name. Claimant recalled he contacted Mr. Boender and when he was told there was going to be a truck available in the near future agreed Mr. Boender would advise the Lynn Transportation dispatcher, Roy, of the availability of a truck and claimant would then contact Mr. Boender again. With Mr. Boender, claimant was paid per mile which he felt was a "sure thing" because: Lynn Transportation could accept,any load if you were paid on a percentage, you would get a percentage of whatever they thought that was worth. I mean, they could take a load that paid two dollars to go two hundred miles or they could accept a load that paid two hundred dollars to go two hundred miles. You would get your percentage from that. (Defendants' Exhibit F, page 21-22) Claimant explained that once he was advised by Mr. Boender that the truck was available, Mr. Boender told him to contact Lynn and tell them he had the truck and that he was available for dispatch. Claimant, who had filed an "application for employment" with Lynn Transportation in August 1983 testified he did not have to fill out any other applications before he was dispatched by Lynn. At the same time he filed the application for employment, claimant had also taken a road test, a written exam and passed a physical given by "the company doctor" for Lynn. Claimant testified that while time limits were set for driving and delivery, he had no idea who set such time limits but that he was to report to Lynn if his delivery would not be on time. Claimant explained that after each delivery he contacted MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 3 Lynn's dispatcher who would then give him further instructions and that each day he was not out he would contact Lynn to get a load. Claimant testified he was free to reject loads and that when he wanted time off he needed to contact Lynn to be put on the "unavailable list" and that another driver would drive his truck (with a different trailer) for the duration of his time off. Claimant stated that Cornie Boender never gave him any instructions and never dispatched him to any destination. Claimant testified that Lynn provided him with all of his log books, that he returned the books and paperwork to Lynn at the end of each load, that Lynn owned all of the permits for the vehicle except for the tractor and that Lynn had the authority to hire and fire him. Claimant stated that there was never a time when he was driving Cornie Boender's truck that he was asked to or did drive another owner-operator's truck. Claimant testified he would determine if and when the truck needed repairs and that it was Mr. Boender who paid for and authorized the repairs. Claimant did some of the repairs himself. Claimant was paid checks issued by Cornie Boender with social security, state and federal taxes withheld, and was given a W-2 form also issued by Mr. Boender at the end of the year. Claimant stated Cornie Boender often asked him how he was getting along with Lynn, particularly Roy, the dispatcher, that while the tractor (truck) he drove was owned by Cornie Boender, and the trailer was owned by Lynn, only Lynn's name appeared anywhere on either piece of equipment. Claimant testified that on March 3, 1986, while driving in Gainesville, Georgia, his truck was rear ended by another semi. Claimant stated he felt pain and discomfort when he was climbing out of the truck, but the pain at first was in his lower back and that later, when the pain was much worse, it extended into his head and neck. Claimant stated he followed the accident reporting procedure prescribed by Lynn, that is, he contacted Lynn's dispatcher, filled out an accident report form supplied by Lynn, and reported the damage to the trailer to Lynn. Claimant recalled the dispatcher told him to get the trailer repaired (the doors would not shut) and that he returned to Des Moines on March 5, 1986 at which time he advised the dispatcher he was going home to see his doctor. Claimant denied having reported the accident or having the obligation to report the accident at any time to Cornie Boender. Claimant stated he was under the care of Drs. Nina Hare and John Beattie who imposed lifting restrictions of 15 pounds and later 40 pounds. Claimant stated he attempted to return to work on March 25, 1986 but the pain in his back and headaches caused him to return to see his physician, with the knowledge of Lynn, when he returned to Iowa three days later. Claimant stated that with a 15 pound lifting restriction Lynn would not allow him to return to work and that he has not driven since, believing he cannot withstand the constant bouncing up and down that driving a tractor-trailer incurs. Claimant described his current symptoms as low back pain, radiating down both (although mainly the right) legs causing numbness and that he suffers from headaches approximately two times a week for which he takes Tylenol. Claimant stated walking "too far," and standing or sitting for more than 90 minutes and driving without frequent breaks aggravates his condition and that he cannot jog, run, ride horses or do field work on tractors any more. Since his injury, claimant has worked as a guard at Louis Rich, an automobile salesman, and attempted to start his own gas MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 4 station business which closed after six months due to economic reasons. Claimant testified he was paid $.17 per mile plus $.Ol per mile bonus when he drove Cornie Boender's truck and that he had average earnings of $450 per week over the six months prior to his injury. Cornie Boender testified that his main occupation is that of a farmer, that at the time of claimant's injury he was leasing six units to Lynn Transportation, and that his relationship with Lynn Transportation was that of an owner-operator which meant he owned and maintained the tractors but that he did not have to operate (drive) them. Mr. Boender could not recall how he became aware claimant was available to drive although he stated he did not do any of the paperwork that qualified claimant to drive and that Lynn made the final decision on whether or not claimant would drive. Concerning the relationship he had with claimant and Lynn Transportation, Mr. Boender testified that the day-to-day operations of the unit were controlled by Lynn Transportation, that he had no separate office for his trucking operation as opposed to his farming operation, that he exercised no supervision of claimant as a driver, that he had no job evaluation of claimant's job performance, that Lynn Transportation had an accident reporting procedure and claimant had no requirement to report the accident to anyone else but Lynn, that Lynn Transportation provided advances to the claimant and would charge them against the receipts he had due, that he could not override a decision of Lynn Transportation in that their decision was final, that Lynn Transportation could not assign a driver to his truck without his permission, and that he was not familiar with DOT regulations. Mr. Boender expressed his understanding that Lynn Transportation took care of insurance, that the tractors were insured through a company by Lynn, and that Lynn would charge "that portion for your tractor back against you." Mr. Boender denied ever carrying workers' compensation insurance and maintained he was unaware (at least through March 1986) of any requirement to do so. Mr. Boender did acknowledge he entered into a written contractual agreement with Lynn Transportation which is found at deposition exhibit 1 of defendants' exhibit D. On cross-examination, Mr. Boender acknowledged that defendant Lynn Transportation could not assign a driver to his truck without his permission, that he withheld from claimant's paycheck withholding taxes to the government as well as social security taxes, that he provided claimant with a W-2 form, and that he authorized the limit of advance that Lynn could make to claimant as a driver. Mr. Boender stated that claimant was not under forced dispatch and that he had at least three chances over an unspecified period of time to reject loads offered him by Lynn Transportation dispatch. Mr. Boender testified to his understanding that defendant Lynn Transportation could discharge the claimant without going to him and that he, in turn, could dispatch the claimant without the permission of Lynn Transportation. Mary Ann Brice, who identified herself as safety director for Lynn Transportation, testified she is responsible for making sure all drivers are department of transportation qualified to drive pursuant to federal department of transportation regulations. She explained this procedure: MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 5 Well, Mr. -- In this case Mr. Boender or whoever owned the tractor, brought in a driver or called and said, "I've talked to this driver who wants to drive my truck, I'm sending him in." At that time they would come in and fill out a DOT qualification file. Their medical record would be checked and their medical would be checked. Their license would be checked to make sure that it was updated. A copy of their MVR, motor vehicle report, from whatever state they held the license in was gotten. And they were signed all the appropriate papers and, you know, were either cleared or, you know, told they were all right to drive or they weren't. (Def. Ex. D, p. 16) Ms. Brice explained that even if the drivers are qualified under DOT regulations, those drivers still cannot start driving unless and until they are hired by an owner-operator since Lynn Transportation makes the final decision only on qualifications and not on whether they are employed. Ms. Brice stated that drivers are dispatched out of the Lynn Transportation terminal in Oskaloosa, given a load, told where to pick up and deliver but rarely told what route to take. Ms. Brice explained that if the Lynn Transportation dispatcher has not found a load for the driver, the driver is free to call around and look for other loads from other companies. Ms. Brice stated that required permits on the vehicle are originally paid for by Lynn Transportation, but the costs of those permits are deducted from the amount paid to the owner-operator until the full reimbursement price is received. Ms. Brice testified that the owner-operator can veto any order of Lynn Transportation dispatch, that if Lynn Transportation finds a driver unacceptable the owner-operator will be advised that the driver can no long@r haul loads for Lynn