Page 1 before the iowa industrial commissioner ____________________________________________________________ : RONALD E. HOOPMAN, : : Claimant, : : vs. : : File No. 822543 QUAKER OATS COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : TRANSPORTATION INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed April 26, 1990 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: A motion in limine was sustained by the deputy at the hearing, excluding from the record certain economic studies of claimant's future loss of earnings. Loss of earnings is, of course, a relevant factor in the determination of claimant's industrial disability. However, this factor is limited to an analysis of claimant's loss of earnings from his injury as of the time of the hearing. It would be speculation to project that loss of earnings into the future. Claimant may retrain for a better job, or find employment that results in a lesser loss of earnings, no loss of earnings, or even greater earnings. In addition, the reports in question clearly rely on factors not relevant to industrial disability. The projections seek to show loss of earning capacity, rather than loss of earnings. The determination of the loss of earning capacity is the province of this agency to decide. For purposes of this de novo appeal, the testimony of Dr. Sandberg and Dr. Conway is considered only to the extent their reports show claimant's loss of earnings up to the date of the hearing. Those portions of their reports purporting to show a future loss of earnings, however, are not considered herein. Defendants' exhibit 9, pertaining to wage and overtime information, was admitted into the record over claimant's objection. Defendants acknowledge the exhibit was not Page 2 timely served under this agency's rules. Defendants' exhibit 9 is not considered a part of the record in this de novo appeal. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Robert R. Rush Mr. Matthew J. Nagle Attorneys at Law 526 2nd Avenue SE P.O. BOX 2457 Cedar Rapids, Iowa 52406 Mr. James E. Shipman Attorney at Law 1200 MNB Building Cedar Rapids, Iowa 52401 9999 Filed September 20, 1991 BYRON K. ORTON BJO before the iowa industrial commissioner ____________________________________________________________ : RONALD E. HOOPMAN, : : Claimant, : : vs. : : File No. 822543 QUAKER OATS COMPANY, : : A P P E A L Employer, : : D E C I S I O N and : : TRANSPORTATION INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed April 26, 1990 with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD E. HOOPMAN, Claimant, File No. 822543 VS. QUAKER OATS COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRANSPORTATION INSURANCE CO., Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Ronald E. Hoopman, against Quaker Oats, employer, and Transportation Insurance Co., insurance carrier, defendants, to recover benefits as a result of an injury occurring on April 30, 1986. This matter came on for hearing before the deputy industrial commissioner in Cedar Rapids, Iowa, on March 1, 1990. The record consists of the testimony of the claimant, claimant's wife, Marcella Hoopman, and Kevin Crist; claimant's exhibits 1, 2, 3, 6, 7, 11, 12, 13 and 14; and defendants' exhibits 1, 2, 3, 7 and 9. ISSUES The issues the parties set out in the prehearing report for resolution are: 1. The extent of claimant's permanent disability; 2. Whether claimant is entitled to be reimbursed for copies of the depositions of Dr. Sandberg and Mark Anderson. REVIEW OF THE EVIDENCE Claimant testified he is a high school graduate. He said he has some special training in computers and now keeps his own records on one at home. He described his work history as involving working at a dairy, driving a truck for his father's business, a parking lot attendant, and a dye caster until he began employment with defendant employer on August 2, 1967 as a journeyman millwright. Claimant stated he was in the army as a HOOPMAN V. QUAKER OATS Page 2 supply sergeant for two years during the above period. Claimant described his duties as a millwright involve the installation, repair, removal, maintenance of equipment and keeping the machinery running. He said he worked five eight hour days plus a lot of overtime before his April 30, 1986 injury. He stated he worked one to four hours overtime many nights and some Saturdays and Sundays. He emphasized he always accepted overtime when offered except if there were a death or injury involved. Claimant described his April 30, 1986 work injury. Basically, claimant indicated he was helping to remove a six by eight foot tank when it shifted knocking claimant to the floor below causing him to fall on a pile of concrete rubble. Claimant was taken to the hospital by ambulance. He said he fractured two vertebrae above the belt line but the pain was in his tailbone. Claimant described his medical treatment as being placed in a body cast and therapy. Claimant said that in November or December 1986, Albert R. Coates, M.D., told him he could not use hand tools or return to his work as a millwright. Claimant related that in February 1987 defendant employer decided to train claimant in a part-time computer job. Claimant was restricted by the doctor from bending, flexing, kneeling, climbing ladders and weight restrictions of 15-30 pounds. Claimant said he worked at this computer job at a millwright rate from February 1987 until July 1987 but was limited to 40 hours per week. Claimant related that on or around September 15, 1987, he was told he was being put in a salary class with wages of $2,000 per month operating a computer and assigning a ten digit number on equipment and machinery. The job title was "Systems Information Coordinator." Claimant revealed he went on a one week vacation on April 15, 1988 and upon return to work his particular job was given to another person. Claimant said he was given a property records job at $2,000 per month. He stated this job involved placing a sticker on defendant employer's property and equipment. He stated this job now pays $25,900 per year. Claimant emphasized he does not have all the benefits at his current job that he had before his injury like paid lunch, overtime, clothing allowance, and company matching funds. Claimant contends a millwright made $39,000 in 1986 and claimant explained he would have made at least $44,000 in 1987 with overtime. Claimant related he made $23,737 in 1987 and $24,015 in 1988. Claimant stated he asked defendant employer to move him to a higher paying job. Claimant said he was told his job now is nonexempt; therefore, there is nothing else open for a change of jobs. Claimant said he then looked for other jobs including applying for a computer job at St. Luke's Hospital and a security HOOPMAN V. QUAKER OATS Page 3 guard job. He related he now works a second job as a security guard at $4.00 per hour, 32 hours per week. Claimant said his present physical problems require him to sit where he can support his arm and also cause the back of his leg to tighten up and get numb if he does a lot of moving resulting in a charley horse in his toes. Claimant indicated he never had this problem before his April 30, 1986 injury. He said he used to hunt, bowl, camp and drive a motorcycle. He related he gave up bowling and motorcycling and limited his hunting and cannot do certain household chores, yard work and gardening. Claimant acknowledged he still camps and has purchased a motor home which he drivers twice a year to Pennsylvania. Claimant said he does not take any medication now. He said he has pain all the time but if he gets tense, he backs off what he is doing and relaxes. Claimant acknowledged he has not missed work due to his back injury since he returned to work and that he last saw Dr. Coates around March 1989. Claimant admitted Dr. Coates referred him to a work hardening program but