BEFORE THE IOWA INDUSTRIAL COMMISSIONER LOIS I. BURKHARDT, Claimant File No. 821646 vs. A R B I T R A T I 0 N WILSON FOODS CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by Lois I. Burkhardt, claimant, against Wilson Foods Corporation, employer, and self-insured defendant, for benefits as the result of an alleged injury that occurred on or about April 24, 1986. A hearing was held in Storm Lake, Iowa, on November 2, 1988, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Lois I. Burkhardt, claimant, Donald E. Burkhardt, claimant's husband, Allan E. Fluke, manager of sales accounting, and Joint Exhibits 1 through 4. Exhibit 4 also has subparts 4A through 4G. Both attorneys submitted excellent briefs. STIPULATIONS The parties stipulated to the following matters. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the rate of compensation, in the event of an award, is $257.31 per week. That the medical bills are fair and reasonable and were incurred for reasonable and necessary medical treatment. That defendant is entitled to a credit under Iowa Code section 85.38(2) for the previous payment of $1600 of termination benefits paid to claimant prior to hearing. That defendant has paid no workers' compensation benefits to claimant prior to hearing. That there are no bifurcated claims. BURKHARDT V. WILSON FOODS CORPORATION PAGE 2 ISSUES The parties presented the following issues for determination at the time of the hearing. Whether claimant sustained an injury on or about April 24, 1986, which arose out of and in the course of her employment with employer. Whether the alleged injury is the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits, and if so, the nature and extent of benefits. Whether claimant is entitled to the payment of medical expenses. SUMMARY OF THE EVIDENCE The evidence was examined and considered. The following is a summary of the evidence most pertinent to this decision. Claimant was 53 years old at the time of the alleged injury and 55 years old at the time of the hearing. She graduated from high school in 1951 and attended Buena Vista College for a period of time. She studied teaching, but was unable to complete the course because of a lack of funds in order to do so. Claimant has not received any other educational or occupational training. After high school and college, claimant was employed as a bookkeeper for approximately one year before she was married. After her marriage, she had five children and also raised a child of her husband. During this period of time she worked at home as a homemaker, wife and mother. She began working outside of her home again in 1965. She was employed for one year in a supermarket. She then worked one year in a greeting card and gift shop as assistant manager doing bookwork, clerk work and ordering merchandise. She denied any prior accidents, illnesses or injuries. Claimant testified that employer called her to come out to the plant and apply for work. She was interviewed on April 1, 1967. She started to work on April 7, 1967, and gave up her prior employment at that time. Claimant said that she told them when she started that she could not handle a job out in the plant. Claimant testified that she passed a preemployment physical examination. Claimant's first job was as a cost clerk in the general business office where she figured labor costs on products made at the plant. She performed this job for two years. She then became the secretary to the superintendent and performed this job 40 hours a week for ten years. The company then adopted a point system. At that time she gave up her secretarial job and transferred to the industrial engineering department because it paid more points than the BURKHARDT V. WILSON FOODS CORPORATION PAGE 3 secretarial job. She performed labor cost work again with one other employee in the industrial engineering department until 1983. She testified that she was in good health at that time. Claimant testified that in 1983, she was told that her job had been discontinued and that she would have to take a job at lower pay out in the plant on the production line. At first, she was put on the ham line as the only job that she could do. Claimant testified that she asked if she could do several other jobs that came up from time to time, but she was told no on all of them. Claimant testified that she checked the quality and condition of hams for approximately one or two months on the ham line. This consisted of picking up each ham individually, checking it and putting it back down again. She was then transferred to the loin line. No reason was given for this transfer. They just said to do it. The loin line job consisted of pulling 80 pound boxes of cut loins off of the line, inspecting the loins and putting the box back on the line. Claimant testified that two younger women who were performing this job, refused to do it, and they were transferred into the office. She asserted that she tried to refuse the job because the boxes were too heavy and she had difficulty keeping up with the speed of the line. Jams would occur. She alleged that she was denied the opportunity to return to the office so she continued to do the loin line job for approximately one year. Claimant testified that it was at this time that she began to develop a nervous condition. The stress of various facets of her employment began to get to her. She could not sleep at night. She developed back problems and had to see the plant physician for shots. Sometimes she could not get out of bed. Her nerves could not handle the stress. She cried over everything and could not cope. After one year, a Mr. Jordahl (full name unknown) was instrumental in getting claimant back into the office in the credit department in 1985. Claimant maintained that Mr. Jordahl felt that claimant had been treated unjustly. In the credit department, claimant's job was to check the credit of purchasers of outgoing loads of meat. She handled shipping orders, bank drafts and performed bookkeeping and accounting functions. Claimant testified that she was able to perform this work, but that her nervous condition did not improve because of certain job pressures. Claimant alleged that she was pushed and pressed to perform more work than she was able to do. Claimant maintained that the attitude of Allan E. Fluke toward her created additional pressure. She asserted that he made her feel unwanted. Claimant alleged that at one time, Fluke told another employee, who had induced another woman to quit, why don't you get Lois to quit also. Claimant alleged that she was harassed by her superiors. Claimant testified that she thought that her job performance was satisfactory. Claimant testified that one day, in the latter part of April of 1986, her blood pressure became very high. It affected her vision and she could barely see to get home. Claimant testified that she had some blood pressure problems in the past, but that it had never been critical before. Her family physician, Thomas BURKHARDT V. WILSON FOODS CORPORATION PAGE 4 M. Gary, M.D., came to her house, and because of the severe nature of her condition he stayed with her to observe her for approximately two hours. Claimant said that Dr. Gary suspected a brain tumor because there was blood in her eyes. Claimant testified that she was off work for two weeks after this episode. She then returned to work before the doctor released her to return to work, because she was worried about her job. After she returned to work, she worked approximately one and one-half to two weeks and was then called in and told that she was terminated. She was short less than one year from qualifying for a retirement pension after 20 years of service. Claimant testified that she had performed 19 years and one month of employment service when she was terminated by employer. Dr. Gary later determined through a CT scan that claimant did not have a brain tumor. He said that her condition was stress related and that she was on the verge of a nervous breakdown. Dr. Gary placed her on two blood pressure medications--Maxzide and Vasotec. She has been required to take these medications ever since this episode in the later part of April of 1986. Claimant testified that Dr. Gary also prescribed Premarin, which is a hormone, for her nerves. Claimant admitted that Premarin is estrogen which is also taken after a hysterectomy and that she might have been taking this medication anyway. Claimant testified that Dr. Gary has recommended antidepressant medications, but that she cannot afford to pay for them. She added that Dr. Gary continues to be her treating physician for this condition. Claimant related that she still has headaches constantly and takes six or eight Tylenol tablets a day. Claimant testified that she also gets dizzy spells and that her equilibrium is off. She said that she is very nervous and cries easy. She has difficulty working at home because she cannot concentrate. She doesn't get much accomplished because she is so depressed. Claimant admitted that in the spring of 1986, approximately April or May, employer executed a drastic reorganization of the plant at Cherokee. The kill floor, cut floor and fresh meat operations were completely eliminated. Claimant denied that the amount of shipments or