Transportation, and not that they can no longer drive for the owner-operator, that pay arrangements are made between the owner-operator and the driver, and that the driver will provide delivery receipts to Lynn Transportation who then provide amounts due to the owner-operator. Roy Harwood, who identified himself as dispatcher for defendant Lynn Transportation and responsible for controlling the day-to-day operations of a tractor-trailer unit, testified drivers would report to him each morning for assignment of a load and that, if one is available, he would give the driver the location and loading and delivery times in accordance with the shippers' instructions. Mr. Harwood explained that he would not suggest how a driver would get to the destination and that the owner-operator of the tractor could intervene at any time and veto any dispatch. Mr. Harwood stated that if a truck broke down, Lynn Transportation would work with the owner-operator to get another truck to the area, that if a driver became incapacitated it was up to the owner-operator to get another driver, and that the driver was to contact dispatch if the breakdown would affect the load. Mr. Harwood testified that the owner-operator decided if the driver drove and even if Lynn Transportation would not dispatch, the driver could still drive for the owner-operator hauling other loads. Mr. Harwood stated that advances were initially authorized by the owner-operator who would set up in advance how much each driver would be allowed to receive, that Lynn Transportation would pay the advance, and that Lynn Transportation would deduct the amount of the advance from MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 6 the owner-operator share of the load. On the issue of insurance, Mr. Harwood testified: Q. Roy, what kind of insurance did Lynn Transportation carry on a unit -- I'm talking a tractor-trailer unit together -- when it was on dispatch? By that, assume operational or carrying for Lynn Transport carrying goods. A. Well, that's a split. We carry the liability. Q. Let's talk first about public liability. You carry the public liability -- A. That's correct. Q. -- for the unit? A. Right. Q. For example, if there's an accident on Interstate 80 in one of the Lynn Transportation units then Lynn Transportation would have public liability insurance to cover the whole unit, tractor and trailer? A. Well, it would cover the other person. The collision was covered by a different company. MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 7 Q. I'm not talking collision; I'm talking public liability regarding third parties. Is that right? A. That's right. Q. And how about cargo insurance? A. We also have that. Q. Lynn Transport has that? A. It's provided, yeah. Q. Cornie Boender wouldn't have that? A. No. The only -- All held have to do, if there is a cargo problem, he would have to cover the deductible. Q. How about work comp insurance on the unit? A. That was provided by the owner-operators. Q. Let's talk about that for a minute. Are there not some states -- and I'm referring back to the time of this accident also -- where Lynn Transport would have to show proof of workers' compensation insurance in order to operate in those states? A. I don't know exact laws, no. Q. You don't know one way or the other? A. No. The exact laws I couldn't tell you, no. Q. Do you know whether or not Lynn Transportation had any type of work comp insurance on their units as they were being operated? A. No. We have no employees. Q. I'm -- A. No driver employees anyway at this time. (Def. Ex G, pp. 29-31) Nina M. Hare, D.O., testified claimant has been a patient of hers since 1982 or 1983 and that claimant presented himself on March 5, 1986 with complaints of pain in his neck and low back with no radiation of the pain into his arms or legs. On examination, Dr. Hare found claimant's neurological to be normal, that he had good strength in all extremities with limited range of motion in both the cervical and lumbar area with straightening of the lumbar spine consistent with muscle spasm and pain on range of motion in the neck and lumbar region. Dr. Hare rendered a diagnosis of acute cervical and lumbar strain syndrome and prescribed anti-inflammatories, muscle relaxants and a soft cervical collar. On March 14, 1986, Dr. Hare released claimant to return to work to try a "short run" of 100 miles or so, but when claimant was next seen on March 24 after driving 30 miles in a truck the day before, claimant reported he had developed pain in his neck and a headache. Dr. Hare stated she wanted claimant to continue to attempt to drive on short runs and when claimant MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 8 was next seen on April 9, 1986 after driving a total of 2600 miles, he related pain so severe that he could neither sleep nor eat. Dr. Hare next saw claimant, with respect to his work injury, on September 3, 1986 when claimant reported pain in his neck radiating to the top of his head with Dr. Hare concluding it "very likely could have been" caused by the work injury. Three subsequent visits in 1987 did not change Dr. Hare's opinion of cervical/lumbar strain and Dr. Hare declined to render any opinion on whether claimant had sustained any permanent partial impairment as a result of the work injury. John L. Beattie, M.D., rendered a report dated June 4, 1986 and stated: A physical examination was performd .... Neurological is pretty much physiologic and with the ankle jerks and knee jerks to be active and equal bilaterally. There is no evidence of sensory loss in the extremities .... The cervical spine was again examined. There was no limitation of motion in flexion extension, lateral rotation or lateral bending, therefore, I must conclude that the patient experienced a rather severe cervical strain but he has now recovered. He has minimal disabilities in the cervical spine and probably no residuals from this injury. I find no evidence of problems in his thoracic spine .... The hips were checked for flexion, rotation, abduction, and adduction. No limitation of motion but it does cause discomfort in the low back region particularly when putting the hips through their range of motion. I then measured the limitation of motion of the dorsal lumbar spine .... After the examination of the lumbosacral spine these measurements indicated loss of range of motion of the dorsal lumbar spine, therefore, repeated the x-rays of his lumbosacral area and had x-rays compared with those taken at the time of the accident. X-rays of the cervical spine were essentially normal. X-rays of his lumbosacral spine show "slight borderline narrowing of the posterior aspect of L-5/S-1 intervertebral disc space associated with posterior hypertrophic boney [sic] changes and osteophyte formation in this area due to underlying local osteoarthritis here. Associated disc pathology at this level may also be considered and correlated with the clinical findings". .... After my examination of Mr. Keith Molyneux, it is apparent that he has developed disability following his truck accident of 3-5-86. His acute cervical sprain which was caused by the accident of 3-5-86, has recovered without any demonstrable residuals. He continues to have considerable disability in his lumbosacral area. There is a narrowing of the L-5/S-1 disc space. Patient has symptoms of a herniated nucleus pulposus. In my opinion, this problem was caused as a result of the accident of 3-5-86. This MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 9 accounts for his limitation of motion of the lumbar spine and the referred pain particularly into the right hp area, the other findings of problems with straight leg raising and positive Lasegue's sign. His disability in the lumbosacral region will persist for an undetermined length of time. He may need neurosurgical consultation. It will be necessary for him to limit his weight lifting to not more than 15 lbs. as previously recommended by Dr. Nina M. Hare of Sigourney, IA. It is my opinion that Mr. Keith Molyneux has received a permanent partial impairment [sic] of the body on a hole (sic] of 25-30%, as a result of his accident on 3-5-86. (Def. Ex. A) A subsequent report rendered by Dr. Beattie on September 30, 1986 does not reveal any substantive changes in Dr. Beattie's diagnosis or claimant's condition. On March 3, 1988, Peter D. Wirtz, M.D., who saw claimant for the purposes of evaluation, rendered a report stating: X-ray of the cervical spine including obliques are normal. The lumbosacral spine x-ray shows that there is narrowing of the L5-Sl disc space anteriorly and posteriorly. Diagnosis: 1. Muscular pains neck, tension with headaches. 2. Disc degeneration, L5-Sl with recurring muscular strains. Records made available reveal examination by Dr. Beattie 6/4/86 reveals restriction of motion on straight leg raising test in the lumbar area as well as x-rays which show narrowing posterior L5--Sl with osteophyte formation. Such X-ray findings would indicate this condition to pre-exist an injury on 3/3/86. The present physical examination does not reveal any neurological or restriction of motion such as straight leg raising test, therefore the aggravated condition has cleared. His symptoms intermittently in the back are due to lumbar disc degeneration L5-Sl. Such degeneration will be intermittently symptomatic with muscular back pain and require activities within his physiologic dexterity and strength, which may include some forms of restriction of lifting, bending, and twisting of the back. The neck condition on 6/4/86 Dr. Beatties examination had no residuals of restriction of motion which indicated the neck muscular strain had resolved. Based on his records showing pre-existing lumbar disc degeneration and present examination without neurological this patient did not suffer a permanent impairment to the lumbar spine or cervical spine on 3/3/86. MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 10 (Def. Ex. B) 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 (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). There is no question based on the evidence presented that claimant has established he sustained an injury which arose out of and in the course of his employment. Likewise, there is no question that claimant was an employee and not an independent contractor. Taylor v. Horning, 240 Iowa 888; Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 N.W.2d 254; and Hassebroch v. Weaver Construction Co., 