BEFORE THE IOWA INDUSTRIAL COMMISSIONER VIRGIL L. ERBE, JR., Claimant, vs. File No. 824057 IOWA STATE UNIVERSITY, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, 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 July 10, 1991 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this 27TH day of August, 1992. BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Barry Moranville Attorney at Law West Bank Building STE 212 1601 22nd Street West Des Moines, Iowa 50265 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 9998 Filed August 27, 1992 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER VIRGIL L. ERBE, JR., Claimant, vs. File No. 824057 IOWA STATE UNIVERSITY, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. 9998 Summary affirmance of deputy's decision filed July 10, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : VIRGIL L. ERBE, JR., : : Claimant, : : File No. 824057 vs. : : A R B I T R A T I O N IOWA STATE UNIVERSITY, : : D E C I S I O N Employer, : : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Virgil L. Erbe, Jr., against Iowa State University, his employer, and the State of Iowa based upon an injury that occurred on May 9, 1986. Erbe seeks compensation for permanent partial disability and reimbursement for the expenses of an independent medical examination under the provisions of Code section 85.39. The issues identified for determination are the degree of permanent partial disability, entitlement to reimbursement for an independent medical examination and determination of the employer's right to credit under Code section 85.38(2) for group disability income payments paid under a nonoccupational group plan. It was stipulated that all healing period compensation which was due has been paid and that 75 weeks of permanent partial disability compensation has been paid. It was also stipulated that the commencement date for any additional permanent partial disability compensation which may be awarded in this decision is June 19, 1990. The amount of disability income and sick pay which has been paid is $20,078.99, but the entitlement for a credit for those payments is disputed. Claimant seeks reimbursement in the amount of $395.00 for the cost of an examination and report performed by Ron Evans, D.C. The case was heard at Des Moines, Iowa on April 2, 1991. The evidence consists of the testimony of Virgil L. Erbe, Jr., Connie Erbe, Gary Wiggins, Cheryl Banks and Dennis Erickson. The record also contains jointly offered exhibits 1 through 13. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the Page 2 following findings of fact are made. Virgil L. Erbe, Jr., is a 38-year-old married man who lives at Ames, Iowa with his wife, Connie. Virgil graduated from Ames High School in 1971 and has subsequently taken some short courses and seminars which deal with his employment at Iowa State University. While in high school, Virgil worked as a gas station attendant. He has also worked as a tree trimmer and security guard. Virgil commenced employment with Iowa State University on April 1, 1975. He started as a groundskeeper or laborer where his duties consisted primarily of activities such as mowing, trimming trees, picking up debris, raking leaves, snow removal and general grounds care on the Iowa State University campus. He was eventually promoted to the position of arborist, a partially supervisory position. At the time of the injury which is the subject matter of this case, he was earning in the range of $22,000-$23,000 annually. If he were still working as an arborist, his salary would be in the range of $24,000 annually. Virgil's health history with regard to his back is generally unremarkable until early July 1984 when he sustained his first injury while removing a willow tree on the university campus. When his complaints did not resolve, claimant entered into treatment with Ames orthopaedic surgeon Allen G. Lang, M.D. After conducting appropriate diagnostic tests, Dr. Lang diagnosed Virgil as having a herniated lumbar disc at the L5-S1 level of his spine. Virgil underwent discectomy surgery in February 1985. After a period of recuperation, he resumed his employment as an arborist (exhibit 2, pages 4 and 5; exhibit 13, pages 1-6). Virgil continued to have some residual complaints following the surgery, but apparently was able to adapt. In May 1986, he returned to Dr. Lang with increased complaints. Diagnostic tests showed further disc herniation at the same level as his previous surgery. A second surgery was then performed in May 1986 (exhibit 2, pages 5 and 6; exhibit 13, pages 6-8). Virgil returned to work during the month of July 1986 with restrictions. The severity of his restrictions was eventually relaxed (exhibit 2, page 7; exhibit 13, pages 8 and 9). Virgil again contacted Dr. Lang in July 1988 with complaints of continued back and leg discomfort. Diagnostic testing showed further disc herniation at the same level. A third laminectomy surgery was performed in September 1988 by Dr. Lang (exhibit 2, pages 7-9; exhibit 13, pages 10-12). In January 1989, Virgil was released to return to work with restrictions from Dr. Lang. He reported to work but was sent home by supervisor, Dennis Erickson. Virgil applied for and received long-term disability benefits through the university group plan commencing April 28, 1989 and running through October 27, 1990 as explained by Gary Wiggins, the benefits coordinator at the university. Page 3 Wiggins explained that it is his understanding that the group long-term disability carrier, Principal Mutual, does not coordinate benefits or reduce the long-term disability payment for workers' compensation benefits which are payment of permanent partial disability, but that it does reduce the benefit for workers' compensation benefits which have the character of healing period or temporary total disability compensation (exhibit 1, pages 7-19). He explained that the coordination or reduction occurs only for workers' compensation benefits which are payment for loss of time from work and that since permanent partial disability can be paid while the individual is actually working, there is no reduction of the long-term disability benefit. Wiggins explained that the university had been aware that Virgil was receiving workers' compensation benefits prior to the time that long-term disability benefits were started by virtue of a March 30, 1989 letter from Dick Andrews. Wiggins further explained that Connie Tharp from Principal Mutual wrote a letter to the claimant on June 28, 1989 in which the letter advised the claimant that the long-term disability was being reduced for Social Security benefits. Wiggins explained that the long-term disability benefit is subject to income taxation. Wiggins explained that the long-term disability payment commences 90 days following the last day of work or the date that the disability began, unless the employee has more than 90 days of sick leave, in which event the payment begins when the sick leave is completely exhausted. Ronna Swacker, rehabilitation administrator with the Principal Financial Group, issued a letter on January 16, 1991 in which she explained that under the policy which has been issued to Iowa State University, long-term disability benefits are reduced by workers' compensation temporary benefits, but are not reduced for permanent disability benefits, unless some portion of those benefits is specifically set aside for loss of income, in which event it would be reduced by the specific loss of income portion of the award (exhibit 4). Exhibit 1 to the deposition of Gary Wiggins is a copy of a document identified in the deposition as the group life insurance and total disability booklet (exhibit 1, page 10). The booklet provides that the disabled employee, under the policy issued, will receive 75 percent of the first $1,000 of monthly compensation plus 60 percent of monthly compensation in excess of $1,000 up to a maximum of $3,150, which amount is subject to increase according to the Consumer Price Index. The portion of the booklet entitled "Coordination of Benefits" states in part as follows: (b) any payment for which you are eligible under a Workers' Compensation Act or other similar legislation or under any plan (including compulsory plans) providing benefits for loss of time from employment to which the University contributes or makes payroll deductions; plus Page 4 (Exhibit 1, deposition exhibit 1, page 14) Cheri Banks, workers' compensation manager for the Iowa Department of Personnel since January 1, 1991, testified in person at the hearing and by affidavit that she is the person who decides whether or not to claim a credit under Code section 85.38(2) and that she claims a credit in this case for the long-term disability benefit payments. Banks also stated that the normal procedure is to pay the workers' compensation and allow Principal Financial to take back any amount which should not have been paid. It was explained that the state is essentially self-insured and that the Principal Financial Group administers the program and is paid a fee for administering the program. Banks confirmed that the state of Iowa pays the entire cost of the long-term disability program (exhibit 5). The opinion regarding what the plan provides as expressed by Cheri Banks is outweighed by the opinions expressed by Gary Wiggins and Ronna Swacker as well as what is shown in the booklet which describes the plan (exhibit 1, deposition exhibit 1, page 14). The actual policy issued by Principal Financial Group or the contract which specifies the actual provisions of the plan which the Principal administers was not introduced into evidence by any of the parties. The evidence in the record indicates that the plan does not offset permanent partial disability compensation against the long-term disability group benefit. As previously indicated, after being sent home, Virgil drew both workers' compensation and long-term disability benefits concurrently. He also entered into a program through the Iowa Division of Vocational Rehabilitation where tests showed him to be of average intelligence, though his math scores were quite low and gave some indication of a possible learning disability (exhibit 8). In late 1990, Clark Williams, a qualified vocational consultant, became involved in Virgil's case. With his assistance, Virgil was able to arrange to return to work with Iowa State University on November 1, 1990 as a groundskeeper, the same position he held in 1975 (exhibit 10). At the time of hearing, Virgil was employed as a groundskeeper by the university earning approximately $19,900 annually. His back continues to bother him, his right leg is normally numb and at times he has a sharp pain in the leg. He still loses sleep at night, but is able to get around fairly well once he gets loosened up in the mornings. Virgil has some difficulty with activities such as shoveling or raking, but he believes that he can continue working in his position as a groundskeeper. According to Dennis Erickson, Virgil is working satisfactorily and he believes that claimant's physical restrictions can also be accommodated in other positions which might provide a higher rate of pay than Virgil's present position. Erickson also indicated that Virgil has the potential to move into a supervisory position. Virgil is interested in moving into a Page 5 higher paying or supervisory position. No evidence was introduced showing the probability or anticipated date of any such move to a higher paying position. From the record made, it appears as though the employer did not take active control of Virgil's medical treatment until it sent him to the Pain Management Center in late 1989 (exhibit 11). While at the center, William C. Koenig, Jr., M.D., provided claimant with a 15 percent permanent partial impairment rating. Claimant's original treating physician for his back was Dr. Lang and no effort was made to cause claimant to change from Dr. Lang to any other orthopaedic surgeon for his primary treatment. Based upon agency expertise and experience, it is noted that it is not uncommon for Dr. Lang to be an employer's authorized treating physician for patients with orthopaedic problems who reside in the Ames, Iowa area. In this case, the employer apparently acquiesced in treatment by Dr. Lang since it took no action to direct other care. In a report dated March 24, 1990, Dr. Lang provided an impairment rating of 20 percent of the whole person (exhibit 13, page 14). In a report dated June 30, 1989, Dr. Lang had provided an eight percent impairment rating (exhibit 13, page 17). Des Moines orthopaedic surgeon Martin S. Rosenfeld, D.O., provided an impairment rating of 20 percent in a report dated December 11, 1989 (exhibit 12). The pain management program was beneficial to the claimant. In a report dated March 27, 1990, Dr. Koenig provided his impairment rating of 15 percent of the whole person (exhibit 11). In a report dated June 8, 1990, Sam C. Evans, D.C., provided an impairment rating of 28 percent of the whole person (exhibit 3, page 4). The charges for that evaluation and report are shown in an attachment to the exhibit list to be $395.00. When deposed, Dr. Lang expressed the opinion that a causal connection exists between the May 9, 1986 injury and Virgil's current disability related to his back. He again rated that disability at 20 percent of the whole person (exhibit 2, pages 10 and 11). Dr. Lang approved of claimant working as a groundskeeper (exhibit 2, pages 11 and 12; exhibit 13, page 18). The assessment of this case as made by Dr. Lang is accepted as being correct, including his opinion on causation, his impairment rating and his recommended activity restrictions. conclusions of law There is no issue in this case with regard to liability. The initial issue is determination of the extent of permanent partial disability. 