claimant said the doctor told him his condition would not get any better. Claimant did not go through the work hardening program. Marcella Hoopman, claimant's wife, testified claimant did everything before his April 1986 injury, keeping himself busy, including repair work, building cupboards and putting in plumbing in the kitchen. She described claimant as a handyman. Mrs. Hoopman said her husband has been an adviser versus a doer since his 1985 injury. Kevin Crist, defendant employer's safety and health manager for four years, indicated his job includes helping an injured employee return to work. He emphasized claimant could not return to work as a normal millwright worker and, therefore, could not keep seniority. Crist indicated he put claimant at a computer job with millwright pay thinking claimant could repair equipment if it broke down. Crist said claimant objected to the job and questioned whether he could physically do it. He said claimant also discussed this with Dr. Coates, resulting in claimant and Dr. Coates having a concern about the job violating claimant's restrictions. Crist said they worked with Lewis E. Vierling, a rehabilitation consultant, to find a job within the company that fit claimant's restrictions. crist emphasized claimant had no seniority outside the millwright classification and this required looking at a job in a different salary class to comply with claimant's restrictions. Crist related this resulted in claimant getting his current job. Crist testified that recently there have been 300 workers laid off, production is down 15 percent and defendant employer is cutting back days to a five day work week. He said that in 1988 HOOPMAN V. QUAKER OATS Page 4 and 1989, the company was operating seven days a week due to the oat bran craze and influx of capital to purchase new equipment. He indicated that the overtime will not be sustained after the new equipment is completely installed because there will be less breakdown of equipment. Crist testified as to the difference between claimant's preinjury status (exempt) and his current nonexempt status. In the exempt status, the employee has security and a better benefit package. An exempt employee can only be fired with cause and is under collective bargaining agreement. A nonexempt employee can be terminated without cause, but is eligible for profit sharing ranging from 5 to 10 percent of an employee's annual salary and other benefits. Cindy Thul, manager of financial accounting for defendant employer, testified by way of deposition taken October 18, 1989. She said she graduated from the University of Iowa in 1986 with an accounting degree and upon graduation began working for defendant employer. She said she currently works at overseeing the payroll. Nothing else from her testimony need be set out as it does not further affect the outcome of this decision. Mark Anderson, a clinical specialist, industrial rehabilitation, testified he deals with people who have been injured while working and assesses these people on the basis of what their functional capabilities and job requirements are and then attempts to improve the person's tolerance as much as possible within the person's restraints and physical capacity. He stated he met with claimant only once, May 4, 1987, at the request of Mr. Vierling, who wanted to know if claimant would benefit from a rehabilitation program at St. Luke's Hospital. Anderson described the intake procedure at St. Luke's. Mr. Anderson said he discussed with claimant the vibration analyst job that had been designed by defendant employer to try to meet claimant's restrictions that Dr. Coates had imposed. Anderson indicated claimant felt this job was violating some of claimant's restrictions. He stated claimant thought Mr. Anderson was also trying to eliminate claimant's restrictions. Mr. Anderson said he told claimant that he works on an objective basis to determine the facts and is not biased one way or the other between the employer and employee or insurance company. Mr. Anderson explained that claimant doubted his credibility so he decided from a professional standpoint that he could not become involved with claimant's case. He emphasized claimant was convinced he was involved to reduce arbitrarily claimant's restrictions and would not be objective. A radiology report on April 30, 1986 reflects: LUMBAR SPINE: There is a compression fracture of Ll with approximately 50% loss of vertebral body height. There is also a longitudinal fracture through the HOOPMAN V. QUAKER OATS Page 5 spinous proces [sic] of T12. Some spinal canal impingement due to the fracture at Ll cannot be excluded. The remainder of the exam shows no evidence of fractures. IMPRESSION: Ll compression fracture with possible impingement upon the spinal canal. Horizontal fracture through the spinous process of T12. THROACIC (sic] SPINE: The AP films are under penetrated. T12 is not visualized. [S]ome degenerative changes are noted throughout the mid and lower thoracic spine. No gross fractures are identified. (Defendants' Exhibit 3, page 6) On October 21, 1986, Albert R. Coates, M.D., orthopedic surgeon, wrote: I don't feel that he will ever be able to return to work as a millwright in evaluating the physical requirements which you had generously supplied on the 15th of July. I do feel that he is now capable of being retrained for any type of duty which does not require heavy lifting, and that is in anything over 30 lbs., pushing or pulling, frequent bending or working over the head. (Def. Ex. 3, p. 11) On April 10, 1989, Dr. Coates wrote: In recording the range of motions and declaring it against the A.M.A. "Guides to the Evaluation of Permanent Impairment," I come up with a 12% permanent partial impairment of the body as a whole for the back range of motion. Because of the ulnar neuropathies, I feel that he carries an 18% permanent partial impairment of the body as a whole. I realize that this is in significant disagreement from that reported by Dr. John Walker from Waterloo, which places me in a somewhat compromised position because of the appearance to my patient that I am not doing the best that I can for him. On the other hand, this is an honest rating. Even though it somewhat exceeds my 15% rating in the past, I feel that this is the current, reliable rating. Please be advised that I have also reviewed the x-rays from Dr. John Walker in which there is slight HOOPMAN V. QUAKER OATS Page 6 anterior subluxation of the tip of the coccyx. We do not have lateral x-rays on the coccyx. on previous films, however, the anterior x-ray appears to be unremarkable on all of his previous films. Therefore, I have not specifically rated this area of abnormality. (Def. Ex. 3, p. 74) On April 14, 1989, Dr. Coates wrote: I am in receipt of your letter dated April 12, 1989, for clarification on Ronald Hoopman and I apologize for the lack of clarity in my dictation but I consider that to be 18% body as a whole impairment rating which includes both the back and the ulnar neuropathies. (Def. Ex. 3, p. 75) On May 22, 1987, it appears Dr. Coates continued on a permanent basis claimant's restrictions of no "bending, lifting, climbing, or reaching." There appears to be no later evidence on this question of restrictions and their continuation. On February 8, 1989, John R. Walker, M.D., an orthopedic surgeon, wrote: Taking all things into consideration, all diagnoses being lumped together along with his actual loss of motion, it is my opinion that this patient has a permanent, partial impairment amounting to 26% of the body as a whole. The industrial disability, however, may be a different matter. At the present time I certainly have no particular suggestions for treatment except to state that a reducing diet is certainly in order. (Claimant's Exhibit lc, page 7) On October 2, 1987, Kevin