BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ALBERT STEPHENSON ANDRE, Claimant, vs. File No. 828701 WRIGHT TREE SERVICE, INC., A P P E A L Employer, D E C I S I O N and UNITED STATES FIDELITY AND GUARANTY COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 7, 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 ____ day of November, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David S. Wiggins Attorney at Law 700 West Towers 1200 35th St. West Des Moines, Iowa 50265 Mr. Ross H. Sidney Mr. Stephen D. Hardy Ms. Iris J. Post Attorneys at Law P.O. Box 10434 Des Moines, Iowa 50306 9998 Filed November 10, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ALBERT STEPHENSON ANDRE, Claimant, vs. File No. 828701 WRIGHT TREE SERVICE, INC., A P P E A L Employer, D E C I S I O N and UNITED STATES FIDELITY AND GUARANTY COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed February 7, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ALBERT STEPHENSON ANDRE, : : Claimant, : : vs. : : File No. 828701 WRIGHT TREE SERVICE, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Albert S. Andre, claimant, against Wright Tree Service, Inc., employer, and United States Fidelity and Guaranty Insurance Company, insurance carrier, defendants, for benefits as a result of an alleged injury which occurred on July 7, 1986. A hearing was held in Des Moines, Iowa on February 1, 1989 and the case was fully submitted at the close of the hearing. Claimant was represented by David S. Wiggins. The defendants were represented by Stephen D. Hardy and Iris J. Post. The record consists of the testimony of Gerald D. Duke, director of personnel services, Albert S. Andre, claimant, Wendell L. Kelley, claimant's brother-in-law, Gina A. Andre, claimant's wife, John West, defendant's witness, claimant's exhibits 1 through 10 and defendants' exhibits 1 through 19. A transcript of the hearing was ordered by the deputy and both parties to the action. The attorneys for both parties submitted post-hearing briefs. stipulations The parties stipulated to employer/employee relationship; that the extent to entitlement to weekly compensation for temporary disability benefits is from July 8, 1986 to January 19, 1987; that the type of permanent disability, if any, is industrial disability; that the commencement date of permanent disability benefits, if any, is January 20, 1987; that the proper rate of compensation is $191.39 per week; that claimant's entitlement to medical benefits is not in dispute; that employer makes no claim for credit for group health plan benefits; that defendants paid claimant 29 weeks of workers' compensation benefits at the rate of $191.39 per week prior to hearing; that there are no Page 2 bifurcated claims. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on July 7, 1986 that arose out of and in the course of employment with employer. Whether the injury was the cause of either temporary or permanent disability. Whether claimant is entitled to permanent disability benefits, and if so the extent of benefits to which he is entitled. findings of fact injury It is determined that claimant did sustain an injury to his lower back and tailbone on July 7, 1986 which arose out of and in the course of his employment with employer. Claimant testified that he was pulling the branches of some apple trees to the curb when he slipped and fell on his tailbone and lower back (Transcript, Pages 51 & 52). His co-employee did not witness the fall but after the injury did drive claimant back to employer's office. Claimant reported the accident to his foreman and the director of technical services for employer (Tr. P. 53). Gerald D. Swim, the director of technical services, drove claimant to the office of the company physician. (Defendants' Exhibit 17, P. 7). Swim was present when James E. Dolan, M.D., examined claimant's back. Claimant complained of pain in his tailbone enroute to the doctor. (Def. Ex. 17, P. 17). Ross Huney, claimant's foreman, completed a very detailed accident investigation report on July 10, 1986. (Ex. 15, PP. 19-22). Claimant gave a statement to defendants' insurance claim representative by telephone on July 22, 1986 in which he described dragging brush when he slipped on some apples and fell on his tailbone. (Def. Ex. 19, PP. 1 & 2). Defendants contend that claimant fabricated or feigned the injury because just shortly before it occurred he had been told that he was being demoted and would receive a lesser rate of pay. Defendants' allegation, however, is not supported by any evidence and remains only a contention or innuendo. Furthermore, Cecilia O'Brien, a vocational rehabilitation specialist, testified that when she contacted Gerald D. Duke, the director of personnel services for employer, he did not indicate that the employer disputed the injury in the manner which claimant described. (Def. Ex. 18, PP. 18 & 19). James Dolan, M.D., saw claimant on July 7, 1986. Claimant related this fall to Dr. Dolan and he proceeded to treat claimant on this history. He noted acute spasm in the low back muscles. He stated that claimant remained standing Page 3 leaning over the examination table and alleged that he could not sit or lie down. Dr. Dolan took x-rays which were negative for fractures or dislocations. He diagnosed acute low back strain with severe muscle spasms and pain. He recommended rest, heat, medications, and proper back care. (Cl. Ex. 1, P. 1). On July 11, 1986, Dr. Dolan recorded that claimant's back remained tender, limited range of motion, and guarding over the low back on both sides. On July 25, 1986, a bone scan and x-rays were negative, but due to continued muscle spasms, discomfort and right and left leg complaints Dr. Dolan referred claimant to Marshall Flapan, M.D., for an orthopedic consultation. (Cl. Ex. 1, P. 2: Cl. Ex. 2) The registered physical therapist proceeded on a diagnosis of acute lumbar strain which occurred when claimant slipped on some apples and fell landing on his coccyx. (Cl. Ex. 3) Dr. Flapan treated claimant based on the history of this slip and fall. (Cl. Ex. 5, P. 5). Claimant was treated on a number of occasions between August 18, 1986 and January 29, 1987. (Cl. Ex. 5; Def. Ex. 1). Claimant demonstrated subjective evidence of decreased sensation to pinprick in the right leg and some pain on the straight leg raising tests. X-rays of the lumbosacral spine were normal. Dr. Flapan continued claimant off work and treated him with rest and medications, (Ex. 5, PP. 6 & 7), based on a diagnosis of simply low back pain. (Ex. 5, PP. 8 & 9). Some of claimant's responses were inappropriate and Dr. Flapan was suspicious that claimant was either consciously or unconsciously exaggerating his symptoms. (Cl. Ex. 5, P. 10). X-rays and a CAT scan with metrizmate contrast were both normal. (Cl. Ex. 5, PP. 11 & 12). Blood tests, arthritis tests, additional x-rays and a bone scan ruled out systemic inflammatory diseases. (Cl. Ex. 5, PP. 14 & 15). On November 11, 1986, Dr. Flapan told claimant that he had no ideas for further treatment or investigation; that he felt that he had gone as far as he could go with him; and that he suggested that claimant seek consultation elsewhere. (Cl. Ex. 5, P. 16), His final diagnosis was chronic low back pain caused by the injury on July 7, 1986. (Cl. Ex. 5, PP. 17 & 18). When Dr. Flapan last saw claimant on January 29, 1987, he assessed a five percent impairment rating to the body as a whole. He advised claimant to restrict his activities to minimal bending, lifting, straining, pushing or pulling or lifting heavy weight. ( Cl. Ex. 5, P. 18). He said this rating was based upon subjective complaints and restricted activity. (Cl. Ex. 5, P. 22). Dr. Flapan referred claimant to William R. Boulden, M.D., another orthopedic surgeon, for consultation. Dr. Boulden saw claimant on November 25, 1986. Dr. Boulden proceeded on the slip and fall history of July 7, 1986. He noted that the back pain had subsided but the tailbone pain had continued. An x-ray of the coccyx showed some angulation and possibly some earlier degeneration of the sacral-coccygeal junction. He diagnosed coccydynia. Dr. Page 4 Boulden also noted that the patient seemed to be slightly inappropriate in his reactions and that his pain seemed to be out of proportion to the injury. Dr. Boulden recommended an injection to see if he could alleviate the pain under a local block in order to determine whether a coccyx resection might be helpful. Scott B. Neff, D.O., who practices with Dr. Boulden, concurred. (Cl. Ex. 5; Dep. Ex. 1, PP. 6 & 7). The trigger point injection was scheduled. Claimant came to the hospital but declined to have the injection. Dr. Boulden concurred with Dr. Flapan that the only objective evidence was palpable tenderness and subjective complaints of pain. (Def. Ex. 1, P. 1). Claimant demanded and received an independent medical examination from Robert C. Jones, M.D., a neurosurgeon, who also treated claimant on the history that on July 7, 1986 he slipped on an apple and landed on his tailbone. (Cl. Ex. 4, P. 6). He diagnosed that claimant had a tailbone injury and situational depression from the injury. He felt claimant had bruised his tailbone. (Cl. Ex. 4, P. 7). He said the injury was the cause of claimant's depression. (Cl. Ex. 4, P. 8). Dr. Jones saw claimant again on July 16, 1987, for pain in his tailbone and low back pain. He found the tailbone very tender and forward bending was mildly restricted. (Cl. Ex. 4, P. 9). Dr. Jones estimated his physical impairment to be in the range of five percent and that it was caused by this injury. (Cl. Ex. 4, PP. 10 & 11). He agreed that the only objective finding was tenderness. (Cl. Ex. 4, P. 12). On July 22, Dr. Jones recommended that claimant seek other employment and/or training for employment that does not require excessive use of the low back. He said that sitting exacerbates his back and tailbone pain. (Cl. Ex. 4, Dep. Ex. 1, P. 2). He recommended that claimant should return to work on a light duty basis of desk work where he could alternately sit and stand and avoid lifting over 20 pounds. ( Cl. Ex. 4, Dep. Ex. 1, P. 7). Claimant returned to employer on January 19, 1987. Duke had drawn up a light duty job in conjunction with O'Brien's recommendation. (Tr. PP. 25 & 152). Claimant refused to take this job, (Tr. PP. 27, 63) and claimant was terminated and not recommended for rehire. (Cl. Ex. 7, Dep. 6,) Claimant declined this specially tailored light duty because no one from employer had visited him when he was in the hospital and he felt like he was just a statistic. (Def. Ex. 7, PP. 60-64). Duke testified to that claimant was offered the same rate of pay (Tr. P. 29), but claimant contended that Huney had told him he would be working for two or three dollars less per hour. (Tr. P. 63; Cl. Ex. 10, P. 2). Claimant was examined by Alfredo D. Socarras, M.D., a neurologist, on December 5, 1988. He too proceeded on the fall history of July 7, 1986. He said he could not explain the claimant's symptoms on a neurological basis. From his standpoint he found no functional impairment. (Def. Ex. 6, PP. 7-9). Page 5 From the foregoing evidence it is determined that claimant did sustain an injury on July 7, 1986 to his tailbone and low back which arose out of and in the course of his employment with employer when he slipped and fell at work. Claimant denied and there was no evidence that claimant had ever sustained any back injuries or complaints prior to this incident. (Def. Ex. 7, P. 30). The overwelming evidence establishes that claimant did in fact sustain a work-related injury as he described. There was no evidence of any kind that his tailbone and low back complaints have originated from any other source. causal connection/entitlement/temporary disability Both Dr. Flapan and Dr. Jones unequivocally stated that claimant's disability was caused by this injury. The parties stipulated that claimant's time off work was from July 8, 1986 to January 19, 1987. Therefore, it is determined that claimant is entitled to healing period benefits for this period of time. causal connection/entitlement/permanent disability Dr. Flapan and Dr. Jones unequivocally stated that this injury was the cause of claimant's disability. Dr. Neff, Dr. Boulden, and Dr. Socarras proceeded on the same history; did not dispute that this injury was the cause of claimant's disability; and did not suggest any other reason for the tailbone and low back complaints. Both Dr. Flapan and Dr. Jones determined that claimant has sustained a five percent permanent functional impairment. Dr. Socarras found no impairment, but his opinion was limited to a neurological point of view. There is no indication that either Dr. Boulden or Dr. Neff were asked for an impairment rating. Claimant, born March 10, 1953, was 33 years old at the time of the injury and 35 years old at the time of the hearing. Claimant probably had not yet arrived at the peak of his earnings capacity because he had never held a job for more than just a few months and because of his relatively young working age at the time of the injury. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner, 34 (Appeal Decision 1979). Walton v. B & H Tank Corp, II Iowa Industrial Commissioner Report 426 (1981) McCoy v. Donaldson Company, Inc., File Numbers 782670 & 805200 (Appeal Decision April 28, 1989). Claimant is young enough to be retrained for a number of employments. Conrad v. Marquette School, Inc. IV Iowa Industrial Commissioner Report 74, 89 (1984). Claimant has performed a variety past employments. (Def. Ex. 11, P. 11). He is probably precluded from a number of these jobs because of the restrictions imposed by Dr. Flapan and Dr. Jones. Michael v. Harrison County, Thirty-fourth Biennial Report of Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979), Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Page 6 Report, 282 (1984). But these restrictions are mild, and claimant's employments subsequent to this injury have demonstrated that he can perform strenuous physically active work. Claimant did interrupt his high school education to serve in the United States Marines, but completed high school when he returned from the Marines, and while he served in the Marine Reserves. (Tr. PP. 39 & 40). He received diesel mechanic training in the Marines but did not use these skills. (Tr. P. 40). He attended the Des Moines Area Community College for a short time but quit school in order to take this job with employer. (Tr. P. 41). Claimant did encounter some employment discrimination because of this injury with the city of Des Moines. In 1987, he did not disclose this injury and was employed. When he reapplied in 1988 he was hired, but when his boss was subpoenaed for a deposition about this injury, claimant was not rehired. Lynn Leslie, assistant employee relations director for the city of Des Moines, testified that claimant was not rehired because he did not disclose the previous employment and claim of back injury on his 1987 application. (Def. Ex. 9, P. 8). She pointed out that claimant did not put it on the application for either 1987 or 1988 and the forms says at the bottom, "I'm aware that any falsification or misrepresentation of answers in this record can be cause for rejection or if I'm hired can be the cause of immediate discharge." (Def. Ex. 9, P. 13). Claimant was not rehired because of his application discrepancies. (Def. Ex. 9, P. 14). At the same time, Edwin O'Neill, parks' supervisor for the city of Des Moines, testified that if he knew that claimant had a back injury he would not have put him to work. He testified that it was the policy of the city not to employ people with back injuries, (Def. Ex. 10, P. 11), and that is why he was not rehired. (Def. Ex. 10, P. 14). Thus, there is evidence that having had a back injury makes it more difficult to be hired which in turn increases claimant's industrial disability or loss of earnings capacity. O'Brien, the vocational rehabilitation specialist, believed that claimant's complaints of injury were exaggerated and that he was not motivated to work. She interviewed claimant at his home and accompanied him to several of his doctor appointments, with the exception of Dr. Neff. (Def. Ex. 18, P. 9). She stated that based on Mr. Andre's availability and willingness to attend appointments, I did not feel that he was extremely motivated to return to work. The physical therapist told her that claimant was not cooperative with his physical therapy. He rejected the offer of an injection for his coccyx area proposed by Dr. Boulden. Many of his various complaints when investigated could not be documented. (Def. Ex. 18, PP. 11 & 12). When claimant was to return to work light duty he asked her several questions such as, whether or not Page 7 his back was permanently insured; if he went back to work and was terminated could he go back on compensation; and when does he get his rating and how much is it. (Def. Ex. 18, P. 14; Def. Ex. 2, P. 12). He cancelled appointments for a CT scan twice, even though she had stressed the importance of these tests, because he said he had a cold. (Def. Ex. 18, Dep. Ex. 4). In summary then, claimant has a five percent permanent impairment rating from a board certified neurosurgeon and a five percent permanent impairment rating from a board certified orthopedic surgeon and some mild restrictions relative to bending, lifting, stooping and straining. It was recommended that he change employments from manual labor types of work. Claimant maintains that he can no longer swim, bowl, play softball, hunt, pick up his wife or children. (Tr. P. 81). At the same time, claimant did dig postholes for a rail fence in front of their mobile home and carried five gallon buckets of sealant up a ladder to reseal a roof on his mobile home. ( Tr. PP. 105-106). Wherefore, based upon the evidence presented, and all the factors used to determine industrial disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (Appeal Decision February 28, 1985); Christensen v. Hagen, Inc., vol. 1, no. 3, State of Iowa Industrial Commissioner Decisions 529 (Appeal Decision, March 26, 1985); and applying agency expertise rule 343 IAC 17A.14(5) is determined that claimant has sustained a 15 percent industrial disability to the body as a whole and that claimant is entitled to 75 weeks of permanent partial disability benefits. conclusions of law Wherefore, based upon the foregoing and following principles of law these conclusions of law are made. That claimant sustained an injury on July 7, 1986 to his lower back and coccyx which arose out of and in the course of his employment with employer. 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). That the injury was the cause of temporary and permanent disability. 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). That claimant is entitled to 27.857 weeks of healing period benefits for the period from July 8, 1986 to January 19, 1987 as stipulated to by the parties. Iowa Code section 85.34(1). That claimant has sustained a 15 percent industrial disability to the body as a whole and is entitled to 75 weeks permanent partial disability benefits. Iowa Code section 85.34(2)(u). Page 8 That defendants are entitled to a credit of 29 weeks of workers' compensation benefits paid to claimant prior to hearing at the rate of $191.39 per week as stipulated to by the parties. Iowa Code section 85.34(4). order THEREFORE, IT IS ORDERED: That defendants pay to claimant twenty-seven point eight five seven (27.857) weeks of healing period benefits at the rate of one hundred ninety one and 39/100 dollars ($191.39) per week in the total amount of five thousand three hundred thirty-one and 55/100 dollars ($5,331.55) commencing on January 20th as stipulated to by the parties. That defendants pay to claimant seventy-five (75) weeks of permanent partial disability benefits at the rate of one hundred ninety-one and 39/100 dollars ($191.39) per week in the total amount of fourteen thousand three hundred fifty-four and 25/100 dollars ($14,354.25) commencing at the completion of the payment of the healing period benefits. That defendants are entitled to a credit in the amount of twenty-nine (29) weeks of workers' compensation benefits paid to claimant in the weekly amount of one hundred ninety-one and 39/100 dollars ($191.39) and in the total amount of five thousand five hundred fifty and 31/100 dollars ($5,550.31), prior to hearing. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action are charged to defendants pursuant to rule 343 IAC 4.33 including the costs of the attendance of the court reporter at hearing and the costs of transcript supplied to the deputy industrial commissioner. That claimant is specifically entitled to the following costs attached to the prehearing report: Expert Witness Fee for Dr. Flapan $150.00 Expert Witness Fee for Dr. Jones 150.00 Deposition Expenses for Dr. Jones 80.80 Deposition Expenses for Dr. Flapan 106.20 upon a proper presentation to defendants of these itemized bills and proof of payment of these bills. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. That defendants file form 2A showing their payments to claimant prior to hearing which do not appear in the Industrial Commissioner file at this time. Page 9 Signed and filed this ____ day of February, 1991. ________________________________ WALTER R. MCMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr David S Wiggins Attorney at Law 700 West Towers 1200 35th Street West Des Moines IA 50265 Page 10 Mr Ross H Sidney Mr Stephen D Hardy Ms Iris J Post Attorneys at Law 2222 Grand Avenue PO Box 10434 Des Moines IA 50306 Page 1 5-1401;5-1402.21;5-1402.30 5-1802;5-1402.40;5-1803 Filed February 7, 1991 WALTER R. MCMANUS, JR. before the iowa industrial commissioner ____________________________________________________________ : ALBERT STEPHENSON ANDRE, : : Claimant, : : vs. : : File No. 828701 WRIGHT TREE SERVICE, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : UNITED STATES FIDELITY AND : GUARANTY COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1401, 5-1402.21, 5-1402.30 Claimant proved injury arising out of and in the course of employment when he slipped and fell on some apples while pulling tree limbs and injured his low back and tailbone. 5-1802, 5-1402.40 Claimant proved that the injury was the cause of temporary disability and he was entitled to 27.857 weeks of healing period benefits as stipulated to by the parties. 