BEFORE THE IOWA INDUSTRIAL COMMISSIONER NATHANIAL McCLINTOCK, Claimant, File No. 830002 vs. A R B I T R A T I O N PAYNE & KELLER, INC., D E C I S I O N Employer, F I L E D and JAN 20 1989 NATIONAL UNION FIRE INSURANCE, COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Nathanial McClintock, claimant, against Payne & Keller, Inc., employer, and National Union Fire Insurance Company, insurance carrier, for workers' compensation benefits as a result of an alleged injury on July 21, 1986. On November 28, 1988, a hearing was held in Dubuque, Iowa. The record in this case consists of joint exhibits 1, 2, 3 and 5, and defendants' exhibits 3A, 4, 6, 7, 8 and 9. Of the joint exhibits, exhibit 1 is the deposition of Richard E. Chapman, exhibit 2 is the deposition of Sam McGinnis, and exhibit 3 the deposition of Dr. Dennis Miller. This case originally listed the insurance carrier as American International Adjustment, Inc., but the name of National Union Fire Insurance Company was substituted by agreement as being in fact the actual insurance carrier. ISSUES Pursuant to the prehearing report, the parties stipulated that there was an employer-employee relationship. The remaining issues for resolution are: 1. Whether claimant's injury arose out of and in the course of employment; 2. Whether there was a causal relationship between claimant's injury and his employment; 3. The nature and extent of claimant's disability; and, 4. Whether claimant is entitled to medical benefits. REVIEW OF THE EVIDENCE The claimant represented himself at the hearing and was given full opportunity to present his evidence. The claimant attempted to offer the deposition of his prior personal testimony as exhibit C. Defendants objected to the offer for the reason that it violated the hearing assignment order requiring the exchange of exhibit lists within 15 days prior to the hearing. Claimant was notified that notwithstanding the sustaining of defendants' objection to this exhibit comprising his personal testimony that he himself could still personally testify at the hearing. The evidence of the claimant was joint exhibits 1, 2, 3 and 5, of which three exhibits were depositions of a doctor and two co-workers. The co-worker and foreman, Sam McGinnis, testified that the claimant, Richard Chapman, and he were working together on the day of the alleged injury, July 21, 1986. They were laying out cable and raising it up over head approximately ten feet to the claimant who was on a ladder. Claimant then would push the cable through a hole in the wall to an adjoining room. McGinnis said that claimant was considered an electrician's helper and was considered inexperienced on the job. Claimant was under McGinnis' supervision for approximately two months. At the time of McGinnis' deposition, he was no longer employed with defendant. McGinnis recalls the day of the alleged injury and testified that he did not believe the claimant was injured. McGinnis indicated that he was present at all times and he would have known if claimant had hurt himself. McGinnis stated that Chapman and he began working on this project about 8:30 a.m. on July 21, 1986 and around 9:00 or 9:30 a.m. claimant told McGinnis "this could hurt a guy's back" jokingly. These workers took a break at 10:00 a.m. and claimant came back and stated to McGinnis that he was hurt. McGinnis indicated that he didn't take claimant seriously as claimant" wasn't serious about it." Claimant was on the ladder again after the break and McGinnis further testified that he didn't think it was possible for claimant to have lost his balance without McGinnis noticing it that morning and there was no time that he was out of the room when claimant was on the ladder. He did not believe that claimant could have gotten hurt without McGinnis knowing it. McGinnis testified that he again asked claimant why claimant reported this injury if he was just joking about it and claimant responded "just in case." Claimant finished working on July 21, 1986 but did not come to work the next day. Mr. Richard Chapman testified that he was present when McGinnis was feeding the cable to claimant who was on the ladder. Chapman stated that he did not know claimant until approximately two days before the alleged injury. He basically supported the testimony of McGinnis. He did not recall claimant losing his balance at all and did not believe it was possible for claimant to lose his balance without him noticing it. Chapman indicated that he was in the room the entire morning that claimant was on the ladder. Claimant never said anything to him about an injury before claimant reported that he had hurt himself to the employer. Chapman testified that claimant said before he even started pulling the cable that "this looked like a way a person could hurt their back." On July 23, 1986, two days after the alleged injury, claimant returned to work and before beginning work that day Chapman stated that claimant and he had a conversation as they were walking together from the parking lot to the defendant employer's office. Chapman asked claimant how his back was as he had heard claimant had hurt his back and claimant said "okay now, I finally got a doctor and he gave me some medicine." Chapman indicated he and claimant kept on walking and talking and claimant made a statement to him that "it was time to try to make some easy money." Chapman responded as to what claimant meant by that and claimant responded "well, it's time to pull a scam." Chapman stated that claimant "said something about he had worked in Colorado and that he had pulled some kind of a scam, and he wouldn't elaborate much further on it." Chapman stated that no further conversation pursued as it was time to punch the time clock and the two went their separate ways. Dennis Miller, M.D., testified that his examination of claimant on May 13, 1987 revealed that the cervical and thoracic spine was well within normal limits although there was some slight rotation of the spinous processes which would be considered a normal finding. An EMG that was ordered was done at a later date, on May 15, 1987 by Fareeduddin Ahmed, M.D., and was essentially normal. Dr. Miller found no objective finding of health impairment and found consistent tenderness over a localized area which was based on claimant's report to him of tenderness in that area. Dr. Miller had an opportunity to review x-rays from the office of Dr. Bonnie May, a chiropractor in Clinton, Iowa. Dr. Miller stated that he considered those x-rays to represent a normal spine and within normal limits. Dr. Miller indicated that in reviewing Dr. May's records and the localized area of complaints when she examined claimant versus the localized area that Dr. Miller examined pursuant to the claimant's complaints and history might be the same area, but he was not at all sure. Dr. Miller stated that the complaint of claimant to Dr. May was to the thoracic spine and claimant's complaint to Dr. Miller was somewhat higher on the back. Dr. Miller testified that he also examined the records of Dr. Michael Dehner of July 22, 1986 and Dr. Dehner had made a diagnosis of lumbosacral strain. As a result of his examination, Dr. Miller opined that he did not believe Mr. McClintock had any physical impairment. Dr. Miller stated that the examination histories of Dr. Dehner were different than those of Dr. May and himself. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 20, 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). Claimant has not presented any evidence of an injury that arose out of and in the course of his employment on July 21, 1986. Claimant did not give testimony contradicting the testimony of his co-workers, McGinnis and Chapman. There is reliable evidence which indicates claimant brought this case solely for the purpose of making money at the defendants' expense without any injury occurring. FINDINGS OF FACT 1. Claimant was not injured while working for defendant employer on July 21, 1986. CONCLUSIONS OF LAW THEREFORE, it is concluded: Claimant has failed to establish that he received an injury arising out of and in the course of his employment on July 21, 1986. Claimant has not established a causal relationship between his alleged injury of July 21, 1986 and his claimed disability. Claimant is not entitled to any benefits. Claimant is not entitled to payment of any medical bills. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That claimant pay the costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33, which shall include but not limited to the depositions and the court reporter at the time of hearing. Signed and filed this 20th day of January, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Nathanial McClintock 2918 N. 2nd St Clinton, IA 52732 CERTIFIED & REGULAR MAIL Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower 699 Walnut Des Moines, IA 50309 1100; 1402.20 Filed January 20, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER NATHANIAL McCLINTOCK, Claimant, File No. 830002 vs. PAYNE & KELLER, A R B I T R A T I 0 N Employer, D E C I S I 0 N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. 1100; 1402.20 Claimant alleged back injury while laying cable for defendant employer. Co-worker testified claimant told him "this could hurt a guy's back." Shortly thereafter on same morning, claimant reported an injury. Co-worker further testified that claimant told him while walking from defendant employer's parking lot to office building and discussing claimant's back complaint, "it was time to make some easy money" and "it's time to pull a scam." No benefits awarded. Claimant was pulling a scam. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ RUTH M. ZEARLEY, Claimant, VS. CEDAR RAPIDS MEAT d/b/a FARMSTEAD FOODS, File Nos. 830003, 830004 787836, 701461, 834037 Employer, and A P P E A L SENTRY INSURANCE CO., R U L I N G Insurance Carrier, and SECOND INJURY FUND, Defendants. _________________________________________________________________ Rule 500-4.27 states in part: No appeal shall be separately taken under this or 4.25 (17A, 86) from an interlocutory decision, order or ruling of a deputy industrial commissioner. A decision, order or ruling is interlocutory if it does not dispose of the contested case unless the sole issue remaining for determination is claimant's entitlement to additional compensation for unreasonable denial or delay of payment pursuant to section 86.13. The ruling filed June 12, 1987, which is the subject matter of this appeal, is not dispositive of the contested case and therefore interlocutory. THEREFORE, the appeal filed June 30, 1987 is hereby dismissed. Signed and filed this 10th day of August, 1987. ZEARLEY V. CEDAR RAPIDS MEAT d/b/a FARMSTEAD FOODS Page 2 DAVID E. LINQUIST ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. James E. Shipman Attorney at Law 1200 MNB Building Cedar Rapids, Iowa 52401 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 Mr. John M. Bickel Attorney at Law 500 MNB Building P.O. Box 2107 Cedar Rapids, Iowa 52406 BEFORE THE IOWA INDUSTRIAL COMMISSIONER GILBERT WEILER, Claimant, VS. File No. 830013 WELLS BLUE BUNNY, D E C I S I 0 N Employer, M E D I C A L KEMPER GROUP, B E N E F I T S Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a bifurcated proceeding in arbitration through which claimant seeks payment of past medical expenses and alternate care under Iowa Code section 85.27 and an independent medical examination under Iowa Code section 85.39. This matter came on for hearing before the undersigned deputy industrial commissioner June 27, 1988 and was considered fully submitted at the close of the proceeding. The record in this case consists of the testimony of claimant and Michael Ellis; joint exhibits 1 through 28, inclusive; and claimant's exhibits A through D, inclusive. ISSUES Pursuant to the prehearing report and order submitted and approved June 27, 1988, the following issues are presented for resolution: 1. Claimant's entitlement to relief under Iowa Code section 85.27; and 2. Claimant's entitlement to an independent medical examination under Iowa Code section 85.39. FACTS PRESENTED Claimant testified that in June of 1985 he injured himself at work when he spun around real fast to put a pail in the machine on which he was working and felt a "pop" in his neck. Claimant recalled he told his supervisor about the incident WEILER V. WELLS BLUE BUNNY Page 2 approximately one hour later, finished his shift and then went home. Claimant stated the next day he felt stiffness in his neck, "could not hold onto a cup of coffee," and went to see a Dr. Hiemstra at Medical Associates of Iowa at the direction of his employer. Claimant explained he went through physical therapy but did not miss any work although he felt pain in his neck, numbness in his fingers and left arm, and had recurring headaches. Claimant testified he returned to see Dr. Hiemstra but wanted a second opinion and therefore went to see his family doctor, R. J. Hassebroek, M.D., who initially treated him with medication and physical therapy and who sent him to D. G. Paulsrud, M.D., who recommended to claimant that he use a back brace and refrain from lifting for six weeks. Claimant stated that Dr. Paulsrud later released him to return to work without limitations. Claimant testified that he felt Dr. Paulsrud was not doing justice to him, that he told defendant employer as much, and then went to see Steven J. Parkin, D.C., at the direction of defendants whom he continues to see approximately one time per month. Claimant stated that between December 1985 and July 1986, he continued to experience headaches and returned to see Dr. Hassebroek who recommended he go to the Mayo Clinic. Claimant recalled that approximately two weeks later he spoke with defendants, who sent him back to Dr. Hiemstra. Claimant stated that on September 5, 1986, approximately one week after his separation from employment, he went to the Mayo Clinic where a series of tests were run after which claimant was given some exercises to do. Claimant stated that the doctors at the Mayo Clinic found a lump which was not work related. Claimant offered that he did the exercises prescribed by the physicians at the Mayo Clinic for a few months but was still experiencing headaches and that in November of 1987 he went to see Horst G. Blume, M.D., who recommended further testing. Claimant testified that since June of 1985 he has not been pain-free., that he still experiences headaches, a stiffness in his neck, and numbness in his fingers and arms while driving. Claimant stated he injured his back while playing football in high school in 1969-70, that he injured himself in a 1971 and again in a 1982 auto accident, that he had a car accident in 1975 which did not involve any medical problems, and that while working on a farm he burned his hands and feet when lighting a furnace. On cross-examination, claimant acknowledged he has had a long history of back and neck problems, that he was discharged from the military service as a result of his back problems, and that in 1970 he was diagnosed as having spondylolysis. Claimant could not recall if he had ever had a head injury or if he had been treated for any neck problems prior to 1985. (See, however, WEILER V. WELLS BLUE BUNNY Page 3 joint exhibit 5) Claimant testified that sometime after June 1985, although he could not recall when, he fell at work and a cart landed on top of him. Claimant acknowledged he wore a back brace while playing football and that he still uses a back brace "off and on," "perhaps one time in the last six months" but that it makes him uncomfortable. Claimant stated he currently takes no prescriptive.medication, that he has no current medical appointments, and that he has not been denied any medical treatment by defendants. Mike Ellis, who identified himself as defendant employer's personnel director, testified claimant last worked on August 26, 1986 and that claimant never picked up the contents of his locker which included a back brace. Claimant later testified, however, that the back brace found in his locker was replaced with another one and therefore was no longer of any use to him. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Iowa Code section 85.27 provides: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. Defendants do not dispute that on June 20, 1985, claimant sustained an injury which arose out of and in the course of his employment. The question with regard to this injury may be phrased as: Exactly what was that injury? The undersigned would conclude that claimant's injury of June 20, 1985 is confined to his neck and that it is for this injury that claimant is entitled to treatment under Iowa Code section 85.27. The undersigned. cannot conclude that claimant has established any causal connection between the injury of June 20, 1985 and his asserted back problems. Medical records and claimant's own testimony establish that claimant has had a long history of back problems beginning as early as 1969 when he was in high school and that he has been diagnosed as suffering from spondylolysis, a congenital condition in his back. claimant, at the time of his injury and fairly consistently since, reported a pop in his neck on June 20, 1985. The treatment rendered at Floyd Valley Hospital on June 29 WEILER V. WELLS BLUE BUNNY Page 4 involved an x-ray of the cervical spine. The treatment provided by Dr. Hiemstra, Dr. Hassebroek and Dr. Parkin involved the cervical spine. In addition, Dr. Hiemstra reported on October 18, 1985 that while claimant was being treated for neck pain, claimant complained of a back injury in July. (Joint Exhibit 12) The undersigned has jurisdiction over the alleged injury date of June 20, 1985 and will not expand that jurisdiction to include an alleged injury occurring in July. Further, physicians at the Mayo Clinic report claimant was experiencing neck pain due to an injury at work. It was not until approximately July that claimant first reported back pain. Claimant gave no history of the pail incident when associating this back pain. The undersigned cannot conclude that claimant has shown the injury of June 20, 1985 extended beyond the neck and therefore any treatment claimant has sought for a condition beyond the neck would not be considered causally connected to the injury as alleged in the petition for benefits. Consequently, the issue at this point is what medical treatment claimant is entitled to as a result of this injury. It is interesting to first note that claimant has missed no time from work as a result of this injury, that claimant was able to perform his regular work (with the exception of a no lifting restriction from Dr. Paulsrud which is not considered causally connected to this injury), that claimant has gone for long stretches of time without any medical treatment,and that claimant has not been denied any medical treatment which is causally connected to his injury. Claimant was complaining of neck pain and headaches long before his injury of June 20, 1985. On October 3, 1986, William F. Young, M.D., of the Mayo Clinic reported to Dr. Hassebroek that: We recently (September 5 through September 26, 1986) had the pleasure of conducting a general medical examination on your patient, Mr. Gilbert A. Weiler. As you know, Mr. Weiler's major medical concerns included neck and low back discomforts. The onset of the neck discomfort was associated with an apparent injury at work.... .... Mr. Weiler was seen in consultation by Dr. T. Yanagihara from our Department of Neurology and his examination was essentially within normal limits except for a muscle tightness in the neck of a mild degree. There was no evidence of cervical or lumbar radiculopathy to explain his neck or low back pain. Doctor Yanagihara felt his neck discomfort was consistent with tension myalgias. In addition, Doctor WEILER V. WELLS BLUE BUNNY Page 5 Yanagihara felt the low back pain was mechanical in nature.... Mr. Weiler was seen in consultation by Dr. L.F.A. Peterson from our Department of orthopedic Surgery. The lumbar spine x-rays revealed spondylolysis at L5 bilaterally. The next x-rays revealed slightly narrowed fourth and fifth cervical interspaces. Skull x-ray was negative with possible old bilateral chronic mastoiditis. Doctor Peterson felt Mr. Weiler had bilateral spondylolysis of L5 without spondylolisthesis and also degenerative arthritis of the lower cervical spine at C4 and C5 with localized hypertrophic changes. Doctor Peterson felt there was no continuing aggravation of his degenerative arthritis of the cervical spine at this time. His examination was essentially within normal limits. Doctor Peterson felt there was no continuing aggravation from the twisting which occurred previously. Mr. Weiler was seen in consultation by Dr. P. J. McCreesch from our Department of Physical Medicine and Rehabilitation and a program of exercise and modalities for symptomatic relief of his discomfort was described in detail. (Joint Exhibit 20) Based on the above, it is concluded that any injuries suffered by claimant on June 20, 1985 have resolved and no further treatment is warranted.. However, defendants shall designate an authorized treating physician for claimant's injuries and be liable for expenses therefor if claimant can establish a causal connection between the injury to his neck on June 20, 1985 and the future medical treatment. Claimant submits for payment by defendants an itemized statement from the Mayo Clinic in the amount of $1,826.80. In light of the conclusions rendered above, only those portions of the bill associated with claimant's neck injury are found to be defendants' liability. This deputy can find no reasonable basis for allowing a "general medical examination" in this circumstance. Claimant also submits an itemized statement from Dr. Parkin totaling $337. In a letter dated October 29, 1987 to claimant's counsel, Dr. Parkin reported: Mr. Weiler was originally seen in our office on December 21, 1985 as a result of a referral from Mr. David Calhoun of Well's Dairy and Mr. David Halland, WEILER V. WELLS BLUE BUNNY Page 6 R.P.T. of Floyd Valley Hospital. At the time his initial complaints were of neck and lower back pain which according to Mr. Weiler 11...... started about six months ago." Examination performed December 21, 1985 demonstrated foramina compression positive at C4 - C5 right. Shoulder depression was positive right. Range of motion of the cervical spine was reduced and there was bilateral paracervical muscle splinting from Cl to T2. Biceps, tricepsreflexes [sic] were equal and active. Left brachioradialis reflex was non-active. An acute active trigger point was elicited at the insertion of the scalenus anterior and scalenus posterior muscle groups bilaterally. Pain was also elicited at the origins of both of these muscle groups. As these findings suggested injury to the cervical spine, brachial plexus and supporting soft tissues of .the cervical spine Mr. Michael Ellis - Personnel Manager of Well's Dairy - was contacted by telephone and verbally informed of the findings and asked to [sic] restrict Mr. Weiler's work, allowing only light duties, those exclusive of repetitive [sic] arm/shoulder movements. On December 23, 1985 x-rays taken by Floyd Valley Hospital were reviewed with Mr. Weiler. Those x-rays showed rotation of C2 to the right, C4 - C5 disc degeneration with evidence of osteophytic changes in [sic] the adjacent region of the cervical spine. A lumbar scoliosis of approximately 10 degrees was also noted together with a deformity of the Sacroiliac articulations - possibly congenital in etiology. Mr. Weiler was commenced on a course of conservative therapeusis aimed at restoring as much cervical spine mobility as possible and minimizing his reported discomfort. On December 30, 1985 his improvement was such that he was allowed to return to careful work activities - those tasks that did not produce discomfort. This information was again verbally communicated to Mr. David Calhoun of Well's Dairy. From January 20, 1985 until July 9, 1985 Mr. Weiler was seen in our office on a monthly basis during which time he was able to perform average and customary employment with little or no reported difficulty other than less than normal cervical spine motion. WEILER V. WELLS BLUE BUNNY Page 7 From July 9, 1985 until April 10, 1985 we had no contact with Mr. Weiler. On April 10, 1986 he presented at our office reporting mid-thoracic pain as a result of lifting while engaged in some farming activities. This was a single incident visit that required only one office call to resolve. Again Mr. Weiler was not seen in our office from April 10, 1986 until January 15, 1987. At this time he reported sharp pains in his neck. He further stated that he had been examined in Rochester, Minnesota and instructed in a course of cervical spine exercises which he stated were of no help in that they did not improve his condition.. Upon examination it was noted that the original presenting symptoms from December of 1985 were once again present. Mr. Weiler reported that the symptoms had been made worse by his employment. The patient was seen