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 Page 6 physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Since it appears as though all the existing disability has resulted from injuries sustained while the claimant was employed by this employer, there is no basis for apportionment of the disability. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). Claimant seems to be appropriately employed. While the position of arborist has been eliminated from the university work force, it is reasonable to expect that Virgil would be earning approximately $24,000 annually if he had not been injured in 1988. It appears as though the position was eliminated because it was vacant. Approximately two years had passed since he last worked and some pay increase would have been expected. It appears as though he has experienced approximately a 15 percent reduction in actual earnings when his current salary is compared to what he probably would have been earning if he had not been injured. While there is some reason to believe that Virgil will eventually be able to move into a higher paying position, possibly supervisory, such has not yet occurred and may never occur. It is particularly notable that he has had three back surgeries. That fact alone will make him quite unpalatable to many potential employers. His restrictions following the most recent surgery caused this employer to determine that they had no place for him in its work force. Any other employer would not have as much reason or motivation to hire Virgil as would his current employer. It appears as though his current employment situation is quite favorable in comparison to many of the alternatives which would have Page 7 faced him if the university had not decided to accommodate his restrictions. When all the material factors of industrial disability are considered and weight given to those which are most pertinent in this case, it is determined that Virgil L. Erbe, Jr., sustained a 25 percent permanent partial disability as a result of the May 9, 1986 injury. This entitles him to recover 125 weeks of compensation for permanent partial disability, an amount which is 50 weeks more than what had been voluntarily paid by the employer. As stipulated in the prehearing report, those additional 50 weeks are payable commencing June 19, 1990. Claimant seeks to recover the cost of the medical examination performed by Dr. Evans. There appears to be no dispute regarding the reasonableness of the charges, only the employer's liability. In this case, it is clear that the claimant was allowed to treat with the physician of his choice. The reason the employer permitted that to occur does not appear in the record. Perhaps it is the same physician the employer would have chosen. Because the employer paid for the services provided by Dr. Lang without any objection, Dr. Lang became the physician who was retained and authorized by the employer for purposes of Code sections 85.27 and 85.39. Conte v. Heartland Lysine, Inc., file number 900546 (Arb. Decn., June 13, 1991); Coble v. Metromedia, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 71 (1979); Munden v. Iowa Steel & Wire, Thirty-third Biennial Report of the Industrial Commissioner 99 (1977). The fact that the claimant seeks an independent examination from a second physician does not increase the cost to the employer since if the employer had selected the treating orthopaedic surgeon, the employer would have paid for that physician's charges, including the charges involved with making a rating of permanent impairment. The employer would also, under those circumstances, have been required to expend the cost of an independent examination by a second physician. Since the employer's liability is established in this case by admission and an impairment rating had been made by Dr. Lang as well as by Dr. Koenig, the claimant is clearly entitled to recover the cost of his independent medical examination performed by Dr. Evans. The final issue in the case deals with the employer's right to a credit under section 85.38(2) of The Code. The burden of proving the entitlement rests upon the employer. Argo v. Van Hulzen Oil Co., IV Iowa Industrial Commissioner Report 15 (1984); McCrady v. Iowa Beef Processors, Inc., IV Iowa Industrial Commissioner Report 239 (1984); Hebensperger v. Motorola Communications & Electronics, Inc., II Iowa Industrial Commissioner Report 187 (1981). The agency precedent is consistent with the general proposition that the burden of proving an entitlement to anything rests on the proponent. Rule 14(f)(5), Iowa Rules of Appellate Procedure; Wonder Life Co. v. Liddy, 207 N.W.2d 27 (Iowa Page 8 1973). The credit is similar to the defense of payment or accord and satisfaction, both of which are affirmative defenses where the burden of pleading and proof is on the party seeking to benefit from the credit. Electra Ad Sign v. Cedar Rapids Truck Center, 316 N.W.2d 876 (Iowa 1982); Glenn v. Keedy, 248 Iowa 216, 80 N.W.2d 509 (1957). In order to be entitled to a credit under section 85.38(2), the employer has the burden of proving two facts, namely, that the employer contributed toward the cost of the group plan benefit and that the benefits should not have been paid or payable if any right of recovery existed under the workers' compensation statutes. It is particularly noted that the collateral source rule has not been extinguished with regard to workers' compensation as clearly shown in section 85.38(1). Only those benefits which qualify under section 85.38(2) are entitled to credit. The best evidence from which a determination of the terms of the group long-term disability plan could be examined is the policy or contract between the state of Iowa and the Principal Financial Group. That document was not entered into evidence in this case. A booklet which is probably intended to summarize the contents of the actual plan seems to support the claimant's position as does the testimony from Gary Wiggins and the letter from Ronna Swacker. Summarily stated, the individuals who administer the group long-term disability plan interpret and administer the plan in such a manner as to not provide any coordination of benefits or reduction in the amount paid by the plan for permanent partial disability compensation benefits. The fact that the plan has been customarily administered in that manner is evidence that the customary manner of administration is in conformance with the actual contract or policy. Section 79.20 of The Code establishes a long-term disability program for state employees. The fact that such a plan is mandated by statute does not, however, necessarily mean that the state is prohibited from providing employees with benefits which are consistent with, but more favorable than those provided by the statute. The maximum amount payable under the plan clearly exceeds the $2,000 maximum specified by section 79.20. If the state contracted for a policy or plan which did not offset permanent partial disability compensation benefits, then the requirements for a credit under section 85.38(2) of The Code would not exist for permanent partial disability compensation payments. It must likewise be assumed that the public officials who arranged the administration by the plan by the Principal Financial Group acted lawfully. Illegal conduct on their part by purchasing a plan which would be in violation of statute could potentially subject those individuals to personal liability for any resulting excess costs or expenses. The issue of the legality of the group plan arrangement was not raised in the prehearing conference and was not identified on the hearing assignment order. The Page 9 issue was not extensively briefed by counsel and no evidence was submitted dealing with the manner in which the plan, policy or contract was designed. Under these conditions, the presumption of regularity prevails. The terms of the policy, plan or contract, being lawful, control the right or lack thereof to a credit under section 85.38(2). There has long been recognized a distinction between different types of workers' compensation benefit payments. No credit is allowed for amounts which are paid in excess of the weekly workers' compensation benefit rate. Beeler v. Union Elec. Co., III Iowa Industrial Commissioner Report 22 (App. Decn. 1983). Overpaid healing period benefits cannot be used to offset benefits payable under section 85.27. Anderson v. Woodward State Hospital-School, 2-1 State of Iowa Industrial Commissioner Decisions 24 (App. Decn. 1985). The interpretation given by Wiggins and the Principal is consistent with what is seen in some other states. Ott v. Workers Comp. Appellate Bd., 118 Cal. App. 3d 912, 173 Cal. Rptr. 648 (1981); Russell v. Bankers Life Co., 46 Cal. App. 3d 405, 120 Cal. Rptr. 627 (1975); Schel v. City of Miami, 173 So. 2d 170 (Fla. 1976). While the amount paid under the group long-term disability plan is established by stipulation, the amount of any credit entitlement based upon those payments is not determinable. If claimant's claim had been properly adjusted as a compensable workers' compensation claim and the correct amount of weekly compensation benefits for permanent partial disability paid, the claimant would have received nontaxable workers' compensation benefits. The group long-term disability compensation benefits are, however, subject to federal and state income taxes. The amount of the credit is the net amount that the claimant receives after deducting the applicable taxes. Fields v. Univ. of Iowa Hospitals & Clinics, file number 883516 (Arb. Decn., May 31, 1990); Beller v. Iowa State Penitentiary, file number 799401 (Review-reopening Decn., January 23, 1990). To hold otherwise would penalize the injured employee due to the employer's mistake in adjusting the claim. Such a result would be totally unconscionable, particularly since the workers' compensation statutes are to be construed in a light favorable to the injured employee. The net result of any credit under section 85.38(2) of The Code should be to place the injured employee in the same position as the injured employee would have experienced if the correct amount of workers' compensation benefits had been paid from the outset. If any party is to suffer as a result of an error in the claim adjusting process, that party should be the one who made the error, namely the employer. It is therefore concluded that the employer in this case has failed to prove, by a preponderance of the evidence, that it is entitled to a credit under section 85.38(2) of The Code based upon the long-term disability benefits paid to Virgil L. Erbe, Jr., during the time Page 10 running from April 1989 through October 1990. In making this ruling, it is determined that the claimant's healing period entitlement had ended by the time he was released to return to work in January 1989 by Dr. Lang, reported for work and was sent home, thereby starting the running of the waiting period for long-term disability benefit payments. This decision does not address whether or not the use of the claimant's sick leave during the waiting period constituted a violation of section 85.38(3) or any interpretation of credit for those benefits. The only issues briefed or discussed by counsel deal with the long-term disability group plan. order IT IS THEREFORE ORDERED that defendants pay Virgil L. Erbe, Jr., fifty (50) weeks of compensation for permanent partial disability at the stipulated rate of two hundred forty-one and 49/100 dollars ($241.49) per week payable commencing June 19, 1990. The entire amount thereof is now past due and owing and shall be paid to the claimant in a lump sum together with interest pursuant to section 85.30 of The Code computed from the date each payment came due until the date of actual payment. IT IS FURTHER ORDERED that defendants reimburse the claimant in the amount of three hundred ninety-five and 00/100 dollars ($395.00) representing the cost of an independent medical examination under section 85.39 of The Code. IT IS FURTHER ORDERED that the defendants not take or enforce any credit under section 85.38(2) of The Code based upon the long-term disability compensation benefits which were paid to the claimant by Principal Mutual. IT IS FURTHER ORDERED that the costs of this action are assessed against the defendants pursuant to rule 343 IAC 4.33 and shall be paid by defendants to the claimant in the total amount of six hundred ninety and 62/100 dollars ($690.62) as itemized in the attachment to the prehearing report. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 11 Mr. Barry Moranville Attorney at Law West Bank Building, Suite 212 1601 22nd Street W. Des Moines, Iowa 50265 Ms. Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1403.30; 1701; 1803; 2502 Filed July 10, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : VIRGIL L. ERBE, JR., : : Claimant, : : File No. 824057 vs. : : A R B I T R A T I O N IOWA STATE UNIVERSITY, : : D E C I S I O N Employer, : : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803 Thirty-eight-year-old groundskeeper at Iowa State University awarded 25 percent permanent partial disability based upon his second and third laminectomy, a 20 percent impairment rating and approximately a 15 percent reduction in his actual earnings. Were it not for his employer's accommodations, his loss of actual earnings would have been profound. 