5-1803, 5-1402.40 Claimant, age 33, high school education, proved that the injury was the cause of permanent disability and awarded 15 percent industrial disability to the body as a whole which entitled him to 75 weeks of permanent partial disability benefits. Dr. Jones, an evaluating physician for claimant, and Dr. Flapan, a treating physician for claimant, both assessed a 5 percent permanent impairment based on lumbar strain, tenderness, mildly limited range of motion and claimant's subjective complaints of pain. Claimant had mild restrictions against bending, lifting, stooping or straining but subsequently performed strenuous work. Two physicians commented that claimant's responses were inappropriate and that his complaints were exaggerated. Claimant was not highly motivated to work at all times. Employment discrimination by the City of Des Moines was proven which Page 2 was evidence of increased industrial disability because of claimant's back injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER EUGENE CLARENCE NAMANNY, Claimant, File No. 828860 vs. A P P E A L STELLCO, D E C I S I O N Employer, F I L E D and OCT 17 1989 LIBERTY MUTUAL INS. CO., IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying permanent partial disability benefits as the result of an alleged injury on June 25, 1986. The record on appeal consists of the transcript of the arbitration proceeding; claimant's exhibits 1 through 10; and defendants' exhibits A and B. Defendants did not file a brief on appeal. ISSUES Claimant states the following issues on appeal: I. The failure of defendants to timely supplement their answers to interrogatories raises the question whether their expert testimony should be admitted and the commissioner would be within the scope of his discretion in denying admission of testimony. II. Claimant has carried his burden of proof with respect to the incident of June 25, 1986, being the cause of his present disability and even if the expert testimony of the defendants is admitted, it should be given little weight. III. The Commissioner should adopt a "positional risk" for employees whose employment subjects them to greater stress than ordinary living. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. APPLICABLE LAW Iowa Division of Industrial Services Rule 343-4.35 states: Rules of Civil Procedure. The rules of civil procedure shall govern the contested case proceedings before the industrial commissioner unless the provisions are in conflict with these rules and Iowa Code chapters 85, 85A, 85B, 86, 87 and 17A, or obviously inapplicable to the industrial commissioner. In those circumstances, these rules or the appropriate Iowa Code section shall govern. Where appropriate, reference to the word "court" shall be deemed reference to the "industrial commissioner." Iowa Division of Industrial Services Rule 343-4.36 states: Compliance with order or rules. If any party to a contested case or an attorney representing such party shall fail to comply with these rules or any order of a deputy commissioner or the industrial commissioner, the deputy commissioner or industrial commissioner may dismiss the action. Such dismissal shall be without prejudice. The deputy commissioner or industrial commissioner may enter an order closing the record to further activity or evidence by any party for failure to comply with these rules or an order of a deputy commissioner or the industrial commissioner. Iowa Rule of Civil Procedure 125 provides, in pertinent part: Discovery of Experts.... .... (c) Duty to supplement discovery as to experts. If a party expects to call an expert witness when the identity or the subject of such expert witness' testimony has not been previously disclosed in response to an appropriate inquiry directly addressed to these matters, such response must be supplemented to include the information described in subdivisions "a"(1)(A)-(C) of this rule, as soon as practicable, but in no event less than thirty days prior to the beginning of trial except on leave of court. If the identity of an expert witness and the information described in subdivisions "a"(1)(A)-(C) are not disclosed in compliance with this rule, the court in its discretion may exclude or limit the testimony of such expert, or make such orders in regard to the nondisclosure as are just. ANALYSIS Claimant's initial issue on appeal concerns the admission of defendants' expert witness testimony. Defendants were served with interrogatories on January 21, 1987, which, among other things, requested identification of any expert witnesses defendants intended to rely on. A prehearing conference was held on January 22, 1988. Subsequent to that conference, a hearing assignment order was issued setting the hearing for April 27, 1988. The order also required service of witness lists no later than 15 days prior to the hearing. On February 23, 1988, claimant filed a motion to compel answers to interrogatories. On March 17, 1988, defendants filed answers to the interrogatories, but did not identify expert witnesses. On March 28, 1988, the parties orally agreed on a date and time for an examination of claimant by defendants, expert in question, Alan H. Fruin, M.D. This conversation was later confirmed by letter, and the examination took place on April 8, 1988. On April 11, 1988, defendants received Dr. Fruin's report, which was then served on claimant. On April 13, 1988, claimant received a list of defendants' witnesses, including Dr. Fruin. Defendants did not formally supplement the interrogatory dealing with expert witnesses until three days before the hearing. The parties appear to regard defendants' service of witness lists on claimant on April 13, 1988, as timely and in compliance with the hearing assignment order. Claimant, however, argues that defendants also had a duty to comply with Iowa Rule of Civil Procedure 125(c), and supplement the interrogatory answers with the name of Dr. Fruin no later than 30 days before the hearing. Defendants clearly did not do so. The question then becomes whether defendants, having provided claimant with Dr. Fruin's name as an expert witness for the defense pursuant to the hearing assignment order, were also obligated to comply with Iowa Rule of Civil Procedure 125(c) and supplement the interrogatory answer dealing with expert witnesses. It should be noted that claimant is not claiming surprise or prejudice. Claimant would not be able to do so, in light of the formal notice of Dr. Fruin's testimony that was given to claimant under the hearing assignment order, and claimant's own participation in the scheduling of the examination by Dr. Fruin. Rather, claimant relies on a technical noncompliance with Iowa R.Civ.P. 125. Division of Industrial Services Rule 343-4.35 incorporates the Iowa Rules of Civil Procedure for agency proceedings. However, rule 4.35 also states that when a conflict between agency rules and the rules of civil procedure exists, the agency rule shall prevail. In the instant case, the 15 days before hearing requirement is not set forth in an agency rule, so there is not a direct conflict between an agency rule and a rule of civil procedure. However, Division of Industrial Services Rule 343-4.36 provides sanctions, including the exclusion of evidence, for noncompliance with the order of a deputy. Thus, the hearing assignment order is given the force and effect of a rule under rule 4.36. Are Iowa R.Civ.P. 125(c) and the hearing assignment order pursuant to Division of Industrial Services Rule 343-4.36 in conflict with each other? Both provide for discovery between litigants. Both relate to apprising opposing parties of expert witnesses intended to be relied upon at the hearing. It is clear that the hearing assignment order requirement of exchanging expert witness lists no later than 15 days before the hearing is the functional corollary of Iowa R.Civ.P. 125(c). Both rules serve the same purpose, but impose differing time frames. It therefore appears that Iowa R.Civ.P. 125(c) and the hearing assignment order pursuant to Division of Industrial Services Rule 343-4.36 are in conflict. Pursuant to Division of Industrial Services Rule 343-4.35, that conflict is resolved in favor of the agency rule. Rule 4.35 supplants rule of civil procedure 125(c) for workers' compensation proceedings. It is noted that even if Iowa Rule of Civil Procedure 125(c) were controlling, that rule provides that "the court in its discretion may exclude or limit the testimony of such expert..." (emphasis added). Thus, the deputy was entitled to admit such testimony even if rule 125(c) were applicable. "Exclusion is justified only when prejudice would result. [The purpose of the rule] is to avoid surprise to the litigants and to allow the parties to formulate their positions on as much evidence as is available." Lambert v. Sisters of Mercy Health Corp., 369 N.W.2d 417 (Iowa 1985). The deputy properly refused to exclude defendants' expert witness for noncompliance with Iowa R.Civ.P. 125(c). The deputy made a finding that the blackout incident did not arise out of the employment. Claimant, however, states as an issue on appeal whether claimant has shown a causal connection between his present disability and the blackout incident. In his appeal brief, claimant appears to address the arising out of issue. Claimant's second issue on appeal is read to concern whether his work injury arose out of his employment. The record contains the testimony of three physicians. William Abraham, M.D., a resident internist, stated that no causal connection between claimant's stroke and his work existed. David G. Windsor, M.D., a psychiatrist, found a causal connection. Alan H. Fruin, M.D., a neurosurgeon, testified there was no causal connection. Dr. Fruin based his conclusion on the claimant's history of mild strokes before the work injury, as well as radiographic evidence of past cerebral vascular problems. Dr. Abraham also noted the evidence of prior strokes in forming his conclusion. There is no indication in the record as to whether Dr. Windsor has expertise or experience with strokes and seizures. Dr. Fruin stated he had read claimant's depositions and was familiar with claimant's activities leading up to the incident. It can therefore be presumed that Dr. Fruin did not regard claimant's sleep activities prior to the incident as a "prolonged" deprivation of sleep. The opinion of Dr. Fruin will be given the greater weight. Claimant has failed to establish a causal connection between his present condition and his work injury. Claimant's final issue on appeal urges this agency to adopt a "positional risk" approach. Claimant appears to argue that stress and anxiety connected with his work led to his blackout on June 15, 1986. Claimant's argument that "the normal person on the street need not be concerned with overweight trailers, loading procedures or time schedules" once again addresses the question of whether claimant's blackout incident arose out of his employment. The physicians whose testimony is in the record, particularly that of Dr. Fruin, were based on medical histories that related claimant's activities, including the stress of adhering to a time schedule. The greater weight of the medical evidence fails to establish that these factors caused claimant's blackout, as discussed above. FINDINGS OF FACT 1. Claimant was an employee of defendant employer on June 25, 1986. 2. On June 25, 1986, claimant suffered a stroke or seizure while employed by defendant employer. 3. Claimant had a history of strokes prior to June 25, 1986. 4. Claimant's stroke on June 25, 1986, was not caused by his employment. CONCLUSION OF LAW Claimant has failed to establish by the greater weight of the evidence that the stroke he suffered on June 25, 1986, arose out of his employment. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant shall take nothing from these proceedings. That claimant shall pay the costs pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 17th day of October, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. C. R. Hannan Attorney at Law 215 S. Main St. P.O. Box 1016 Council Bluffs, Iowa 51502 Mr. James E. Thorn Attorney at Law 310 Kanesville Blvd. P.O. Box 398 Council Bluffs, Iowa 51502 2906 Filed October 17, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER EUGENE CLARENCE NAMANNY, Claimant, vs. File No. 828860 STELLCO, A P P E A L Employer, D E C I S I 0 N and LIBERTY MUTUAL INS. CO., Insurance Carrier, Defendants. 