C. Crist, from the office of defendant employer, wrote regarding claimant's salary position versus his nonsalary position: This job will pay $2,000 per month. In his previous position, Ron was making $13.42 per hour. During 1984 and 1985, Ron earned $32,273.14 and $33,362.16 respectively. Note, however, that this includes time and a half and double-time wages. Straight-time wages would not be so high. Ron's new position, even though it pays less, does have some advantages (refer to the attached). For example, Ron will be eligible for profit sharing each year. Profit sharing is a lump-sum check ranging HOOPMAN V. QUAKER OATS Page 7 anywhere from 5-10% of an employee's annual salary. The past couple years, it has been running about 7%. In addition, Ron will have extended coverage under the group plan for I&A. Nonsalaried personnel under the group plan do not get paid for individual sick days less than 7 days in duration, and pays only 66-2/3% after 7 days. Under the salaried plan, Ron will get 100% of his salary while off. (Def. Ex. 3, p. 67; Cl. Ex. 2, p. 10) On December 8, 1987, Mr. Vierling, a rehabilitation consultant, wrote: It appears that all remaining questions have been resolved, and that Mr. Hoopman is very pleased with his new job. After contact with Mr. Crist, it is now being recommended that this case be closed as no further rehabilitation services appear to be needed. Mr. Hoopman was informed that this consultant would be closing the case, but if he had any remaining questions, to contact the Mc/RS office. .... Mr. Hoopman's case file will be closed, as he has returned to work in a permanent position with Quaker Oats. (Cl. Ex. 7, p. 41) APPLICABLE LAW AND ANALYSIS If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered.... In determining industrial disability, consideration may be given to the injured employee's age, education, HOOPMAN V. QUAKER OATS Page 8 qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * In Parr v. Nash Finch Co., (appeal decision, October 31, 1980) the industrial commissioner, after analyzing the decisions of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), stated: Although the court stated that they were looking for the reduction in earning capacity it is undeniable that it was the "loss of earnings" caused by the job transfer for reasons related to the injury that the court was indicating justified a finding of "industrial disability." Therefore, if a worker is placed in a position by his employer after an injury to the body as a whole and because of the injury which results in an actual reduction in earning, it would appear this would justify an award of industrial disability. This would appear to be so even if the worker's "capacity" to earn has not been diminished. Claimant is a 57-year-old high school graduate. He has been working as a millwright for approximately nineteen years before his April 30, 1986 injury. There is basically one major dispute in this matter; namely, the extent of claimant's permanent disability. Claimant argues his loss of overtime is a major consideration. Claimant cites an example whereby he estimated he would have made $39,000 in 1986 and at least $44,000 in 1987 as a millwright but instead made $24,015 and $23,737, respectively in those years. Claimant is currently making approximately $26,000 as a salaried individual. He described the fringe benefit difference between an hourly job and a salary job and the difference from an exempt (hourly) versus a nonexempt (salaried) job. There are no restrictions on claimant that he cannot work overtime. It is obvious his current position does not offer overtime. It appears the old job would no longer offer the extensive overtime it once did. Claimant is filling that void by working another job, but at a wage that is substantially lower and with no opportunity for time and a half or double time. The evidence is clear that 1988 and 1989 were exceptional years for defendant employer due to the oat bran craze as far as offering employees substantial overtime. It appears defendant employer is now laying off workers and anticipates a 15 percent reduction in production. It appears that defendant employer has had a substantial capital influx to replace old equipment which will further reduce the millwright overtime hours due to less equipment breakdown. The undersigned cannot speculate as to the future, either as to more or less overtime, more or less layoffs, or more or less machinery breakdown. We must consider the HOOPMAN V. QUAKER OATS Page 9 present and the stipulated weekly rate which incorporates by the law the rate based on claimant's gross income at the time of this April 30, 1986 injury. Claimant is motivated as he has found a second job as a security guard working 32 hours per week in order to replace his lost income, partly resulting from loss of overtime and partly as a result of earning less in his current salaried job versus the millwright job. There was testimony concerning claimant's refusal to work with Mark Anderson, a rehabilitation specialist, concerning the advisability of a work hardening program. It seems claimant resisted these efforts thinking his restrictions would be reduced or eliminated. This is surprising. one would think claimant would want to proceed with care provided for him at the employer's expense to try to return claimant to his status, if possible, prior to his April 30, 1986 injury. At least, an attempt would be reasonable. The undersigned believes claimant falsely convinced himself that his restrictions were going to be removed without his doctor's consultation and final decision and that Mr. Anderson, or the defendants, had some other ulterior motive. There could have been no harm in going through the program or at least see whether it was for sure advisable. The program could have been successful, resulting in claimant's return to the millwright job, it could have proven claimant needs the current restrictions continued or actually increase restrictions. Usually, a claimant complains because defendants will not pay for such a program and claimant desires to get back to his or her status before the injury. Contrary to what claimant may think, his position of refusing medical help does not help him and can have an effect on the extent of claimant's industrial disability. Defendant employer appears to have made considerable effort to accommodate the restrictions placed on claimant by Dr. Coates in October 1986 (Def. Ex. 3, p. 11). It seems as though claimant was hard to please and yet didn't want to go through a work hardening program. It is hard to help someone who does not want to help themselves. The employer is to be congratulated for its efforts. Claimant's regularly treating doctor, Dr. Coates, an orthopedic surgeon, opined an 18 percent impairment to claimant's body as a whole. Dr. Walker, an orthopedic surgeon, whom claimant went to for an evaluation in February 1989, opined a 26 percent permanent partial impairment to the body as a whole. Dr. Coates has been treating claimant over a lengthy period of time. The undersigned believes Dr. Coates, opinion is more accurate as it relates to claimant's condition. The undersigned finds claimant has an 18 percent permanent partial impairment to the body as a whole. HOOPMAN V. QUAKER OATS Page 10 Claimant definitely has a loss of income. There is another major factor to consider. Claimant currently can no longer work at his millwright position at which he worked for 19 years before being injured. He appeared to have had a full active life before his injury. It appears claimant has a weight problem but this is not much different than his condition before his injury. There are several factors to consider in determining industrial disability. Some have already been discussed above. Considering claimant's age, education, lack of prior injuries, length of healing period to which the parties stipulated, motivation and loss of income, and all other industrial disability criteria, the undersigned finds claimant has a 30 percent industrial disability. Claimant contends defendants should pay for the costs of claimant's copies of two depositions taken by defendants. If a party wants a copy of his or her own deposition of witnesses taken by the other party, this is a cost of doing business and the respective parties shall pay for its own copy. Claimant, therefore, is responsible for paying for his own copies of the depositions. FINDINGS OF FACT 1. Claimant's work-related injury on April 30, 1986 resulted in claimant incurring an 18 percent permanent partial impairment to his body as a whole. 