1403.30; 1701 Employer required to carry burden of proof when seeking section 85.38(2) credit. Employer failed to carry the burden by failing to show that the long-term disability plan or policy prohibited payment of long-term disability benefits in addition to permanent partial disability. The persons who administer the long-term disability plan provided evidence that there was no offset under those circumstances. 2502 Where employer acquiesced in the claimant's choice of orthopaedic surgeons (without showing any evidence as to why), that surgeon became the employer's authorized and retained physician for purpose of entitling the claimant to an independent medical examination under section 85.39. BEFORE THE IOWA INDUSTRIAL COMMISSIONER SCOTT M. BLASBERG, Claimant, File No. 824142 vs. A R B I T R A T I 0 N FRIEDMAN MOTORCARS, LTD., D E C I S I 0 N Employer, and F I L E D UNIVERSAL UNDERWRITERS JAN 24 1990 INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding brought by claimant, Scott Blasberg, against his employer, Friedman Motorcars, Ltd., and its insurance carrier, Universal Underwriters Insurance Company. The case was heard in Des Moines, Iowa on the 23rd day of February, 1989. The record consists of the testimony of claimant. The record also consists of the testimonies of Jerry Friedman and Kevin Dean Messenger. The record is also comprised of joint exhibits 1-18 and defendants' exhibit A. STIPULATION Prior to the hearing, the parties entered into one stipulation. The stipulation is: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury. ISSUES As a result of the prehearing report and order submitted and approved on February 23, 1989, the issues presented by the parties are: 1. Whether claimant received an injury which arose out of and in the course of employment; 2. Whether there is a causal relationship between the alleged injury and the disability; 3. Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits; and, 4. Whether claimant is entitled to medical benefits pursuant to section 85.27. STIPULATED FACTS In addition to certain facts which were presented at the hearing, the following facts have been admitted and stipulated to by the parties: 1. On May 1, 1986, claimant was employed by Friedman Motorcars, Ltd., as a parts counter man. 2. May 1, 1986, was a Thursday. 3. On May 1, 1986, Friedman Motorcars, Ltd., was the owner of a 1986 1/2 Toyota Supra 2 door-automobile, VIN Number JT2MA70LOGOO10080 (Toyota Supra). 4. On May 1, 1986, Kevin Messenger was an employee of the service department of Friedman Motorcars, Ltd., where he worked as a mechanic. 5. On May 1, 1986, one of the duties of Kevin Messenger as an employee of the service department of Friedman Motorcars, Ltd., was to prepare and test drive the Toyota Supra. 6. On May 1, 1986, at approximately 4:40 p.m. there was a collision between the Toyota Supra, being driven by Kevin Messenger, and a 1986 Ford Aerostar Van, owned by Charles Gabus Ford (Ford), near the intersection of Northwest 46th Avenue (Meredith Drive) and Northwest 47th Court in Des Moines, Polk County, Iowa. 7. On May 1, 1986, at approximately 4:40 p.m., claimant was a passenger in the Toyota Supra when it and the 1986 Ford collided near the intersection of Northwest 46th Avenue (Meredith Drive) and Northwest 47th Court in Des Moines, Polk County, Iowa. 8. On May 1, 1986, John Rath was manager of the parts department of Friedman Motorcars, Ltd. 9. On May 1, 1986, by 4:30 p.m., John Rath had finished his work for the day and left Friedman Motorcars, Ltd. 10. Duties of claimant as an employee of the Friedman Motorcars, Ltd., parts department included: taking orders for parts from retail customers or from employees of the service department; selling parts to retail customers; obtaining parts from their place of storage and bringing them to the parts counter; unloading trucks delivering parts; unpacking the bases in which parts,were shipped, carrying the unplaced parts to the place of storage and placing them in the storage area; recording parts received; making records of parts sold or furnished to service personnel; answering the telephone; and, closing and reconciling the cash drawer, as necessary. 11. Parts counter persons, such as claimant, are expected to be familiar with the various automobiles sold by Friedman Motorcars, Ltd. 12. On May 1, 1986, policies, rules and regulations of the parts department of Friedman Motorcars, Ltd., were not in writing. 13. Prior to May 1, 1986, Scott M. Blasberg had not been disciplined, fined, reprimanded, censured, admonished, or otherwise rebuked for violating or failing to follow any of the policies, rules and regulations of the parts department of Friedman Motorcars, Ltd. 14. Claimant was hired by Friedman Motorcars, Ltd., on August 21, 1984. 15. During all relevant times, claimant's treating physician was Scott Neff, D.O. 16. Claimant was born September 15, 1957. FACTS PRESENTED During the hearing, claimant testified he never had a discussion with anyone from Friedman's concerning company policies other than discussions about hours and lunch breaks. Claimant indicated he worked Monday through Friday from 8:00 to 5:00 p.m., with one-half hour off for lunch. During his lunch break, claimant stated he was able to leave the premises or he could eat his lunch on site. If claimant left the dealership for lunch, he was not required to tell anyone. Claimant also testified that during his employment, he reported to John Rath, parts department manager. Claimant stated he did not know whether there was an assistant to Mr. Rath. Claimant indicated that whenever a parts department employee needed to leave the premises to obtain parts, the employee was required to obtain the permission of Mr. Rath. If Mr. Rath was not present, then the parts employees would tell anyone else who was present. On the day in question, claimant testified he was taking a break in the back of the shop. Kevin Messenger, the co-employee, was prepping a Toyota Supra for sale. Claimant stated he began looking at the vehicle so he could familiarize himself with it. Claimant testified he wanted hands-on experience with the vehicle so he could explain parts to the customers. According to claimant's testimony, Mr. Messenger asked claimant if he wanted to ride in the Supra while Mr. Messenger test drove it. Claimant indicated, yes, and he reported the matter to several co-employees in the parts department. Claimant testified no one complained or told him not to leave, although claimant indicated this was the first time he had ever been asked to accompany a service technician on a test drive. Claimant also indicated he did not know of any other parts employee who had ever gone on a test drive. Claimant and Mr. Messenger were involved in the aforementioned auto collision with the Ford. After the collision, claimant was hospitalized. Later, claimant was terminated from his employment. John Rath, parts manager, testified by deposition. He indicated he was the parts manager and that he supervised claimant. Mr. Rath reported the policies at defendant's establishment were oral policies and training was on-the-job training. Mr. Rath stated employees in the parts department did not leave the premises unless he instructed them to leave. Mr. Rath said he never had to enforce that policy. Mr. Rath also testified no one was in charge of the parts department when he was away from the premises. Mr. Rath also testified that on the day of the collision, he left work at 4:00 p.m., but that prior to 5:00 p.m., he received a telephone call regarding claimant's injury. Mr. Rath reported he visited claimant in the hospital. During his first of four hospital visits, Mr. Rath reported claimant blurted out, "I'm sorry, John. I know I've got you in trouble. I was where I shouldn't have been." (Joint Exhibit 4, page 18, lines 9-11) Mr. Rath also stated he had no knowledge of claimant's termination. The decision to terminate claimant was not Mr. Rath's decision. He did not know who had made that decision. Kevin Messenger testified by deposition. He stated claimant requested the test ride. Mr. Messenger indicated he had never taken a parts employee with him on a test ride on any prior occasion. Jerry Friedman, President of defendant company, testified at the hearing. He stated there were no written policies governing test drives on May 1, 1986, but that parts employees did not take test drives. Mr. Friedman stated no parts knowledge would be gained by a parts employee taking a test drive. 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(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 1, 1986,.which arose out of and in the course of his 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). The Iowa Supreme Court recently addressed this issue in the case of McMullen v. Department of Revenue, State of Iowa, 437 N.W.2d 596, 597-598, (Iowa App. 1989). The Court, in McMullen, wrote: Iowa Courts have liberally construed the phrase "in the course of employment." In cases where the employment activity was not required by the employer: An injury in the course of employment embraces all injuries received while employed in furthering the employer's business and injuries received on the employer's premises, provided that the employee's presence must ordinarily be required at the place of the injury, or, if not so required, employee's departure from the usual place of employment must not amount to an abandonment of employment or be an act wholly foreign to his usual work. An employee does not cease to be in the course of his employment merely because he is not actually engaged in doing some specifically prescribed task, if, in the course of his employment, he does some act which he deems necessary for the benefit or interest of his employer. Farmers Elevator Co., 286 N.W.2d at 177 (court quoting Bushing v. Iowa Railway & Light Co., 208 Iowa 1010, 226 N.W. 719, 723 (1929) (citations omitted) (emphasis added). Claimant requests benefits for his hip injury. Defendants maintain the injury is not compensable. According to defendants' position, "claimant was doing nothing to further the employer's business." Therefore, the injury is not covered by workers' compensation. Whether an injury is in the course of employment is an issue which is discussed in Chapter 6 of Lawyer & Higgs, Iowa Workers, Compensation -- Law & Practice, Section 6-5, pages 43-44. The section provides that: Employees usually do not leave the course of their employment by seeking personal comfort through such things as smoking, using bathroom facilities or eating. Some cases in this category may entail consideration of whether an employer prohibition against the activity exists. In Rish v. Iowa Portland Cement Co., claimant was injured when he commenced smoking while wearing a pair of overalls that had dynamite caps in the pockets. Although not finding smoking a necessity, the Iowa Supreme Court recognized it as a "quite universal habit among workmen and an indulgence reasonably to be anticipated by employers. Benefits were awarded. Reasonableness of the action of the employee was considered in Sachleben v. Gjellefald Co. Claimant was working on a sewer line near a railroad track when he went between two cars to have a bowel movement. The train started to move and his legs were crushed. Claimant's injury was compensable. In the case at hand, claimant did not prove by a preponderance of the evidence that his injury arose out of and in the course of his employment. Claimant argues the test ride which he took with Kevin Messenger was made so claimant could familiarize himself with a new model automobile. The familiarity would thus enable claimant to become a better employee and he could recommend parts to customers. Claimant was hired as a sales person in the parts department. His primary duty was to engage in over-the-counter sales. He was paid on a salary plus commission basis. Claimant was required to know and sell auto parts. In order to gain the requisite knowledge, defendant provided manuals, video tapes and microfiche as tools for claimant to use. Claimant was not required to perform test drives. He had never been on a test drive on any prior occasion. In fact, Kevin Messenger had never taken a parts employee on a test drive prior to the day of the collision. Moreover, the parts manager, John Rath, testified that parts employees were not to leave the premises without his permission. On the day in question, the parts manager was absent from the premises. His permission was not obtained prior to claimant taking the test drive. Mr. Jerry Friedman corroborated the above oral policy. He indicated parts employees were to stay on the premises and in their department. Mr. Friedman believed no parts knowledge would be gained from test driving a.car. Consequently, he had never asked a parts employee to test drive a new model automobile. Test driving was the duty of a service technician. Claimant's test drive was done for personal reasons. He and Mr. Messenger were social friends and roommates. The ride was a detour from claimant's normal duties. It was done for purely private motives. All of the aforementioned facts establish that it would be unreasonable for management employees of defendant to foresee that claimant would engage in a test drive. Such an action would especially be unreasonable in light of the fact claimant was paid a commission to sell auto parts. If claimant was