2906 Claimant served interrogatories on defendants which asked for, among other items, the names of any experts to be relied on at trial. A hearing assignment order was also issued, requiring defendants to identify witnesses within 15 days of the hearing. Iowa Rule of Civil Procedure 125 provides, in part, that defendants must supplement interrogatory answers in regards to expert witnesses within 30 days of trial. Defendants complied with the hearing assignment order and served notice of their expert on claimant within 15 days of the hearing, but failed to supplement the interrogatory within 30 days. Claimant acknowledged he had not been prejudiced by the failure to supplement, but nevertheless asserted that technical noncompliance justified barring the testimony. Claimant appealed the deputy's refusal to deny admission of the expert's testimony. It was held that Division of Industrial Services Rule 343-4.36 and the hearing assignment order issued thereunder were in conflict with Iowa R.Civ.P. 125. Pursuant to rule 4.35, that conflict was resolved in favor of the agency rule. Compliance with the agency rule negates the requirement to comply with rule 125 in respect to notice of expert witnesses. BEFORE THE IOWA INDUSTRIAL COMMISSIONER EUGENE CLARENCE NAMANNY, Claimant, vs. File No. 828860 STELLCO, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INS.,CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Eugene Clarence Namanny, claimant, against Stellco, employer, and Liberty Mutual Insurance Company, insurance carrier, for workers' compensation benefits as a result of an alleged injury on June 25, 1986. On April 27, 1988 a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of: contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony was received during the hearing from claimant and his wife, LaDonna Namanny. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. Claimant is seeking temporary total disability or healing period benefits from June 26, 1986 through the present time and the defendants agree that claimant has not worked since June 26, 1986. 2. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 3. In the event of an award of weekly benefits, claimant's rate of compensation shall be $194.38 per week. 4. All medical service providers whose bills were submitted by claimant at the hearing would testify their charges and treatments were fair and reasonable and defendants are not offering contrary evidence. It was also stipulated that the bills submitted at hearing are causally connected to the medical condition upon which the claim is based but that the issue of their causal connection to any work injury remained an issue to be decided. NAMANNY V. STELLCO PAGE 2 At hearing, ruling on claimant's motion to exclude from consideration certain medical reports and depositions was taken under advisement. Claimant claims an alleged failure to timely supplement a response to interrogatories seeking identification of expert witnesses to be called at trial. This interrogatory was served upon defense counsel on January 21, 1987. According to Iowa Rule of Civil Procedure 125, a party must supplement such responses within 30 days before trial or be subject to sanctions which can include the exclusion of the expert witness evidence at trial or such other orders as are just. Claimant does not claim surprise however. According to the statements at hearing the following chronology of events took place in the weeks prior to the hearing in this case: On January 17, 1988 claimant informed defendants that they would be obtaining an expert witness to support their claim, however, they did not have such a witness at that time. Defendants informed claimant at that time that should such evidence materialize, they would secure their own expert. On January 22, 1988 a prehearing conference was held. According to the notes of the prehearing deputy, the parties indicated at that time that all medical reports were received and exchanged and that ail depositions had been taken. The matter was then set for hearing on April 27, 1988 and an assignment order was issued directing the parties to serve witness lists upon each other no later than 15 days prior to hearing. At some time after February 6, 1988, claimant received a favorable report from David Windsor, M.D., and served this report upon defendants on February 22, 1988. On February 23, 1988 claimant filed a motion to compel answers to interrogatories posed in January, 1987. On March 17, 1988 defendants answered the interrogatory but failed to identify expert witnesses. On March 28, 1988 the parties orally set a time and place for an independent medical examination of claimant by a physician chosen by defendants, Alan Fruin, M.D. The time and place of examination was confirmed by letter dated March 29, 1988. The examination then took place on April 8, 1988. On April 11, 1988 a report was sent by Dr. Fruin to defense counsel favorable to the defense and it was served in accordance with agency rules. On April 13, 1988 claimant received a list of defendants' witnesses to be called at hearing which included the expert testimony of Dr. Fruin. On April 20, 1988 the deposition of William Abraham, M.D., was taken by defendants and on April 22, 1988 the deposition of Dr. Fruin was taken for purposes of offering the testimony at trial. On April 26, 1988 defendants supplemented his responses to interrogatories answered in February, 1988 by including Dr. Fruin as an expert witness. In their resistance to claimant's motion, defendants contend that the hearing assignment order concerning the service of witness lists replaces the requirement of Rule 125 to identify expert witnesses. The defendants contend that according to agency rules the the Iowa Rules of Civil Procedure are only applicable if they are not inconsistent with agency rules and orders. Division of Industrial Services Rule 343-4.35. In any event, defendants claim that exclusion of such evidence would not NAMANNY V. STELLCO PAGE 3 be just under the circumstances considering claimant's belated discovery of a favorable expert witness. The undersigned agrees with the defense and does not feel that the exclusion of the evidence on the basis of noncompliance with Rule 125 is appropriate or just in this case. Defendants' complaint that the hearing assignment order pertaining to service of witness lists misled him as to the application of Rule 125 is justified. The current assignment order is confusing in light of the newness of the rule and its possible application to workers' compensation proceedings. This agency should amend the assignment order to clarify the apparent conflict between Rule 125 and the current order. Second, to the extent that claimant was prejudiced, the source of the problem stems from claimant's own actions. Despite informing this agency otherwise at the prehearing conference, claimant's discovery was not completed until after the prehearing conference and after the hearing was scheduled which unfairly restricted the time available to defendants to locate opposing points of view. This case has been pending before this agency since October of 1986 and claimant chose not to seek responses to discovery or a supportive medical opinion until February, 1988, approximately 20 months after the filing of the petition. Therefore, the motion to exclude defendants' evidence on the basis of Rule 125 is denied. What concerns the undersigned the most, however, is not the supplementation of response issue but the manner in which the parties misled this agency in the assignment process. Both counsel indicated to the prehearing deputy, according to that deputy's written notes contained in the agency file, that on January 22, 1988, all medical reports were received and exchanged and all depositions were taken. In reliance upon those statements, the matter was set for hearing. in actuality, discovery was far from over and problems raised by claimant in his motion are the result of this deception. Had the parties indicated the correct status of the case at the time of the prehearing conference, the matter either would not have been assigned or would have been assigned with further orders governing subsequent discovery to ensure fairness to both parties. The parties should be advised, especially claimant, that the undersigned seriously contemplated, on his own motion, the exclusion of ail evidence obtained after the prehearing conference. It was felt that deceiving this agency as to the status of discovery in order to obtain a hearing date is not conduct that should be condone. However, the prehearing deputy who conducted the conference has left this agency and he could not be consulted on this matter. Therefore, for this reason and this reason alone, the undersigned will reluctantly allow the evidence obtained subsequent to the prehearing conference into the record. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; NAMANNY V. STELLCO PAGE 4 II. Whether there is a causal relationship between the work injury and the claimed disability; III. The extent of weekly disability benefits to which claimant is entitled; and, IV. The extent of claimant's entitlement to medical benefits under Iowa Code section 65.27. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such conclusions, if any, in the following summary should be considered as preliminary findings of fact. Claimant testified that he worked for Stellco from July, 1985 until the date of the alleged injury on June 25, 1986. He stated that his duties consisted of interstate truck driving of an 18 wheeled semi tractor trailer truck. Claimant drove as a part of a two person team consisting of himself and his wife. Claimant and his wife testified as follows with reference to the events leading up to a loss of consciousness while operating the truck on the evening of June 25, 1986: On the afternoon of June 23, 1986, claimant and his wife arrived at a loading dock at Davenport, Iowa. Claimant's truck was then loaded with freight but claimant felt that the loading was done improperly. After an argument ensued in which claimant threatened to complain to the dispatcher, the truck was reloaded and claimant left the dock at 1:00 or 2:00 a.m. for Denver, Colorado. Claimant testified that he would have left around 6:00 or 7:00 p.m. earlier that evening had the loading been properly done the first time. Enroute to Denver claimant stopped at his residence in Iowa which is located only 25 miles from the interstate. Claimant and his wife testified that they stopped for the purpose of changing and washing their clothes. Claimant and his wife stated that they left their residence for Denver at 4:30 p.m. in the afternoon of June 24 and arrived the next day after driving all night in Denver at 5:00 a.m. Claimant said that his truck was unloaded around 8:00 a.m. on June 25, 1986 and claimant and his wife waited at a truckstop for orders to the next destination. As claimant and his wife were driving as a team, they shared their driving responsibilities on the 24th and 25th of June. Claimant and his wife stated that at approximately 1:00 in the afternoon on June 25, 1986 after claimant and his wife had eaten a noon lunch, they received orders to return to the dock where he had been that morning. Claimant said that he then attempted to sleep in the truck sleeper but could not because of the hot and humid temperatures. Claimant testified that he arrived at the