2.Claimant has work restrictions as a result of his April 30, 1986 injury which resulted in claimant no longer being able to perform a job as a millwright. 3. Claimant has a loss of income as a result of his April 30, 1986 injury. 4. Claimant refused to proceed with consultation to consider the advisability of a work hardening program aimed at helping claimant to return to his former work as a millwright. Claimant's reason for refusing is not credible. 5. Claimant has incurred a loss of earning capacity as a result of his April 30, 1986 work injury. 6. Claimant is responsible for paying for his own copies of any depositions taken of any witnesses. CONCLUSIONS OF LAW Claimant's work injury on April 30, 1986 caused claimant to incur an 18 percent permanent partial impairment to his body as a whole, restrictions preventing him from doing millwright work, and a loss of income. HOOPMAN V. QUAKER OATS Page 11 Claimant has a 30 percent industrial disability. Claimant is responsible for paying for his own copies of witness depositions. ORDER THEREFORE, it is ordered: 1. That claimant is entitled to one hundred fifty (150) weeks of permanent partial disability benefits at the weekly rate of three hundred seventy and 75/100 dollars ($370.75) beginning March 2, 1987. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Claimant have previously paid the stipulated healing period benefits and one hundred twenty-five (125) weeks of permanent partial disability benefits, representing a twenty-five percent (25%) industrial disability. Claimant shall be responsible for the payment of the costs of their own copies of depositions of witnesses. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this 26th day of April, 1990. BERNARD J.O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert R Rush Mr Matthew J Nagle Attorneys at Law 526 2nd Ave SE P 0 Box 2457 Cedar Rapids IA 52406 Mr James E Shipman Attorney at Law 1200 MNB Bldg Cedar Rapids IA 52401 5-1803 Filed 4-26-90 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER RONALD E. HOOPMAN, Claimant, : File No. 822543 VS.: A R B I T R A T I O N QUAKER OATS COMPANY, D E C I S I O N Employer, and TRANSPORTATION INSURANCE CO., Insurance Carrier, Defendants. 5-1803 Claimant awarded 30% industrial disability. Claimant is a 57-years-old high school graduate who, after 19 years as a millwright, could no longer work in that type of position due to his work injury. Claimant was switched by defendant employer to a lesser paying job to comply with claimant's restriction. Page 1 before the iowa industrial commissioner ____________________________________________________________ : WAYNE L. THOREN, : : Claimant, : : vs. : : File Nos. 846698 & 822586 CROUSE CARTAGE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Wayne L. Thoren, claimant, against Crouse Cartage Company, employer (hereinafter referred to as Crouse), and Liberty Mutual Insurance Company, insurance carrier, defendants, for work ers' compensation benefits as a result of alleged injuries on April 18, 1986 and April 7, 1987. On July 19, 1990, 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 con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Crouse at the time of the alleged injuries. 2. On April 18, 1986, claimant received an injury which arose out of and in the course of his employment with Crouse. The alleged injury of April 7, 1987, is disputed. 3. If defendants are liable for the alleged April 7, 1987 injury, claimant would be entitled to temporary total disability/healing period benefits only from October 1, 1987 through January 31, 1988. Claimant admits to payment of his full entitlement to such benefits as a result of the April 18, 1986 injury. 4. The work injury of April 18, 1986, is a cause of permanent disability, the extent to which is in dispute. Page 2 5. Permanent disability benefits as a result of the April 18, 1986 injury shall begin on April 3, 1987. Perma nent disability benefits for the alleged April 7, 1987 injury, if awarded, shall begin on February 1, 1988. 6. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $365.29 for the April 18, 1986 injury and $348.61 for the April 7, 1987 injury. 7. All requested medical benefits have been or will be paid by defendants as a result of the April 18, 1986 injury. With reference to the medical bills submitted for the alleged April 7, 1987 injury, such bills are fair and rea sonable and causally connected to the medical condition upon which the claim is based but that the issue of their causal connection to a work injury remained at issue. issues The parties submitted the following issues for determi nation in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment on April 7, 1987; II. The causal connection of the injuries to perma nent disability; III. The extent of claimant's entitlement to permanent disability benefits for both injuries; and, IV. The extent of claimant's entitlement to medical benefits as a result of the April 7, 1987 injury. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the nature and extent of the various injuries and disabilities. From their demeanor while testi fying, claimant and his witnesses were found credible. Claimant, age 57, has worked for Crouse since 1966 and continues to do so at the present time. Claimant has actu ally worked as a driver out of the same terminal since 1953. His former employer was bought out by Crouse in 1966. Before the April 18, 1986 work injury, claimant was an over-the-road truck driver hauling freight between Crouse terminals. This driving job required loading and unloading freight. Since his return to work in April of 1987 follow ing the work injury, claimant became a dock worker/pedal driver. As a dock worker, claimant loads and unloads trucks mostly operating a forklift truck but occasionally is required to perform heavy lifting of approximately 60 pounds. Claimant also drives a pedal route or a route in Page 3 which he picks up and delivers freight in the Fort Dodge area. At the present time, claimant is engaged in employ ment covered by a union contract which provides to him the highest seniority at the terminal entitling claimant to bid and probably receive any union job out of the terminal. This would include two over-the-road trucker positions. In his deposition in March 1990, claimant expressed plans to retire from Crouse due to his chronic pain, but he had not done so at the time of hearing. Claimant stated that he needs the money to support himself and his family and must continue to work. Claimant earned approximately $26,000 annually from his job as a driver in 1985. This income dropped to approximately $14,000 in 1986 and in 1987. Claimant only worked a portion of these years due to treat ment of injuries claimed worked related herein. In 1988, claimant earned $24,000 and in 1989 he earned $33,000. Claimant's current hourly rate is $13.01 per hour. Both claimant and Crouse management testified at hearing that the over-the-road trucker position pays considerably more than claimant's present position. On or about April 18, 1986, claimant injured his