246 Iowa 622, 67 N.W.2d 549. Claimant's tractor-trailer unit was hit in the rear by another tractor-trailer unit while claimant was performing the normal responsibilities of his job. The most important test of an independent contractor is that he is free to determine for himself the manner in which the specified result should be accomplished. The undersigned does not believe the record establishes claimant had such freedom and, therefore, the essential question for resolution is in whose employment was claimant. The burden of proof is initially on the claimant to show an employer-employee relationship. Everts v. Jorgensen, 227 Iowa 818, 289 N.W. 11 (1939). Five factors must be considered in determining whether there is an employer-employee relationship: (1) The right of selection or to employ at will; (2) Responsibility for the payment of wages by the employer; (3) The right to discharge or terminate the relationship; (4) The right to control the work; and, (5) Is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed. See Hjerleid v. State, 229 Iowa 818, 295 N.W. 139 (1940); Funk v. Bekins Van Lines Company, I Iowa Industrial Commissioner Report 82 (Appeal Decision 1980). The status of an owner-operator has been previously discussed in Augustine v. Bullocks, Inc., I No. 3 Iowa Industrial Commissioner's Decisions 502 (1985). The decision notes the previously mentioned factors and recognizes that the overriding issue is the intention of the parties. McClure v. Union, et al., Counties, 188 N.W.2d 283 (Iowa 1971) and Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981). Based on the foregoing principles, it is found that claimant has failed to establish that he was employed by Lynn MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 11 Transportation on March 3, 1986, or at any other time. Claimant at no time entered into a contract of hire for employment with that defendant. However, claimant has established an employment relationship with defendant Cornie Boender. The record in this case establishes that Cornie Boender was responsible for the maintenance of the vehicle, that he bore at least part of the burden of its operating costs since any amounts disbursed by Lynn Transportation were recouped by them from amounts due Cornie Boender, that his compensation was based on factors related to the work performed, that he determined the details and means of performing the services, and that he entered into a contract which specified the relationship to be that of an independent contractor. Clearly, the contract which existed between Cornie Boender and Lynn Transportation established an intention to create an independent contractor relationship and not an employer-employee relationship either between Cornie Boender and Lynn Transportation or any of the individuals Cornie Boender may have driving his vehicle and Lynn Transportation. There is no showing that Lynn Transportation had the right to control the manner in which the work was performed as opposed to simply dispatching Cornie Boender or his employees. The record does establish that claimant filled out an application for employment with Lynn Transportation as well as taking a driving test, a written test and a DOT qualifications test. This does not establish, however, that an actual employment agreement or employment relationship existed between MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 12 claimant and Lynn Transportation. Merely because Lynn Transportation sought to ensure that any drivers hauling their loads would comply with department of transportation regulations does not mean that any of those drivers were their employees. The record establishes that Lynn Transportation does not have nor seek to exercise the right to hire or fire employees of owner-operators although it did retain the option of rejecting unsatisfactory individuals as drivers. This act of rejection would not preclude the owner-operator from allowing the driver to haul loads for other companies. While claimant was dispatched through Lynn Transportation, this is not inconsistent with an employment relationship with Cornie Boender as opposed to Lynn Transportation. The fact that Lynn Transportation exercises dispatching authority is not conclusively indicative of an employment relationship. It is equally consistent with the theory of delegated authority on the part of the owner-operator to the lessee for the purpose of promoting the expeditious flow of business and resources. As owner of the truck, Cornie Boender might well have himself dispatched the driver or delegated that authority to Lynn Transportation's dispatcher. Claimant was paid by Cornie Boender who deducted appropriate withholding from his pay. Claimant's pay arrangement was made with Cornie Boender and Lynn Transportation had no influence therein. Claimant was free to reject loads dispatched by Lynn Transportation and claimant was free to seek out loads from other companies. Clearly, in the event claimant secured a load from a different company, he would not have had to give Lynn Transportation any money on the load. None of these factors are indicative of an employment relationship between claimant and Lynn Transportation. While claimant was carrying out the interests of Lynn Transportation by hauling their loads, claimant was also carrying out the interests of Cornie Boender who made money from his driving. Claimant was no more an employee of Lynn Transportation than he would be of any other company whose only interest was seeing the load arrived in accordance with the shippers' instructions. Claimant's employment history does not go without note. The record establishes claimant had driven for other owner-operators on previous occasions and was dispatched by Lynn Transportation. Claimant was aware he was driving for the owner-operator. Claimant's pay changed as he went from one owner-operator to another. Claimant originally began driving for Cornie Boender because he was dissatisfied with the pay arrangement with the previous owner-operator. If claimant were an employee of Lynn Transportation, it is unlikely his pay would so easily change. It is concluded that the only influence Lynn Transportation had on claimant was to ensure he complied with and met the qualifications of the department of transportation regulations and was to dispatch the claimant. The greater weight of evidence clearly establishes that an employment relationship existed, not between claimant and Lynn Transportation, but clearly between claimant and defendant Cornie Boender. Iowa Code section 85.36 provides, in pertinent part: "The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury." The only evidence presented on the issue of rate was claimant's testimony that he estimated that over the last six months of his employment as a truck driver he earned an average of $450 per week. No evidence to the contrary exists in the record and, therefore, as a single individual with two exemptions claimant's rate would be calculated at $263.96. MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 13 Iowa code section 85.27 provides, in pertinent 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. As it has been accepted claimant sustained an injury which arose out of and in the course of his employment and claimant was employed by defendant Cornie Boender, pursuant to Iowa code section 85.27, Cornie Boender is responsible for claimant's reasonable and necessary medical expenses. The expenses shown on claimant's exhibit 6 are found to be reasonable and necessary for the treatment of claimant's injuries. Therefore, defendant Cornie Boender shall be liable for the payment of all the medical expenses of Keith Molyneux reasonably necessary for the treatment of his work-related injury which are shown by claimant's exhibit 6. The final issue for resolution is whether the work injury is the cause of any permanent disability and concomitantly whether claimant is entitled to any weekly disability benefits. The claimant has the burden of proving by a preponderance of the evidence that the injury of March 3, 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 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). A disability may either be temporary or permanent. In the case of temporary disability, the claimant must establish that his work injury was the cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury is the cause of permanent physical impairment or permanent limitation in work activity. The record establishes claimant has been evaluated and/or treated by three physicians. Dr. Nina Hare, who first saw claimant after the injury, declined to render any opinion on permanent partial "disability" and in April 1986, imposed work MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 14 restrictions on claimant but for only a period of four to six weeks. Dr. Hare does not appear to have imposed any permanent restrictions on claimant's employability. Dr. Peter Wirtz opined that claimant did not suffer a permanent impairment to the lumbar spine or cervical spine as a result of the injury of March 3, 1986. Dr. Beattie rated claimant as having a 25 to 30 percent whole body impairment as a result of the work injury. In addition, Dr. Beattie finds it necessary to restrict claimant's lifting to not more than 15 pounds "as previously recommended by Dr. Nina Hare." There are two principle problems with Dr. Beattie's position. First is that Dr. Hare's weight restrictions were for only a period of four to six weeks and do not appear to have been permanent restrictions and, second, while Dr. Beattie found claimant to have symptoms of a herniated nucleus pulposus, a CT scan done on December 30, 1986 found no evidence for disc herniation, no bony abnormalities and no evidence for herniated nucleus pulposus. Therefore, Dr. Beattie's opinions are given less weight than the opinions of the other physicians in the case and the greater weight of evidence establishes claimant has neither a permanent impairment nor permanent restrictions in his work activities. This is not to say, however, that claimant does not feel pain as the undersigned does not doubt claimant's pain. Nevertheless, pain is not a substitute for impairment. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981). Therefore, it is concluded that claimant has failed to establish that the injury of March 3, 1986 is the cause of any permanent disability. 