loading dock at 5:00 p.m. He stated that he again had an argument or discussion with the dock personnel as he believed that the load was again loaded improperly and that he was overweight. After leaving the dock at 7:30 p.m. claimant stated that he weighed his truck on a nearby scale and found, as NAMANNY V. STELLCO PAGE 5 he had suspected, that the truck was overweight. He then cranked the dolly down on the trailer to remove weight from the back of the truck and adjusted, with the help of his wife, the location of the "fifth wheel" or the connection between the truck trailer and tractor. According to claimant this adjustment would place more of the trailer weight on the front wheels and remove the excess load on the rear wheels of the tractor. After adjusting the fifth wheel, claimant returned the truck and drove only a few feet before he blacked out. Claimant's wife who was riding in the truck observed claimant lose consciousness and after attempting to revive him, sought help. Claimant was then transported to the hospital. Testing and treatment of claimant at the hospital was received from William Abraham, M.D., a resident internist "in training" at the time. Dr. Abraham in his reports indicated that claimant suffered a "first time seizure or epileptic fit" which the doctor explained is an electrical dysfunction of the brain. Dr. Abraham stated in his report and in his deposition that there was no clear medical cause for such seizures. The doctor observed from diagnostic imaging that claimant had small lacunes or small strokes, which appear to have preexisted June 25, 1986 and were probably a predisposing factor to the seizure. The doctor found no evidence of any recent cerebral vascular incident or blood clot. The doctor also stated that symptoms of right sided weakness, facial droop and visual field dysfunction were not apparent at the time claimant left the hospital after this first seizure incident. In his reports and deposition Dr. Abraham does not find a causal link between claimant's employment activities before the seizure and the seizure as he felt that such event occurred on a random basis. Claimant was examined by David G. Windsor, M.D., a psychiatrist, on May 30, 1987. According to his report of February 6, 1988, Dr. Windsor found a causal relationship of claimant's seizure to his work and labeled the event of June 25, 1986 as a stroke causes by excessive, unusual exertion on the job which aggravated and accelerated his prior existing condition. Claimant was also examined by a board certified neurosurgeon, Alan H. Fruin, M.D. Dr. Fruin is the associate dean of the Creighton University School of Medicine and teaches neurosurgery. It was Dr. Fruin's diagnosis that claimant did not suffer a cerebral vascular accident on June 25, 1986 but generalized spontaneous seizure unrelated to his work activity or any other activity or stress. His opinion is based upon a history of mild strokes before June, 1986 and radiographic evidence which revealed old but not any recent cerebral vascular problems. The doctor explained that claimant's high blood pressure at the time of the seizure was due to the seizure and not the cause of the seizure. The doctor also stated that there was no history or prolonged sleep deprivation or prolonged fasting prior to the incident. The doctor stated that he read all of claimant's depositions and past medical reports and the report from Dr. Windsor. Claimant's appearance and demeanor at the hearing indicated that he and his wife were testifying truthfully. I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" NAMANNY V. STELLCO PAGE 6 refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active of dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. In the case sub judice, the preponderance of the evidence does not favor claimant's case. Although the views of Dr. Windsor were considered and viewed as important, they cannot outweigh the views of Dr. Abraham and especially those of Dr. Fruin. Dr. Fruin is a board certified specialist in surgical diseases of the brain. What background and experience Dr. Windsor may have in the field of neurosurgery or seizures or strokes.is unknown. Therefore, although claimant and his wife were certainly credible and obviously worthy, hard working citizens, the medical evidence presented was simply too scant to support their claim. Claimant contends that Dr. Fruin's opinions should be rejected due to an incorrect history of no sleep or food deprivation before the seizure. The undersigned cannot agree. Dr. Fruin was well aware of the facts leading up to seizure because he had read claimant's deposition. Dr. Fruin used the words "no prolonged" sleep or food deprivation. It is clear that he considered the events prior to claimant's seizure as insufficient to precipitate the event. Therefore, this deputy commissioner, no matter how much he would like to award benefits to all persons who come before him especially to the type of people exhibited by claimant and his wife, he has an obligation to people of Iowa and his profession to make decisions on the record presented. This deputy has no choice but deny claimant's claim. However, as claimant and his wife appeared credible and their case was at least arguable, the cost of this action will be awarded to them. FINDINGS OF FACT 1. Claimant was a credible witness. 2. Claimant was in the employ of Stellco at all times material herein. 3. On June 25, 1986, claimant suffered a seizure or epileptic fit, the cause of which is unknown and probably a spontaneous event or a spontaneous electrical disturbance of the brain as a result of prior mild strokes and prior cerebral vascular incidents which occurred before June 25, 1986. 4. It could not be found that claimant's seizure arose out of and in the course of his employment. CONCLUSIONS OF LAW Claimant has failed to establish by a preponderance of the evidence entitlement to disability or medical benefits. ORDER NAMANNY V. STELLCO PAGE 7 1. Claimant's petition is denied. 2. Defendants shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 5th day of August, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. C. R. Hannan Attorney at Law 215 South Main St. P. O. Box 1016 Council Bluffs, Iowa 51502 Mr. James E. Thorn Attorney at Law P. O. Box 398 Council Bluffs, Iowa 51502 1108 Filed August 5, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER EUGENE CLARENCE NAMANNY, Claimant, vs. File No. 828860 STELLCO, A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INS. CO., Insurance Carrier, Defendants. 1108 Claimant failed to demonstrate that his seizure was work related due to insufficient medical evidence to provide a causal link between the seizure and his work activities immediately prior to the seizure. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD C. STOUT, Claimant, File No. 829156 vs. A R B I T R A T I O N VIVIAN'S TAP, D E C I S I O N Employer, F I L E D and MAR 27 1990 UNITED FIRE AND CASUALTY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Donald C. Stout, claimant, against Vivian's Tap, employer, and United Fire and Casualty Company, insurance carrier, defendants, for benefits as the result of an alleged injury which occurred on July 25, 1986. A hearing was held in Davenport, Iowa, on August 14, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented by John O. Moeller. Defendants were represented by Larry L. Shepler. The evidence consists of the testimony of Donald C. Stout, claimant; joint exhibits 1 through 12 and 14 through 33; and claimant's exhibits 34 to 40. The deputy ordered a transcript of the hearing. Claimant's attorney submitted a good posthearing brief. Defendants' attorney did not submit a posthearing brief. OBJECTION TO EXHIBITS Defendants' counsel objected to joint exhibits 13 and 13A because they were not served until August 11, 1989, three days prior to the hearing, in violation of paragraph six of the hearing assignment order which requires that all written exhibits are to be served on opposing parties not later than 15 days prior to hearing. Claimant's counsel admitted that the exhibits were served late due to the oversight of both parties. Defendants' objection was sustained and joint exhibits 13 and 13A were not admitted into evidence. Claimant's counsel requested that they remain with the record as an offer of proof and this request was granted; however, they will not be considered in the determination of the issues in this case. STIPULATIONS The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the injury was the cause of temporary disability; that claimant was off work from July 25, 1986 to December 6, 1986; and that in the event it is determined that claimant sustained a compensable injury, then claimant is entitled to temporary disability benefits for that period of time. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the commencement date for permanent disability benefits, in the event such benefits are awarded, is December 7, 1986. That the rate of compensation, in the event of an award, is $139.06 per week. That the provider of medical supplies and services would testify that their charges are reasonable and were incurred for reasonable and necessary medical treatment and defendants are not offering contrary evidence. That the causal connection of the medical expenses to treatment for a medical condition upon which claimant is now basing his claim is admitted, but that the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. That defendants make no claim for credit for employee nonoccupational group health plan benefits or workers' compensation benefits paid to claimant prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on July 25, 1986, which arose out of and in the course of employment with employer. Whether the alleged injury was the cause of permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits, and if so, the extent of benefits to which he is entitled. Whether claimant is entitled to medical benefits. SUMMARY OF THE EVIDENCE Claimant, born August 23, 1925, was 60 years old at the time of the alleged injury and 63 years old at the time of the hearing. He testified that he was 6 feet 6 inches tall and weighed 212 pounds. He completed, "11--12 and a half grades high school." He started to work for employer, Vivian Conklin, when she took over this business in September or October of 1974; he has continued to work there for some 15 years; and he was still employed there at the time of the hearing. Prior employments are parts man, parts assistant manager, and service manager for an automobile dealership; machinist work and machinist shop foreman work; and construction work (transcript pages 15-18). Claimant described his duties on July 25, 1986, as a general manager, bartender and general repairman at this neighborhood bar. He took care of all the money, purchased food and supplies, repaired things which. broke, and prepared free lunches for weekends and Monday nights. He worked directly for the owner. His home was 20 blocks north and 8 blocks east of the tavern. The bar did not have adequate facilities and therefore, he laundered the towels, prepared the free lunches and handled the money at his home. Employer provided a payroll check cashing service for their patrons primarily on Thursday and Friday and some on Saturday of each week. The volume of these checks amounted to $20,000 to $25,000 per weekend. On Friday mornings, claimant would go to the tavern and pick up the checks that had been cashed Thursday night and Friday morning. He took these home, ran tapes on them, and determined how much