absent from the sales counter, he would not be able to earn as much in wages. His wages were contingent upon claimant's presence at the counter. Claimant was required to remain at the counter so he could benefit the employer by selling parts. Finally, the record establishes that subsequent to the collision, claimant made various statements to John Rath. The statements reflect claimant's understanding that he was not to leave the premises on a test drive. Therefore, it is the determination of the undersigned that claimant's injury did not arise out of and in the course of his employment. Since the injury did not arise out of and in the course of claimant's employment, other issues presented are moot. FINDINGS OF FACT AND CONCLUSIONS OF LAW Finding 1. Claimant was working as a parts salesman for defendant on May 1, 1986. Finding 2. Claimant's job duties on May 1, 1986, included over-the-counter parts sales. Finding 3. Claimant was required to have the permission of the parts manager in order to leave the premises of defendant. Finding 4. Claimant's job duties on May 1, 1986, did not include taking test rides of new model autos. Finding 5. Claimant left the premises of defendant on May 1, 1986, in order to take a test drive of a new model auto. Finding 6. Claimant left the premises of defendant on May 1, 1986, without the permission of his supervisor, and the ride was unauthorized. Finding 7. When claimant left the premises of defendant on May 1, 1986, the ride was done for purely personal reasons unique to claimant. Finding 8. It would be unreasonable for defendant to foresee that claimant would leave the premises on an unauthorized test drive. Finding 9. Claimant was injured in an auto collision while on the unauthorized test drive on May 1, 1986. Conclusion A. Claimant has not proven by a preponderance of the evidence that his injury arose out of and in the course of his employment. Conclusion B. Claimant takes nothing from these proceedings since the injury did not arise out of and in the course of his employment. ORDER Claimant takes nothing from these proceedings. Costs of this action are assessed against defendants. Signed and filed this 24th day of January, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Carla T. Cook Mr. George F. Davison, Jr. Attorneys at Law 2801 Fleur Dr. Des Moines, IA 50321 Mr. Frank T. Harrison Attorney at Law Terrace Center, STE 111 2700 Grand Ave. Des Moines, IA 50312 1100, 1103 Filed January 24, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER SCOTT M. BLASBERG, Claimant, File No. 824142 vs. A R B I T R A T I 0 N FRIEDMAN MOTORCARS, LTD., D E C I S I 0 N Employer, and UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Insurance carrier, Defendants. 1100, 1103 Claimant's injury did not arise out of and in the course of his employment. Claimant left the premises of defendant on a purely private venture and without the permission of defendant. While off the premises, claimant was involved in an automobile accident where the auto was owned by defendant and driven by a co-employee. Page 1 before the iowa industrial commissioner ____________________________________________________________ : VICKY BURTON, : : Claimant, : : vs. : : File No. 824332 WOODWARD STATE HOSPITAL-SCHOOL,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendant. : ___________________________________________________________ statement of the case This is a review-reopening proceeding upon the petition of claimant, Vicky Burton, against her employer, Woodward State Hospital School, and the State of Iowa, self-insured employer, defendant. The case was heard on July 9, 1990, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant. Additionally, the record consists of joint exhibits 1-7. issues The issues to be determined are: 1) whether there is a causal relationship between the alleged injury and the disability; 2) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; and, 3) whether claimant is entitled to medical benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant entered into a settlement agreement on March 11, 1987, which was approved by Deputy Industrial Commissioner Michael Trier on March 12, 1987. The settlement agreement provided that: 1) That the Claimant, Vicky Burton, was employed by Woodward State Hospital School on May 18th, 1986. 2) Claimant sustained an injury arising out of and in the course of her employment on May 18th, 1986. Page 2 3) Claimant was paid healing period benefits from May 19, 1986 to December 20, 1986. 4) Claimant was treated by Dr. Dennis F. Rolek, D.O., her private physician and Dr. D.J. Boarine, M.D., the employer's physician. 5) The Claimant underwent a C.T. Scan of the lumbar spine where a bulged disc was found at L-4, L-5. 6) Due to the fact it was a bulged disc, the attending physician was unable to give a permanent rating. 7) That the parties hereto have agreed that Claimant's present permanent partial impairment as a body of the whole is 5%, entitling Claimant to be paid 25 weeks of permanent partial disability compensation at the rate of $178.78 or $4469.50, part of which has accrued and payment by Defendant of the outstanding medical bills. 8) The terms of this Agreement are that the payment of $4469.50 be made by the Defendant and Claimant agrees that said payment shall constitute payment of 5% permanent partial disability of the body as a whole. 9) That said Agreement for Settlement shall have the full force of a Review-Re-opening Decision if rendered by a Deputy Industrial Commissioner, allowing Claimant and Defendants the rights set forth in Section 85.26(2), of the Code of Iowa. A review-reopening petition was filed on February 29, 1988. Subsequent to the approval of the settlement agreement, claimant sought medical treatment from James N. Weinstein, Assistant Professor and Director of the Spine Diagnostic and Treatment Center at the University of Iowa. On March 1, 1988, claimant had a: L4-5 fusion with exploration of the right L4 nerve route and a discectomy done on L4-5 with a steffee plating done in the pedicles of L4 and L5 with posterolateral fusion, using autogenous bone graft from the right iliac crest. Subsequent to the surgery, claimant engaged in physical therapy and a home exercise program. Approximately one year post surgery, x-rays were taken. They revealed: COMPARISON STUDY DATED 9-8-88. AP AND FLEXION AND EXTENSION VIEWS OF THE LUMBOSACRAL SPINE DEMONSTRATE NO EVIDENCE OF INSTABILITY OR MOVEMENT AT THE SITE OF BILATERAL Page 3 POSTERIOR STEFFEE PLATING WHICH BRIDGE L4 AND L5. THE HARDWARE APPEARS INTACT. PERSISTENT NARROWING OF THE L4-L5 DISC SPACE IS AGAIN APPRECIATED. OVERALL, NO INTERVAL CHANGE IS DEMONSTRATED FROM THE 9-88 EXAM. IMPRESSION: STATUS POST STEFFE PLATING SHOWING NO EVIDENCE OF COMPLICATION OR MOVEMENT ON FLEXION OR EXTENSION. Dr. Weinstein evaluated claimant on April 26, 1989. Dr. Weinstein opined: In response to your January 17, 1989 letter, I would like to respond to each of your questions. To answer your first question, the final diagnosis and prognosis is internal traumatic disc disruption at the L4-5 level. It is my opinion that the injury did indeed rise out of the course of her employment on May 18, 1986. At the present time, I feel that she has a 12% body as a whole impairment rating based on the injury and subsequent surgical procedure. She was under my care and unable to perform her normal work duties from the time I first saw her until the present time. Her current physical restrictions, according to our evaluation done by Mary Lou Fairchild, P.T. on April 25, 1989, would indicate that at the present time she has a one time lift, or not to be done more than four times per hour, limit of 15 pounds. This would make her repetitive lifting limit approximately 7-8 pounds. However, it needs to be emphasized that these are not permanent restrictions and can be significantly improved with the exercise and activity program that Ms. Burton is currently undertaking. She relates that she has gained a great deal of weight since the injury and at the present time, is embarking on a very strict exercise and activity program. It is my opinion that she will be a very good rehabilitation candidate and certainly we [sic] be able to be employable full-time if she sticks with the activity program and continues with her high motivation. I would be happy to see her back at anytime to redo restrictions, but I would anticipate that she could more than double these restrictions within the next 6 weeks and eventually build up to a weight restriction which would make her very employable. Claimant returned to work on July 8, 1988. She commenced employment as a clerk typist II for the State of Iowa in the Department of Human Services. At the time she started working, she earned $6.41 per hour. She was promoted on December 8, 1989 to an income maintenance worker I at $9.09 per hour. Page 4 conclusions of law The case law relating to review-reopening proceedings is rather extensive. The opinion of the Iowa Supreme Court in Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 (1940) stated "that the modification of...[an] award would depend upon a change in the condition of the employee since the award was made." The court cited the law applicable at that time which was "if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded" and stated at 1038: That the decision on review depends upon the condition of the employee, which is found to exist subsequent to the date of the award being reviewed. We can find no basis for interpreting this language as meaning that the commissioner is to re-determine the condition of the employee which was adjudicated by the former award. The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957) cited prior decisions and added a new facet to the review-reopening law by stating at page 69: But it is also true that unless there is more than a scintilla of evidence of the increase, a mere difference of opinion of experts or competent observers as to the percentage of disability arising from the original injury would not be sufficient to justify a different determination by another commissioner on a petition for review-reopening. Such is not the case before us, for here there was substantial evidence of a worsening of her condition not contemplated at the time of the first award. In a somewhat analogous vein, the Iowa Court of Appeals held in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 (Iowa App. 1978) that a review-reopening petition may allow a change in compensation when a claimant has failed to improve to the extent initially anticipated. A major pronouncement came in the case of Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968). The opinion there, at 732, stated that "[o]n a review-reopening hearing claimant has the burden of showing by a preponderance of the evidence his right to compensation in addition to that accorded by a prior agreement or adjudication." The opinion went on to discuss the common understanding that "if a claimant sustained compensable injuries of which he was fully aware at time of prior settlement or award, but for some unexplainable reason failed to assert it, he cannot, for the first time on subsequent review proceedings, claim additional benefits." The opinion continued at 733 "[b]ut according to the apparent majority view, if a claimant does not know of other Page 5 employment connected injuries or disability at time of any prior agreement or adjudication, he is not ordinarily barred from later asserting it as a basis for additional benefits." The court went on to hold at 735 that "cause for allowance of additional compensation exists on proper showing that facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of reasonable diligence, sometimes referred to as a substantive omission due to mistake, at time of any prior settlement or award." Each of these cases rest upon some disparity between claimant's actual or anticipated physical condition at the time of the previous assessment and the physical condition which exists at the time of the review-reopening proceeding. Thus, the question initially becomes has claimant established a change in his physical condition since the time of the former proceeding. The required change of condition to satisfy the requirements of review-reopening need not rest solely upon a change of physical condition if economic hardships causally related to a compensable injury but not contemplated within the initial award or agreement are demonstrated. An increase in industrial disability may occur without a change in physical condition. A change in earning capacity subsequent to the original award which is proximately caused by the original injury also constitutes a change in condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question thus secondarily becomes whether or not claimant's industrial disability has changed. With respect to the instant case, claimant had a change of condition not reasonably contemplated by the parties at the time of the settlement. On the day the settlement agreement was approved, the parties had acknowledged claimant had a bulging disk at L-4, L-5. Surgery was not contemplated. Claimant had been treated conservatively. Surgery or potential surgery was not discussed as an option by claimant's then treating physician. However, claimant's back began bothering her in January of 1988. Claimant testified her condition worsened. She testified she could not stand her pain, and that her pain traveled down her right leg. She was unable to walk. Her muscles felt weak. She