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. The record clearly establishes claimant was injured on March 3, 1986, left work as a result of the injury on March 5, 1986, was released to return to work by Dr. Hare effective March 25, 1986, left work again April 8, 1986 as a result of the injury and was restricted from working, per Dr. Hare's instructions, until April 18, 1986. Therefore, pursuant to Iowa Code section 85.33(l), claimant is entitled to 4.143 weeks of temporary total disability benefits to cover the period from March 5 through March 24 and April 9 through April 17, 1986, inclusive. The record does not establish that there has been any change in claimant's condition since that time nor that he was unable to return to substantially similar employment in which he was engaged at the time of his injury. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following findings of fact are made: 1. Cornie Boender entered into a contractual agreement with Lynn Transportation as an owner-operator. 2. Pursuant to the agreement, Cornie-Boender provided drivers for his tractors to be dispatched by Lynn MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 15 Transportation. 3. Lynn Transportation did not hire claimant. 4. Lynn Transportation ensured claimant, if hired by owner-operator, would meet department of transportation requirements. 5. Claimant was hired by Cornie Boender. 6. Cornie Boender was responsible for the payment of wages to claimant. 7. Claimant was paid on a per mile basis, on checks issued by Cornie Boender with deductions taken and was given a W-2 form from Cornie Boender at the end of the year. 8. Lynn Transportation retained control only over whether claimant would have Lynn Transportation loads and not over whether claimant would drive for Cornie Boender. 9. Lynn Transportation had no authority to discharge claimant. 10. Lynn Transportation dispatched claimant according to a shipper's instructions and did not-control the work as performed. 11. Cornie Boender could both hire and fire claimant. 12. No employment relationship existed between claimant and Lynn Transportation. 13. Claimant was an employee of Cornie Boender. 14. While in the course of his employment with Cornie Boender, claimant sustained an injury in a collision. 15. As a result of his injury, claimant was unable to work from March 5 through March 24 and April 9 through April 17, 1986, inclusive. 16. Claimant has no permanent impairment nor permanent restrictions on his employability. 17. Claimant sustained no permanent partial disability as a result of the injury of March 3, 1986. 18. Claimant had average gross earnings of $450 per week during the six months prior to his injury. 19. Claimant's appropriate rate of compensation is $263.96. 20. Claimant incurred reasonable and necessary medical expenses for the treatment of his injury and such expenses are found at claimant's exhibit 6. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant was an employee of Cornie Boender. MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 16 2. Claimant was not an employee of Lynn Transportation. 3. Claimant sustained an injury which arose out of and in the course of his employment on March 3, 1986. 4. Claimant failed to establish the work injury is the cause of permanent disability. 5. Claimant established his entitlement to 4.143 weeks of temporary total disability benefits for the period from March 5 through March 24 and April 9 through April 17, 1986, inclusive. 6. Claimant established his entitlement to all disputed medical expenses. 7. Claimant's appropriate rate of compensation is $263.96. ORDER THEREFORE, IT IS ORDERED: Defendant Cornie Boender shall pay unto claimant four point one four three (4.143) weeks of temporary total disability benefits for the periods from March 5 through March 24 and April 9 through April 17, 1986, inclusive at a rate of two hundred sixty-three and 96/100 dollars ($263.96) per week. MOLYNEUX V. LYNN TRANSPORTATION and/or CORNIE BOENDER PAGE 17 Payments which have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Cornie Boender shall pay all disputed medical expenses as found. in claimant's exhibit 6. Defendant Cornie Boender shall file a first report of injury within twenty (20) days from the filing of this decision. A claim activity report shall be filed upon payment of this award. Costs of this action are assessed against defendant Cornie Boender pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 30th day of November, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Daniel Spellman Attorney at Law 1024 2nd St P.O. Box 550 Perry, IA 50220 Mr. Loren J. Veldhuizen Attorney at Law 306 10th St Alton, IA 51003 Mr. Harold B. Heslinga Attorney at Law 118 N. Market St Oskaloosa, IA 52577 Mr. Frank T. Harrison Attorney at Law Terrace Center, Ste 111 2700 Grand Ave Des Moines, IA 50312 1402; 1800; 3000 Filed November 30, 1988 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER KEITH E. MOLYNEUX, Claimant, File No. 821627 vs. A R B I T R A T I O N LYNN TRANSPORTATION and/or D E C I S I O N CORNIE BOENDER, Employer, and THE HARTFORD INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.10 Claimant, who drove a truck owned by defendant Cornie Boender which was leased to defendant Lynn Transportation, established an employment relationship only with Cornie Boender not with Lynn Transportation. 1800 Where the greater weight of evidence did not establish claimant had any permanent impairment or permanent restrictions on his employability, claimant failed to show he sustained any permanent partial disability as a result of his injury. 3000 Claimants rate calculated on only evidence of wages in the record. Claimant estimated he had gross weekly wages of $450.00. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOAN B. GONYIER, Claimant, File Nos. 821629 VS. 821630 HANSALOY HOWDEN CORPORATION, Employer, A R B I T R A T I 0 N and WAUSAU INSURANCE COMPANY, D E C I S I 0 N Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Joan B. Gonyier, against her employer, Hansaloy Howden Corporation, and its insurance carrier, Wausau Insurance Company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury which the:a parties stipulated was sustained on April 5, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner in Davenport, Iowa, on July 20, 1987. Neither first reports nor other filings have been made in either file. The parties stipulated that claimant's rate of weekly compensation is $164.91 and that claimant has already received healing period benefits from May 30, 1984 through June 5, 1984 and from December 13, 1984 through March 19, 1985 as well as having already received 15 weeks of permanent partial disability benefits. The parties also stipulated that commencement date for any permanent partial disability additionally awarded would be July 15, 1986. The record in this case consists of the testimony of claimant and of joint exhibits 1 through 17. ISSUES Pursuant to the pre-hearing report, the parties stipulated that claimant did receive an injury which arose out of and in the course of her employment and that there is a causal relationship between that injury and claimed disability. The issue remaining for resolution is: The nature and extent of claimant's disability, the dispute being characterized by parties as whether claimant is entitled to payment under section 85.34(2)(s). GONYIER V. HANSALOY HOWDEN CORPORATION Page 2 REVIEW OF THE EVIDENCE Fifty-three-year-old claimant testified that she began work at Hansaloy Howden Corporation in 1977 making emery board-sized scalloped knife blades on a punch press. Claimant reported that she was required to pull steel off a coil with her left hand. She reported grasping the steel between her thumb and forefinger while apparently pushing a safety device and indicator with her right hand in order to move the steel into the machine. Claimant reported that, after approximately a year to a year and one-half, she started noticing problems. She indicated that she broke bones in her right wrist and that subsequently, the safety buttons on the machine were removed and replaced with push and pull buttons. She stated that she then operated the machine for approximately another eight months after which her left hand began hurting badly. She reported that her left wrist hurt and burned and that her thumb ached and swelled. She indicated she could neither grip nor pull. Claimant reported that she had swelling in her right wrist as well with her thumb problem extending one to two inches back into the wrist area. Claimant had surgical treatment of both her left and right hands. Claimant reported that she continues to experience pain and swelling and that she has had difficulty with peeling potatoes, sawing, vacuuming, crocheting, scrubbing, removing and replacing jar lids and pulling the clutch and brake levers on her motorcycle as well as twisting the throttle on her motorcycle. She agreed that she wears a splint to vacuum and reported that, while that assists in heavy chores, it does not really work very well. Claimant reported that she takes Clinoril two or three times daily. Claimant agreed that she is not considering further surgery which William R. Irey, M.D., proposed as she did not believe it would improve the condition of her right wrist. Clinical notes of the Davenport Clinic of March 10, 1984 indicate that claimant reported pain in the left hand and under the arm with swelling, tenderness and some crepitation of the MP joint. An x-ray of the left hand of that date demonstrated degenerative arthritic changes of the carpal-first metacarpal joint as well as a small bony fragment which was smooth in the soft tissues lateral to the area, possibly related to old trauma. No recent bony disease was seen. Richard L. Kreiter, M.D., saw claimant on April 16 and 17, 1984. He reported that claimant had a six-to eight-month history of increasing pain at the base of her thumbs, although there had been no injury or trauma. Claimant was tender with some swelling overlying the first metacarpal carpal joint with some crepitation actually more pronounced on the right than on the left. Claimant otherwise had a good range of motion. The doctor's impression was a probable degenerative osteoarthritis of the first metacarpal carpal joint. Dr. Kreiter referred claimant to Dr. Irey. Dr. Irey performed a resection implant arthroplasty of claimant's left thumb with a silastic prosthesis on May 31, 1984. GONYIER V. HANSALOY HOWDEN CORPORATION Page 3 In history taken that date, he