head, neck, right hand and right shoulder when he was struck by a falling overhead door of a trailer while unloading his truck. Claimant sought and received immediate treatment and improved from the treatment. However, claimant experienced chronic pain in the right shoulder. He was then referred for treatment to an orthopedic specialist, Robert Weatherwax, M.D. Dr. Weatherwax diagnosed claimant's condi tion as chronic impingement of the acromioclavicular joint. When conservative care failed to alleviate claimant's symptoms, Dr. Weatherwax surgically repaired the shoulder in June of 1986. Despite the existence of significant arthritis of claimant's right shoulder prior to the injury, the injury of April 18, 1986 was a significant cause of claimant's treat ment and surgery. The injury aggravated the shoulder which had been previously asymptomatic and probably would have remained so but for the injury. This causal connection was the uncontroverted opinion of Dr. Weatherwax. The injury of April 18, 1986, also was a cause of a 20 percent permanent partial impairment to the right arm. This finding is based upon the views of Dr. Weatherwax. Robert Walker, M.D., an orthopedic surgeon from Waterloo, also pro vided a rating but this rating did not have the same weight as that of the treating orthopedic surgeon. Dr. Weatherwax initially imposed work restrictions due to the shoulder injury consisting of no overhead lifting, reaching or heavy lifting. Dr. Weatherwax, in his deposition, stated that presently he would only limit claimant to those activities which would cause him difficulty. Claimant describes con tinuing severe reduction in the strength of his right hand and arm. After his return to work following the April 18, 1986 injury, claimant injured his low back on April 7, 1987. This injury arose out of and in the course of his employ ment. Claimant fell from a dock area onto cement and suf Page 4 fered the onset of back and leg pain. Claimant received treatment from Samir Wahby, M.D., another orthopedic sur geon. This treatment consisted of rest and medication. Claimant eventually improved from this treatment and was released to return to work by Dr. Wahby on April 15, 1987. Claimant left work again at the end of April 1987 and did not return to work until the end of August 1987. This absence from work was due to diverticulitis, a condition unrelated to claimant's work. Claimant said that his back improved during this time and did not seek additional treat ment until October 1, 1987. At that time claimant reported that he had been lifting a 200 pound sack at work causing back and buttocks pain. Claimant was then hospitalized and a bulging vertebral disc at the L5-S1 level was confirmed by a CAT scan diagnosis. Claimant's physicians have opined that surgery would not be beneficial for claimant's problem and claimant's treatment is to remain conservative with medication and rest as needed. Claimant remained off work until February 1, 1988, at which time he returned to the dock/pedal driver job at Crouse. In September 1988, a dock door fell on claimant's upper torso injuring his head and neck. Claimant complained of shoulder and back pain and continuing headaches after this incident. A finding could not be made that the back injury of April 7, 1987, was a cause of permanent partial impairment or permanent disability. The evidence presented only shows that claimant probably aggravated a chronic long-standing problem. Claimant has had a severe back condition and dis ability for a number of years. However, claimant has had too many prior and subsequent back injuries to single out only the April 7, 1987 injury as the cause. That injury appears relatively mild compared to some of his other back injuries before and after April 1987. At hearing, claimant discussed many injuries. In May 1975, claimant hurt his back while lifting steel. In January 1977, claimant reported to Dr. Fisher (first name unknown) severe low back pain after lifting at work. In February 1984, claimant reported to Dr. Fisher that he slipped on oil and suffered low back pain. In July 1980, a 55 gallon barrel fell on claimant and claimant was off work due to low back pain for approximately three months. In May 1985, Dr. Fisher diag nosed degenerative disc disease of the spine and progressive low back pain. Subsequent to the injury involved in this case, claimant received a back injury on October 1, 1987, while lifting at work. He also reported aggravated back pain from the September 1988 incident involving his upper torso. The expert testimony offered by claimant in support of the causal connection of his chronic back pain to the April 1987 injury was not convincing. Dr. Walker certainly opined extensive permanent partial impairment due to low back prob lems but never rendered a causal connection opinion as to its cause. Notably absent from Dr. Walker's report also was the fact that claimant was absent during the summer and fall of 1987 as a result of problems other than his low back pain. Dr. Wahby and Robert Carlstrom, M.D., both opined in this case that claimant's back pain is due to the April 7, Page 5 1987 fall at work. However, neither of these two physicians mentioned in their reports any of claimant's prior low back injuries or the October 1, 1987 injury. Their opinions must be rejected as they are based apparently on an incorrect history. As a result of the work injury of April 18, 1986, claimant has suffered a 20 percent loss of earning capacity. Claimant's medical condition before the work injury was not excellent and he had numerous low back injuries. Claimant claims that his loss of earnings between 1985 and 1986 are the result of the loss of his over-the-road trucking job due to the shoulder problems. However, at hearing and in his deposition testimony, claimant was asked to describe the physical problems which prohibit his over-the-road trucking. In response, claimant only mentioned his low back problems and stiffness while riding in a truck cab for a prolonged period of time. As set forth above, claimant's continuing low back problems are not found due to the April 7, 1987 injury. On the other hand, claimant has shown permanent partial impairment and restrictions on day-to-day activities as a result of his work related upper extremity and shoulder problems. Claimant is 57 years of age and close to retire ment. He has only an eighth grade education but is nearing the end of his employment life. Claimant's past employment primarily consists of heavy work which he would have diffi culty performing today. However, again much of his disabil ity is due to back problems which are not attributable to any injury involved in this case. Claimant submitted medical bills for treatment after October 1987. As this was after the lifting incident of October 1, 1987, they could not be found causally connected to the April 7, 1987 injury. conclusions of law I. Claimant has the burden of proving by a prepon derance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). 