cash and what denominations employer would need for the rest of the weekend and communicated these money needs to the bank. He then picked up the money at the bank, the sandwiches and laundry at his home and took them to the bar. On Thursdays, the amount of money needed to cash checks amounted to between $8,000 and $10,000 each week (tr. pp. 18-26). On Friday, July 25, 1986, claimant made a trip to the store and picked up groceries. He made another trip to pick up automobile parts. He made a third trip to the bank where he picked up $4,000 to $4,300 in cash for the bar and returned home. He left this money locked up in his truck There was another $2,300 in cash that he intended to use at the bar on the weekend which was hidden in a chair in his kitchen. Claimant testified that his house was double locked. It showed no signs of forced entry after he returned home the third time on that Friday morning. Nevertheless, when he entered his house, a person, "...stepped out of my bedroom and says where is the money and he had a chrome 25 automatic in my face." (tr. pp. 26-29). This individual was wearing a brown ski mask, brown knit wool gloves, a coat and dark colored pants. The intruder made him take off his clothes and lie down on the floor while he searched his clothing. The intruder could not find any money. This individual then zapped him with an electric zapper to try to force him to tell him where the money was, but claimant did not disclose where the money was. Claimant said that the robber had already found the $2,300 in cash in the kitchen before he came home the third time. However, the robber did not take his truck which had the other $4,000 to $4,300 in cash in it. The robber then took all of his keys and locked him out of the kitchen into an upstairs hallway. When it sounded like the robber had left, claimant kicked the door open and reached for his gun, which he kept on the refrigerator; however, the gun was gone. When claimant turned around the robber was still there and fired three shots, one of which struck claimant in the left shoulder. The robber then fled the scene (tr. pp. 29 & 30). Claimant put on his shorts and put a towel on his gunshot wound and ran down the street a half a block to his daughter's house. She called the police and called an ambulance for claimant and he was taken to the hospital. Claimant asserted that the same man attempted to rob him in a similar manner outside his house in December of 1985, just before Christmas. On that occasion the man made him strip, but again found no money in his clothes. Claimant believed the man had the same brown mask, same brown gloves and the same weapon (tr. pp. 30 & 31). Claimant related that nothing else was taken other than the cash and three of his guns. None of his other personal property was missing or taken. The intruder removed the three guns and cash in a plastic Eagles shopping bag. The assailant specified that he wanted the "money" as opposed to "give your wallet." Claimant testified that he had a lot of other valuable personal property in his house which was easily transportable (tr. p. 34). Claimant acknowledged that he also injured his left shoulder in a boating accident in 1984, but he was 98 percent healed and about to be released from the doctor. The boating accident injured the outer portion whereas the gunshot wound injured the midclavicle portion of his shoulder (tr. pp. 36-38). Claimant states that he earns less money now because he took early retirement two years ago (tr. pp. 37-38). Claimant asserted that he still has pain, difficulty in reaching and lifting, and a decrease of strength in his left hand (tr. p. 40). Claimant testified that his treatment for the gunshot wound stopped near the end of 1986 and he has not sought any treatment for the gunshot wound since then (tr. pp. 40 & 41). Claimant related that employer approved his activities of food preparation, laundering the bar towels and money handling at his home and the insurance carriers were advised of this method of operation (tr. pp. 41-42). Claimant said he only bruised his left shoulder at the time of the boating accident, but did acknowledge that eventually an arthrogram was done (tr. pp. 56-60). Claimant estimated that he worked approximately 20 hours at the bar on the premises and approximately another 30 or 40 hours off the premises (tr. p. 75). Claimant further testified that they have handled the money and the laundry in this fashion ever since the bar opened in 1974. The lunch procedure was only about five years old. Claimant and employer still follow that same procedure with respect to money handling, but some of the food preparation procedures were reduced (tr. pp. 76 & 77). The hospital records verify that claimant was treated for a gunshot wound on July 25, 1986 (Jt. ex. 1-3). Claimant's personal physician, L.J. Twyner, M.D., had claimant evaluated by Edwin A. Day, M.D. As a result of this consultation, an arch aortogram, left subclavian angiogram and left upper extremity venogram, performed by R.W. Hartung, M.D., concluded, "No vascular abnormality demonstrated." (jt. ex., 48). Dr. Twyner also had claimant evaluated by R. Roski, M.D., a neurosurgeon (jt. ex. 9). R.G. Collier, M.D., a general surgeon, excised the bullet and debrided the point of exit (jt. exs. 10 & 11). When claimant was discharged from the hospital on July 29, 1986, Dr. Twyner stated, "At the time of discharge it was felt by Dr. Roski that the patient should get complete or near complete return of function of the left arm." (jt. ex. 12). The medical records show the injury from the boating accident which occurred in August of 1984 as well as the gunshot injury (jt. exs. 16 & 16a & 19a). Claimant contended the left shoulder injury was caused by the boating accident, but Dr. Sinning said claimant was not receptive to the idea of changes caused by aging and degeneration (jt. ex. 19d). On April 9, 1985, John R. Sinning, M.D., a neurosurgeon, diagnosed subacromial bursitis, left shoulder (jt. ex. 19c). Dr. Sinning continued to diagnose subacromial bursitis of the left shoulder on September 6, 1985 (jt. exs. 25 & 25a). There was limitation of motion in the left shoulder on March 19, 1986 (jt. ex. 19f). Dr. Sinning recommended a left shoulder arthrogram on May 2, 1986 (jt. ex. 23). The radiologist said that the left shoulder arthrogram performed for Dr. Sinning on June 11, 1986 showed,a "normal left shoulder arthrogram." (jt. ex. 29). On June 23, 1986, Dr. Sinning said it disclosed some anterior impingement (jt. ex. 24). On May 16, 1985, Stephen C. Rasmus, M.D., a neurologist, reported to Dr. Twyner that his neurological examination showed limitation of neck movement and shoulder pain with passive range of motion. Dr. Rasmus said, "I am sure he has some arthritis of the left shoulder." (jt. exs. 26 & 26a). On August 27, 1985, Dr. Rasmus said, "There is pain in the left shoulder with crepitus." Claimant's long-standing complaints of lumbar pain and cervical pain for which he first saw Dr. Sinning initially on June 27, 1979, were treated extensively and evaluated by D.D. Stierwalt, D.C., on June 10, 1986, but claimant's left shoulder was not included in this treatment or evaluation (jt. exs. 19, 30 & 32). Dr. Twyner completed a surgeon's report on October 22, 1986, in which he answered the question, "Permanent defect?" by writing a question mark in the blank space behind the question (jt. ex. 17). Dr. Collier completed a surgeon's report on August 20, 1986, in which he answered this question, "No" indicating that he did not expect any permanent defect (jt. ex. 18). Claimant submitted the following medical expenses for the alleged injury of July 25, 1986: PAYEE AMOUNT Mercy Hospital $ 3,062.97 July 25-29, 1986 Hospitalization and surgery Mercy Hospital 415.00 October 8-27, 1986 Physical Therapy Mercy Hospital 215.00 November 20, 1987 EMG Robert S. Collier, M.D. 170.00 July 25, 1986 Surgical Services Radiology Group, P.C., S.C. 826.50 July 25, 1986 Radiology Services Richard A. Roski, M.D. 189.00 July 26, 1986 - November 3, 1986 Neurological Consultation L.J. Twyner, M.D. 244.00 July 30, 1986 - October 28, 1986 Office Visits. TOTAL $5,122.47 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 July 25, 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). Iowa Code section 85.61(6) provides as follows: The words "personal injury arising out of and in the course of the employment" shall include injuries to employees whose services are being performed on, in, or about the premises which are occupied, used, or controlled by the employer, and also injuries to those who are engaged elsewhere in places where their employer's business requires their presence and subjects them to dangers incident to the business. Lawyer and Higgs, Iowa Workers' Compensation--Law & Practice, 6-1, provides, "Emphasis is placed on whether the employee is furthering the employer's business; whether or not the task is common to the job or outside the usual employment duties." An injury occurs in the course of employment when it is within the period of employment at a place where the employee reasonably may be performing his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. McMullin v. Department of Revenue, 437 N.W.2d 596 (Iowa Appeals 1989). With respect to arising out of employment or caused by employment, the evidence is clear that claimant was performing his normal duties for employer at the time of the robbery. Employer and claimant had followed this method of handling the money and laundry since the tavern opened in 1974. Claimant had picked up the money at the bank which was to be used to cash checks on Friday. He returned home to pick up the clean towels which he had laundered and the lunches he had prepared to serve at the bar. Claimant had been performing these same tasks in the same manner, since the bar opened and he went to work for employer in 1974 and there was absolutely no evidence that this was unauthorized or unusual in any way. Claimant clearly was not performing any personal business or any business for anyone else at the time of the robbery. The fact that employer handled large amounts of money on Thursday and Friday to cash payroll checks for employees of several employers in the vicinity was a well known fact to several people simply from observation alone. The fact that claimant handled this money and transported it to and from the bar and to and from the bank was equally as well known. The fact that the robber said give me the money, rather than give me your wallet, or give me your valuables, shows that he was looking for employer's money. The fact that the robber continued to wait for claimant to come home, even after he had found the $2,300 in cash indicates that he was waiting to find even more of employer's money which claimant was taking to the bar to use to cash payroll checks on Friday. The fact that he put claimant's guns in the bag would indicate that he did not want them available for claimant to use against him and furthermore, since the intruder is engaged in criminal activities, i.e., robbery, this demonstrates his proclivity for weapons. Claimant testified that there are numerous other valuable possessions in the house which the robber did not put in the bag either before or after claimant returned home. When allegedly the same man made a robbery attempt in December of 1985, he asked for the money again at that time. Therefore, the weight of the evidence establishes that the robbery and the injury of being shot in the left shoulder in the course of the robbery, arose out of claimant's employment