sought medical treatment at the University of Iowa. The physicians at the University of Iowa noted: X-RAY EXAMINATION: Review of outside CT and myelogram reveals a normal profile. No evidence of bulging or herniation at L4-5. AP lateral flexion extension views taken here reveal segmental instability of L4, 5, significant rocking between the bodies indicating possible internal derangement of the disc. Dr. Weinstein scheduled surgery for March 1, 1988. He performed the aforementioned procedures after having Page 6 diagnosed claimant as having an internal disc disruption at L4-5. Claimant's physical condition definitely changed after her settlement agreement was approved. Her surgery was not anticipated at the time her settlement agreement was approved. Nor was her surgery foreseeable given the opinion of D. J. Boarini, M.D., who diagnosed claimant's condition as "myofascial back pain with no evidence of root entrapment or disc problem whatsoever." Claimant, per the opinion of Dr. Weinstein, has proven there has been a change of condition attributable to her work injury of May 18, 1986. Claimant is entitled to additional benefits pursuant to this review-reopening proceeding. Claimant has been evaluated as having a 12 percent impairment rating by Dr. Weinstein. Claimant was restricted but only temporarily. The physician was quite adamant that her restrictions could be significantly improved. Claimant is highly motivated to work. She can no longer engage in positions similar to the position of resident treatment worker where she is required to lift patients. Claimant is quite capable of handling clerical and office positions. She has been employed since July of 1988. She has been promoted. At the time of the hearing she had earned more per hour than she had earned on the date of her work injury. Claimant has some transferable skills. She also has a high school education. Claimant is defi nitely employable. Therefore, it is the determination of the undersigned that claimant has a 15 percent permanent partial disability. Ten percent of the disability is attributable to the change of condition that she has had since the approval of her settlement agreement on March 12, 1987. The next issue to address is whether claimant is entitled to additional healing period benefits from January 7, 1988 through July 6, 1988. Section 85.34(1), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Co., Vol. 2-1, State of Iowa Industrial Commissioner Decisions 485 (1984). On January 7, 1988, claimant sought medical treatment at the University of Iowa for her back. She continued treatment through July 6, 1988. On or about July 6, 1988, claimant returned to work at her present position. On July 6, 1988, claimant's healing period ended. Claimant is entitled to 26 weeks of healing period benefits at the corrected stipulated rate of $178.80 per week. (The parties had stipulated to a rate of $178.78 which is a rate that is Page 7 not listed in the rate book.) The final issue to address is whether claimant is entitled to medical benefits pursuant to section 85.27. This section provides in relevant portion: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices. ... For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. This division has held that it is inconsistent to deny liability and the obligation to furnish care on one hand, and at the same time, to claim a right to choose the care. Therefore, a denial of liability precludes an employer from selecting the medical care. Lewis E. Jones v. R. M. Boggs Company, Inc., File No. 655193 (Arbitration Decisions - July 22, 1986); Kindhart v. Fort Des Moines Hotel, (Appeal Decision, March 27, 1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). Claimant's attorney wrote two letters to Mr. Richard Andrews at the Iowa Department of Personnel relative to claimant's medical care. The two letters were written on February 2, 1988 and on February 12, 1988. No response from defendant was provided to claimant. As a result, claimant incurred various medical expenses causally related to her work injury of May 18, 1986. Claimant is entitled to have Page 8 certain medical expenses paid by defendant. At one time, claimant was covered by Title XIX. Defendant shall reimburse Title XIX for those medical expenses causally related to this work injury. Claimant's medical expenses which are causally related to her work injury are: 1. Dennis Francis Rolek, D.O./South Des Moines Family Practice Associates, P.C. 5-15-86 to 7-26-88 $2,800.00 2. Joseph M. Doro, D.O. 5-27-87 to 7-29-87 180.00 3. Dr. John I. Royer 11-25-86 to 4-7-88 185.00 4. Mercy Hospital Medical Center 5-13-87 1,151.25 6-12-87 150.00 6-23-87 19.50 5. Iowa Methodist Medical Center 6-12-87 575.00 6. The University of Iowa Hospitals and Clinics - Hospital Services 1-19-88 to 1-29-88 1,727.07 2-29-88 to 3-5-88 8,651.57 4-20-88 40.00 6-1-88 78.75 3-1-89 to 3-30-89 101.50 4-25-89 to 5-24-89 76.80 Medical Services 1-7-88 to 1-29-88 976.00 2-29-88 to 3-1-88 8,357.00 4-20-88 60.00 6-1-88 110.00 9-8-88 160.00 3-1-89 to 6-20-89 183.00 Page 9 7. Dana Simon, M.D. 8-7-87 to 9-17-87 873.00 8. Hammer Medical Supply (copy of bill not attached) 6-22-87 75.00 TOTAL $26,530.44 ORDER THEREFORE, IT IS ORDERED: Defendant is to pay fifty (50) additional weeks of permanent partial disability benefits at the corrected stipulated rate of one hundred seventy-eight and 80/l00 dollars ($178.80) per week commencing on July 7, 1988. Defendant is to pay healing period benefits from January 7, 1988 to July 6, 1988, a period of twenty-six (26) weeks at the stipulated rate of one hundred seventy-eight and 80/l00 dollars ($178.80) per week. Defendant is to pay medical expenses in the amount of twenty-six thousand five hundred thirty and 44/l00 dollars ($26,530.44). Defendant shall receive credit for all benefits previously paid and not credited. Interest shall be paid pursuant to Iowa Code section 85.30. Costs of the action shall be assessed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1 of the Iowa Administrative Code. Signed and filed this ____ day of April, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David D. Drake Attorney at Law West Towers Office 1200 35th St STE 500 Page 10 W Des Moines IA 50265 Ms. Eleanor E. Lynn Assistant Attorney General Hoover State Office Bldg Des Moines IA 50319 5-1803 Filed April 9, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : VICKY BURTON, : : Claimant, : : vs. : : File No. 824332 WOODWARD STATE HOSPITAL-SCHOOL,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendant. : ___________________________________________________________ 5-1803 Claimant was awarded a 10 percent permanent partial disability because of a change of physical condition. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RAYMOND STONE, Claimant, File No. 824449 vs. A R B I T R A T I O N SPENCER COMMUNITY SCHOOL D E C I S I O N DISTRICT, Employer, F I L E D and FEB 28 1990 EMPLOYERS MUTUAL INSURANCE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is an arbitration proceeding brought by Raymond Stone, claimant, against Spencer Community School District, employer, and Employers Mutual Insurance Company, insurance carrier, defendants. The case was heard by the undersigned on August 8, 1989, in Storm Lake, Iowa. The record consists of the testimony of claimant. The record is also comprised of the testimonies of Glen Lohman, Assistant Superintendent of Spencer Schools; David Goedicke, school employee; and JoEllen Parrott, professional nursing consultant. Additionally, the record consists of claimant's exhibits 1-6 and defendants' exhibits C, D-N. ISSUES As a result of the prehearing report and order submitted and approved on August 8, 1989, the issues presented by the parties are: 1. Whether claimant received an injury which arose out of and in the course of employment; 2. Whether there is a causal relationship between the alleged injury and the disability; and, 3. Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial or total disability benefits; STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury. 2. That the extent of entitlement to weekly compensation for temporary total disability or healing period, if defendants are liable for the injury, is stipulated to be from May 28, 1986 and claimant has received weekly benefits of 67 3/7 weeks at the rate of $168.08, ending September 11, 1987. 3. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole. 4. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $168.08 per week. 5. All requested benefits have been paid by defendants pursuant to Iowa Code section 85.27 and/or medical evaluation under section 85.39. FACTS PRESENTED Claimant is 42 years old. He has completed the tenth grade. He does not have a GED nor did he serve in the military. After claimant dropped out of high school, he worked with his father on a turkey farm. Claimant engaged in cleaning, general feeding and checking water lines. Later, claimant worked at Jones Transfer in Spencer, Iowa where claimant unloaded freight and where he was employed as an over-the-road truck driver. Claimant testified he commenced his employment with defendant, Spencer Community School District, in 1979. Claimant was hired as a custodian. He indicated he had no prior training and was assigned to the junior high school. After five years claimant was transferred to Lincoln Elementary School. Claimant explained that his job duties included performing floor maintenance, maintaining walls, carrying trash to the dumpster, scooping snow, maintaining the grounds and floating duties for eight hours per week. Claimant reported that on May 28, 1986, the day in question, he was engaged in pulling the hot lunch tables from the wall unit in which they were stored. The tables were made of steel with formica tops. They were approximately nine feet long and claimant indicated there was a release at the bottom of the unit. Claimant stated he was required to pull out the tables at the bottom and to unfold them. The tables were on wheels for easy movement. Claimant continued that the tables would not release so he shook the unit. He stated the entire unit came out of the wall and the table top came out from the wall. According to claimant's testimony, the table top struck him on the forehead above the right eye, then the table struck him from behind hitting him on the leg and buttocks, as well as on the back. Claimant testified he notified his employer of the injury. Claimant reported he sought the services of Ellis 0. Schlicthemeier, M.D. Dr. Schlicthemeier treated claimant for approximately two weeks. The claimant was referred to William Follows, M.D. Dr. Follows referred claimant to the Institute For Low Back Care where claimant was treated by Alexander Lifson, M.D., Assistant Medical Director. Claimant was also sent to Brian W. Nelson, M.D., for an evaluation and for an active rehabilitation program. Glen Lohman testified he is the assistant superintendent of schools and he is responsible for the support staff in the district, including the custodians. Mr. Lohman testified that on May 28, 1986, he received a telephone call from the school secretary that a table had fallen on claimant and he was going to the doctor. Mr. Lohman reported no one could locate a damaged table after the alleged incident. Mr. Lohman also stated he had told the rehabilitation consultant, JoEllen Parrott, that he had concerns about claimant returning to work on a light duty basis. According to the assistant superintendent, a light duty custodian would require constant supervision. Mr. Lohman also indicated claimant would only have been offered a probationary contract for 1987 if he had returned to work. Mr. Lohman also reported he would offer claimant a position if claimant would return to work, but there could be no lifting restrictions. Mr. Lohman also related claimant had been on probation since the spring of 1985 because his work had not been done according to the satisfaction of the school administration. David Goedicke testified he had been employed with the school district for 21 years. Mr. Goedicke stated he viewed the accident scene shortly after the alleged injury. He stated he found nothing wrong with the cafeteria tables and there were no broken parts. Mr. Goedicke testified only claimant was responsible for setting up the cafeteria tables. JoEllen Parrott testified for defendants that she is a professional nursing consultant for workers' compensation cases. She stated she was retained by the defendants in February of 1987. She testified claimant did not put forth his best effort. She also related that claimant agreed to try an active rehabilitation program with Dr. Nelson. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 28, 1986, which arose out of and in the course of his 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). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). An opinion of an expert based upon an incomplete history is not binding upon the commissioner, but must be weighed together with the other disclosed facts and circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867 (1965). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. Burt, 247 Iowa 691, 73 N.W.2d 732 (1955). In regard to medical testimony, the commissioner is required to state the reasons on which testimony is accepted or rejected. Sondag, 220 N.W.2d 903 (1974). The claimant has the burden of proving by a preponderance of the evidence that the injury of May 28, 1986, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw.v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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, 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). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). ANALYSIS Firstly, claimant has proven by a preponderance of the evidence that he has sustained an injury which arose out of and in the course of his employment. Claimant testified he was on defendant-employer's premises when the incident occurred. There were no witnesses. However, claimant was performing one of his assigned duties at the time he was injured. Claimant was setting up the cafeteria tables. This was a daily task for claimant. It was reasonable to assume claimant could be injured while performing this regular activity. Claimant reported the incident immediately. He sought medical attention. The injury arose out of and in the course of claimant's employment. The next issue to address is whether the injury on May 28, 1986, is causally connected to claimant's claimed disability. All of the doctors' reports list the cause as a table falling on claimant's lower back and hip. No medical records indicate otherwise. There are no medical reports which establish any prior or subsequent injuries. All of the medical histories are consistent with the sequence of events which were related by claimant. It is the determination of the undersigned that claimant has established the requisite causal connection. The final issue to discuss is whether claimant is entitled to any weekly benefits. One of the treating physicians, Kenneth B. Heithoff, M.D., read a CT scan taken of claimant's lumbar spine. He found as of September 3, 1986: 1. Small to moderate sized symmetrical central disc herniation which impinges on the thecal sac, but does not produce compression of the traversing L5 nerve roots. No other disc protrusion is noted and there is no evidence of bony central or lateral spinal stenosis. Another of the treating physicians, Alexander Lifson, M.D., opined: An MRI scan which was done at The Center for Diagnostic Imaging on 3-24-87 showed a congenitally small spinal canal at the L4-5 level which along with mild bulging of the disc and hypertrophy of facet joints and ligamentous flavum obviously can create a significant degree of subarticular stenosis and impingment [sic] of the L5 nerve root which is much more dramatic in an upright position. I believe we have no other choice but to offer Mr. Stone a surgical decompression. He has to understand because he is grossly overweight that his chances for success probably would not exceed 70 percent, but I have no other suggestions. Dr. Lifson opined as of June 15, 1988: Mr. Raymond Stone was first seen at The Institute for Low Back Care on December 16, 1988. In consideration of the past history, the initial and follow-up physical examinations and the condition in which we found the patient at the time of the last examination on March 25, 1987, he has a 15 percent permanent partial disability to the body. The final authorized treating physician, Dr. Nelson, wrote in his letter of July 31, 1987: It is my professional opinion that Raymond is exaggerating his symptoms and because of this, I do not feel he should be given any permanent impairment rating. I would strongly recommend that no further cost be incurred obtaining more medical treatment for this patient because I have absolutely no confidence that he will respond. He has had the most sophisticated testing available and none of these have given any pure objective evidence of organic disability. I recommend that Raymond be returned to the work force as quickly as possible. If he refuses to do this, I would recommend that a settlement be achieved as quickly as possible in order to minimize any future costs involving this patient. Dr. Nelson, in his deposition, explained why he believed claimant was magnifying his symptoms. Dr. Nelson stated: The three criteria are, number one, you have to show unphysiologic results on the objective equipment; number two, you have to be positive in the majority of the signs of nonorganic pathology that I test you on in my physical exam; and, number three, both the physical therapist who is treating him and the physician have to believe in their hearts, if you will, that this patient isn't trying and that he's exhibiting classic pain behavior, which is consistent with symptom exaggeration. If you don't meet any of those -- if you don't meet all three of those criteria, then -- then we will not -- we won't go as far as we went on this particular patient, because we do consider that to be very serious. Q. After your visit with Raymond Stone, how did his treatment continue? A. I saw him again in two weeks. And I was very, very pleased -- MR. FITZGIBBONS: What's the date, Doctor? THE DEPONENT: June 12th. MR. FITZGIBBONS: Thank you. A. His -- I examined him again, and his signs of symptom exaggeration were greatly diminished. He showed a remarkable improvement from his objective testing data over a few weeks before. And the physical therapist, although I didn't document it here, I believe had told me that Raymond was now working pretty hard. So we were very encouraged and that was -- At that date I put down here that he also for the first time said to me that he noted some improvement. He stated that he was being -- able to sleep longer at night than he had been before, said he was still having a lot of back and leg pain. But at least we seemed to be heading in the right direction. So based on that, we decided to continue him, and -- and we did so. Q. And what was the result of continuing the treatment? A. Well, the next time -- Raymond then started missing a lot of appointments. And the next time -- in fact, June 12th was the last time that I saw him. And on July 27th I was due to see him again, and he called to say that he was having car trouble and he would be late. But he never showed up, and he never called, and I never heard from him again. And during that period of time between June 12th and June 27th, he several times missed appointments, called to say that he would be making appointments but then never showed up and generally was sporatic [sic]. His objective testing then deteriorated very badly after that and became completely unphysiologic again. And it became very obvious to me at that time that rehab was not going to help this patient. (Deposition page 20, line 2 to page 22, line 2) There is a wide disparity of opinions relative to claimant's condition. Dr. Lifson believed claimant had a 15 percent functional impairment and that claimant was in need of surgery. Initially, Dr. Nelson rendered an opinion concurring with Dr. Lifson relative to the surgical procedure. Later, Dr. Nelson changed his opinion. The rationale for the change of opinion was that: However, it's not the same way I would do it. I believe that there is probably too much surgery done in this country, and I believe a person becomes a surgical candidate only after they have failed all types of conservative care. So you shouldn't do -- surgery in my -- in my mind should be as a last resort. (Exhibit N, p. 42, 11. 13-18) Dr. Nelson found no functional impairment. Moreover, Dr. Nelson indicated claimant's "bulging disk is a variation of normal." (Ex. N, p. 67, 11. 19-20). It is the determination of this deputy that claimant is functionally impaired. The impairment is in the amount of seven percent. Claimant maintains he has an industrial disability. Claimant is without a high school education. He has no GED. Claimant does not appear motivated to return to work. He has been less than enthusiastic about continuing his active rehabilitation program, or working with JoEllen Parrott, the rehabilitation consultant. Claimant neglected to even return telephone calls to Ms. Parrott. Defendant-employer acknowledges it would allow claimant to return to a full time position. Mr. Lohman admits there would not be a light duty position open to claimant. Claimant would be required to perform all duties. Claimant has not attempted to return to his position with defendant. He maintains he is unable to perform the duties assigned. Dr. Nelson has released claimant to return to work without any restrictions. There is no evidence claimant has looked for other types of work or that he has filled out job applications. Claimant is unmotivated. He is capable of handling some employment. Therefore, in light of the foregoing, it is the determination of the undersigned that claimant has a permanent partial disability to the body as a whole in the sum of 10 percent. This finding is based upon 1) the aforementioned considerations; 2) based upon the personal observation of claimant; 3) based upon claimant's testimony at the hearing; and 4) based upon agency expertise (Iowa Administrative Procedures Act 17A.14(s). It is also the decision of the undersigned that claimant is entitled to healing period benefits. The benefits commenced on May 28, 1986. They remained in existence through July 28, 1987, the date claimant was released to return to work by Dr. Nelson. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: Finding 1. Claimant sustained a back injury arising out of and in the course of his employment on May 28, 1986. Finding 2. Claimant was functionally impaired in the sum of seven percent. Finding 3. Claimant has not returned to work. Finding 4. Claimant has been released to return to work without restrictions by Dr. Nelson, the treating physician. Finding 5. Claimant is not motivated to return to work. Conclusion A. Claimant has met his burden of proving he has a 10 percent permanent partial disability attributable to his work injury on May 28, 1986. Conclusion B. Claimant has met his burden of proving he was in the healing period from May 28, 1986 to July 28, 1987. ORDER THEREFORE, defendants are to pay unto claimant fifty (50) weeks of permanent partial disability benefits at the stipulated rate of one hundred sixty-eight and 08/100 dollars ($168.08) per week. Defendants are to pay unto claimant sixty-one (61) weeks of healing period benefits at the stipulated rate of one hundred sixty-eight and 08/100 dollars ($168.08) per week. Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants are to be given credit for any benefits previously paid to claimant. Costs are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of this award. Signed and filed this 28th day of February, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph L. Fitzgibbons Mr. Harold H. White Attorney At Law 108 North Seventh St Estherville, IA 51334 Ms. Claire F. Carlson Attorney at Law Seventh Floor - Snell Bldg P 0 Box 957 Fort Dodge, IA 50501 5-1803 Filed February 28, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER RAYMOND STONE, Claimant, vs. File No. 824449 SPENCER COMMUNITY SCHOOL DISTRICT, A R B I T R A T I 0 N Employer, D E C I S I 0 N and EMPLOYERS MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 5-1803 Claimant awarded a 10 percent permanent partial disability to the body as a whole. Claimant was released to work without restrictions. Claimant was unmotivated. Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : FRANCIS BECKER, : : Claimant, : : vs. : : File No. 824608 CITY OF CEDAR RAPIDS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : IOWA MUNICIPALITIES WORKERS' : COMPENSATION ASSOCIATION, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE Claimant Francis Becker seeks benefits under the Iowa Workers' Compensation Act upon his petition in arbitration against defendant employer City of Cedar Rapids and its insurance carrier, Iowa Municipalities Workers' Compensation Association. Mr. Becker asserts that he sustained a work injury to his back and left knee while working on a water main, when another worker, and a heavy pipe fell on him on May 23, 1986. This cause came on for hearing in Cedar Rapids, Iowa on January 6, 1993. Testimony was received from claimant, Carol Becker (his wife), Steve Libby, Lora Summerwill, Gary Rawson, Judith Perkins, Gary Thompson, Dick York and Ron Robinson. Claimant's exhibits C1 through C9 and joint exhibits J1 through J14 were received into evidence, along with defendants' exhibits D1, 3, 7, 8, 9 and 11. Defendants' offer of exhibits 2, 4, 5 and 6 was withdrawn. Claimant's objection to exhibit 10 was sustained. ISSUES The parties have stipulated to the existence of an employment relationship on May 23, 1986, to the rate of compensation ($231.78 per week), and that defendants paid certain benefits voluntarily prior to hearing. Issues presented for resolution include: 1. Whether claimant sustained injury arising out of and in the course of his employment on May 23, 1986; 2. Whether the injury caused either temporary or permanent disability; 3. The extent of temporary total disability/healing Page 2 period; 4. The extent and commencement date of permanent disability, whether claimant be partially disabled or wholly disabled under the "odd-lot" theory of permanent total disability, or otherwise; 5. Entitlement to medical benefits under Iowa Code section 85.27; 6. Entitlement to reimbursement for an independent medical examination under Iowa Code section 85.39; 7. Entitlement to penalty benefits under Iowa Code section 86.13. With respect to medical benefits, defendants stipulated that expenses were incurred for reasonable and necessary treatment and that the providers of medical services would testify in the absence of contrary evidence that fees were reasonable and necessary; however, they dispute causal connection to the work injury. Defendants also disputed authorization of medical expenses, but