for a total of four times between January 15, 1987 and August 28, 1987, each time with mild recurrences of the original presenting complaints. On October 15, 1987 he presented with the same original complaints and a new examination with x-rays was scheduled for October 26, 1987 .... Physical and radiographic findings in the cervical spine are consistent with hyperextension/hyperflexion injuries..It is my opinion that Mr. Weiler indeed suffered such an injury, date unknown, and the results of that injury are clearly evident and are in fact permanent in Mr. Weiler's case. It is therefore suggested that Mr. Weiler will continue as in the past with subacute manifestations of the original injury, gradually becoming [sic] worse as time and his physical activity continues. (Jt. Ex. 21) As it was defendants who referred claimant to Dr. Parkin and as it is Dr. Parkin's opinion that claimant's condition is as a result of his employment, claimant is entitled to some payment under Iowa Code section 85.27. Clearly, the charge from April 10, 1986 is not as a result of the injury of June 20, 1985 and therefore it shall be disallowed. Further, it has been concluded that claimant's condition as a result of the June 20, 1985 injury resolved itself by October 1986 and therefore any treatment thereafter would not be considered causally connected to his employment. Dr. Parkin refers to "injuries" and does not restrict his findings to what occurred on June 20,.1985. WEILER V. WELLS BLUE BUNNY Page 8 Therefore, defendants are found liable for the treatment rendered to claimant on December 21, 1985, December 23, 1985, December 30, 1985, January 20, 1986, January 23, 1986, and March 20, 1986. Claimant has failed to establish a causal connection between the charges of Dr. Parkin and his injury of June 20, 1985 subsequent to March 20, 1986. The final issue presented for resolution is claimant's entitlement to benefits under Iowa Code section 85.39. That section of the law provides: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and reasonably necessary transportation expenses incurred for the examination. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. If one goes no further.than the opinion of Dr. Parkin, who was clearly retained by defendant, or the opinion of Dr. Young at the Mayo Clinic which the undersigned reads as a zero rating, claimant has satisfied the necessary requirements of Iowa Code section 85.39 entitling him to an independent medical examination. claimant need not.have formally requested such an examination pursuant to the industrial commissioner's decision in Perozik v. Swift Independent Packing, filed on February 18, 1987. Therefore, claimant's request for an examination by Dr. Blume shall be granted and defendants shall pay the expense of $515. Under Iowa Code section 85.39, claimant is entitled to an examination only and while the testing requested by claimant may be contemplated by the statute, claimant has failed to show it is reasonable and necessary in this case. Therefore, defendants will not be ordered to pay the costs of a myelogram and CT scan. FINDINGS OF FACT Wherefore, based on all the evidence presented, the following findings of fact are made: 1. Claimant sustained an injury on June 20, 1985 which arose out of and in the course of his employment. WEILER V. WELLS BLUE BUNNY Page 9 2. Claimant's injury as a.result of the June 20, 1985 incident is confined to his neck and does not extend into his back. 3. Claimant has a long history of back problems and had been diagnosed as having spondylolysis as early as approximately 1970. 4. Claimant's back problems are not causally connected to the injury of June 20, 1985. 5. Subsequent to the injury of June 20, 1985, claimant was able to perform his regular work, claimant lost no time from work, claimant has gone for long stretches of time without any medical treatment, and claimant has not been denied any medical treatment which is causally connected to his injury. 6. Any injuries suffered by claimant on June 20, 1985 have resolved and no further treatment is warranted at this time. 7. Defendants are liable for the treatment rendered to claimant at the Mayo Clinic which is causally connected to the neck injury of June 20, 1985. 8. Defendants are liable for the expenses claimant incurred in his treatment with Dr. Parkin, having referred claimant to Dr. Parkin's care. 9. A physician retained by the employer has rendered an opinion on permanent disability with which claimant disagrees. 10. Claimant is entitled to an independent medical examination. CONCLUSIONS OF LAW Therefore, based on the principles of law previously stated, the following conclusions of law are made: , 1. Claimant sustained an injury which arose out of And in the course of his employment on June 20, 1985 and that injury is confined to claimant's neck or cervical region. 2. Claimant is entitled to the reasonable and necessary medical expenses under Iowa Code section 85.27 which are causally connected to that injury. 3. Claimant is entitled to an independent medical examination under Iowa Code section 85.39. WEILER V. WELLS BLUE BUNNY Page 10 ORDER. THEREFORE, it is ordered: Defendants shall pay the costs of medical treatment incurred with Dr. Parkin for the medical appointments of December 21, 1985, December 23, 1985, December 30, 1985, January 20, 1986, January 23, 1986, and March 20, 1986. Defendants shall be liable for the costs of the medical examination at the Mayo Clinic which are causally connected to the cervical injury, Defendants are liable for the costs of an independent medical examination with Dr. Blume in the amount of five hundred fifteen and no/l00 dollars ($515.00) but are not ordered to pay for the examination of a CT scan or myelogram. Defendants shall designate an authorized treating physician for claimant's injury within three (3) days from the date of this decision and shall be liable for expenses for that treatment if claimant can establish a causal connection between the injury and the future treatment. Signed and filed this 11th day of December, 1989. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry Smith Attorney at Law P 0 Box 1194 Sioux City IA 51102 Ms. Judith Ann Higgs Attorney at Law 701 Pierce St Ste 300 P 0 Box 3086 Sioux City IA 51102 51402. 60 Filed December 11, 1989 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER GILBERT WEILER, Claimant, VS. File No. 830013 WELLS BLUE BUNNY, D E C I S I 0 N Employer, M E D I C A L and B E N E F I T S KEMPER GROUP, Insurance Carrier, Defendants. 51402.60 Claimant failed to show entitlement to additional medical treatment where all doctors except one (Blume) stated claimant needs no further treatment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TAMI M. HARTNESS, Claimant, File No. 830024 vs. A R B I T R A T I 0 N ESKA COMPANY, D E C I S I 0 N Employer, F I L E D and JUL 31 1989 HOME INSURANCE COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Tami M. Hartness, claimant, against Eska Company, employer, and Home Insurance Company, insurance carrier, defendants, for benefits as the result of an injury that occurred on December 4, 1984. A hearing was held in Dubuque, Iowa, on May 13, 1988 and the case was fully submitted at the close of the hearing. Claimant was represented by Mr. Stephen J. Smalling and defendants were represented by Mr. Michael Liebbe. The record consists of the testimony of Tami M. Hartness, claimant, joint exhibits 1 through 28, claimant's exhibit A, with pages 1 through 14 and defendants' exhibit A (a diagram). Both attorneys submitted excellent briefs. Defendants ordered a transcript of the hearing and supplied a copy to the industrial commissioner's file. STIPULATIONS The parties stipulated to the following matters. That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on December 4, 1984 which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability. That the time off work for which claimant now seeks either temporary total disability or healing period disability benefits are three separate periods: (1) February 20, 1985 to February 25, 1985; (2) March 15, 1985 to February 11, 1986; and (3) May 8, 1986 to January 5, 1987. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the rate of compensation, in the event of an award, is $198.52 per week. That the provider of medical services would testify that the fees charged were reasonable and were for reasonable and necessary medical treatment and defendants are not offering contrary evidence. That defendants make no claim for benefits paid prior to hearing under an employee nonoccupational group health plan. That defendants are entitled to a credit for workers' compensation benefits paid prior to hearing at the rate of $198.52 per week for 47 4/7 weeks. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant is entitled to temporary total disability benefits or healing period disability benefits. Whether the injury was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits. Whether claimant is entitled to medical benefits. SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant is 30 years old. She completed high school. Later, she completed a basic electronics course for employer. She has also completed a computer course for Lotus 1, 2, 3 and WordStar word processing. Claimant's past employments have all been assembly line jobs. Claimant started to work for employer in July of 1979 in the parts department as a clerk. In December of 1979, she went into the plant on the assembly line. At first, for a year and one-half, she mounted motors on outboards and hung,them on the line. Then she became a line inspector of completed motors and put them on a conveyor belt to go to the warehouse to be packaged (transcript pages 9-16). These outboard motors weighed from approximately 18 pounds to 65 pounds. Claimant testified that she processes approximately 25 to 30 motors per hour. With respect to the trollers, she handled 40 or 50 motors per hour. On the outboard motors, she was required to pull the rope on every unit to make sure the prop would turn. Trollers were tested in a test tank. Claimant denied any problems with her back, neck, shoulders or arms prior to this injury (tr. pp. 16-18, 57-59). On December 4, 1984, claimant was pounding one and one-half inch metal bushings with a very heavy ball peen metal hammer. She did this with her dominant right hand. Claimant testified that she hit the bushing approximately 10 to 15 times per motor and that she was handling 25 to 30 motors per hour. She said her right arm became very tired. It then felt like her shoulder crackled in between her shoulder blades. It was like a pop or crack between her shoulder blades on her right side near her spine (tr. pp. 64 & 65). It seemed like it cracked and it felt like hot water pouring and heat (tr. pp. 18-23, 64-67). Claimant said that she had used ball peen hammers like this ever since she started with employer, but that they had never given her a problem before (tr. p. 60). Claimant finished working that day and came to work the following day. On the night of December 4, 1984, claimant said it hurt to breath and that she could hardly lift her arm. Later, her right leg began tingling and that is when she got concerned (tr. p. 24). Nevertheless, she came to work the following day. Her shoulder was still sore and it felt like her leg was going numb. Claimant told other employees about the injury and the foreman sent her to Acute Care which is operated by a firm of doctors known as Medical Associates.She was examined by Craig Rose, M.D. Dr. Rose told her it was strained muscles. He prescribed medication and told her to give it rest. He did not take claimant off work. He told claimant that if her pain continued that she should see an orthopedic doctor of her own choice. Instead, claimant chose to see a chiropractor because she believed that she would get instant relief from a chiropractor. She saw a chiropractor three times. Claimant testified that she lost no time from work for this injury in 1985 (tr. pp. 68 & 69). Claimant related that after the Christmas shutdown she returned to work in the first week in January. The leg was better, but due to the pounding, pulling ropes and lifting, her shoulder kept getting worse and worse. Claimant said that she kept on working and continued to see the chiropractor, Dave Webber, D.C., in December, 1985. Claimant informed that Dr. Webber treated her with ultrasound. She alleged that Dr. Webber said that there was nothing that he could do for her as long as she continued to work (tr. pp. 28-30 & 70). There are.no medical records from Dr. Webber introduced into evidence. Claimant said that she continued to work after Christmas shutdown, but her work began to slow down in March of 1985. At that time, she was sent back to Medical Associates and saw Scott C. McCuskey, M.D., an orthopedic surgeon. He took claimant off work on March 15, 1985. Dr. McCuskey prescribed medications, physical therapy at Finley Hospital, and gave her an injection of cortisone. Claimant testified that when she did not improve, he referred her to Patrick R. Sterrett, M.D., a neurologist with Medical Associates, in April of 1985. Claimant testified that Dr. Sterrett conducted nerve studies, took different x-rays, performed a bone scan, ordered a TENS unit, ordered more physical therapy and performed a myelogram, CT scan and EMG. She said that Dr. Sterrett's tests were all normal, but he continued to keep her off work (tr. pp. 31-33 & 72). At one point in her treatment by Dr. Sterrett, she developed a high blood sedimentation rate and was referred to Dr. Pena of Medical Associates, who is a rheumatologist (tr. pp. 34 & 35). Dr. Sterrett also sent claimant to see Paulette Lynn, M.D., a physiatrist with Medical Associates (tr. pp. 35 &.36). Dr. Lynn wanted to get claimant into a work hardening program, but instead she was given more physical therapy. Claimant said that her workers' compensation checks terminated in January of 1986. She said that she was released to return to work by Dr. Sterrett with a 15 to 20 pound weight restriction in February of 1986 (February 10, 1986). She did not actually get to work until three weeks later in March of 1986. She performed light duty because her shoulder was still sore and it was difficult to use her arm in her work (tr. pp. 37 & 38). Claimant said that she continued to see Drs. Sterrett and Lynn. She requested to have her weight restrictions removed or increased to 65 pounds so that she could perform her former job of line inspector. However, the weight restrictions were not removed until January of, 1987 (tr. pp. 40 & 55). After claimant was returned to work in March of 1986, she said that she was transferred to painting trollers in May of 1986. She added that trollers are very long and awkward and the crackle, burning and hurting in her shoulder started all over again. She reported that she returned to Dr. Sterrett and that he took her off work again. He did permit her to work in July of 1986 with a 15 to 20 pound weight restriction, but there was no work for her with those restrictions (tr. pp. 40 & 41). In January of 1987, she obtained a full release without restrictions (tr. pp. 42 & 55). Claimant testified that.she then worked as a line inspector without restrictions from January of 1987 until August of 1987 when all employees were terminated (tr. p. 43). Claimant said that she still takes Motrin and Darvocet. She maintained that she has lost strength in her right arm. Claimant contended that if she reaches forward or overhead it hurts her to breath. She complained that she still has pain at the bottom of her right shoulder blade (tr. pp. 43 & 44). Claimant said: (1) she applied for jobs at several places; (2) registered at the employment office; and (3) was assisted by the dislocated workers program. At the time of the hearing, she was employed assembling medical supplies at $3.35 per hour. Claimant testified that she was earning $8.63 per hour when employer's plant was closed down. Claimant related that she operates a machine in her current job that requires her to reach forward. This causes her arm and shoulder to ache. It is similar to the pain she experienced at the time of this injury, but it is not as bad as it was. She no longer sees a doctor for it (tr. pp. 45-48). Claimant admitted that she became ill with T.M.J. (temporo-mandibular joint disease) in her right jaw in October of 1985 and had surgery for it in February of 1986 (tr. pp. 48-52). Claimant conceded that she had her stomach stapled in September of 1985 (tr. pp. 52 & 53). She said that she weighed 290 pounds at that time (tr. p. 74). Claimant said that Dr. Sterrett told her that the T.M.J. was not related to this injury. Claimant said that she lost