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 therein. In the case sub judice, claimant was able to show that he suffered an aggravation injury. However, the preponder ance of the evidence failed to demonstrate that claimant's ongoing permanent chronic low back problems are due to this single injury in April of 1987. II. The claimant has the burden of proving by a pre ponderance of the evidence that the work injury is a cause Page 6 of the claimed disability. A disability may be either tem porary 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. How ever, 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 experts need not be couched in definite, pos itive 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 cir cumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connec tion, 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 compensabil ity, 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 condi tion, 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 failed to show that his chronic low back problems were compensable but he was able to show that his shoulder injury and his chronic prob lems stemming from that injury are causally connected to permanent partial disability. Despite the fact that Dr. Weatherwax only gave claimant a permanent partial impairment rating to the arm, claimant has demonstrated that the injury is not confined to the arm and that the injury and treatment extended beyond the arm into the shoulder joint which has long been recognized as an injury to the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa ll74, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). III. Claimant must establish by a preponderance of the Page 7 evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal 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). How ever, 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 condi tion 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, imme diately 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. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). In the case sub judice, it was found that claimant has suffered a 20 percent loss of earning capacity as a result of the work injury of April 18, 1986. Based upon such a finding, claimant is entitled as a matter of law to 100 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 20 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. The causal connection of the injury to temporary total disability was disputed by the defense. As claimant returned to work on April 15 following the April 7, 1987 injury, that would appear to be the end of the healing period for the April 7, 1987 injury. Therefore, claimant has shown entitlement to temporary total disability from April 7, 1987 through April 15, 1987. There was an extended time off work beginning after the October 1, 1987 injury. However, a causal connection between that period of disabil ity and the April 7, 1987 injury could not be found. There is no dispute as to entitlement to temporary total disabil ity for the April 18, 1986 injury. IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, no finding was Page 8 made causally connecting claimant's treatment after October 1, 1987 to the April 7, 1987 injury and, therefore, the requested expenses cannot be awarded. Both parties to this case are denied costs due to the lack of organization and the duplicitous nature of the writ ten evidence presented. According to the prehearing assign ment order, the parties are to meet in advance of hearing to eliminate duplication and to organize the record in a pre sentable fashion. This was not done by the parties. Both parties will pay their own costs incurred to date. Page 9 order 1. Defendants shall pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of three hundred sixty-five and 29/l00 dollars ($365.29) from April 3, 1987. 2. Defendants shall pay to claimant temporary total disability benefits at the rate of three hundred forty-eight and 61/l00 dollars ($348.61) per week from April 7, 1987 through April 15, 1987. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for the ninety-five (95) weeks of benefits previously paid as set forth in the prehearing report. 4. Defendants shall pay interest on unpaid weekly ben efits awarded herein as set forth in Iowa Code section 85.30. 5. Each party shall pay their own costs of this action. 6. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.l. Signed and filed this ____ day of September, 1990. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert L. Ulstad Attorney at Law 1031 Central Ave P O Box 1678 Fort Dodge IA 50501 Mr. Tito Trevino Attorney at Law 503 Snell Bldg P O Box 1680 Fort Dodge IA 50501 5-1803 Filed September 24, 1990 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : WAYNE L. THOREN, : : Claimant, : : vs. : : File No. 846698 & 822586 CROUSE CARTAGE COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Extent of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA PUGH, Claimant, vs. File No. 822827 MULTIPLEX BUSINESS FORMS, A R B I T R A T I O N Employer, D E C I S I O N and FIREMAN'S FUND INSURANCE COMPANIES, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Linda Pugh, claimant, against Multiplex Business Forms, employer, and Fireman's Fund Insurance Companies, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as the result or an injury occurring April 17, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner on August 11, 1988, and was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of the claimant, Cheryl Ashley, Geoffrey Marsh and Richard Williams; also, joint exhibits 1, 2, and 4 through 13 were admitted into evidence, along with claimant's exhibits A through C and defendants' exhibit 2. Objections were interposed by defendants to certain opinions expressed at pages 19 and 86 of exhibit 3; ruling was reserved. The objections are at this time overruled and joint exhibit 3 is received into evidence. ISSUES Pursuant to the pre-hearing report submitted and approved August 11, 1988, the issues that remain for determination include whether claimant's injury arose out of and in the course of her employment, the extent of healing period and permanent partial disability, and whether her disability is causally relates to the alleged job injury. REVIEW OF THE EVIDENCE Claimant was employed by defendant from April 4, 1974 through the date of her discharge on June 3, 1986. At the time of the alleged work injury, the claimant worked as a "jogger" on the night shift, working a full-time position. PUGH V. MULTIPLEX BUSINESS FORMS PAGE 2 The employer is in the business of printing and manufacturing forms used by hospitals and medical offices, along with other businesses. A "jogger" works as a helper on a collating machine and is responsible for gathering together collated forms, straightening them out with the assistance of a vibrating surface, and boxing them. Approximately one month before the alleged work injury, the claimant was transferred to a continuous collator machine, and undertook work similar to that which she had previously done, but which she considered somewhat heavier. The claimant worked her full shift on April 17, 1986. She does not recall any unusual events, injuries, pains or other untoward events. She thought that the work was unusually heavy on that particular evening (lifting boxes that averaged 35-40 pounds). Production manager (then production supervisor), Richard Williams, testified that the employer's business records reflect that boxes averaged 14 pounds on that night, and that ail boxes fen within a range of 10-20 pounds. On nights immediately preceding the claimed work injury, average weights were 24, 25 and 26 pounds. In any event, the claimant awoke on the morning of April 18, 1986 with neck pain and stiffness. Her regular physician did not see her, but advised treatment through moist heat and aspirin. The claimant next worked on the following Monday, but still suffered from pain in the right side of her neck. The employer made an appointment for the claimant with Scott A. Honsey, M.D., a company doctor. Dr. Honsey saw the claimant on April 26, 1986, at which time she was complaining of neck and shoulder discomfort of one week's duration. Dr. Honsey reported (letter of May 9, 1986, deposition exhibit 3 attached to joint exhibit 1): At the time of her initial presentation, Ms. Pugh complained of pain in the right shoulder area, specifically the trapezius muscle area for approximately 7-10 days prior to her arrival in the office. She could not relate a specific injury or specific event which initiated her discomfort, but felt it might have occurred at work, but was not