the defense was ruled invalid at hearing, as defendants have forfeited the right to control the course of medical treatment by denying liability on the claim. FINDINGS OF FACT Francis Becker, 58 years of age at hearing, has only finished the eighth grade of school, but appears of at least average intelligence. His life has largely been devoted to heavy physical labor, including farming, factory work, manufacture and fitting of canvas products (truck tarps, boat covers, etc.) and, since 1979, employment with the City of Cedar Rapids in building maintenance and the water department. Mr. Becker was employed on the hydrant crew on May 23, 1986. Although he testified that he never had back problems before that date and had never required medical treatment for back problems, it is noteworthy that a medical history questionnaire he filled out prior to employment with the city reflected treatment by a chiropractor six or seven years before for back problems when he slipped or fell into a hole; also, that he had been treated once for hip problems, with good result. In numerous medical histories claimant has given since his claimed injury, he has spoken of receiving chiropractic back treatment 20 or 25 years before. Claimant testified that he was injured while making an eight inch tap for a new hydrant to be installed on an existing water main. He says he was standing in a large, wet hole some twelve feet in diameter and nine feet deep. He testified that a fellow worker, Gary Rawson, was standing on a ladder when Rawson handed down the back half of a 100 pound tapping sleeve, then lost his balance and toppled forward, causing claimant to take the weight both of the sleeve and Rawson. Claimant estimated Rawson's weight at Page 3 240 pounds. Mr. Becker says he took most of the weight on his left side, but that he did not hurt at first. This incident happened about noon on a shift scheduled to end at 3:30, although claimant worked a little late that day. He testified that he felt "tired" at the end of the day, but that no particular part of his body pained him. That night, claimant says that he just sat in a chair and felt progressively worse, or more tired. On the next day, he felt much worse and his left leg began hurting him from the hip on down. He took no action that day, except taking an over-the-counter pain killer, but symptoms continued to worsen. On Sunday, the second day of the Memorial Day weekend, claimant felt worse yet, especially in the left leg. He visited the Mercy Hospital Emergency Room. His wife, Carol, testified that she gave an admission history of a work injury on Friday, specifically mentioning the water main work, the sleeve and Gary Rawson's stumble. However, the emergency room chart notes are very much at odds with this account. The handwritten portion refers to complaints of pain in the left hip area with radiation down the left leg to the knee; no known injury, started several days ago, worse today. History of dislocation 25 years ago. The subjective portion of the "SOAP" assessment read: "This patient is a 52-year-old white male who comes in with left hip pain for the past few days. He does not recall any specific injury." Assessment was of left hip and groin strain. Gary Rawson testified to a much less dramatic incident at the water main. Incidentally, he weighed only 200 pounds at the time, not 240. Rawson testified that he did not lose his balance while standing on the ladder, but jumped off while claimant was backing up. He had already released the sleeve, and did not drop the weight (70-80 lbs) on claimant. When he jumped, he did not fall or slide into claimant, but may have "brushed" him. In general, he felt that nothing unusual happened whatsoever, and was unaware that anything happened to hurt claimant, who made no complaint whatsoever. Gary Thompson was also on the crew that day, and a witness. His statements have been somewhat inconsistent. On a form witness statement he executed on June 2, 1986, Thompson wrote: I handed Gary Rawson a pipe fitting that weighs about 50 lbs. to him while he was standing on the ladder. Gary R. then start to step down the ladder uneasyily (sic) with the fitting in his hand. When he reached the bottom of the ladder he then shifted his weight towards Francis as he handed him the fitting. As he did this, Gary R. lost his balance and slid into Francis, causing Francis to be pushed off balance also. In his hearing testimony, Thompson explained that Page 4 Rawson had released the tapping sleeve to claimant when claimant said something and Rawson then put his hand on Mr. Becker's shoulder. Claimant was not knocked down or pushed out of place, although he may have shifted his weight to brace Rawson. Thompson saw this as nothing unusual, and noted that claimant made no complaint. On cross-examination, Thompson testified that Rawson did not "slide into" claimant, but then conceded that there may have been a "slight slide." In an earlier statement to Lora Summerwill (Director of Safety & Health Services) Thompson said that Rawson jumped so as to avoid claimant. Generally speaking, it seems clear that some minor incident occurred, but that no one present thought anything of it. Claimant admist he felt no pain at the time, although he later became tired. Indeed, this incident was so minor that Mr. Becker did not see fit to mention it when he visited the hospital trauma center two days later ("does not recall any specific injury"). On the other hand, contrast this with the medical history claimant gave one year later (March 26, 1987) to Dr. Shaffer at the University of Iowa Hospitals and Clinics: He had sudden onset of left buttock posterior thigh, calf and bottom of the foot pain that was also associated with numbness and tingling. It is curious indeed that claimant did not mention such dramatic symptoms at the Mercy Hospital Trauma Center, or, for that matter, when the "sudden onset" occurred, while he was standing in the hole. This history is inconsistent in numerous respects with claimant's trial testimony and other histories he has given. It will also be recalled that the Mercy notes reflect complaints of pain only down to the knee, not calf and bottom of the foot pain associated with numbness and tingling. One obvious explanation for this false history is that, by 1987, claimant was seeking to manufacture favorable evidence in contemplation of this litigation. Following his visit to the emergency room, claimant was next seen by a physician on May 27, when he visited his family doctor, Donald W. Hilliard, M.D. Dr. Hilliard was given a history of a Friday work incident, with development of severe pain in the left upper leg and groin area on Saturday. Examination showed no low back symptoms or signs and straight leg raising was negative. The left upper leg was tenderness to palpation. Dr. Hilliard's assessment was of probable leg muscular or ligament strain. On June 2, Dr. Hilliard writes that claimant was feeling better but was having some discomfort about his left knee "still." This is the first mention of the knee in the medical records, and is somewhat indirect about the knee. On June 6, Dr. Hilliard reported that claimant continued to improve but still had persistent tenderness in the left upper leg area. Claimant was next seen by W. R. Basler, M.D. None of Dr. Basler's chart notes are in the record, only a series of return to work certificates and a surgeon's report Page 5 (diagnosis: muscle strain of back). Dr. Basler first saw claimant on June 12, 1986, and referred him to Lawrence C. Strathman, M.D. Dr. Strathman is a board certified orthopedic surgeon who testified by deposition on April 25, 1991. He was claimant's main treating physician. Dr. Strathman was given a history similar to claimant's testimony (Rawson losing his balance and putting all his weight on claimant), including chiropractic care about 20 years before. Complaint was made of pain starting around the hip and going down the entire leg, although claimant could not be specific as to front or back. Dr. Strathman's chart notes of June 13 make two references to the left knee: that prepatellar swelling came on "after his examination yesterday" and "a day ago." It will be recalled that claimant had seen Dr. Basler the day before. Dr. Strathman's chart notes indicated he did not know what might have caused the prepatellar swelling. Initial impression was of low back strain. On June 20, Dr. Strathman charts that claimant's back "seems much better" but there were complaints of soreness in the left knee. Straight leg raising was negative. However, on June 25, Mr. Becker complained of worse pain in the groin, through the buttock and down into the leg. The prepatellar bursa was much better. Straight leg raising on the leg caused knee pain but no back pain; negative on the right. Dr. Strathman thought claimant's complaints "a bit out of proportion to findings." He recognized degenerative problems in the back, but noted no true radicular pain. By June 30, Dr. Strathman charted that claimant still had some aching in the back and some complaints of the left knee, but that the prepatellar bursa was subsiding; he believed claimant to be progressing satisfactory and released him to return to work in one week. However, by July 11 (claimant had returned to work at light duty by this time), the bursa was less pronounced and the ligaments at the knee were "stable," but claimant was showing more findings consistent with L4 radiculopathy. A CAT scan was ordered which showed both bulging discs at L3-4 and L4-5 with some relative stenosis but no definite evidence of nerve root encroachment. Claimant's pain was described as "much less," and he was to continue supportive measures for another couple of weeks, while increasing walking and exercises. On August 4, claimant was showing puffiness in the prepatellar bursa and some atrophy in quadriceps muscles, but Dr. Strathman believed him to be improving; he was released to light work. On September 3, Dr. Strathman found claimant to be "much better" and he was released to full duty. Claimant was showing marked improvement, but still had some swelling in the prepatellar bursa. Unfortunately, this marked improvement lasted only a Page 6 month. On October 7, claimant was fishing in the state of Minnesota when he twisted his back while landing a fish. The sudden onset of back pain was so severe that claimant concedes he was unable to either walk or stand and had to be driven home (to the Mercy Hospital Trauma Center) by his son. Emergency room chart notes reflect that claimant had been extremely uncomfortable and required the assistance of his two sons to get out of bed and around. Assessment was of acute back strain. Although there was no radiation down the leg, it was noted that claimant had been unable to sit on the way home. Dr. Strathman's chart notes of October 9 show that claimant had been feeling better and was improving until this episode. Dr. Strathman felt that myelogaphy might be necessary, but claimant was improving by October 15. On October 24, claimant was seen by one of Dr. Strathman's associates, W. John Robb, M.D. Dr. Robb noted that claimant had increased weakness since the second injury, although it had slightly improved. He noted that claimant's left knee problems did not appear to be related to the original accident and considered the fishing incident as an aggravation of what Dr. Robb diagnosed as a preexisting herniated disc; the doctor anticipated improvement back to claimant's status prior to the fishing incident. On November 13, 1986, Dr. Strathman found claimant much improved, but still with some low back discomfort at times. In view of that improvement, claimant was released to return to work wearing his brace and being a little careful about lifting and carrying. Mr. Becker was released from care "prn" (return as needed). Claimant returned on January 2, 1987, with continued problems in the low back and left leg. Dr. Strathman charted significant degenerative problems in the back, but neurological deficit improving. Claimant was return to work with a one month thirty pound restriction. In his deposition testimony, Dr. Strathman was asked as to the cause of treatment necessary from the time of the fishing incident through November 13. He answered: A. that's an extremely difficult question to answer. I don't know as that there's any medical -- there's any way for anybody to know. I think it has to be recognized that when I first saw this gentleman he had evidence of degenerative problems in his lumbar spine and he had the incident that occurred at work. He'd improved and then had another incident and had a recurrence of symptoms. And I don't know whether medically I can say what caused what. It's an ongoing thing. is that helpful? (Strathman Deposition, Page 19). Notably, Dr. Strathman also testified that claimant's Page 7 degenerative spine condition preexisted the incident of May 23, 1986, which he considered an exacerbation of the degenerative problem, or an injury superimposed on that problem. The preexisting condition itself was severe enough to explain decreased range of motion and other findings. Dr. Strathman gave no impairment rating, but recognized that claimant does have some impairment of the back; "but the cause of the impairment is not that easily identified" (Strathman Deposition, Page 24). While Dr. Strathman provided treatment for claimant's prepatellar bursa problem, he testified that he was never able to elicit any causative factor for that problem, and at no time saw any signs that would