weight from the stapling, but that it did not help her shoulder (tr. pp. 53-55). Claimant indicated that she might weigh approximately 300 pounds at the time of the hearing (tr. p. 75). She granted that she was also diagnosed as having a high uric acid rate (tr. p. 75-77). Claimant admitted that John Whalen,,M.D., whom she chose as her own personal physician, examined her and all of her records and commented that no permanent injury has been found (tr. pp. 81; jt. ex. 17). She also admitted that Dr. Whalen indicated that she could lift 65 pounds and that he has never lifted that weight restriction of 65 pounds (tr. p. 87; jt. ex. 17). A summary of the medical evidence follows: There is no history of prior right shoulder pain in the record. The right upper quadrant pain referred to on April 30, 1984, appears to be the result of a cholecystectomy and an appendectomy (ex. 22, p. 1). On December 6, 1984, Dr. Rose treated claimant for right shoulder blade pain that began while pounding bushings on December 4, 1984. Twenty-four hours later, she noticed numbness and tingling in her right thigh area. His physical examination revealed slight tenderness along the medial border of the scapula. Range of motion and strength were normal. Dr. Rose diagnosed: (1) subscapular myositis, traumatic and (2) entrapment of the right lateral cutaneous nerve (meralgia). Dr. Rose urged weight loss to resolve the entrapment of the cutaneous nerve (ex. 22, p. 2). There is no medical evidence from Dave Webber, D.C.. Dr. McCuskey saw claimant on March 14, 1985, March 25, 1985 and April 8, 1985. He recorded the history of pounding bushings with a hammer. Her neck and shoulder range of motion were complete. She had good symmetrical reflexes in her right shoulder, biceps and triceps. X-rays of the cervical spine and shoulder were negative. Dr. McCuskey diagnosed myofascitis of the right parascapular muscles involving the neck and shoulder. He took claimant off work, prescribed physical therapy, medications and injected her shoulder with medications. Dr. McCuskey could not figure out why she did not respond and referred her to Dr. Sterrett in his firm for a neurological examination. Claimant did not mention her right thigh area when she talked to Dr. McCuskey (ex. 12, pp. 1-3). Dr. Sterrett, the neurologist, treated claimant from April 15, 1985 until July 1, 1986 (ex. 12, pp. 3-34). Claimant told Dr. Sterrett that she heard a crack in her right shoulder while punching bushings. Claimant also told Dr. Sterrett that she had the same pain while wallpapering at home. Claimant also complained of severe headaches. Dr. Sterrett diagnosed: (1) myofascitis around the medial right scapula and (2) paresthesias in the right lateral thigh and pain in the right buttock suggestive of sciatica. He took x-rays, a bone scan and an EMG. He prescribed a TENS unit and extensive physical therapy. All of the tests which he performed were negative and all of the treatments which he administered were ineffective (ex. 12, pp. 3-7). On July 1, 1985, Dr. Sterrett found claimant refractory to all conservative treatment modalities and ordered a lumbosacral myelogram followed by a CT scan. This resulted in a diagnosis of: (1) right sciatica; (2) myofascitis of the tight parascapular and lumbar paraspinal muscles; (3) morbid obesity; and (4) osteoarthritis of the knees. When claimant did not respond to his treatment he referred claimant to Paulette Lynn, M.D., a physiatrist, in his firm (ex. 12, pp. 10-12; ex. 23). Dr. Lynn continued to keep claimant off work and saw her from August 30, 1985 to January 13, 1986. During this period, claimant had her stomach stapled, developed T.M.J. and developed a high uric acid level. Dr. Lynn prescribed more physical therapy and injections. Claimant resisted certain physical therapy modes such as spray and stretch. On January 22, 1986, Dr. Lynn said that she had nothing further to offer. Dr. Lynn concluded that claimant had nutritional problems and obesity problems which were perpetuating factors in her muscle pain. Dr. Lynn referred claimant back to Dr. Sterrett for possible nerve root impingement in her neck and concluded with these remarks: However, strictly from the Physical Medicine viewpoint, that is insofar as her myofascial syndrome is concerned, I feel that she is permanent and stationary at this point in time. Pending further neurological work-up, should this be negative, I would consider her to be permanent and stationary and give her a 5% disability rating. (ex. 7) On July 25, 1986, when Dr. Lynn was accused of treating claimant for conditions other than this injury, Dr. Lynn responded as follows: Please note the following facts from the above record which I am aware that you have in greater detail from my letters that I sent you each time I saw the patient: 1. The first is that every time I have seen this lady it has been for documented on-the-job injury for which she was initially seen here in the Acute Care Department in December of 1984. It is entirely reasonable to think that her job which entailed lifting heavy motors, particularly given her obese body build, could have caused her problem. 2. Secondly, each time she saw me and had therapy ordered after September 24, 1985, the patient was seen for the same problem mentioned above. And her other medical problems, although they may have affected her general health and ability to recover from any injury, were not followed by me in any way other than to treat a perpetuating factor which was the high uric acid. Therefore, I feel that it is unreasonable for you to assume that charges after September 24, 1985 were caused by conditions other than the work-related injury. (ex. 9) When Dr. Lynn was asked whether a 60 pound weight restriction would or would not be safe, Dr. Lynn recommended a physical capacity evaluation and a work hardening program under the supervision of a licensed practical therapist, but the insurance company refused to do this (exs. 9, 10 & 28). On January 26, 1987, Dr. Lynn said that she was unable to document that claimant could not lift 60 pound items from waist level and carry them for a short distance, but she questioned whether this activity might increase her discomfort if performed on a repetitive basis. On November 23, 1987, Dr. Lynn evaluated claimant again and reported on November 25, 1987 as follows: IMPRESSION: Myofascial pain syndrome involving intrascapular muscles paraspinal cervical/thoracic muscles currently flared Based on the AMA's book on guidelines for impairment ratings, I feel that she has a total body impairment of 5%. I feel that her condition will be a permanent one which will fluctuate in intensity depending upon her activities. (ex. 11) After Dr. Lynn referred claimant back to Dr. Sterrett in January of 1986, to investigate nerve root impingement in her neck, Dr. Sterrett on January 13, 1986 and January 23, 1986 recommended a complete myelogram from the foramen magnum to S-2 in order to rule out a cervical disc (ex. 12, pp. 18-22). This was done on January 27, 1986. The result was that the cervical, thoracic and lumbar levels were all normal (ex. 27). Dr. Sterrett then released claimant to return to work on February 10, 1986 with the 25 pound weight restriction (ex. 12, pp. 23 & 24). It appears that Dr. Sterrett ordered a consulting opinion from another doctor, Sun Hwan Chi, M.D. Dr. Chi wrote to Dr. Sterrett of February 20, 1986 and recommended that claimant be returned to light duty only (ex. 20). Dr. Sterrett then reported on May 7, 1986 that claimant was complaining of severe pain and that he took her off work again on May 8, 1986 (ex. 12, p. 31). On June 24, 1986, Dr. Sterrett said that he had nothing further to offer this patient. He confirmed that she definitely had myofascial pain syndrome with some functional overlay which made it difficult to determine how much was myofascial and how much was functional. Dr. Sterrett concluded as follows: ...However, I do feel that she does not have any specific neurologic deficit and that according to the American Medical Association guideline for disabilities, I do feel that she is probably a 5% for disability because of her myofascial pain. I told her to talk to her employer about future employment, but I had nothing further to offer her. (ex. 12, p. 32) Although Dr. Sterrett wrote lengthy and prolific office notes, he never did indicate