credit checks were reduced as the result of the reorganization. Claimant denied that her job was eliminated. Claimant denied that she was discharged because her previous job was transferred into the data processing department. Claimant alleged on the contrary that her job still existed and that someone else with less years of service than herself was doing it. Claimant admitted that she had instituted a civil rights action against employer shortly after she was terminated. The allegations made in the civil rights action include age discrimination, physical disability discrimination and the unfairness of her termination. Claimant maintained that the industrial engineering job and credit department job were still there. These jobs were not eliminated. Claimant insisted that this work or similar work was still being performed by other employees in the office at the time of hearing. Claimant admitted that after her termination she operated an antique shop part-time in a vacant building that she and her BURKHARDT V. WILSON FOODS CORPORATION PAGE 5 husband owned. It was just something to help keep her mind busy--a hobby. It was not profitable. Actually, it lost money every year and the shop was closed in the summer of 1988. Claimant reasserted that her nervous condition and her high blood pressure condition were caused by job pressures which culminated in her eventual termination of employment just a few months prior to her eligibility for retirement. Claimant testified that she thought her nervous problem started in 1983 when she was told she would have to take a lower paying job performing physical labor out in the plant working on the production line. The pressure started then and gradually got worse from there. Donald H. Burkhardt, claimant's husband of 34 years, corroborated the change of her condition from a happy person to a very nervous person. She cries a lot and breaks down easy. She had headaches and double vision. She has lost her energy and spark for life. Previously she was happy with her job. The antique venture was just a hobby in some vacant property to help keep her busy. She did not really work at it. It was not profitable. The venture has been discontinued. Allan E. Fluke testified that he is the manager of sales accounting at the headquarters of employer in Oklahoma City. He has performed this job since July of 1986. Before that, Fluke was controller at the Cherokee plant for one to one and one-half years. Before that, he was the assistant controller at Cherokee. He did not directly supervise claimant, but ultimately she answered to him. Claimant was in the industrial engineering department when Fluke came to Cherokee. Fluke testified that a lot of work was put on the computer. A person had to be eliminated. Claimant was that person. Fluke added that a major restructuring occurred in the spring of 1986. The kill floor and the cut floor were eliminated. After that, the plant had no fresh meat to sell. Even before that, the company began using distribution centers. The Kansas City distribution center greatly reduced the number of outside orders and the need for credit checks by claimant. Over time, outside sales were reduced from 95 percent to 5 percent. Fluke testified that claimant's job was eliminated for this reason and what remained of it was transferred to the data processing department. Fluke denied that he ever stated that he wished claimant would resign. Defendant marked defendant's exhibit A for identification, which is a memo which eliminated the credit associate job as a part of the major plant reorganization. Claimant objected to the introduction of this exhibit because it had not been served upon her prior to hearing. Claimant's objection was sustained because the document was not served within 15 days prior to hearing as required by paragraph six of the hearing assignment order. Defendant stated that he did not want to put the exhibit in the record as an offer of proof. Fluke testified that he was one of the persons involved in BURKHARDT V. WILSON FOODS CORPORATION PAGE 6 the decision to discharge claimant. The other persons involved in the decision were the plant manager and the controller. The ultimate decision to terminate claimant was made by the plant manager. Fluke denied that claimant was discharged because of her physical condition. Fluke said that it was discussed that claimant was a long-term employee. Fluke testified that the nearness of claimant's eligibility to a pension was discussed. Fluke said the fact that claimant had a nervous breakdown was not discussed. Fluke said that he did know if the plant manager knew that claimant had suffered a nervous breakdown. This matter was not discussed. Fluke indicated the plant manger should have known this because they all worked in a small office with only 13 employees in it. Fluke testified that he personally knew for a long time that claimant was an emotional person and a nervous person with emotional problems. Fluke said that claimant was happy to get back into the office a year earlier and that she did not complain about her job. Fluke said that he was not aware of any harassment of claimant by any of her superiors. Fluke testified that claimant's nervous condition did not enter into the decision to terminate lier. He asserted that this decision was simply part of a major plant restructuring. This reorganization affected the production line and the office staff. Hundreds of jobs were eliminated and not replaced. The credit coordinator job was eliminated from the structure. Fluke testified that there was no written policy to consider seniority when terminating employees. The medical evidence begins with Dr. Gary's office notes of May 1, 1986, at 8 a.m. showing that claimant still had headaches, her eyes were no better and she felt pressure on the top of her head. Her blood pressure was 164/100. Dr. Gary also saw claimant again on May 1, 1986, for headache, conjunctivitis, vertigo, ringing of ears and shortness of breath. His diagnosis was hypertension. He prescribed Maxzide and Vasotec. Her blood pressure was recorded at 156/92. Dr. Gary noted on May 5, 1986, that an EKG was within normal limits. The blood pressure reading was 130/92. On May 8, 1986, claimant continued to have severe frontal and occipital headaches, nausea and bilateral vertigo and bilateral conjunctivitis. Dr. Gary commented that the blood pressure was controlled, but that he suspected a brain tumor and ordered a CAT scan. Later on May 8, 1986, he noted that the CAT scan was normal with respect to the brain. On May 13, 1986, claimant was much improved. She had no further headaches and her eyes and conjunctivitis had cleared. Blood pressure.readings were 146/90 and 130/82 in the right arm. On May 27, 1986, Dr. Gary noted that claimant had been terminated from her employment and that many of her symptoms had returned. Her blood pressure was 152/92. She had dizziness, nausea, loss of balance and conjunctive redness again. A portion of his office note from May 27, 1986, reads as follows: Lois is seen follow-up. She is under a lot of stress recently. Friday she was just informed that her job BURKHARDT V. WILSON FOODS CORPORATION PAGE 7 was terminated and she has really minimal benefits. She is about seven months from reaching retirement and length of service and I can appreciate her frustration and anger. Unfortunately it aggravates both her headache situation and her hypertension. It is explained to her that she should try and cope in the best manner satisfactory. Several suggestions are offered. I would have her increase her Vasotec to 5 mg. b.i.d. continue her Maxzide one daily. She should have her blood pressure checked in a week and then will see her in two weeks. (Exhibit 3, page 2) On June 3, 1986, claimant's blood pressure was 122/86. She complained of headache, mostly pressure. On June 13, 1986, claimant's blood pressure read 132/84. Dr. Gary said that she still had a lot of stress from the loss of her job. She still had tension headache, but it was some better. On July 14, 1986, claimant's blood pressure was 142/90. Most of her symptoms were better except for her eyes. Dr. Gary summarized claimant's situation by a letter dated November 13, 1986. It reads as follows: Please see copy of my office notes from May 1, 1986 BURKHARDT V. WILSON FOODS CORPORATION PAGE 8 through the present. Lois has been under a lot (sic) of stress with the job situation and I do think that it is causally related to her hypertension problem and associated symptoms, as this seemed to be well controlled until the situation deteriorated at work. (Ex. 1) On August 11, 1987, Dr. Gary performed a yearly physical assessment. The blood pressure reading is slightly obliterated but it appears to say 150/90. Dr. Gary made these entries in his notes: Lois is seen for yearly physical assessment. She still continues to have a lot anxiety, insomnia, restlessness, and generalized feeling poor with some cephalgia since her dismissal from Wilson's. She has put in multiple job applications but has not been successful in obtaining any job. There apparently have been some openings at Wilson's but she was not called back. She continues to do her antique shows and run her store on a parttime (sic) basis. Lois does