certain of this. * * * Physical exam at that time revealed essentially very well localized tenderness to the right trapezius muscle. There was (sic] no neck symptoms at all. She had full range of motion in the neck and there was no radiation of the pain. She did, however, have a fair amount of palpable spasm in the trapezius muscle. * * * She returned on 5-2 for a recheck of her neck and was seen by Dr. Christopher Rock. She at that time was apparently complaining of continued pain and burning sensation and sometimes numbness going down the right arm. Physical exam revealed her to have full range of motion of the shoulder, some tenderness in the trapezius muscle region and sternocleidomastoid and some tenderness over the C5-C6 spinous region. She had full range of motion of the neck and she had normal PUGH V. MULTIPLEX BUSINESS FORMS PAGE 3 reflexes, strength and sensation in the upper extremities. He assessed her as a shoulder strain, * * *. C-spine films were obtained during that visit which showed essentially a normal C-spine with some slight reversal of the normal cervical spine curve, consistent with her soft tissue injury. * * * I re-evaluated her yesterday and found that she continued to have pain in her right lateral neck, as well as some mild spasm in the trapezius area. The physical exam was remarkable only for the mild spasm of the right trapezius and minimal tenderness along the lateral neck. I was uncertain at the time whether the tenderness was real or factitious as per my note. * * * As per our conversation, I recommended an orthopedic referral be obtained it this persists, as I am not certain as to whether or not she has disease enough to account for her symptoms. As per our conversation, she did not give a time or date of a specific injury at work and I don't really feel that this qualifies as a workmans comp. case. The claimant later saw neurosurgeon Stuart R. Winston, M.D., on May 28, 1986. His office notes indicate that the claimant complained of neck problems, lots of pain in the trapezius area and numbness and tingling in her right hand. Upon examination, Dr. Winston found that she had full range of motion of the neck, but tension right. He ordered EMG and nerve conduction studies which were reported back as essentially normal on May 30, 1986. Dr. Winston reported to Dr. Honsey in a May 28, 1986 letter as follows (deposition exhibit 2, joint exhibit 1): We saw Linda in the office on the 28th with respect to her April 18 onset of neck and some intermittent right upper extremity discomfort. X-rays of her cervical spine are essentially normal from Charter taken the 2nd of May except for perhaps some mild narrowing at the C6-7 level. She does have some muscular tension of her neck although she has full range of motion and I question whether she may have some mild paresis of the right triceps although her reflexes are symmetric and there are no pathologic neurologic signs relative to this. I can't exclude cervical radicular compression although certainly I think she would be having a lot more arm pain with the kind of healthy cervical spine film that she has should she have frank nerve root compression. I am going to be obtaining an EMG and nerve conduction study in an attempt to see whether there is anything else going on here and will give you some follow up following her next visit. Dr. Winston reported again to Dr. Honsey on June 2, 1986 (deposition exhibit 2, employer's exhibit 1): Lindas EMG was essentially normal with no indication of cervical root compression. She does have a tendency, as most factory workers have, toward a right carpal tunnel syndrome but obviously this is not causing the cervical discomfort that she has. My impression is PUGH V. MULTIPLEX BUSINESS FORMS PAGE 4 that with a job description just preceding the onset of this that it probably is due to her work. Dr. Winston reexamined the claimant on April 10, 1987, and reported in a letter to her attorney of April 20, 1987 (deposition exhibit 2, employer's exhibit 1) that she suffered from chronic cervical strain "and recurrent with limited extension and rotation primarily to the right. She has no neurologic deficit and I do not believe that her problem has a foundation in the central peripheral nervous system, but rather a continuing pain state secondary to such a soft tissue disorder." Dr. Winston went on to opine that there existed a causal relationship between the claimant's job and the need for medication and treatment along with permanent partial impairment of three percent. Dr. Winston's June 2 letter to Dr. Honsey indicated that his opinion that the claimant's medical problems were related to her work was based on a job description given him by the claimant. His office notes do not indicate that the claimant pointed out that the work was particularly heavy immediately before her symptoms appeared, but do show "assumed from lifting at work" and "boxing & lifting continuous forms is her job - at table height." Dr. Winston's report to Mr. Hedberg on April 20, 1987 was based in part upon a two-page medical history.prepared by Mr. Hedberg (exhibit 1, pages 10-11). That history is appended to the deposition that constitutes exhibit 1, and set forth in pertinent part: On April 17, 1986, she had an exceptionally heavy day at work. Four weeks prior to this day she had been moved to a new collator machine which required her to lift much more and to work with her arms extended out in front of her. Dr. Winston also relied in his report to Mr. Hedberg on the claimant's answer to interrogatory number 15, part of the discovery in this case prior to hearing. That answer is marked as deposition exhibit 4 attached to exhibit 1, and consists of the following: 15. Describe in claimant's own words the event of April 17, 1986, in which Claimant contends she sustained any injury as alleged in her petition. ANSWER: On April 17, 1986, I had an especially heavy night at work. I worked the 4 p.m. to 12 midnight shift. When I awoke the next day, I had severe pain in my neck. I could hardly turn my head because of the pain and tightness in my neck. For most of the 12 years I had worked at Briggs, I worked as a collator jogger on a snap-out forms collator. My job was to pick up small, light-weight handfuls of snap-out forms, jog them and put them in boxes. About four weeks before my neck injury, I was moved to a continuous forms collator. The continuous forms collator was much different. It involved lifting very large and sometimes very heavy bundles of continuous forms (800 to 1500 forms per bundle). On an average, the continuous bundles weighed 35 to 40 pounds and I would normally lift 50 to 100 bundles a night. I had to lift the large, heavy bundles at waist level with my arms stretched out. PUGH V. MULTIPLEX BUSINESS FORMS PAGE 5 On January 12, 1987, the claimant was examined by Alfredo Daniel Socarras, M.D. Dr. Socarras specializes in neurology. He performed a neurological examination, which involved testing various nerves dealing with the face and muscles (exhibit 2, page 8) and eventually concluded on the basis of the claimant's symptomatology (but not signs of any disorder) that she might have a mild carpal tunnel syndrome. He further opined, at page 10 of his deposition (exhibit 2): In addition, I felt that her neck problem was more or less due to muscle tension rather than due to any structural changes, by that meaning any degeneration of the cervical disc or cervical spine. There was nothing indicative of that in my examination, as well as viewing the tests that had been performed previously, x-rays, and so on. There was not indication of that. Dr. Socarras further noted that the foraminal compression test was negative, indicating no inflammation of the nerve in the cervical spine, and no muscle weakness or atrophy. This would indicate no compromise of the