with employer as the sole person in the enterprise which handled the money for the business establishment. The fact that the robbery occurred on Friday, which was a payroll check cashing day, further establishes that the injury arose out of claimant's employment. The fact that claimant handled as much as $20,000 to $25,000 on a weekend and $8,000 to $10,000 in one day adds to the conclusion that claimant was a target of this robber due to his employment. There was no evidence that the assailant asked for or stole any of claimant's personal money or personal property, other than the three guns. With respect to in the course of employment or place of employment, the fact that the robbery occurred at claimant's house is not significant because claimant testified that he has been counting the money and making up the deposit at his home as well as estimating the next days cash needs for cashing checks since the business began in 1974. He explained that there is no appropriate place at the bar to lay out, sort, count and handle such large sums of money. He further testified that there are no laundry facilities at the bar and there is no place to adequately prepare food at the bar. Claimant's testimony was not rebutted, controverted, contradicted or refuted. Defendants called no witnesses and introduced no separate exhibits. Consequently, it is determined that this injury occurred in the course of claimant's employment with employer. Claimant was injured while engaged elsewhere in places where his employer's business required his presence and subjected him to dangers incident to the business within the context of Iowa Code section 85.61(6). Claimant was furthering employer's business by performing tasks common to the job and usual to his employment duties within the context of Lawyer and Higgs, section 6.1. Claimant was in the course of his employment within the context of the recent holding of the supreme court in the McMullin case. An employee who handles and transports large sums of money for an employer is definitely at risk of being robbed in the course of his employment. The robbery was not focused on claimant's personal money or property. Claimant testified that 20 hours of his employment was carried out at the tavern, but another 30 or 40 hours of his work was performed off the premises (tr. p. 75). In conclusion, claimant sustained the burden of proof by a preponderance of the evidence that the injury both arose out of and in the course of his employment with employer when he was robbed on July 25, 1986 at his home while transporting money, food and clean towels to the business establishment. The parties have stipulated that the injury was the cause of temporary disability, and that claimant was off work from July 25, 1986 to December 6, 1986, a period of 19 weeks and 1 day. It is determined that the injury was the cause of this temporary disability and that claimant is entitled to 19.143 weeks of temporary disability benefits for this period of time. Claimant saw several physicians--Dr. Twyner, Dr. Day, Dr. Roski and Dr. Collier. There is no evaluation from any of these four physicians which award a permanent impairment rating or which imposes any permanent restrictions. There are no final evaluation reports from any of these doctors. None of these doctors were deposed. None of these doctors testified at the hearing in person. The record is devoid of any professional medical opinion establishing any permanent impairment or disability. By putting a question mark behind the words permanent defect, Dr. Twyner indicated that he did not have an opinion on whether there was a permanent defect or he did not know. Dr. Collier unequivocally stated no there was no permanent defect anticipated. Claimant asserted by way of his testimony that he still has pain, difficulty in reaching and lifting and a decrease of strength in the left hand (tr. p. 40). As shown above, claimant's testimony is not supported by any professional medical opinion from any one of his four doctors. In addition, claimant's prior medical history shows that he has had substantial problems with his left shoulder since April 9, 1985, when Dr. Sinning diagnosed subacromial bursitis of the left shoulder (jt. ex. p. 19c). He told Dr. Sinning and demonstrated to him his limited ability to bring his arm up overhead at that time. On February 25, 1986, prior to this injury, Dr. Sinning recorded: Don notices a change that he could handle a 24 pack of beer easily and now can barely lift a 12 pack and lift it. Difference both in grip and ability to lift. Finds it difficult bringing the left arm up over shoulder level. Some night pain especially as he turns. Difficulty putting his coat on because the shoulder seems stiff. (jt. ex. 19e) On March 19, 1986, prior to this injury, Dr. Sinning reported a limited range of motion of the left shoulder (jt. ex. 19f). Consequently, it must be determined that claimant has not sustained the burden of proof by a preponderance of the evidence that he sustained any permanent impairment or disability as a result of the gunshot wound to his midleft clavicle area. Claimant's testimony that he was 98 percent recovered from any previous left shoulder problems must be severely discounted. Claimant is entitled to the medical expenses enumerated in the summary of the evidence which total $5,122.47. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: That claimant has been employed by employer since 1974, until the date of the hearing in 1989, a period of approximately 15 years. That claimant performed the duties of bartender, general repairman and general manager. That claimant's responsibilities for 15 years included handling the money for employer's operation at his personal residence because there was no place where it could be appropriately done at employer's place of business. That claimant handled large sums of money, more specifically, $20,000 to $25,000 per weekend and $8,000 to $10,000 per day on the weekend. That claimant's procedure for handling these large,sums of money was easily observable to the patrons at the tavern and the public in general. That claimant prepared the bank deposit at his home and phoned in the cash denomination needs for the business for the following day to the bank from his home. That claimant transported large sums of money in his truck from the business to his home, to the bank and back again. That claimant temporarily stored large sums of money in his home and his vehicle in the process of handling employer's cash funds. That on July 25, 1986, claimant was confronted by a masked intruder, who forced him to strip naked, and zapped him with an electrical zapper to try to find out where claimant had concealed the money. That in the course of the robbery, the intruder fired a shot which struck claimant in the left shoulder in the midclavical area. That claimant sustained an injury from this gunshot wound on July 25, 1986 which arose out of and in the course of employment with employer. That claimant was off work from July 25, 1986 to December 6, 1986,a period of 19.143 weeks. That none of the four medical professionals who treated claimant awarded any permanent impairment or imposed any permanent restrictions. That even though claimant contended he had pain, decrease of strength, and difficulty in reaching and lifting with his left hand, claimant had these same problems and had been treated for them for over a year prior to this injury. That claimant incurred $5,122.47 in medical expense for care and treatment of the gunshot wound to his left shoulder. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions,of law are made: That claimant sustained the burden of proof by a preponderance of the evidence that he sustained an injury on July 25, 1986 which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability. That claimant is entitled to 19.143 weeks of temporary total disability benefits. That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of any permanent disability. That claimant is not entitled to any permanent disability benefits. That claimant is entitled to $5,122.47 in medical benefits. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant nineteen point one four three (19.143) weeks of temporary total disability benefits at the rate of one hundred thirty-nine and 06/100 dollars ($139.06) per week in the total amount of two thousand six hundred sixty-two and 03/100 dollars ($2,662.03) for the period from July 25, 1986 to December 6, 1986. That defendants are to pay this amount in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants pay to claimant or the provider of medical services, five thousand one hundred twenty-two and 47/100 dollars ($5,122.47) in medical expenses as itemized in the summary of the evidence. That the costs of this action, including the cost of the transcript, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343- 3.1. Signed and filed this 27th day of March, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John Moeller Attorney at Law 601 Brady Street, STE 303 Davenport, Iowa 52801 Mr. G. David Binegar Attorney at Law 1503 Brady Street Davenport, Iowa 52803 Mr. Larry Shepler Attorney at Law 102 Executive Square 400 Main Street Davenport, Iowa 52801 1107; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60; 51801; 51801; 52501; 52700 Filed March 27, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD C. STOUT, Claimant, vs. File No. 829156 VIVIAN'S TAP, A R B I T R A T I 0 N Employer, D E C I S I 0 N and UNITED FIRE AND CASUALTY, Insurance Carrier, Defendants. 1107; 1108.50; 1401; 1402.20; 1402.30; 1402.40; 1402.60 Claimant was a bartender, general repairman and general manager of a bar. He handled money, food and laundry for the bar at his home because of inadequate facilities at the bar. This had been the method of operation since the bar opened in 1974. The bar cashed payroll checks on the weekend and claimant handled large sums of money at his home on the way to and from the bar and the bank. An intruder robbed claimant at his home and in the course of the robbery shot claimant in the left shoulder. It was determined, based on an application of the facts of this case, that claimant sustained an injury that both arose out of and in the course of employment with employer. 51801 Claimant paid temporary total disability based on the stipulated dates for the period of recovery. 51803 The only evidence of permanent disability was claimant's testimony of left arm difficulties; however, he had the same problems prior to being shot from a degenerative condition as well as from a boat accident. None of four physicians awarded an impairment rating or imposed any permanent restrictions. No permanent partial disability awarded. 52501; 52700 Claimant awarded medical benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JIM H. PIEART, : : Claimant, : : vs. : : File No. 829208 RICH JONES CONSTRUCTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : JOHN DEERE INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Jim H. Pieart, against his employer, Rich Jones Construction, and its insurance carrier, John Deere Insurance, defendants. The case was heard on September 11, 1989, in Des Moines, Iowa at the office of the industrial commissioner. The record consists of the testimony of claimant and the testimony of Rich Jones. Additionally, the record consists of joint exhibits 1-6. issues The sole 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 under section 85.27. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: At the time of the hearing, claimant was 30 years old. He had completed the tenth grade but he had never obtained his GED. Claimant commenced his employment with defendant-employer in 1983. He was hired as a construction foreman for the framing crew. His duties included working above ground on ladders and beams. Claimant was considered by the owner, Rich Jones, to be a working foreman. On July 30, 1986, claimant sustained a work related injury to his right knee and leg when he was cut by a Page 2 skilsaw. The injury resulted in a deep laceration at the medial aspect of the right knee through the skin, subcutaneous tissue, the muscles, and the quadriceps tendon. Claimant was initially treated by Ala Daghestani, M.D., at Mercy Hospital. X-rays were taken. Dr. Armstrong (first name unknown), the radiologist, diagnosed claimant's condition as follows: RIGHT KNEE & PATELLA, PORTABLE (1030): AP AND LATERAL BEDSIDE RADIOGRAPHS OF THE RIGHT KNEE FOLLOWING SKILL SAW SOFT TISSUE INJURY ON THE MEDIAL KNEE SHOW NO EVIDENCE OF FRACTURE OR ABNORMALITY RELATED TO THE PATELLA, THE FEMUR OR THE PROXIMAL TIBIA ABOUT THE KNEE. SOFT TISSUE WOUND IS PRESENT MEDIALLY AND THERE IS NO EVIDENCE OF RADIODENSE FOREIGN BODY. Claimant had a debridement and a closure. He was hospitalized for four days and released. Claimant returned to Dr. Daghestani for follow-up treatment. On September 19, 1986, the surgeon released claimant to return to work with certain restrictions. Claimant was advised not to work above ground and to work on a flat surface. In his report of September 23, 1986, Dr. Daghestani opined: [I] feel Mr. Pieart can perform most of the carpentry work if he is on a flat solid surface and I do not recommend for him to go up into the rafters at this stage, until he regains full control and strength of his right knee. Claimant contacted Mr. Jones relative to light duty type work. There was disputed testimony whether light duty work was offered to claimant. The undersigned finds light duty work was offered to claimant. Claimant, nevertheless, did not report to work. He indicated his leg was still hurting him. He remained off work. Claimant did not return to work until April 30, 1987, when he commenced his employment with Maury Haye. Since that date, claimant has been employed as a journeyman carpenter. Claimant sought the opinion of Martin D. Rosenfeld, D.O., on March 17, 1987. In his report of March 21, 1988, Dr. Rosenfeld opined: When I examined Mr. Pieart in March, 1987 I found that the quadriceps tendon and patellar tendons were both intact but it was obvious that atrophic changes were present. At that time my feeling was a post-traumatic quadriceps weakness on the right with a possible internal derangement. We started him on physical therapy with [sic] gave him some benefit but he is still having problems with the knee. Page 3 I feel that knee internal derangement to the knee is as a result of the July, 1986 injury and that the knee has not returned to its pre-injury status since the time of the injury. It is my feeling that Mr. Pieart has sustained a ten (10) to fifteen (15) percent permanent physical impairment to the right leg as a result of this injury and this may or may not be improved with arthroscopic surgery. Hopefully his symptoms would be improved even if his impairment is not. Estimated expense for surgery would be approximately $2500.00 to $3000.00 with an approximate six to eight week recovery time. If I can be of further assistance, please feel free to contact me. Dr. Daghestani, in his deposition, disagreed with the opinion of Dr. Rosenfeld. Dr. Daghestani did not believe claimant's knee derangement was due to claimant's laceration. The basis for his opinion was that: A. Medically speaking it is very hard for me to justify that such a laceration will cause derangement of the knee structure. It would be very difficult to explain. Q. Why do you say that? What is the basis for your view? A. The reason for that is the joint space was not involved the first time, the first thing. The capsule was completely intact. That means the joint structure was completely unharmed. The second thing is derangement of the knee does require a severe blow to the knee if you like. We see it quite a bit with football players. We see it after car accidents, severe car accidents. We see it with people who play softball, baseball, this type of severe blow to the knee if you like, not only just a little kick in the knee, but a laceration of a tendon will not cause such thing, and to give you an example, if they are going to do any surgery on the knee for, say, removing cartilage or repair a tendon they go almost with the same incision. They have to cut that ligament to go in to repair the knee, so this is very difficult for me to relate this type of laceration causing such pathology. Q. Now, if I understand the theory, the theory would be that the weakness and atrophy of the muscle in the thigh somehow resulted indirectly in the internal derangement problem. Do you subscribe to that? A. It would be very difficult to explain. It Page 4 would be very difficult to justify such pathology related to just atrophy. Furthermore, the atrophy was temporary, and the physical therapy was initiated shortly after we removed the splint. It would be very difficult -- derangement means destruction of the inner structure of the knee. We are not talking about a cut. There would be some destruction. (Exhibit 2, pages 18-19) Claimant was also examined by Marshall Flapan, M.D. Dr. Flapan examined claimant on July 9, 1987. Dr. Flapan opined in relevant portion: OBJECTIVE: Right knee: He has no effusion. He has a well healed scar across the dorsal medial aspect of his knee but does not involve the joint. The range of motion of his knee is full, complete and normal. The circum- ferential measurements of the thighs reveals that the right thigh is one inch less in circumference than the left. There is no detectable ligamentous laxity, no drawer sign and no pivot shift. He does have tenderness at the medial joint line and it is not aggravated by rotary move- ments of tibia on femur. Page 5 X-RAYS: I did review the x-rays of his knee from Mercy Hospital dated the thirtieth of July of 1986 and these are within normal limits. Repeat x-rays of his right knee today are also normal. ASSESSMENT: 1) Status post repair laceration quadriceps mechanism, right knee 2) Quadriceps insufficiency secondary to above. 3) Possible internal derangement of the right knee unrelated to this worker's compensation injury. PLAN: Dr. Rosenfeld who has seen him has sug- gested that he undergo arthroscopy and I believe that this is a reasonable approach in order to rule out meniscal damage. However, it is my opinion that the sawing injury described which occurred apparently on the thirtieth of July, of 1986 is not the cause of this internal derangement. Whether or not it occurred subsequent to this because of weakness of his quadriceps is unknown. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of July 30, 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). The opinions of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardward, 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 right of a worker to receive compensation for injuries sustained which arose out of and in the course of Page 6 employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). In the instant case, claimant has proven by a preponderance of the evidence that he has sustained a temporary total disability but not a permanent partial disability. Claimant's treating physician did not causally relate any possible right knee derangement to claimant's work injury of July 30, 1986. Nor did Dr. Flapan causally connect claimant's knee derangement to the work injury in question. Both physicians disputed the theory of Dr. Rosenfeld. The greater weight of the testimony is given to the treating physician, Dr. Daghestani. He performed the surgery on claimant's leg. He saw claimant on six separate occasions. He returned claimant to work as a carpenter with certain restrictions. The restrictions were not permanent. Claimant was able to resume duties as a journeyman carpenter. Dr. Daghestani's opinion was corroborated by the opinion of Dr. Flapan, an orthopedic surgeon. As of July 9, 1987, Dr. Flapan found full range of motion of the knee. He only found the circumference of the right thigh to be one inch less than the left. It is acknowledged that Dr. Rosenfeld, another orthopedic surgeon, holds a different opinion. He believes claimant has a 10 to 15 percent impairment to the right leg. However, Dr. Rosenfeld did not examine claimant until March 17, 1987. This was nearly eight months after the work injury. Furthermore, Dr. Rosenfeld is not even certain that claimant has a right knee derangement. Therefore, it is the determination of the undersigned that claimant has only a temporary total disability. Section 85.33(1) governs the payment of temporary total disability benefits. The section provides: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Claimant was off work as of July 30, 1986. He was released to return to work per Dr. Daghestani's letter to Rich Jones of September 23, 1986. Claimant was advised to contact his employer relative to light duty work. Rich Jones had light duty work available. Claimant voluntarily terminated his employment with defendant-employer, even though claimant was capable of performing the light duty work available. Therefore, it is the determination of the undersigned that claimant was entitled to temporary total Page 7 disability benefits from July 30, 1986 through September 23, 1986. The period consisted of eight weeks at the stipulated rate of $180.54 per week. Claimant was paid 13.143 weeks at the rate of $193.63. The final issue to address is whether claimant is entitled to additional medical expenses under section 85.27. Claimant has asked for the payment of: Walgreen's Pharmacy $ 24.59 Des Moines Bone & Joint 155.00 $179.59 Claimant is entitled to be reimbursed for the naprosyn at $24.59. The treatment claimant received from Dr. Rosenfeld at Des Moines Bone & Joint was unauthorized. Defendants are not liable for the same. Additionally, defendants are not liable for any arthroscopic surgery on the right knee. That procedure would not be causally related to claimant's work injury. order THEREFORE, IT IS ORDERED: Claimant is entitled to eight (8) weeks of temporary total disability benefits at the stipulated rate of one hundred eighty and 54/l00 dollars ($180.54). Payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendants shall receive credit for all benefits paid and not previously credited. Costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall reimburse claimant for out of pocket medical expenses in the sum of twenty-four and 59/l00 dollars ($24.59). Defendants shall file a claim activity report as requested by this division pursuant to Division of Industrial Services Rule 343-3.l. Signed and filed this ____ day of September, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Page 8 Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Ave Suite 111 Terrace Center Des Moines IA 50312 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines IA 50309 5-1801 Filed September 4, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : JIM H. PIEART, : : Claimant, : : vs. : : File No. 829208 RICH JONES CONSTRUCTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : JOHN DEERE INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1801 Claimant was entitled to eight weeks of temporary total disability benefits for a laceration to his right leg.