not like to take any medications because of feeling that they may have adverse effects on her body. She is trying to cope with her symptoms pretty much on her own through self-help and through friends and family. Other problems is that she does not feel like she could afford to take medicines that are quite expensive. She does take about 2 to 6 Tylenol per day for her headaches. She has been taking her blood pressure medicine which is Vasotec 5 mg. b.i.d. She does when she gets under stress develop hives and she takes the Benadryl for this. Occasionally she does develop the redness of her eyes, conjunctivitis when she is emotionally labile and tearful. She continues to take her Premarin 625 25 days out of the month. Review of systems is otherwise essentially negative. Physical findings reveal a pleasant women (sic) who is in no acute distress. (Ex. 3, P. 4) On August 14, 1987, Dr. Gary summarized claimant's condition in a letter as follows: Enclosed find a copy of my recent office visit on Lois. Mrs. Burkhardt continues to have a stress reaction related to her termination at Wilson's. She has tried to accept it and cope as best she can, but she has been frustrated in her attempts to achieve other employment and also her self-confidence and self-esteem is at a low point since this happened. Mrs. Burkhardt should be on medication because of the job related condition, but because of financial reasons she has not been taking may medication. (Ex. 2) Exhibit 4 reads as follows: BURKHARDT V. WILSON FOODS CORPORATION PAGE 9 LOIS BURKHARDT UNPAID BILLS Dr. Gary $330.75 Valley Pharmacy $275.10 Drug Town $549.26 (copies sent later) Exhibit 4A is an adding machine tape with "Dr. Gary" hand written at the top of a column of numbers. It reads as follows: 25.00 14.00 41.00 14.00 14.00 14.00 14.00 24.00 14.00 50.00 6.00 15.50 45.25 290.75* Exhibit 4B is a detailed medication bill. The name of the pharmacy is not on the bill. The prescription total $235.63 is for Maxzide, Vasotec and opthalmic solution. Claimant identified that bill at the hearing as being from Valley Pharmacy. Exhibit 4C and 4D are detailed bills for medications from Drug Town in the amounts of $101.64 and $378.76 respectively for Premarin, Maxzide and Vasotec. Exhibit 4E is a detailed bill from Drug Town for Premarin in the amount of $14.21 and Ativan in the amount of $7.25. The final total is $21.46. Ativan is an antidepressant medication. Exhibit 4F shows two bills from Drug Town. One is for Maxzide in the amount of $14.75 and the other is for Vasotec in the amount of $37.68. Exhibit 4G is three bills from Valley Pharmacy: (1) Premarin $6.51, (2) Maxzide - $14.79, and (3) Prinivil - $18.17. Prinivil is a hypertension medication. 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 injury on April 24, 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. BURKHARDT V. WILSON FOODS CORPORATION PAGE 10 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 "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. The claimant has the burden of proving by a preponderance of BURKHARDT V. WILSON FOODS CORPORATION PAGE 11 the evidence that the injury of April 24, 1986, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.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, 261 Iowa 352, 154 N.W.2d 128. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591. Claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury on or about April 24, 1986, which arose out of and in the course of her employment with employer. There is no evidence to the contrary. Claimant testified that she began having nervous problems in 1983. At that time, she had 15 years of service with employer. She had always performed office or secretarial work. At that time, she was told she would have to take a job as a production line employee out in the plant. Claimant testified that when employer called her in for the initial employment interview in 1978, and before she gave up the job that she was doing at the gift shop in order to become a cost clerk with employer, she told employer that she could not handle a job out in the plant. Under the foregoing facts, it is not unusual that claimant began to experience problems with her nerves when she was put on the ham line at approximately age 50 after 15 years of clerical work in the office. It would have been more unusual if claimant had not experienced problems of some type under these facts. The ham line job was followed by the loin job which consisted of pulling 80 pound boxes of loins off the line, BURKHARDT V. WILSON FOODS CORPORATION PAGE 12 inspecting the loins and putting the boxes back on the line. The loin line job appears to be more strenuous than the ham line. Claimant testified that the loins were top heavy for her and that she could not keep up with the pace of the line. Jams occurred which added to her stress. Claimant testified that she identified other job vacancies in the plant that she could perform, but she was told no on all of them. Claimant testified that two younger women working on the loin line refused to do it and they were given jobs in the office. When she tried to refuse the job and obtain a more suitable job, she was denied the opportunity to transfer. This evidence in uncontradicted. Claimant was credible. it would be more unusual if claimant's frustration and nerve problem was not increased in light of these circumstances. Claimant eventually did get back into the office in 1985; however, her problem with her nerves continued. She said that she was assigned more work then she could do. The attitude of Allan Fluke created pressure on her. She alleged that Fluke and other employees made hurtful comments about her. Fluke denied that he stated that he wished that she would resign. Fluke denied that he was aware of any harassment by other superiors. Claimant testified that she had some blood pressure symptoms in the past but they had never been critical before. Claimant related that on or about April 24, 1986, her blood pressure became so high that it affected her vision. She was forced to leave work for the first time and remain off work for two weeks. About one to one and one-half weeks after she returned to work, she was told that she was terminated. She had accumulated 19 years and one month toward lifetime retirement benefits. She only needed 11 more months of employment with employer to qualify for a lifetime retirement income after 20 years of employment service. Claimant had devoted over 19 years of her employment service to this employer and the meat packing industry. This was a major portion of her entire adult working lifetime. At her age it was not feasible to start over in the employment market and now acquire twenty years to qualify for a similar retirement program with some other employer. Less than one year short of her retirement eligibility she was discharged. Her job security and financial security, at that time and in the future, were summarily extinguished at a time when her physical health was already precariously threatened due to insecurity and instability in her employment situation during the previous three years. It is not unusual that claimant developed high blood pressure, dizziness, ringing in the ears, shortness of breath, headaches, nausea and conjunctivitis. It would have been more unusual if claimant had not manifested physical symptoms due to the trauma of her employment situation and the peremptory unexpected loss of lifetime retirement benefits. It is fortunate for both parties that claimant's physical response to this action on the part of employer in the later years of her life was not worse than what did happen to her. Claimant's medical history is well documented. It is the only medical evidence in this case. Her blood pressure readings from May 1, 1986 to May 27, 1986 showed that her blood pressure BURKHARDT V. WILSON FOODS CORPORATION PAGE 13 was being reduced and controlled. Dr. Gary said in his letter of November 13,.1986, that her hypertension and associated symptoms seem to be well controlled until the situation deteriorated at work when she was terminated (Ex. 1; Ex. 3, p. 4). In his letter of November 13, 1986, Dr. Gary said that claimant's job situation was causally related to her hypertension and associated problems (Ex. 1). In his office note of May 27, 1986, Dr. Gary said that claimant's job termination with minimal benefits just a few months before reaching retirement aggravated her headache situation and her hypertension (Ex. 3, p. 2). On June 13, 1986, Dr. Gary said that claimant still had a lot of stress from the loss of her job (Ex. 3, p. 2). On August 11, 1987, Dr. Gary said she continued to have a lot of anxiety, insomnia, restlessness and generalized feeling poor with some cephalgia since her dismissal from Wilson's (Ex. 3, p. 4). On August 14, 1987, Dr. Gary flatly stated, "Mrs. Burkhardt continued to have a stress reaction related to her termination at Wilson's". He added, "Mrs. Burkhardt should be on medication because of the job related condition, but because of financial reasons she has not been taking any medication". (Ex. 2). Claimant's blood pressure readings decreased and became under control after she started treating with Dr. Gary up until the time of her termination. These