nerve supply to the muscle. He saw no indication that the claimant's neck was tilted or in a spasm (page 12) and concluded that the claimant was fully capable of returning to her prior employment in the event that she lost some weight. He believed the claimant capable from a neurological standpoint of lifting eight bundles an hour weighing between 35-40 pounds (page 29). Dr. Socarras found no muscle spasms in the claimant at the time of his examination. The significance of this finding is that it indicates no underlying irritation of the soft tissues or pinched nerve (page 21-22). In discussing Dr. Winston's report of cervical strain, he commented at page 23 of the deposition: Cervical strain is also a big bag for many things, and it doesn't necessarily mean--it is just that, a strain of the muscles, and I think that is also sometimes a reflection of tension. People in the daily stresses that we all have, sometimes we cannot relax the muscles in the proper fashion, and this will cause some discomfort. So that, again, is more sometimes subjective than objective, and it is hard to measure. You cannot measure those things. Dr. Socarras summarized his findings in a January 12, 1987 letter to defendants' attorney, Dorothy L. Kelley (deposition exhibit 2, attached to exhibit 2): On neurological examination: patient was alert, oriented and cooperative. She was obese. Her weight was 275 lbs.. Her height was 5'4". Her blood pressure was 160/110. Her speech was normal. Cranial nerves were intact. Fundi were unremarkable. Motions of the cervical and lumbar spine were within normal limits. Foraminal compression test was negative. I could not ellicit [sic] a Tinels sign over the right median nerve at the level of the wrist. The Phalen's sign was also negative. There was no muscle weakness or atrophy. Reflexes were active and equal. There was no pathological reflex. Superficial sensation as well as proprioception were normal. Gait and coordination were PUGH V. MULTIPLEX BUSINESS FORMS PAGE 6 also normal. In summary there was no neurological deficit. I could not find any evidence of cervical radiculopathy. Some of her symptoms may be related to a mild right carpal tunnel syndrome. I feel that her neck symptoms are most likely related to muscle tension. There is no indication of cervical spondylosis. From the neurological standpoint I find no functional impairment. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of her employment. Iowa Code section 85.3(l). The claimant must prove by a preponderance of the evidence that her injury arose out of and in the.course of her employment. Musselman v. Central Telephone Co., 260 Iowa 252, 154 N.W.2d 128 (1967). The concept of arising out of" suggests a causal relationship between the employment and the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that the injury of April 17, 1986 is causally relates 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 PUGH V. MULTIPLEX BUSINESS FORMS PAGE 7 (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 stich 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). ANALYSIS The initial question for determination is whether the claimant's injury arose out of and in the course of her employment. As noted, a possibility that her injury arose out of her employment is insufficient; rather, a probability is necessary. Burt, supra. The record in this case reflects only that the claimant awakened one morning with neck pain and stiffness. The deputy accepts as established that claimant did not perform unusually heavy work the night before. She frankly concedes that she can point to no unusual instance of pain, "pulling" or the like that occurred at work and which she can relate to her symptoms. As pointed out in defendants' brief, the neck muscle spasm found by the most-immediate treating physician, Dr. Honsey, may well have resulted from activities at home or even sleeping in an awkward position. The claimant is five feet four and one-half inches, and weighed 275 pounds at the time of her injury. It is necessary to review the medical evidence to determine whether the claimant has met her burden of proof in establishing a probability that her injuries resulted from or were caused by a work injury. As described earlier, Dr. Honsey was the most-immediate treating physician. he had serious questions as to whether the claimant's symptomatology was real or factitious and concluded that this was not a workers' compensation case. He found no neck symptoms at all, but did find palpable spasm in the trapezius muscle (a muscle of the back). He considered that the claimant had a soft tissue injury and considered permanent disability unlikely in light of no bony injuries. Dr. Socarras found no neurological deficit or functional impairment from a neurological standpoint. He felt that the claimant's neck symptoms were most likely related to muscle tension. It is plain that the medical evidence from Drs. Socarras and Honsey do not reflect a probability that the claimant's injury was caused by anything arising out of and in the course of her employment. The only evidence in the record other than speculation on the part of the claimant tending to establish that causation is the report and deposition of Dr. Winston. However, that report and deposition are contaminated by what the deputy finds to be an inaccurate medical history. The record in this case does not show that the claimant undertook particularly heavy or difficult work on the night before she woke up showing PUGH V. MULTIPLEX BUSINESS FORMS PAGE 8 symptomatology. To the extent Dr. Winston's opinions are based upon that inaccurate history, they must be given less weight. Based upon all of the evidence in the record, the deputy finds that there is only a speculative possibility that the claimant's soft tissue injuries arose out of and in the course of her employment. This is insufficient to establish liability of the defendants. FINDINGS OF FACT Therefore, based upon the evidence presented, the following facts are found: 1. Claimant suffered a soft tissue injury to her neck which she discovered upon awakening April 18, 1986. 2. Claimant did not perform unusually heavy work or experience any unusual pain, obvious injury or other incident on her last shift before her injury. 3. It cannot be said that the claimant's injury was caused by her employment. CONCLUSION OF LAW Wherefore, based upon the principles of law previously states, the following conclusion of law is made: 1. Claimant has failed to establish by a preponderance of the evidence that her soft tissue injury discovered April 18, 1986 arose out of or in the course of her employment, or that the injury or any resulting disability were causally related to the employment. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing as a result of this proceeding. Costs of this action are assessed against the defendants pursuant to Division of Industrial Service Rule 343-4.33. Signed and filed this 22nd day of September, 1988. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Arthur C. Hedberg, Jr. Attorney at Law 840 Fifth Avenue Des Moines, Iowa 50309 Ms. Dorothy L. Kelley Attorney at Law PUGH V. MULTIPLEX BUSINESS FORMS PAGE 9 1000 Des Moines Building Des Moines, Iowa 50309 1402.30, 1402.40 Filed September 22, 1988 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER LINDA PUGH, Claimant, vs. File No. 822827 MULTIPLEX BUSINESS FORMS, A R B I T R A T I O N Employer, D E C I S I O N and FIREMANS FUND INSURANCE COMPANIES, Insurance Carrier, Defendants. 1402.30, 1402.40 Claimant failed to sustain her burden of proof as to an injury and resulting disability arising out of and in the course of her employment where she awakened one morning and discovered a soft tissue neck injury; no traumatic events, pain or unusually heavy work at her employment preceded the discovery.