reported that claimant had bilateral carpal metacarpal arthritis of the thumbs and that, as she had failed at medical management, she elected to proceed with the left hand first. On November 13, 1984, Dr. Irey reported that claimant was having pain in both wrists and that she was unable to perform her normal work duties. On December 14, 1984, Dr. Irey performed a resection implant arthroplasty of the right thumb carpal metacarpal joint. Flexor carpi radialis was used to reenforce the capsule. On January 25, 1985, Dr. Irey reported that claimant was six weeks post the right resection implant and continued to have problems on the right hand which he believed related to subluxation of the implant. The doctor opined that the implant needed further stabilization and probably needed a tenodesis of the MP joint of the thumb. While the exhibit list indicates medical reports of Dr. Irey of June 18, 1985 and December 13, 1985, none were included in the exhibits submitted. On April 22, 1986, Dr. Irey evaluated claimant's permanent physical impairment. He reported that such rating was based on an exam of April 9, 1986. As of the latter date, the doctor reported that, upon measuring with the goniometer, no decrease in her first and second metacarpal abduction could be detected although clinically the doctor believed there was some slight decrease. Claimant was having pain at the carpal metacarpal joint and the doctor was concerned that she may also have pain at the scaphotrapezoidal joint. On April 22, 1986, the doctor reported that claimant's abduction was decreased to a mild extent and that she had continued pain, especially on the right. He felt that she had lost from 10-20 degrees of extension of the carpal metacarpal joint corresponding to a 10% impairment of her thumb on the right. He indicated that, based on continued pain and probable instability of the joint, that figure should be increased to 20% impairment of her thumb corresponding to an eight percent impairment of her right hand. The doctor reported that claimant's left hand motion was actually quite good and that she had lost only approximately 10 degrees extension of the thumb representing a five percent impairment of her thumb corresponding to a two percent impairment of her hand using values obtained from the AMA guides, page 4, using tables 3 and 4. On August 26, 1986, Dr. Irey advised the employer that claimant had reached a point where she was having too much pain to continue her current job. He reported that she might be suited to much lighter duty work, if available. On October 16, 1986, Dr. Irey opined that it would be reasonable to proceed with the revision arthroplasty of claimant's thumbs if her symptoms dictated, but that as long as claimant elected to not proceed with such further surgery, more limited activity, including quitting (her job), would be the most reasonable course for claimant. On December 16, 1986, Dr. Irey reported that claimant stated pain about the base of her right thumb was minimal with the main location of her pain being the dorsal ulnar aspect of her hand and central dorsal aspect of her wrist. Review of previous x-rays revealed no abnormalities in those areas, but only mild lateral subluxations of the trapezial prosthesis on the scaphoid. Dr. Irey then told claimant that he would not recommend revision arthroplasty of her right thumb although such would be beneficial on the left. He reported that revision GONYIER V. HANSALOY HOWDEN CORPORATION Page 4 arthroplasty would be unpredictable in decreasing her right ulnar-sided wrist pain and recommended continued splinting only. On April 8, 1987, Dr. Irey reported that claimant was having some mild wrist pain located on the central aspect of the right wrist which he suspected in some way related to her thumb joint problems. He reported that it did not seem serious and that it did not add to claimant's permanent partial impairment rating. On February 27, 1986, Dr. Irey saw claimant because of pain in the central portion of the dorsum of her left hand overlying the third ray. On March 26, 1986, Dr. Irey reported that the left hand symptoms were decreased. On April 22, 1987, Dr. Irey reported that the pain noted was obscure and that he did not recommend surgery for such. On March 11, 1987, the employer advised claimant that the employer could not find claimant work given her limited ability to use her hands. The balance of the evidence was reviewed and considered in the disposition of this matter. APPLICABLE LAW AND ANALYSIS Our sole concern is whether claimant is entitled to payment under section 85.34(2)(s). That section provides that loss of both hands in a single accident shall equal 500 weeks and shall be compensated as such. Claimant first complained to medical personnel of left hand pain on March 10, 1984. When Dr. Crider saw her on April 16 and 17, 1984, claimant reported a six- to eight-month history of increasing pain at the base of both her thumbs. She apparently then had swelling overlying the first metacarpal joint with some crepitation, both on the left and on, the right. As of May 31, 1984, Dr. Trey reported that claimant had bilateral carpal metacarpal arthritis of the thumbs and had elected to proceed with resection implant arthroplasty of the left thumb first. The doctor's note of that date suggests that claimant's condition was simultaneously present in both thumbs even though it was appropriate to then only proceed with invasive medical treatment as regards the left thumb. That claimant only had complaints of pain in the left thumb on March 10, 1984 is not incompatible with this analysis. For, claimant's history to Dr. Crider of a six- to eight-month period of increasing pain at the base of her thumbs April 16 and 17, 1984 is compatible with simultaneous development of a bilateral arthritic condition. Further, claimant's work duties were such that simultaneous bilateral development of her condition would not be inconsistent with the use of her hands which she described at hearing. Before claimant can recover under section 85.34(2)(s), however, claimant must show that her loss of use extends beyond each thumb and into each hand. Operative reports are not in evidence; therefore, it is difficult to ascertain the exact nature and extent of claimant's invasive surgical procedure. Notes of Dr. Irey are of some help, however. Dr. Irey reported on December 14, 1984 that the right resection implant arthroplasty was then performed and that the flexor carpi radialis was used to reinforce the capsule. On GONYIER V. HANSALOY HOWDEN CORPORATION Page 5 December 16, 1986, Dr. Irey indicated that claimant had pain about the base of her right thumb, minimal, with main location of such being the dorsal ulnar aspect of her hand and central dorsal aspect of her wrist. No abnormalities were revealed on x-ray but for mild lateral subluxations of the trapezial prosthesis on the scaphoid. From the above, we conclude that claimant's invasive procedure on the right extended beyond the thumb joint into the area of the hand. Since substantially the same procedure was used on the left, we believe it appropriate to assume that the invasive procedure on the left also extended into the area of the hand. Claimant has also had indications of or recorded complaints of pain at the scaphotrapezoidal joint, at the dorsal ulnar aspect of her right hand, at the central aspect of her right wrist and in the central portion of the dorsum of her left hand. While Dr. Irey has reported that claimant's mild right wrist pain was not serious and did not add to claimant's permanent partial impairment and that her left dorsum pain was obscure, the existence of such complaints further demonstrates that claimant's disability extends beyond her thumb and into her hand. An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada.Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Claimant has established that her injury is a loss of use of both hands in a single accident for which she is entitled to compensation under section 85.34(2)(s). Dr. Irey has opined that claimant has a 20% impairment of her right thumb representing an eight percent impairment of her right hand and that she has a five percent impairment of her left thumb representing a two percent impairment of her left hand. Eight percent of the hand equals seven percent of the upper extremity; two percent of the hand equals two percent of the upper extremity. Seven percent of the upper extremity equals four percent of the whole person; two percent of the upper extremity equals one percent of the whole person. Under the combined values charts of the AMA guides, four percent of the whole person and one percent of the whole person equals a combined value of five percent of the whole person. Five percent of 500 weeks equals 25 weeks. Claimant is entitled to total permanent partial disability compensation of 25 weeks. Defendants are entitled to credit for 15 weeks of permanent partial disability benefits already paid claimant. FINDINGS OF FACT THEREFORE, IT IS FOUND: Claimant began working for defendant employer in 1977 making scalloped knife blades on a punch press. Claimant was required to pull steel off a coil with her left hand, grasp steel between her thumb and forefinger, and push a safety device and indicator with her right hand. On March 10, 1984, claimant complained at the Davenport Clinic of pain in the left hand with swelling, tenderness and GONYIER V. HANSALOY HOWDEN CORPORATION Page 6 some crepitation of the MP joint. On April 16 and 17, 1984, claimant reported a six- to eight-month history of increasing pain at the base of her thumbs. Claimant then was tender with some swelling over the first metacarpal joint with crepitation more pronounced on the right than on the left. On May 31, 1984, Dr. Irey diagnosed claimant's condition as bilateral carpal metacarpal arthritis of the thumbs. On May 31, 1984, Dr. Irey performed a resection implant arthroplasty of claimant's left thumb. On December 14, 1984, Dr. Irey performed a resection implant arthroplasty of the right thumb with the flexor carpi radialis used to reinforce the capsule. As of December 16, 1986, claimant had mild lateral subluxation of the trapezial prosthesis on the scaphoid on the right. Claimant's surgical procedures were substantially similar on the right and on the left. Claimant has had indications of pain at the GONYIER V. HANSALOY HOWDEN CORPORATION Page 7 scaphotrapezoidal joint on the right, the dorsal ulnar aspect of her right hand and the central dorsal aspect of her right wrist, and the central portion of the dorsum of her left hand. Claimant's disability extends beyond her thumbs and into her hands. Claimant has had a loss of use of both hands in a single accident. Claimant has an eight percent loss of use of the right hand which equals a seven percent loss of use of the upper extremity which equals a four percent loss of use of the body as a whole; claimant has a two percent loss of use of the left hand which equals a two percent loss of use of the upper extremity which equals a one percent loss of use of the body as a whole. The combined value of a four percent body as a whole loss and a one percent body as a whole loss is five percent of the body as a whole. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has established that her disability related to her April 5, 1984 injury is most appropriately compensated under section 85.34(2)(s). Claimant is entitled to permanent partial disability of five percent of the body as a whole. Defendants are entitled to credit for permanent partial disability benefits of 15 weeks already paid. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant an additional ten (10) weeks of permanent partial disability benefits at the rate of one hundred sixty-four and 91/100 dollars ($164.91) with such benefits to commence July 15, 1986. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to section 85.30. Defendants pay costs pursuant to Division of Industrial Services Rule 343-4.33. Defendants file claim activity reports as required by the agency. Signed and filed this 26th day of 1987. HELEN JEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER GONYIER V. HANSALOY HOWDEN CORPORATION Page 8 Copies To: Mr. J. E. Tobey III Attorney at Law 512 East Locust Street Davenport, Iowa 52803 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801 1803.1 Filed October 26, 1987 HELEN JEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOAN B. GONYIER, Claimant, File Nos. 821629 VS. 821630 HANSALOY HOWDEN CORPORATION, Employer, A R B I T R A T I 0 N and WAUSAU INSURANCE COMPANY, D E C I S I 0 N Insurance Carrier, Defendants. 1803.1 Female claimant left work on account of degenerative condition diagnosed as bilateral carpal metacarpal arthritis of the thumbs. Resection implant arthroplasty was performed on the left thumb on May 31, 1984 and on the right thumb on December 14, 1984. Claimant developed mild lateral subluxation of the trapezial prostheses on the scaphoid, apparently in both hands. Claimant had chosen to delay her second resection implant arthroplasty in order to avoid total incapacitation from surgery. HELD: Claimant's injuries extended into her hands and not only her thumbs; claimant's condition is a cumulative trauma resulting from a single accident and subject to payment of benefits under section 85.34(2)(s). BEFORE THE IOWA INDUSTRIAL COMMISSIONER MERRI ZUBER, Claimant, File Nos. 821632 821633 VS. A R B I T R A T I 0 N STONE CONTAINER CORPORATION, D E C I S I 0 N Employer, Self-Insured, and AMERICAN MOTORIST INSURANCE CO., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration for benefits brought by Merri Zuber, claimant, against Stone Container Corporation, employer and self-insured defendant, for an alleged injury which occurred on or about December 24, 1985, and against Stone Container Corporation, employer, and American Motorist Insurance Company, insurance carrier, for an alleged injury which occurred on March 18, 1986. A hearing was held in Des Moines, Iowa, on May 2, 1989, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Merri M. Zuber, claimant; Thomas Riggs, human resources manager; claimant's exhibits 2 through 6; defendants' exhibits I with subparts A, B, C; defendants' exhibit II with subparts A through F; and defendants' exhibits III through V. The deputy ordered a transcript of the hearing. Claimant was represented by Robert W. Brennan. Employer and self-insured defendant was represented by Harry W. Dahl. Defendant employer and American Motorist' Insurance Company were represented by William D. Scherle. Attorney for employer and self-insured defendant, Harry Dahl, submitted an excellent posthearing brief. PRELIMINARY MATTERS Claimant's counsel stated in his opening description of disputes that claimant was not seeking any permanent disability benefits. Both defendants moved to strike and exclude claimant's proposed exhibits 2 through 6 because claimant failed to serve either a witness list or an exhibit list within 15 days prior ZUBER VS. STONE CONTAINER CORP. Page 2 to the originally scheduled hearing as provided by paragraph six of the hearing assignment order. The original hearing was scheduled for February 3, 1989. Fifteen days prior to the hearing was January 20, 1989. Deputy Industrial Commissioner Helenjean Walleser granted claimant a continuance until May 2, 1989, but specified in her order dated February 20, 1989, that claimant was not permitted additional time to file a witness list or exhibit list. Claimant's attorney conceded he had not filed a witness list or an exhibit list within 15 days prior to hearing as required by paragraph six of the hearing assignment order, but stated he had intended to rely on the exhibits defendants had served on him. Employer and self-insured defendant for the alleged injury of December 24, 1985, served an exhibit list on claimant January 18, 1989, which states "comes now the employer, self-insured, and pursuant to the rules of the industrial commissioner states the following will be introduced into evidence at the time of hearing:" (defendant's exhibit IV). Defendant employer and insurance carrier for the alleged injury of May 18, 1986, served an exhibit list on claimant on January 20, 1989. This notice states "COME NOW the Defendants and submit to Claimant's attorney the following list of exhibits" (def. ex. V, page 2). Since claimant's proposed exhibits were included on the list of exhibits of both defendants, and both defendants served these exhibits on claimant, then claimant's exhibits were admitted into evidence. Claimant was not allowed to call witnesses which were on defendants' witness lists. Claimant was allowed to make an offer of proof of the direct testimony of Thomas Riggs as his own witness in the presence of all parties and the court reporter, but with the deputy absent (transcript page 128). STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of both alleged injuries. That the rate of compensation, in the event of an award, is $173.31 per week for both injuries. That the medical expenses are fair and reasonable. That the medical expenses were incurred for reasonable and necessary treatment. That the causal,connection of the expenses to treatment for a condition upon which claimant is now basing his claim is admitted, but the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. That defendants have paid to claimant $6,415.75 in medical ZUBER VS. STONE CONTAINER CORP. Page 3 and hospital benefits under an employer nonoccupational group health plan prior to hearing. That defendants have not paid claimant any workers' compensation benefits prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant sustained an injury on December 24, 1985, and on March 18, 1986, which arose out of and in the course of employment with employer. Whether either of the alleged injuries was the cause of temporary disability. Whether claimant is entitled to temporary total disability benefits as the result of either alleged injury. Whether claimant is entitled to medical benefits. Whether claimant gave timely notice pursuant to Iowa Code section 85.23 is asserted as an affirmative defense by employer and self-insured defendant for the alleged injury of December 24, 1985. Whether defendant employer is entitled to a credit for $6,415.75 for medical and hospital benefits paid to claimant prior to hearing pursuant to an employee nonoccupational group health plan. Whether claimant is entitled to an offset against the credit for medical insurance premiums that she was required to pay after she had been absent from work for 30 days. SUMMARY OF THE EVIDENCE Of all the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant testified that she was employed with employer from 1982 (February 5, 1982) until August of 1986 (August 11, 1986) in the production of bags. Her job of inspecting required her to bend and lift 50 pounds of bags at one time. In the later part of December of 1985, close to Christmas, she experienced a stomach ache and a back ache and requested to go home. On Christmas night she couldn't move, got scared and her husband took her to the hospital where she was examined, x-rayed, medicated and sent home three hours later with instructions to see her ZUBER VS. STONE CONTAINER CORP. Page 4 personal physician (tr. pp. 35-45). The records of the emergency department said that claimant was seen at the hospital at 1:10 a.m. on December 26, 1985, for pain in the lower back and legs which was diagnosed as acute low back pain. The nursing assessment states: "Denies injury to back". (claimant's ex. 6, p. 37; def. ex. I, B). The lumbosacral x-ray taken on December 26, 1985, was normal (def. ex. I, B, p. 3). Michael J. Richards, M.D., claimant's personal physician, released her to return to work two weeks later on January 6, 1986, without any restrictions (tr. pp. 56-58; cl. ex. 2, pp. 4-18; cl. ex. 4, p. 8). Dr. Richards recorded a completely resolved low back syndrome (cl. ex. 3, p. 4; cl. ex. 4, p. 10). In her deposition, prior to hearing, claimant contended that she reported both a stomach ache and a back ache when she left work just prior to Christmas (cl. ex. 2, pp. 38, 39 & 43). Internal correspondence of employer indicates that claimant was sick to her stomach and throwing up and called her husband to come and pick her up on the evening of December 23, 1985. This internal correspondence does not mention a work injury to the legs or back (def. ex. II, A; cl. ex. 6, p. 14). Claimant's exhibits included an unidentified hand printed note which states "Not authorized treatment. Not reported. Said she had stomach problem." (cl. ex. 4, p. 8). Claimant testified that her husband also worked for employer and he took in a slip of paper from the hospital to show that she would be off work (cl. ex. 2, p. 16; tr. pp. 60 & 61). The first report of injury for this alleged injury shows that employer first learned of this injury on June 3, 1986 (def. ex. II, F; cl. ex. 6. p. 1). Other evidence shows that claimant may have become ill at work on December 24, 1985, rather than December 23, 1985. Claimant was not sure which date was the correct date (cl. ex. 2, pp. 9 & 37). Claimant testified that on March 18, 1986, she was stacking. She was taking stacks of bags off of the belt and putting them on the skid to go to another department or in a box to be shipped out. This was a very strenuous evening because of difficulties on the line. She testified that she lifted more bags than usual and stacked them higher than usual. She did not have any trouble that evening at work, but the following morning she woke up and her back was sore and it hurt. Her husband notified employer and claimant went to see Dr. Richards. He took her off work, ordered a CT scan and when she did not get better he referred her to Thomas A. Carlstrom, M.D., a neurosurgeon. The CT scan confirmed a herniated lumbar disc. Dr. Carlstrom performed surgery for a herniated disc on May 7, 1986. Dr. Carlstrom released claimant to return to work on August 11, ZUBER VS. STONE CONTAINER CORP. Page 5 1986. Claimant testified that on August 11, 1986, Thomas Riggs, human resources manager, refused to allow her to return to work until this injury was settled. A few days later she received a letter from Riggs, dated August 15, 1986, stating that she could return to work on August 18, 1986 (tr. pp. 58-68; cl. ex. 2, pp. 18-28). On March 21, 1986, Dr. Richards noted leg pain and associated low back pain for the last 48 hours which he suspected was lumbar disc syndrome. On April 18, 1986, Dr. Richards recorded: "Herniated lumbar disc at L5-Sl level documented by CT" and referred claimant to Dr. Carlstrom (cl. ex. 3, p. 4; cl. ex. 4, p. 10). The radiology report shows moderate disc bulge centered at L5-Sl level (cl. ex. 3, P. 7). Dr. Richards took claimant off work on March 21, 1986 (cl. ex. 4, p. 2) and continued to keep her off work prior to the referral to Dr. Carlstrom (cl. ex. 4, p. 9). Dr. Carlstrom first saw claimant on April 25, 1986, for pain, numbness and tingling in her left leg radiating to her foot (cl. ex. 5, pp. 2-8). Dr. Carlstrom performed a lumbar laminectomy for an L5-Sl herniated disc on May 7, 1986 (cl. ex. 5, pp. 9-12). Dr. Carlstrom released claimant to return to work without restrictions on August 11, 1986 (cl. ex. 2, deposition ex. 2; def. ex. I, C). However, Dr. Carlstrom's notes indicated that he had contemplated a 25 pound work restriction for 6 weeks, but on August 6, 1986, he noted that he received a telephone call which requested a release without restrictions (cl. ex. 5, P. 7). Claimant did not keep her final appointment with Dr. Carlstrom on September 16, 1986 (cl. ex. 2, p. 33). Claimant applied for a leave of absence on March 19, 1986. The type of leave is marked "personal." In the space for the leave of absence appears the words (back injury--not work related per Brian Zuber" (cl. ex. 6, p. 15; def. ex. II, C). This application says it is for personal illness and was signed by claimant on March 21, 1986 (cl. ex. 6, p. 17). It was approved as a personal leave of absence on March 25, 1986 (cl. ex. 6, p. 16). Claimant testified that she paid her own health insurance premiums because that is what the company required when someone was absent from work for more than 30 days on a personal leave of absence (tr. pp. 72 & 73). Claimant testified that she was asked by employer to complete a piece of paper to protect the company if she had another injury. Claimant contended that she did not know what she was signing (tr. pp. 69-72). This document is a state of Iowa industrial commissioner form 12 entitled Waiver on Account of Physical Defect (cl. ex. 2, dep. ex. 5; cl. ex. 4, p. 7; def. ex. II, D). She admitted that she filled in the top portion ZUBER VS. STONE CONTAINER CORP. Page 6 of the form and signed it and that Dr. Richards completed the physicians portion of the form. Claimant testified that Dr. Richards filled out this form and signed it in her presence and he consulted her for the answers that he put on the form. In answer to item five, the form shows that the origin of her herniated disc was from lifting with back pain around Christmas 1985. Also at item number five the "no" block is checked indicating that the injury is not job related. The form further indicates in the doctor's handwriting "No lifting; would need to be able to stand, sit or walk prn. No lifting." This form was approved by Deputy Industrial Commissioner Michael G. Trier on April 21, 1989 (tr. pp. 69-73, 86, 87, 99-103, 115 & 116; cl. ex. 2, pp. 45-53, dep. ex. 5). Claimant admitted that she told the emergency room on December 25, 1985, that she had not had prior back problems, but at the hearing she admitted that this information was not correct (tr. pp. 82-85). Claimant injured her back moving an empty skid and saw a doctor, Kaye Check, M.D., on October 6, 1982. Dr. Check ordered no lifting for one week (cl. ex. 2, pp. 27 & 30; dep. ex. 3; cl. ex. 4, p. 6; cl. ex. 6, pp. 9-11). Claimant completed benefit request health forms for health insurance for several dates immediately after both of these .alleged injuries. In each instance, none of the forms state that benefits are claimed due to either: (1) an employment related condition or (2) an accident. On the contrary, most of the forms are marked that they are not for a work-related condition and not for an accident (cl. ex. 6, pp. 4, 6, 22, 29, 32, 36, & 43; def. ex. II, E, pp. 7-15). Claimant indicated that these were made out to get her medical bills paid and might have been for other things such as Pap smears (tr. pp. 109-114). Claimant testified that she returned to work on August 11, 1986, but Riggs told, her that she could not work until this settlement was taken care of (cl. ex. 2, p. 23). Claimant testified that she stayed in town approximately three or four days and then moved to Arizona to join her husband and child. Claimant testified that Riggs sent her a letter on August 15, 1986, stating that she could return to work as an inspector on August 18, 1986. Claimant testified that she would have stayed in Iowa and she would have worked for employer if employer had taken her back to work on August 11, 1986. She testified that she would have stayed in Iowa and worked in Iowa even though her husband had moved permanently to Arizona and that her one-year-old child was with him in Arizona. Claimant's sister called her about the letter from Riggs. Claimant discussed the letter with her attorney. Claimant decided to stay with her husband and child in Arizona. The return to work offer from Riggs asked for a reply, but claimant admitted that she never answered the note in person, by telephone or by letter. She admitted that this was somewhat in conflict with her earlier ZUBER VS. STONE CONTAINER CORP. Page 7 deposition testimony that she would not return to Iowa for her old job in August of 1986 (tr. pp. 66-69, 104-108; cl. ex. 2, pp. 23-30, 34 & 35). When claimant did not return to work and did not contact employer she was terminated (def. ex. II, B, pp. 1 & 2). Claimant testified that she now works in Arizona as a lottery clerk selling lottery tickets at the service desk in a supermarket (tr. pp. 81 & 82). Thomas Riggs testified that he is human resources manager for employer and that he has held this position for nine years. He related that if an employee is injured the procedure is to sit down with the supervisor and make out an accident report before leaving work that day (tr. pp. 138 & 139). He said that claimant only reported being sick on December 23, 1985 (tr. pp. 141 & 143). Claimant said that she saw the audio-visual instructing employees on the procedure for reporting a work injury (tr. p. 143). Riggs said that he received the information that claimant was asserting a work injury for both of these alleged injuries on June 3, 1986. He then made out a first report of injury for both injuries on June 16, 1986 (tr. p. 145; cl. ex. 2, p. 43). The original notice and petition is dated May 30, 1986, and was received in the industrial commissioner's office on June 2,, 1986. Riggs further testified that claimant's husband, Brian Zuber, told him in his office in March of 1986 that claimant injured her back from picking up their child and that is why he (Riggs) wrote the words on the leave request "back injury--not work related, per Brian Zuber" (tr. p. 151). Claimant testified at the time of her deposition on October 21, 1986, that it still hurt her back if she held her daughter for 15 or 20 minutes (cl. ex. 2, p. 32). Riggs contended that these words were on the leave request when claimant signed it (tr. pp. 151 & 151). Claimant could not recall if they were on there or not. She did not know. She said this was the first time she had seen them (tr. pp. 109 & 110). 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). Claimant has the burden of proving by a preponderance of the evidence that she received an injuries on December 24, 1985 and March 18, 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 ZUBER VS. STONE CONTAINER CORP. Page 8 of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The claimant has the burden of proving by a preponderance of the evidence that the injuries of December 24, 1985 and March 16, 1986, are 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.