reading were as follows: May 1, 1986 164/100 May 1, 1986 156/92 BURKHARDT V. WILSON FOODS CORPORATION PAGE 14 May 5, 1986 130/92 May 8, 1986 112/80 May 13,1986 130/82 After her termination, her blood pressure reading shot up and went out of control again. The readings are as follows: May 27, 1986 152/92 June 3, 1986 122/86 June 13, 1986 132/84 July 14, 1986 142/90 Fluke testified that claimant was arbitrarily terminated because the need for her job was eliminated in a massive reorganization. The portion of her job that was not eliminated was transferred to the data processing department. Claimant insisted that there are employees at the plant that are still doing essentially the same work that she used to do. Fluke testified that he knew, and that it was generally known in their small office of only 13 employees, that claimant was a nervous person and manifested emotional problems for a long time. He indicated that claimant's physical health and her physical disability were not taken into consideration at the time it was decided to terminate her. Fluke testified that it was known that claimant was a long-term employee, but he testified that her proximity to retirement and eligibility for a pension were not taken in to consideration at the time she was terminated. Fluke testified that claimant's age was generally known, but that her age was not taken in to consideration at the time it was decided to terminate her. Fluke stated that there was no written policy to consider seniority when terminating employees. Claimant's testimony and the information from Dr. Gary concerning claimant's physical health and its relationship to her employment is not disputed, contradicted or controverted. Hypertension, cephalgia, tinnitus, vertigo, nausea and conjunctivitis are all physical conditions. The only evidence in this case was that they were caused by claimant's employment. Dr. Gary said the hypertension and associated symptoms were aggravated by her work situation and due to the work situation she should be taking medications (Exs. 1 & 2). Therefore, claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury on or about June 24, 1986, which arose out of and in the course of her employment with employer. Claimant testified that she lost two weeks from work. However, there is no medical evidence that Dr. Gary, her treating physician and the only doctor in this case, either took her off of work or returned her to work. Therefore, claimant has not sustained the burden of proof by a preponderance of the evidence that she sustained any temporary disability. Therefore, claimant is not entitled to temporary disability benefits under chapter 85 of the Code of Iowa. BURKHARDT V. WILSON FOODS CORPORATION PAGE 15 Dr. Gary did not state that claimant was permanently impaired; nor did he give her a permanent impairment rating. Therefore, claimant has not sustained the burden of proof by a preponderance of the evidence that she sustained a permanent disability. Therefore, claimant is not entitled to permanent disability benefits under chapter 85 of the Code of Iowa. Claimant is entitled to the payment of so much of Dr. Gary's bill that is causally connected to this injury. Defendant stipulated that the medical bills are fair and reasonable an that they were incurred for reasonable and necessary medical treatment. Defendant asserted, however, that he did not concede that any of the medical expenses were causally connected to this injury. Claimant did not submit any itemized medical bills from Dr. Gary. Therefore no determination can be made as to what portion of Dr. Gary's medical bills are causally connected to this injury. It is not likely that claimant's yearly physical assessment on August 11, 1987, which appears to be an annual physical examination was caused by this injury. Exhibit 4 states that Dr. Gary's charges amount to $330.75. A parenthetical remark at the bottom of this itemization says that copies will be sent in later. If copies are sent in later they cannot be considered in the determination of this case. Division of Industrial Services Rule 343-4.31 provides that, "No evidence shall be taken after the hearing". Furthermore, the $330.75 figure on Exhibit 4 conflicts with the adding machine tape tabulation of Dr. Gary's charges which total $290.75 at exhibit 4B. Consequently, it is not possible to make a determination on how much of Dr. Gary's bills are causally connected to this injury and how much medical expense was actually incurred with Dr. Gary on account of this injury. Claimant has sustained the burden of proof by a preponderance of the evidence that she is entitled to all of her medication expenses shown on exhibits 4B through 4G. All of these bills are itemized. Almost all of these prescriptions are mentioned by Dr. Gary in his office notes (Ex. 3, pp. 1-4). The opthalmic solution was obviously for conjunctivitis. Even though the Premarin may or may not have been taken anyway as a post-hysterectomy medication, claimant testified that Dr. Gary prescribed it specifically for the nervous condition caused by this injury. This testimony is not controverted. Ativan, as shown on exhibit 4E is for nervousness and anxiety and Prinivyl on exhibit 4G is for hypertension. Therefore, these two medications should also be allowed. The total medical expenses for which claimant is entitled are as follows: Exhibit 4 Valley Pharmacy $235.63 Exhibit 4C Drug Town 101.61 Exhibit 4D Drug Town 378.76 Exhibit 4E Drug Town 21.16 Exhibit 4F Drug Town 52.43 Exhibit 4G Valley Pharmacy 39.47 TOTAL $829.06 In addition, claimant is entitled to future medical expense BURKHARDT V. WILSON FOODS CORPORATION PAGE 16 and prescription drugs for the treatment of what Dr. Gary described as hypertension and associated symptoms (Ex. 1). FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant was employed by employer from April 7, 1978, until she was terminated in approximately July of 1986. That on or about April 1, 1978, employer solicited claimant to come to the plant and interview for employment with employer. That claimant gave up her previous employment and started to work for employer with the understanding that she would be doing office work for the reason that she would not be able to handle work on the production line in the plant. That claimant worked in the office at clerical jobs for approximately 15 years until 1983. That, in 1983, claimant was told that her job in the industrial engineering department was eliminated and that it would be necessary for her to work on the production line in the plant. That in 1983, claimant was 50 years of age and had never performed production line work. That on the production line claimant was required to lift 80 pound boxes of meat which she stated were too heavy for her and that she could not keep up with the speed of the line and jams occurred. That claimant developed problems with her nerves and her blood pressure at this time. That in 1984, claimant was reassigned to the office, but testified that she continued to be under a great deal of pressure because more work was assigned then she was able to do, she was made to feel unwanted and she was harassed by remarks of her superiors. That in approximately the later part of April of 1986, claimant suffered an episode of high blood pressure and associated symptoms and contacted her family physician, Dr. Gary. That claimant was terminated by her employer in approximately July of 1986, less than one year before she qualified for a lifetime retirement pension for 20 years of employment service. That claimant was terminated without any consideration to the effect of this action on her health. That subsequent to the termination, claimant's hypertension and associated symptoms increased and became worse and it became necessary for claimant to take several prescription drugs. BURKHARDT V. WILSON FOODS CORPORATION PAGE 17 That claimant did sustain an injury on or about April 24, 1984, which arose out of and in the course other employment with employer. That Dr. Gary, the treating physician and only physician in this case, stated that claimant's hypertension and associated symptoms were caused by her employment. That Dr. Gary stated that claimant's need for prescription medications was caused by her employment situation. The appearance and demeanor of all individuals who testified was observed. Claimant's testimony is determined to be accurate and more accurate than conflicting testimony from any other witness. 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 sustain an injury on or about April 24, 1986, which arose out of and in the course of her employment with employer. That the injury was not proven to be the cause of any temporary or permanent disability. That claimant is not entitled to any temporary or permanent disability benefits. That claimant is entitled to medical expenses in the amount of $829.06 for prescription drugs; that the portion of Dr. Gary's bill causally connected to this injury cannot be determined from the evidence presented; and that claimant is entitled to continued medical expenses for the hypertension and associated symptoms. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant eight hundred twenty-nine and 06/100 dollars ($829.06) in medical expenses. That this amount is to be paid in a lump sum. That interest does not accrue on medical expenses pursuant to Iowa Code section 85.30. That the costs of this action are charged against defendant pursuant to Division of Industrial Services Rule 343-4.33. That defendant file claim activity reports as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. BURKHARDT V. WILSON FOODS CORPORATION PAGE 18 Signed and filed this 22nd day of December, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Harry Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. David Sayre Attorney at Law 233 Pine St. P.O. Box 535 Cherokee, IA 51012 1106; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 1801; 1802; 1803; 2505; 2602 Filed December 22, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LOIS I. BURKHARDT, Claimant, File No. 821646 vs. A R B I T R A T I 0 N WILSON FOOD CORPORATION, D E C I S I 0 N Employer, Self-Insured, Defendant. 1106; 1108.50; 1402; 1402.20; 1402.30; 1402.40; 1402.60 Claimant did sustain the burden of proof by a preponderance of the evidence that she sustained an injury arising out of and in the course of employment. Claimant was initially hired as an office employee. At age 50 and after 15 years of service employer transferred claimant to the production line in the plant. Claimant developed hypertension, cephalgia, tinnitus, vertigo, nausea, and conjunctivitis. Claimant's treating physician and the only physician in the case said the employment caused these problems. Claimant was then terminated with 19 years and one month of service and only 11 months short of qualifying for a lifetime pension after 20 years of service and continued to have these problems after her termination. Claimant's symptoms were considered to be physical injuries and not stress injuries. 1801; 1802; 1803 Claimant was not awarded temporary disability benefits because there was no medical evidence taking her off work or returning her to work for the period of time of about two or three weeks that she was off work. Claimant was not awarded any permanent disability benefits because she did not prove an impairment rating or any other objective evidence that she could not work other than her own subjective testimony and economic conditions. 2505; 2602 Claimant awarded $829.06 for medications which were proven. No award could be made for the doctor because no itemized bills were presented and claimant introduced two numbers as the amount of doctor's bill and there was no way to determine which amount was correct or how much of it was causally connected. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM E. SMITH, Claimant, vs. File No. 821647 BOYS & GIRLS HOME/FAMILY A R B I T R A T I O N SERVICES, D E C I S I O N Employer, and CONTINENTAL INSURANCE COMPANY, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by William E. Smith, claimant, against Boys & Girls Home/Family Services, employer (hereinafter referred to as Family Services), and Continental Insurance Company, insurance carrier, for workers' compensation benefits as a result of an alleged injury on August 4, 1985. On June 21, 1988, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and his wife, Janice. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On August 5, 1985, claimant received an injury which arose out of and in the course of employment with Family Services; 2. Claimant is entitled to temporary total disability or healing period benefits from August 9, 1985 through August 11, 1985 and claimant is not seeking additional temporary total disability or healing period benefits in this proceeding; 3. If permanent disability benefits are awarded herein, they shall begin as of August 12, 1985; and, 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $75.50 per week. SMITH V. BOYS & GIRLS HOME/FAMILY SERVICES PAGE 2 ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disability; II. The extent of claimant's entitlement to weekly benefits for permanent disability; and, III. The extent of claimant's entitlement to medical benefits. SUMMARY OF THE EVIDENCE Pursuant to order of the undersigned, each party prepared and filed a "Statement of Facts Relied Upon" to simplify the writing of this decision. These statements are attached and incorporated into this summary as if fully set out herein. Whether or not specifically referred to in these statements, or in the following brief summary prepared by the undersigned, all of the evidence received at the hearing was independently reviewed and considered in arriving at this decision. Any conclusionary statements in the following summary should be considered as preliminary findings of fact. Briefly, claimant testified that he fell from a retaining wall while working at the Boys & Girls Home operated by Family Services. Claimant worked as a maintenance person and while attempting to remove a marijuana plant at the direction of his superiors, he fell and landed on a concrete driveway striking his head and his left arm and hand. Claimant said that he briefly lost consciousness and was taken to a local hospital for medical treatment. Claimant's physicians at the hospital found that claimant suffered from the following multiple injuries: cerebral contusion, laceration of the left forehead above the eye, contusion of the left hand and contusion abrasion of the right knee. Claimant remained in the hospital for a brief time for observation as they found blood in his urine. Claimant was released to return to work on the following Monday, August 12, 1985 and claimant did, in fact, return to work at that time. Although not stated in the release, claimant said that he was restricted, at least temporary, from climbing by his physician. A few days after the fall, claimant complained of facial numbness and was referred for evaluation by a neurosurgeon, Keith McLarnan, M.D. According to his report in evidence, Dr. McLarnan found a partial neuropathy of the facial nerves of the left side about the nose and lip. Claimant expressed concern to him about weakness of the face but the doctor indicated that this neuropathy would not result in palsy or weakness of the face. Claimant said that his numbness has caused problems shaving in that he cannot feel when he is cut by his shaving razor and also was advised by his physician not to wear his upper false teeth because he cannot detect sores due to a loss of feeling in his gums. Claimant was treated by a chiropractor, R. Sprague, D.C., in July, 1985, October, 1985 and again in August, 1987, primarily for low back pain which claimant said, in his deposition, has plagued him since an auto accident in 1972. Dr. Sprague stated SMITH V. BOYS & GIRLS HOME/FAMILY SERVICES PAGE 3 in his report that claimant complained to him of left hand tingling and numbness along with neck, arm and shoulder problems since October, 1985. However, he added that he did not treat claimant for these complaints and had no prognoses or diagnosis of these complaints. Claimant testified that he claims that his facial numbness, left arm and hand numbness, a loss of hearing and his neck problems are attributable to the 1985 fall at Family Services. Claimant contends that his physicians have causally connected the hearing loss to the fall. However, there are no medical reports to verify this claim. Claimant testified that his past employment primarily consists of a multitude of manual labor jobs. Claimant is 50 years of age and said that he completed only the fifth grade. Claimant states that he has difficulty comprehending written materials and is a very poor speller. According to claimant, he was terminated by Family Services in April, 1986 because they were not satisfied with the quality of his work and were worried about his bronchitis condition. Claimant denies having any prior problems with his left arm, face, hearing or neck before the work injury herein. Claimant has had continuing difficulties with chronic bronchitis and asthma. Claimant said that he has unsuccessfully looked for work since leaving Family Services. Claimant said that he lists bronchitis/asthma and low back problems as two possible impairment problems in his employment applications. Claimant is currently working with his wife in a family roofing and snow removal business. Claimant contends that his disability adversely affects his ability to earn income from these businesses. He states that he is slower now in applying roofing shingles and must restrict his activities in cold weather due to an inability to detect frost bite on his face. Claimant's vocational rehabilitation counselor reported that claimant may have some difficulty dealing with customers due to the fact that he is unable to wear his upper false teeth. APPLICABLE LAW AND ANALYSIS I. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a 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 was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of SMITH V. BOYS & GIRLS HOME/FAMILY SERVICES PAGE 4 experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, claimant has established by the greater weight of evidence presented a causal connection of the work injury to his facial numbness. This condition appears to be permanent and results in functional impairment against working in below freezing temperatures. The evidence was too sketchy to find a causal connection of his hearing loss or his neck or shoulder problems to the work injury. His complaints and symptomatology after the injury alone without treatment and without supportive causal connection medical opinions does not alone establish the causal connection. Also, it is difficult to separate functional impairments allegedly caused by these conditions from his long-standing low back problems. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors 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 SMITH V. BOYS & GIRLS HOME/FAMILY SERVICES PAGE 5 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. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant's medical condition before the work injury was not excellent and he had severe low back problems since 1972. Claimant also has had severe bronchitis and asthma problems before August, 1985. Both of these conditions are disabling and remain disabling today according to claimant's own testimony. Claimant has shown that his ability to earn a living has been mildly affected by his facial paralysis due to an inability to work in cold weather and difficulties in dealing with the general public due to an inability to wear upper false teeth. This condition, however, for the most part does not prevent him from returning to his former work or to most other work he has performed in the past. Claimant is 50 years of age and due to a lack of education is not a good candidate for retraining. However, retraining was not necessitated by this work injury. Claimant has not shown a great deal of motivation to seek employment outside of his self-employment business. After examination of all the factors found as a matter of fact that claimant has suffered a five percent loss of earning capacity from his work injury. Based upon such a finding, claimant is entitled as a matter of law to 25 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is five percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. According to the prehearing report, claimant seeks only the payment of the unpaid charges from Thomas L. Coriden, M.D., between August 8, 1985 and August 27, 1986. Dr. Coriden treated claimant immediately after the injury and is also claimant's family physician. The bill submitted does not describe the treatment given for the charges. One of the charges was for claimant's wife. It appears that various amounts have been paid on this bill by some entity since 1985. Claimant did not discuss these charges at hearing or the bill which is exhibit 12. Consequently, there was no evidence offered at the hearing upon which to base any finding that the unpaid charges are related to the work injury. In the prehearing report, claimant requests an order directing defendants to designate a treating physician for claimant's sinus and shoulder problems. Neither of these conditions were found to be work related. Defendants, however, are directed to designate a physician for claimant's facial and denture problems which are work related. FINDINGS OF FACT 1. The work injury of August 5, 1985 was a cause of a mild permanent partial impairment to the facial nerves and of SMITH V. BOYS & GIRLS HOME/FAMILY SERVICES PAGE 6 permanent restrictions upon claimant's physical activity consisting of limited work in subzero temperatures. 2. The work injury of August 5, 1985 and the resulting permanent partial impairment was a cause of a five percent loss of earning capacity. Claimant's medical condition before the work injury was not excellent and he had severe low back pain since 1972. Claimant has had severe bronchitis and asthma problems before August, 1985. Both the lung problems and the low back problems are disabling and remain so today. Claimant's ability to earn a living has been mildly affected by his facial paralysis caused by the work injury due to an inability to work in cold weather and difficulty in dealing with the general public from an inability to wear upper false teeth. This condition, for the most part, does not prevent claimant from returning to his former work or most other work he has performed in the past. Claimant is 50 years of age and, due to his lack of education, is not a good candidate for retraining. However, retraining was not necessitated by this work injury. Claimant has not shown a great deal of motivation to leave his current roofing and snow removal business. This aspect has also adversely affected his earning capacity which would be unrelated to the work injury. 3. Claimant is in need of continuing treatment for his work related facial numbness and denture problems. CONCLUSIONS OF LAW SMITH V. BOYS & GIRLS HOME/FAMILY SERVICES PAGE 7 Claimant has established under law entitlement to the specific disability and medical benefits awarded below. ORDER 1. Defendants shall pay to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of seventy-five and 50/100 dollars ($75.50) per week from August 12, 1985. 2. Defendants shall designate a treating physician and/or specialist for the facial numbness and denture problems due to his facial paralysis. 3. Defendants shall pay accrued weekly benefits in a lump sum. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 9th day of December, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Attorney at Law P. O. Box 1194 Sioux City, Iowa 51102 Mr. G. Daniel Gildemeister Ms. Alice S. Horneber Attorneys at Law 400 1st National Bank Bldg. P. O. Box 1768 Sioux City, Iowa 51102 1800 Filed December 9, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILLIAM E. SMITH, Claimant vs. File No. 821647 BOYS & GIRLS HOME/FAMILY A R B I T R A T I O N SERVICES, D E C I S I O N Employer, and CONTINENTAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1800 Only a portion of claimant's complaints were found to be work related, however, one of the complaints of facial numbness was found to cause a small amount of industrial disability as a result of an inability to work in cold weather and difficulty in dealing with customers in a small business due to an inability to wear dentures. Defendants were ordered to provide a treating physician for the facial numbness and denture problems. 5-2209 January 16, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS ALLAN ZOCH, File Nos. 821611 & 804579 Claimant, A R B I T R A T I 0 N vs. D E C I S I 0 N WILSON FOODS CORPORATION, Employer, Self-Insured, Defendant. 5-2209 Claimant is entitled to four percent permanent partial disability as the result of two work related injuries sustained on September 16, 1985 and on May 3, 1986. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WANDA HAWORTH, Claimant, File Nos. 821734 & 804588 vs. A R B I T R A T I O N WILSON FOODS CORPORATION, D E C I S I O N Employer, Self-Insured, F I L E D and FEB 22 1989 SECOND INJURY FUND OF IOWA, IOWA INDUSTRIAL COMMISSIONER Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Wanda Haworth Cedar, claimant, against Wilson Foods Corporation, self-insured employer, and the Second Injury Fund of Iowa, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of injuries sustained on March 27, 1985, August 30, 1985, and January 17, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner on the 22nd day of August, 1988 at the Buena Vista County Courthouse in Storm Lake, Iowa. The record in this case consists of claimant's exhibits 3-31 and defendant's exhibit B. Also in the record is the testimony of claimant and the testimony of Thelma Rimmer. ISSUES Pursuant to the prehearing report submitted and approved on August 22, 1988, the issues presented are: 1) Whether claimant sustained an injury on January 17, 1986 which arose out of and in the course of employment with employer; 2) Whether there is a causal relationship between the alleged injury and the disability; 3) Whether claimant is entitled to permanent partial or total disability benefits; and, 4) Whether claimant is entitled to benefits from the second injury fund. The parties stipulated that as of August 22, 1988, claimant had no permanent partial disability or an industrial disability because of any back injury allegedly occurring on August 30, 1985. FACTS PRESENTED Claimant, age 32, testified she graduated from high school. She is married and she has two children in her custody. Since graduation from high school, claimant had been employed as a check-out operator, a dry cleaning attendant, a temporary employee scooping grain from bins, a waitress, and she had voluntarily worked for nearly four years as an emergency medical technician. Claimant had also been employed by IBP from October of 1982 until February of 1984 where she earned $6.50 per hour. In October of 1984, claimant began working at defendants' place of business. She started at a rate of $6.00 or $6.50 per hour. Claimant's first assignment was to pull the black gut from sows. She performed this task until January of 1985. At that time, claimant was reassigned. She was required to shave front hams, shave hair from the ham and cut the Shackleforth mark with a chain glove and an arm guard. Claimant performed this task with her left hand for eight hours per day. Claimant also shaved eyelids using a wizard knife where she shaved between 300 to 600 animals per hour. Claimant testified