lead him to think or suspect that claimant had suffered a meniscus tear or damage to his cruciate ligaments. When claimant was released on January 2, 1987, Dr. Strathman found a significant resolution of nerve root involvement that claimant had exhibited, but the preexisting degenerative problems persisted, and would in fact always be there. Continued degeneration was anticipated. However, claimant had no complaints with respect to the knee. Dr. Strathman also emphasized that the bursa problem for which claimant had been treated was not in the knee joint and that his chart note that ligaments in the knee were felt to be stable included the cruciate ligament. Dr. Strathman was never specifically asked whether a causal nexus exists between the alleged work injury and claimant's current state of ill-being. Three physicians have: Dr. Albright (knee), Dr. Weinstein (back) and Dr. Crouse (independent evaluation). John P. Albright, M.D., a board certified orthopedic surgeon, testified by deposition on May 7, 1991. Dr. Albright works in the Department of Orthopedic Surgery, University of Iowa Hospitals and Clinics. He testified that magnetic resonance imaging reviewed on May 31, 1989 showed a significant tear in the medial meniscus, described as a degenerative type of a tear. As a result, surgery was performed on August 23, 1989. As of December 14, 1989, Dr. Albright felt claimant might be entitled to a one percent impairment rating based on the fact of surgery, but that he had no functional impairment whatsoever, since physical examination was entirely normal. Dr. Albright also specified that the meniscus tear he treated in 1989 had no relationship to claimant's alleged injury in 1986, pointing out that the prepatellar bursa problems treated by Dr. Strathman were in a different location from the meniscus tear. Claimant points out the following testimony: Q. If Mr. Becker had given a history of a traumatic injury on May 23rd, 1986, and his history was such that he was not having any problems with the left knee prior to that date, he on that date has an accident at work which I think Page 8 is reflected in the University notes and continues to have problems with the left knee, pain in the left knee, since that date, are you able to state, Doctor, whether there is a causal relationship between the incident on May 23rd, 1986, and the medial meniscus tear? A. You're asking me for a hypothetical situation? Q. That's right. A. Given those facts, I would have no reason to doubt that there -- the statement that there was a causal relationship. Certainly the description of the injury would be sufficient to give an injury that would be picked up later -- not picked up later, become symptomatic later and require surgery on a delayed basis. (Albright Deposition, Pages 14-15). However, the question includes an inaccurate recitation of fact in that claimant did not report knee problems "since that date" and did not continue to have left knee problems "since that date." James Weinstein, D.O., is also a board certified orthopedic surgeon. Dr. Weinstein, Professor of Orthopedics Surgery and Director of the University of Iowa Spine Diagnostic Treatment Center, testified by deposition on May 1, 1991. It will be recalled that claimant was seen at the University of Iowa in March 1987 by Dr. Shaffer. Dr. Weinstein was familiar with the history given Dr. Shaffer, at least with respect to claimant's report of sudden onset of symptomatology. Claimant was seen again in October 1987 by Dr. Found. Claimant returned and was seen by Dr. Weinstein in July 1988. Claimant gave Dr. Weinstein a history of sudden onset of symptoms consistent with the history given Dr. Shaffer: "[A]s they were falling from a ladder and felt a pain in his lower back at that time." In his trial testimony, claimant testified he had not developed pain in his lower back for about one month following the incident. At Dr. Weinstein's orders, an EMG, CAT scan and myelogram were performed on August 23. The EMG indicated either that claimant had problems with his lower nerve root or that he had a neuropathy, which is not necessarily related to a back problem. The myelogram was read as showing numerous bulging discs, mostly at L4-5. The CAT scan identified no bulging or herniated discs, but showed degenerative changes in the spine. Treatment modalities directed independently at disc problems and bony problems were undertaken, but proved unsuccessful. Dr. Weinstein testified that he and the clinic were unable to reach a final specific diagnosis of claimant's back pain. Page 9 In an order dated February 16, 1990, Dr. Weinstein expressed the view that claimant's back and knee problems both occurred with the subject injury. In his deposition testimony, he made it clear that his opinion was based on an incorrect history of sudden onset of pain and in ignorance of the October fishing incident, which, at least on the surface, was far more dramatic. James E. Crouse, M.D., is an orthopedic specialist who authored a report dated January 14, 1991, after seeing claimant for an independent medical examination. Dr. Crouse's detailed report makes it clear that he was quite familiar with claimant's medical history, although his understanding that claimant "twisted wrong and developed low back pain" while fishing in Minnesota might be viewed as significantly understating the severity of that incident. Dr. Crouse's impression was of (1) back sprain with degenerative disc disease with disc disruption and (2) status post-arthoscopic excision for torn medial meniscus, left knee. This writer concedes unfamiliarity with the term "disc disruption." It probably implies uncertainty as to whether the problem consists of a disc bulge or an actual herniation. Dr. Crouse finds both the medial meniscus tear and disability from the back related to the subject work injury. Impairment "related to the accident" (probably referring to the back) was rated at twelve percent of the body as a whole, while impairment due to the knee injury was rated at five percent of the leg. Dr. Crouse recommended restrictions against prolonged standing, walking and sitting, lifting up to 25 pounds occasionally and heavy weights more frequently (?), but without repetitive bending, stooping and lifting. He felt claimant should be limited to light work. Evidence has been received as to a number of other matters involving claimant's motivation and trustworthiness in regard to this claim. Taken together, they paint a disturbing picture. Although claimant asserts that his knee problems relate to the injury, and he has given medical histories to the effect that symptoms came on immediately, he did not claim to his employer that his knee was injured in the original incident until 1989 (according to Lora Summerwill). Following a grievance hearing, the arbitrator (Milo G. Flaten) understood that claimant suffered a severe back strain when he had to unexpectedly support the weight of a co-worker and a heavy piece of cast iron pipe, but that "[l]ater, his knee began hurting him as well." Claimant told Summerwill that his knee had been injured during the October 1986 fishing trip, but considered it an "aggravation" of the original injury. During the early stages of recuperation, the City of Cedar Rapids made regular efforts to get claimant back to work, but found him resistant. While seeing various doctors, and receiving return to work clearances for either the back or the knee, he would complain that he had not been Page 10 released for the other condition, and vice versa. In an accommodation hearing on February 22, 1990, claimant was offered the opportunity to bid on two other city jobs: working a parking meter route and as a building maintenance worker at city hall. By this time, claimant had received work restrictions from Dr. Weinstein (with those restrictions, he could not work his previous water department jobs). Claimant refused to bid for the jobs; as it happens, both individuals eventually hired had less seniority. At hearing, claimant complains that he would have had to undergo a 30 day probationary period with either job. This is true, but claimant would have been returned to status quo had he failed to get through the probationary period. At the accommodation hearing, he made no claim that he had not been released to work to work by his physicians, but did spring that argument on defendant at the later arbitration hearing. Since the city believed that claimant was not interested in available jobs, he was terminated in March 1990. The grievance hearing following, culminating in claimant being given an additional window in which to apply for other city jobs. He did apply for approximately seven (including his old job, which he could not perform), some of which were unrealistic or from which he would be realistically be barred by potential conflicts of interest (e.g., as a housing inspector, although claimant owns a number of rental properties). The evidence is conflicting as to the manner in which claimant originally reported this injury. It will be recalled that the subject incident immediately preceded the Memorial Day weekend. According to claimant's wife Carol, she attempted to call supervisors Ron Robinson and Larry Robinson beginning Friday night, but failed to get an answer. She continued calling both men on and off all day Saturday, leaving messages on answering machines, although someone at Larry Robinson's number advised that he was out of town. Ms. Becker further testified that she visited both houses on Sunday and Monday, finding both men at Ron Robinson's house on the latter day. According to Ron Robinson, water supervisor, no messages were left on his answering machine and he first learned of the incident when Carol Becker telephoned him on the first work day, Tuesday. Following the discharge, claimant successfully applied for job insurance benefits. To do so, he was required to certify on a weekly basis to being able and available for work, although he now asserts that he is a permanently and totally disabled "odd-lot" worker. Mr. Becker received both regular and extended benefits. During this time, he applied for work with numerous employers, but apparently has not done so since exhausting his eligibility. A sustained weekly job search is, of course, a prerequisite of entitlement to job insurance benefits. Ron Robinson pointed out that claimant walked "funny," or with a noticeable limp following his injury date -- when he knew someone was watching. Thus, the record contains much that is suspicious. Individually, any of these can be explained away, but the cumulative effect is great. When the entire record is Page 11 considered, it must be concluded that claimant is not a reliable witness. CONCLUSIONS OF LAW The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). Claimant also has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). Given claimant's lack of credibility, it follows, on this record, that he has failed to meet his burden of proof in establishing that he sustained disability from an injury arising out of and in the course of employment. It will be recalled that claimant suffered no pain following the very minor work incident of, at most, a light brushing against claimant as Rawson jumped from the ladder. Then, symptoms developed during a long weekend. Claimant may well have participated in any number of activities, including working on his rental properties, on Saturday, the day before he sought medical attention. There is a conflict in the evidence as to when and how claimant's supervisors were notified of a claimed injury. At the emergency room, claimant complained of a hip and upper leg injury. Knee and back symptoms did not come on until much later. Even more significantly, claimant did not identify any specific incident to emergency room personnel. Contrast this with the dramatic history of sudden onset of symptoms Mr. Becker later gave at the University of Iowa Hospitals. Claimant's back symptoms, by his own testimony, did not come on for approximately one month. His preexisting degenerative condition alone explains those symptoms. There was also a delay in development of knee symptoms, and those were attributable to a prepatellar bursa problem, clearly not the ligament problem claimant later developed (and now blames on the work incident). Claimant's conduct has not shown motivation to return to work, but great motivation to maximize possible benefits, both workers' compensation and Page 12 job insurance. Claimant had apparently recovered from any possible exacerbatory effect of the work incident during the following summer, only to suffer a much more dramatic incident or exacerbation while fishing in the fall. For all these reasons, defendants must prevail. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing. Costs are assessed to claimant. Signed and filed this ____ day of April, 1993. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Thomas L Currie Attorney at Law 3401 Williams Blvd SW PO Box 998 Cedar Rapids Iowa 52406-0998 Mr Fred L Morris Mr Stephen W Spencer Attorneys at Law PO Box 9130 Des Moines Iowa 50306-9130 5-1402.20 Filed April 28, 1993 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ FRANCIS BECKER, Claimant, vs. File No. 824608 CITY OF CEDAR RAPIDS, A R B I T R A T I O N Employer, D E C I S I O N and IOWA MUNICIPALITIES WORKERS COMPENSATION ASSOCIATION, Insurance Carrier, Defendants. ___________________________________________________________ 5-1402.20 Claimant failed to prove injury arising out of and in the course of employment.