whether claimant's complaints were caused by this injury or not. Nor did he give any indication of causal connection in his one letter report (ex. 8). On September 12, 1986, Charles R. Rothberg, M.D., a neurosurgeon, refused to make an evaluation as to whether claimant could go back to work without any weight restriction unless claimant first received a functional capacity examination (exs. 15 & 16). John M. Whalen, M.D., examined all of claimant's medical reports and examined claimant on August 13, 1986. He said that claimant had been very thoroughly examined by Dr. Sterrett and "no evidence of permanent physical injury has been found". In addition, no structural abnormalities had been found as well. He said that the physical examination was within normal limits. She had a full range of motion. He did not see any reason that she can't return to work without restrictions (ex. 17). On October 22, 1986, Dr. Whalen wrote a letter to Dr. Rothberg stating that claimant had no significant injury. The insurance company had refused a functional capacity examination. He suggested that Dr. Rothberg authorize claimant to return to work (ex. 18). Claimant presented medical expenses totaling $5,873.95 (claimant ex. A). All of this treatment appears to be by doctors which were selected by defendants. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of December 4, 1984, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered.with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). It was stipulated that claimant received an injury arising out of and in the course of employment on December 4, 1984. This stipulation is accepted as to the right shoulder because a right shoulder injury is supported by the evidence. This stipulation is not accepted as to the right thigh complaints because these symptoms did not occur until 24 hours later. Claimant did not testify and there was no other evidence that any job activity caused her right thigh complaints. It was stipulated that the injury was the cause of temporary disability. It was further stipulated that claimant was off work for three different periods of time. As to the first period of time, February 20, 1985 until February 25, 1985, claimant did not testify that she was off work for this period of time as a result of this injury and there is no medical evidence to establish that claimant was off work during this period of time as a result of this injury. Claimant saw Dr. Webber, but there is no evidence from Dr. Webber to establish that claimant was off work during this period of time. Therefore, claimant did not prove that she is entitled to temporary disability benefits for this period of time, even though the parties stipulated that claimant was off work because there is no evidence in the record that this injury caused claimant to be off work during that period of time. As to the period of time from March 15, 1985 until February 11, 1986, it was established that Dr. McCuskey took claimant off work when he saw her on March 14, 1985 (ex. 12, p. l) and that Dr. Sterrett returned her to work with a 25 pound weight restriction on February 11, 1986 (ex. 12, pp. 23, 24 & 29). As to the period May 8, 1986 to January 5, 1987, claimant did not prove entitlement for the entire period. Claimant did establish that Dr. Sterrett took her off work again on May 8, 1986 (ex. 12, p. 31). No medical evidence can be found that claimant returned to work on January 5, 1987, but the parties did stipulate to that date. There is evidence that Dr. Lynn permitted her to return to work and try to lift 60 pounds after she was seen on January 26, 1987 (ex. 10). Claimant testified under oath that she received a full release to return to work without restrictions in January of 1987. This testimony was not disputed, controverted, contradicted, rebutted or refuted in any manner. Therefore, it is determined that claimant is entitled to temporary disability benefits for the stipulated period from March 8, 1986 to January 5, 1987. It is noted that this is an unusually long period of recovery for simply myofascitis of the right medical scapula. Nevertheless, Dr. Lynn commented several times that claimant had a number of other problems which she considered perpetuating factors. Furthermore, it is noted that these doctors were selected by employer and the insurance carrier. All of the doctors are associated with Medical Associates. Claimant's supervisor sent her to see Dr. Rose is December of 1984; the supervisor sent her to see Dr. McCuskey in March of 1985. When Dr. McCuskey had nothing further to offer he referred her to Dr. Sterrett. Dr. Sterrett referred her to Dr. Pena and Dr. Lynn. Dr. Lynn referred her back to Dr. Sterrett. When an authorized physician refers claimant to another physician, the second physician is also considered to be an authorized physician. Limoges vs. Meier Auto Salvage, I Iowa Industrial Commissioner Report 207 (1981). Claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent disability. Although Dr. Sterrett wrote prolifically in his lengthy office notes, he never once addressed whether the injury was the cause of the condition he was treating or whether it was the cause of the 5 percent "disability" he awarded because of her myofascial strain (ex. 12, p. 33). Nor did Dr. Lynn state that the injury was the cause of claimant's 5 percent disability rating which she awarded on January 22, 1986 or the 5 percent total body impairment she awarded on November 25, 1987 (ex. 11). Dr. Lynn's statement on July 25,.1986, that all of her treatment was for the job injury, can be reasonably extended to mean that claimant is also entitled to temporary disability benefits for when claimant was off work as recommended by Drs. McCuskey, Sterrett and Lynn. This comment cannot be reasonably extended to mean that claimant's permanent disability or impairment was caused by this injury. Claimant did prove that the job was the cause of her injury. Claimant did not prove that the injury was the cause of her permanent disability. If the injury was the cause of a 5 percent permanent impairment or disability, then claimant should have obtained a clear statement from one or more of the medical doctors to that effect. There is a super abundance of medical information, but the crucial question of whether the disability or impairment was caused by the injury is not answered by the. medical reports. Dr. McCuskey never addressed the issue of causal connection. Dr. Sterrett never addressed the issue of causal connection. Dr. Lynn stated that her treatment was for the job-related injury and therefore, Dr. Lynn claimed that she was entitled to be paid for her charges for that treatment. Since Drs. McCuskey, Sterrett and Lynn proceeded to treat claimant on the history which claimant gave them, to wit, that she injured her right shoulder while punching out bushings on outboard motors, then it can be determined that claimant is entitled to be paid for her time off work for the two periods of time determined above. For the same reason it can be said that claimant is entitled to recover all of her medical expenses in the amount of $5,873.95 as detailed in claimant's exhibit A. All of this treatment appears to be treatment ordered by doctors selected by the employer and insurance carrier to treat claimant. However, as to claimant's permanent impairment, the doctors did not say that this injury was the cause of her permanent impairment. Therefore, claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of any permanent impairment or disability. This determination is supported by the fact that claimant, even though a young woman, has suffered a myriad of health problems in her relatively few years of life. Claimant has had a tonsillectomy, appendectomy, cholecystitis, gastro plasti and temporo-mandibular joint surgery. She demonstrated a high sedimentation blood rate and a high uric acid level. Claimant has knee problems, low back problems and frequent, severe headaches. Claimant has suffered from abdominal problems and received a colonoscopic examination and a sigmoidoscopic examination. This is not a complete summary of all of the health problems mentioned in the medical evidence. This summary only the highlights. All of the doctors referred to claimant's morbid obesity. Morbid means unhealthy. Claimant is 5 feet 5 inches tall and weighs approximately 300 pounds. If a person who