that in March of 1985, she sustained a carpal tunnel injury to her left hand. Claimant stated she was off work in June and July of 1985 and that her hand was 10 percent disabled. An agreement for settlement was approved by the Division of Industrial Services in September of 1985. Claimant reported she returned to work in August of 1985 where she was engaged in "dropping heads." Claimant testified she was required to cut heads from the animal bodies, with the exception of a piece of skin. Claimant described the process. She was required to grip a knife in her left hand. She grabbed the animal ear with her right hand. She wore an arm guard but no mesh glove. She made six to eight cuts on the hog head. Claimant stated she worked at a height near waist level. On January 17, 1986, claimant stated she felt her right hand going numb. She testified her hand had tingled, she could not grip, and her hand had fallen asleep. On January 17, 1986, claimant recalled, she visited with the plant physician, Keith 0. Garner, M.D. Claimant was referred to Scott B. Neff, D.O., from Dr. Garner in April of 1986. Surgery on the right hand was performed by Dr. Neff. Claimant was released to return to work in June of 1986 but because defendant had discontinued its "kill floor operation", claimant was unable to return to work at defendant's plant in her former capacity. Claimant did pass on certain jobs. Claimant testified in May of 1986, she had received unemployment insurance benefits. Claimant acknowledged she was ready, willing and able to work at that time. Claimant testified she had only worked intermittently since June of 1986. From January or February of 1987 to May of 1987, claimant worked in a lounge for minimum wage. In May of 1987, claimant cooked and cleaned while traveling with a crew harvesting wheat. She received $500.00 a month for the months of June, July and August of 1987. Claimant commenced employment with a nursing home in the early part of 1988. She worked as a nurses' aide until May of 1988. There claimant changed linens and assisted patients with walking. In June of 1988, claimant again traveled with a harvesting crew. She reported she was not paid a wage for that summer. She cooked and did the laundry for seven people. Claimant stated she had wanted to become a nurse, but she is unable to perform CPR because of her injuries. Claimant maintains she cannot perform chest compressions. 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 injuries on August 30, 1985 and January 17, 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 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 "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). In the case at bar, claimant has established she has received injuries arising out of and in the course of her employment. She testified about the repetitive type of activities she was performing while she was employed by defendant. These activities included repetitive motion activities using knives. Claimant testified she was not performing repetitive activities with her hands outside the scope of her employment. There was no evidence disputing her testimony. The problems with the right hand increased as the extent of repetitive activities increased. Claimant sought medical attention on January 17, 1986. This is the injury date. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Next, there is the issue of a causal relationship. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 17, 1986 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.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, 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant has established there is a causal relationship between the alleged injury to the right hand and the claimed disability to the right hand. Claimant testified about the numbness, the tingling and the other problems she.was experiencing on the 17th of January. The problems exacerbated as the length of claimant's employment increased. Additionally, there is medical testimony which supports a causal connection between the alleged injury to the right hand and the claimed disability. Dr. Neff, in his letter of April 9, 1986, writes: She tells me that she has had anti-inflammatory medication, splints, and none of these have helped. Certainly she acts as if she has a carpal tunnel, and we will prove that electrically and then schedule her outpatient surgery. As is our usual case, this will not result in any permanent impairment or disability, and should result in a period of time being off work of approximately four to six weeks. She does have a vigorous job, and I would send her back to work not quite as rapidly as I would an office worker. A. J. Wolbrink, M.D., corroborated the causal relationship between the alleged injury of the right hand and the claimed disability. His letter of February 19, 1987, states: I saw and examined Wanda Haworth on February 18, 1987. Her main problem was her right wrist. Patient relates that she had had problems with her right wrist for about 3 years, but about 1 year ago she developed increasing problems so that it was keeping her awake at night and significantly limiting her activity. Therefore, May 19, 1986, she had carpal tunnel release surgery.... There are also the "problems & findings" of Dr. Garner. Records for February of 1986, indicate: 2/14/86 Pareses - R hand - loss of grip. Tenderness & numbness volar surface. Minimal swelling of the thenar region Probably needs referral to Dr. Ferlic. 2/19/86 R wrist sore - wear snap wrist brace Claimant has established the requisite causal connection to the claimed disability. The third issue to address is whether claimant has sustained any permanent disability to her right hand. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Medical testimony is not in agreement. The treating surgeon, Dr. Neff, did not find any evidence of permanency. As of June 16, 1986, he writes: "...In my opinion, she does not have any permanent impairment or disability with reference to her carpal tunnel syndrome and its subsequent surgery." In his letter of October 15, 1986, Dr. Neff opines: Based on these findings of normal range of motion and normal functioning median nerve, there would be no percentage of impairment. The grip strength certainly can be improved upon with activity, and we do not see any permanency established based on this. Later in his letter of May 28, 1987, Dr. Neff writes: Because she has excellent median nerve function, and full wrist range of motion, she does not have any significant impairment with reference to the carpal tunnel. We will document her grip strength and range of motion for a precise impairment, although it is not possible to give you a thorough and absolutely accurate impairment rating unless we have a repeat EMG. She has no median nerve symptoms, and consequently, that impairment rating, in my opinion, would be 0. Pursuant to a request from Dr. Neff, Thomas W. Bower, L.P.T., performed various tests on claimant. Mr. Bower evaluated claimant for a functional impairment. He disagreed with Dr. Neff. He writes in his letter of June 1, 1987: Physical examination today reveals range of motion activity for wrist extension of 45 degrees, passively 60 degrees, active palmar flexion of 70 degrees, and passive motion 70 degrees, radial deviation active 25 degrees and passively 25 degrees, and ulnar deviation of 30 degrees actively as is the passive motion. This would represent activity a 15 degree limitation in full motion but passively normal. Phalen's maneuver reveals tingling over the ring, little, and middle fingers of the right hand. The Tinel's sign is local and does not seem to cause radiating tingling. Grip strengths measured today demonstrate in five successive positions an average of 6 kilograms. It is noted that the only torque generated was at the mid position of the grip, dynamometer, and all other testing positions registered 0. She averages on the left side 21.6 kilograms. Pinch grasp demonstrates an average on the right side of .27 kilograms and on the left side an average of 6.7 kilograms. In addition, conduction studies to the median and ulnar nerves demonstrated a 4.0 millisecond latency at a 5 millivolt amplitude and the median sensory portion a 3.76 millisecond latency at 40 microvolts amplitude. Orthodromic palmar stimulation demonstrated 2.16 at 40 microvolts. The ulnar nerve demonstrated a 2.6 millisecond latency with a 10 millivolt amplitude and ulnar sensory was 3.20 milliseconds at 50 microvolts. The median sensory and palmar stimulation for the median nerve are abnormal. It is noted in an exam done in October of 1986 by this office, no percentage of impairment was given based on the findings. This was based simply on the fact that there was full range of motion and that the conduction findings for the median nerve all demonstrated normal conduction findings. This has changed as of this date based on our examination today. It appears that the patient is demonstrating a very mild median neuropathy distal to the carpal ligament based on these conduction findings, specifically the median sensory and palmar stimulation. Based on these findings, the sensory findings.specifically, the patient has incurred approximately a 12 percent impairment