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 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). Claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury on December 24, 1985. Claimant testified that on the evening she had to go home sick she had both a stomach ache and a back ache. However, employer's written internal correspondence, drafted at the time of the incident, recorded that she only reported a stomach ache and vomiting. When claimant reported to the emergency room on Christmas night, she reported leg pain and lower back pain. She denied an injury to her back at the emergency room. She designated her nonoccupational group health carrier as the applicable insurance. She did not describe any work activities to the nurse who interviewed her or to the doctor who examined her. Dr. Richards said claimant had low back syndrome, acute. He did not record a work history nor any work activities as the possible cause. He did not assert any cause for the complaints. Claimant testified that her husband took a hospital slip to employer to show that she would be off work, but she did not testify, or even imply, that her condition was due to a ZUBER VS. STONE CONTAINER CORP. Page 9 work injury. Claimant's husband did not testify in person at the hearing or by deposition. Riggs testified his first knowledge that claimant contended this was a work injury was not until June 3, 1986. Claimant flied a number of benefit request forms with the group carrier, but all of them are marked that her condition was not related to her employment and that it was not due to an accident. Claimant did not call or depose the supervisor to whom she claims she reported a back injury on the evening of December 24, 1985. Claimant had a history of back complaints in 1982, 1983 and 1984. Claimant did not report to Dr. Carlstrom that she had suffered a previous back injury when she first saw him on April 25, 1986, or at any other time, according to the evidence supplied by Dr. Carlstrom. Wherefore, claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury to her back on December 24, 1985, that arose out of and in the course of her employment with employer. The overwhelming weight of the evidence is that claimant did not sustain an injury which arose out of and in the course of her employment on December 24, 1985. Claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury on March 18, 1986, which arose out of and in the course of her employment with employer. Claimant's first symptoms of this alleged injury arose in the morning at home when she woke up with back pain. She attributed these symptoms to strenuous work the previous day at work, but did not have any symptoms at work on the day that she alleged it occurred. She did not describe any traumatic onset for either one of these injuries. There was no accident or incident. As to the alleged injury of March 18, 1986, she testified that she did not even experience any symptoms at work. Claimant did not give a history of a work injury to Dr. Richards or suggest her leg pain and associated low back pain were associated in any manner with work activities. Dr. Richards did not state any cause, but described her symptoms again as disc syndrome and low back syndrome. Dr. Richards did not state that this injury was caused by claimant's work. Claimant did tell Dr. Carlstrom that she experienced pain at work and he recorded that she lifted as much as 50 pounds; however, Dr. Carlstrom did not relate any particular cause to her condition. Dr. Carlstrom did not state that claimant's ZUBER VS. STONE CONTAINER CORP. Page 10 injury was caused by her work. Riggs testified that claimant's husband told him that her March 18, 1986, symptoms were caused by lifting their daughter when claimant's husband arranged for her personal leave of absence on March 21, 1986; and that is why Riggs wrote on the form "back injury-not work related per Brian Zuber." Their daughter was born on September 20, 1985, and would have been six months old at that time. Claimant testified by deposition on October 21, 1986, that it hurt her back if she held her daughter for 15 or 20 minutes. Claimant admitted that she willingly paid her own health insurance premiums when she was on the personal leave of absence. Claimant and Dr. Richards jointly completed the Waiver on Account of Physical Defect. Dr. Richards asked claimant for the answers to the questions and completed the physician's portion of the form in the presence of and in conjunction with claimant. The form indicated that the onset for her condition was Christmas 1985 and that it was not job related. This is further evidence that the alleged injury of December 24, 1985, was not related to her employment as well as the injury of March 18, 1986. The implication is that neither injury was job related. Dr. Richards returned the form to claimant and she turned it over to employer. At no time, even at the hearing, did claimant assert that the form was incorrect or contained false or mistaken information. Dr. Richards was not called as a witness at the hearing nor was a deposition taken from him and introduced into evidence. Claimant admitted that the information she gave to the emergency room on December 26, 1985, to the effect that she had not had prior back or leg pain, was not correct. The record establishes that claimant was treated in 1982, 1983 and 1984 for back problems. Claimant, either alone or with her husband, filed several benefit request forms. Claimant maintained that these forms were for medical benefits and may have included such things as Pap smears. Since claimant was off work and receiving medical treatment it is most probable that these benefit request forms were related to this injury. These forms, which were signed by claimant, show that the claim was not for a condition related to employment and that they were not for an accident. Riggs testified that he first learned that a claim was being made for either work injury on June 3, 1986. It is noted that the original notice and petition was dated May 30, 1986, and was filed with the industrial commissioner June 2, 1986. Riggs testified that claimant's husband told him in March of 1986, when he filed the personal leave of absence form, that claimant's back condition was due to lifting the baby. No evidence was submitted from claimant's husband in any form. No depositions were taken from either Dr. Richards or Dr. Carlstrom. There are no medical reports which state the back and leg pains ZUBER VS. STONE CONTAINER CORP. Page 11 were caused by claimant's work or an injury at work on March 18, 1986. Wherefore, claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment with employer on March 18, 1986. The overwhelming evidence in the record is that claimant did not sustain an injury arising out of and in the course of her employment on March 18, 1986. FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant did not sustain an injury on either December 24, 1985, or March 18, 1986, which arose out of and in the course of employment with employer. That claimant did not report either injury to employer until June 3, 1986. That claimant did not give Dr. Richards a work history as a cause of her leg and back pain for either alleged injury. That Dr. Richards did not state that the cause of either injury was claimant's employment. That Dr. Richards attributed claimant's leg pain and back pain to disc syndrome and low back syndrome. That Dr. Carlstrom did record that claimant felt back and leg pain at work and she lifted up to 50 pounds, but that Dr. Carlstrom did not state that either alleged injury was the cause of claimant's back and leg pain. That claimant filed several benefit request forms immediately following both injuries and did not assert that her condition was related to her employment when she was given the opportunity to do so, but on the contrary, indicated a number of times after both alleged injuries that her condition was not related to her employment. That the emergency room record on December 26, 1985, indicates claimant denied an injury to her back and claimant did not testify this information was wrong or incorrect. That the Wavier on Account of Physical Defect was completed by Dr. Richards with information given to him by claimant, in the presence of claimant, the form is signed by claimant, and the form indicates that the condition originated at Christmas in 1985 and that it was not job related. ZUBER VS. STONE CONTAINER CORP. Page 12 That claimant was off work from December 24, 1985, to June 6, 1986, but she did not prove that it was due to a work related injury. That claimant was off work from March 18, 1986, to August 11, 1986, but she did not prove that it was due to a work-related injury. That claimant did not prove that she gave notice of the alleged injury of December 24, 1985, within 90 days or that employer had actual notice of this injury to her back. That claimant's testimony that her husband took the emergency room form to employer and delivered her request for personal leave of absence to employer did not indicate to employer that either condition was claimed to be due to a work-related injury. CONCLUSIONS OF LAW Wherefore, based upon the evidence presented and the principles of law previously discussed, the following conclusions of law are made. That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained an injury on either December 24, 1985, or March 18, 1986, which arose out of and in the course of her employment with employer. That claimant did not prove her times off work following each of these alleged injuries was due to a work-related injury. That claimant is not entitled to temporary disability benefits. That claimant is not entitled to medical benefits. That employer and self-insured defendant did sustain the burden of proof by a preponderance that claimant did not give timely notice as required by Iowa Code section 85.23 and that employer did not have actual knowledge of an injury. That the issue of whether defendants are entitled to a credit for the medical and hospitalization benefits paid and whether claimant is entitled to an offset for the health insurance premiums she paid is moot in view of the foregoing findings of fact and conclusions of law. ORDER THEREFORE, IT IS ORDERED: That no amounts are due to claimant from defendants for either alleged injury. ZUBER VS. STONE CONTAINER CORP. Page 13 That the costs of this action, including the cost of the transcript, are charged to claimant pursuant to Division of Industrial Services Rule 343-4.33 and Iowa Code section 86.19(l). That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 22nd day of August, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert Brennan Attorney at Law 600 United Central Bank Bldg Des Moines, Iowa 50309 Mr. William Scherle Attorney at Law 803 Fleming Bldg Des Moines, Iowa 50309 Mr. Harry Dahl Attorney at Law 974 - 73rd St. STE 16 Des Moines, Iowa 50312 51106; 51108.50; 51800; 52500; 52501; 52802 Filed August 22, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MERRI ZUBER, Claimant, File Nos. 821632 821633 VS. A R B I T R A T I 0 N STONE CONTAINER CORPORATION, D E C I S I 0 N Employer, Self-Insured, and AMERICAN MOTORIST INSURANCE CO.,: Insurance Carrier, Defendants. 51106; 51108.50; 51800; 52500 Claimant did not prove injury on either one of two dates. Claimant did not prove her times off work were caused by a work injury. Claimant did not prove entitlement to disability or medical benefits. 52501; 52802 Defendants proved that claimant failed to give timely notice and that they did not have actual notice.