to the hand using these figures. Because claimant was dissatisfied with the 0 functional impairment rating which she received from Dr. Neff, claimant sought the opinion of A. J. Wolbrink, M.D. Dr. Wolbrink did not treat claimant. He only saw claimant for purposes of evaluating claimant in anticipation of litigation. Dr. Wolbrink opines in his letter of February 19, 1987, to claimant's attorney: ...Also, she had normal range of motion of the shoulders and elbows in both arms. Thoracic outlet testing was normal. The left hand had a well-healed scar along the thenar crease, but otherwise was normal with good opponens' strength and 4 mm., 2 point discrimination throughout the hand. The right hand had normal circulation, but increased sweating throughout the palm. She had a measured 400 of dorsiflexion and 500 of palmar flexion of the wrist. She had good deviation. She had symmetrical rotation, or supination and pronation, of the forearms of both arms, but rotation of the right arm did seem to cause some discomfort. There was a well-healed scar along the thenar crease and Tinel's sign was negative along this scar. Phalen's test was positive. She had 4 mm., 2 point discrimination in the median nerve distribution, but 8 to 12 mm. 2 point discrimination along both sides of the ring finger and little finger. She did seem to have function and reasonably good strength in the intrinsic muscles of the right hand. I measured grip strength in the right hand at 2 and 3 Kg. and in the left hand it was 35 and 34 Kg. Pinch strength measured .1 Kg. in the right hand and .8 Kg. in the left hand. ... At the present time, Ms. Haworth has an impairment of 9 percent of the upper extremity due to loss of sensation and motion, and an additional 6 percent due to loss of strength. This is according to the "Guide to the Evaluation of Permanent Impairment," American Medical Association, Second Edition. This may not be a permanent impairment. If nothing further is done, it will probably stay as it is. However, further evaluation to determine the cause of the ulnar nerve problem and alleviating it may provide significant improvement.... Therefore, 1) based upon all of the foregoing considerations; 2) based upon the permanent functional impairment ratings assigned by Dr. Neff, Dr. Wolbrink and Mr. Bower; 3) based upon personal observation of claimant; 4) based upon claimant's testimony; and, 5) based upon agency expertise, (Iowa Administrative Procedure Act 17A.14(s)), it is determined that claimant has sustained a 15 percent permanent functional impairment of the right hand. In determining permanent partial disability in the case of a scheduled member, claimant's testimony and demonstrated difficulties may be considered in determining the actual loss of use so long as loss of earning capacity is not considered. Soukup, 222 Iowa 272, 268 N.W. 598 (1936); Langrehr v. Warren Packaging Corporation, Thirty-fourth Biennial Report of the Industrial Commissioner 179 (January 22, 1980). Defendant employer, therefore, is liable for 28.5 weeks (190 x .15) of permanent partial disability for the injury to the right hand which occurred on January 17, 1986. The next consideration is whether the second injury fund is applicable here. Iowa Code section 85.64 provides, in part: If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently disabled by a compensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability. In addition to such compensation, and after the expiration of the full period provided by law for the payments thereof by the employer, the employee shall be paid out of the "Second Injury Fund" created by this division the remainder of such compensation as would be payable for the degree of permanent disability involved after first deducting from such remainder the compensable value of the previously lost member or organ. Under Iowa Code sections 85.63 through 85.69, three requirements must be met in order to establish fund liability: First, claimant must have previously lost or lost the use of a hand, an arm, a foot, a leg or an eye; second, through another compensable injury, claimant must sustain another loss or loss of use of another member; and third, permanent disability must exist as to both injuries. If the second injury is limited to a scheduled member, then the employer's liability is limited to the schedule and the fund is responsible for the excess industrial disability over the combined scheduled losses of the first and second injuries. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983), and Fulton v. Jimmy Dean Meat Company, file number 755039, Nos. 87-1567/87-1518 (Affirmed by the Iowa Supreme Court on February 22, 1989.) Claimant has established she had previously sustained a loss of the use of her left hand as a result of an injury sustained on March 27, 1985. Claimant has also established she had sustained a.loss of the use of her right hand as a result of the injury sustained on January 17, 1986. However, claimant has failed to meet the third requirement under sections 85.63 through 85.69. Claimant has failed to establish that she has sustained a permanent disability to her left hand as a result of the March 27, 1985 injury. Dr. Neff, as of April 9, 1986, reports to Dr. Garner: "The symptoms on the left side have completely disappeared." Claimant's own physician, Dr. Wolbrink, in his evaluation states: "...The left hand had a well-healed scar along the thenar crease, but otherwise was normal with good opponens' strength and 4 mm., 2 point discrimination throughout the hand." Claimant offered no testimony that she was experiencing problems with her left hand. In fact, claimant testified to the contrary. She was able for two years to clean and cook for a harvest crew of seven individuals. If claimant's left hand had been disabled, she would have had difficulties with the positions she held subsequent to the surgery she had on the left hand. Claimant reported no difficulties in performing tasks associated with her varied positions. FINDINGS OF FACT WHEREFORE, based on the evidence presented, the following findings of fact are made: 1. Claimant sustained a work injury on March 27, 1985 to her left hand which resulted in a 10 percent impairment to the left hand per an agreement for settlement. 2. Claimant, subsequent to this injury, was able to return to work in her usual occupation. 3. Claimant sustained no work injury to her back as a result of any back injury allegedly occurring on August 30, 1985. 4. Claimant sustained a work injury on January 17, 1986 to her right hand which resulted in surgery on that hand. 5. Claimant has worked a number of positions subsequent to the surgery on her right hand, including waitress work, working as a nurses' aide, and cleaning and cooking for a harvest crew. 6. Claimant is currently employed in a delicatessen for minimum wage. 7. Claimant's left hand is now normal. 8. Claimant's right hand has a functional impairment. 9. Claimant has a permanent partial disability to the right hand. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusions of law are made: 1. The compensable value of the permanent injury to the right hand is 28.5 weeks. 2. Claimant no longer has a permanent partial disability to the left hand. 3. There is no permanent partial disability to the back as a result of the alleged injury on August 30, 1985. 4. The second injury fund is not liable for any benefits. ORDER THEREFORE, IT IS ORDERED: That defendant employer pay twenty eight and one half (28.5) weeks of permanent partial disability benefits to claimant at the rate of one hundred ninety-five and 98/100 dollars ($195.98) per week. That these amounts are to be paid in a lump sum. That defendant employer is entitled to a credit for twenty-two point eight (22.8) weeks of permanent partial disability paid prior to hearing at the rate of one hundred ninety-five and 98/100 dollars ($195.98) per week plus interest in the amount of four hundred two and 15/100 dollars ($402.15). That interest on the unpaid amount will accrue pursuant to Iowa Code section 85.30. That the costs of this action are assessed against defendant employer. That defendant employer file its claim activity report pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 22nd of February, 1989. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steve Hamilton Attorney at Law 606 Ontario St. P. 0. Box 188 Storm Lake, Iowa 50588 Mr. David L. Sayre Attorney at Law 223 Pine St. P. 0. Box 535 Cherokee, Iowa 51012 Ms. Shirley Ann Steffe Assistant Attorney General Hoover Bldg. Des Moines, Iowa 50319 1803.1; 1804; 3202 Filed February 22, 1989 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER WANDA HAWORTH, Claimant, vs. File Nos. 821734 & 804588 WILSON FOODS CORPORATION, A R B I T R A T I 0 N Employer, Self-Insured, D E C I S I 0 N and SECOND INJURY FUND OF IOWA, Defendants. 1803.1 Claimant sustained a 15 percent permanent partial disability to the hand as a result of an injury occurring on January 17, 1986. 1804 Claimant stipulated she had no permanent partial disability because of any back injury allegedly occurring on August 30, 1985. 3202 Claimant failed to establish liability of second injury fund as one of the two injuries to the hands was not permanent in nature.