normally should weigh approximately 125 pounds had an additional 175 pounds attached to their body and were forced to carry this much additional weight 24 hours a day for several years without any relief from this burden, it is entirely possible if not probable that the muscles (myo) and connecting tissue (fascia) would become inflamed (itis) from such an enormous, continuous and relentless heavy burden on the muscles and connecting tissues. It should be noted that.claimant continued to have the same symptoms on a chronic basis without much improvement even after she was removed from the work place for most of two years after the injury. Muscle strains usually heal in time with or without treatment. Claimant received unusually extensive treatment, but Drs. McCuskey, Sterrett and Lynn all found that her condition was refractory. Therefore, claimant's impairment of the right medial scapula is at least as likely to be caused by her morbid (unhealthy) obesity as it is from punching out bushings on outboard motors. It should be noted that claimant was able to work immediately after the injury. She worked before Christmas break and she worked after Christmas break. The injury occurred on December 4, 1984 and claimant did not miss any work until March 15, 1985 some three and one-half months later. If claimant's permanent impairment from myofascitis was due to this injury, one or more of the doctors should have said so clearly. The state of the record is that no doctor has stated that claimant's 5 percent impairment from myofascitis was caused by this shoulder injury. Consequently, it must be determined that claimant did not sustain the burden of proof by a preponderance of the evidence that the injury to her right medial scapula was the cause of any permanent impairment or disability. It is further noted that claimant returned to work in January of 1987 to her position as a line inspector. This job required claimant to lift 60 pound motors. Claimant performed this job from January of 1987 until the company closed down in September of 1987. It is further noted that claimant is presently employed doing production line work again. FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant was employed by employer on December 4, 1984 as a line inspector of outboard motors. That on December 4, 1984, claimant was pounding bushings with a ball peen hammer when she felt a crackle, crack or pop in her right shoulder blade. That employer sent the employee to Dr. Rose of Medical Associates for this injury on December 6, 1984. That claimant continued to work, when not on Christmas lay off, and experienced continuing complaints with her right shoulder. That employer sent claimant to see Dr. McCuskey on March 14, 1985 and that he took claimant off work on March 15, 1985. That claimant also saw Dr. Sterrett with Medical Associates and he returned claimant to work on February 11, 1986. That Dr. Sterrett took claimant off work on May 8, 1986 and by agreement of the parties, claimant returned to work again light duty without restrictions on January 5, 1987. That Dr. Lynn with Medical Associates, stated that all of her treatment of claimant was for claimant's on-the-job injury. Dr. Lynn treated the same shoulder injury that Dr. McCuskey and Dr. Sterrett treated. That claimant did not prove that her right thigh complaints, which originated 24 hours after the right shoulder injury, were connected with or related to any activities at work or the right shoulder injury. That although Dr. Lynn and Dr. Sterrett opined that claimant had a 5 percent disability or impairment, neither doctor said that the disability or impairment was caused by the right shoulder injury. That claimant incurred $5,873.95 in unpaid medical expenses for this injury. .CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made. That claimant did sustain an injury to the right medial scapula on December 4, 1984 that arose out of and in the course of employment with employer. That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained a right thigh injury on December 4, 1984 which arose out of and in the course of her employment with employer. That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury to her right shoulder caused her to be off work from February 20, 1985 to February 25, 1985. That claimant did sustain the burden of proof by a preponderance of the evidence that the injury to the right medial scapula caused her to be off work from March 15, 1985 to February 10, 1986 and again from May 8, 1986 to January 5, 1987. That claimant is entitled to temporary total disability benefits for the periods of time specified in the foregoing paragraph. That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury of December 4, 1984 to her right medial scapula was the cause of permanent disability. That claimant is not entitled to permanent disability benefits. That claimant is entitled to medical benefits in the amount of $5,873.95. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant forty-seven point seven one four (47.714) weeks of temporary total disability benefits for the period from March 15, 1985 until February 11, 1986 at the stipulated rate of one hundred ninety-eight and 52/100 dollars ($198.52) per week in the total amount of nine thousand four hundred seventy-two and 18/100 dollars ($9,472.18) commencing on March 15, 1985. That defendants pay to claimant thirty point seven one four (30.714) weeks of total temporary disability benefits for the period from May 8, 1986 until January 5, 1987 at the stipulated rate of one hundred ninety-eight and 52/100 ($198.52) per week in the total amount of six thousand ninety-seven and 34/100 dollars ($6,097.34) commencing on May 8, 1986. That defendants are entitled to a credit for forty-seven point five one seven (47.517) weeks of workers' compensation benefits paid prior to hearing at the rate of one hundred ninety-eight and 52/100 dollars ($198.52) per week in the total amount of nine thousand four hundred forty-three and 07/100 dollars ($9,443.07). That these benefits are to be paid 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 eight hundred seventy-three and 95/100 dollars ($5,873.95) in medical benefits. That defendants are charged with the costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33, including the cost of the transcript. 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 31st day of July, 1989. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Nick Avgerinos Mr. Stephen Smalling Attorneys at Law 101 N. Wacker Dr. STE 740 Chicago, Illinois 60606 Mr. Michael Liebbe Attorney at Law 116 E. 6th St. PO Box 339 Davenport, Iowa 52805 51402.40; 51801; 51402.40; 51803 52501; 52602; 52700 Filed July 31, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TAMI M. HARTNESS, Claimant, File No. 830024 vs. A R B I T R A T I 0 N ESKA COMPANY, D E C I S I 0 N Employer, and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. 51402.40; 51801 Claimant awarded temporary total disability for two lengthy periods of time because the only medical evidence on this point clearly proved that claimant's time off work was due to this injury even though it might have been prolonged by a number of other health factors claimant suffered from. 51402.40; 51803 Two of the doctors awarded 5 percent permanent functional impairment, but neither one of them stated that it was due to the injury. Since claimant was 5 feet 5 inches tall and weighed approximately 300 pounds and suffered from morbid obesity, it was determined that it was quite possible, if not probable, that her morbid obesity was the cause of her permanent impairment from myofascitis. No permanent partial disability benefits were awarded. 52501; 52602; 52700 Claimant awarded $5,873.95 in unpaid medical expenses. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUTH ANN (GAJESKI) CARTER, Claimant, File No. 830031 vs. A R B I T R A T I O N OSCAR MAYER COMPANY, D E C I S I O N Employer, Self-Insured, F I L E D Defendant. APR 17 1989 INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Ruth Ann (Gajeski) Carter against Oscar Mayer Company, her self-insured employer. The case was consolidated for hearing with file number 732627. The case was heard and fully submitted at Davenport, Iowa on July 7, 1988. The record in the proceeding consists of testimony from claimant, testimony from Monica Murphy, claimant's exhibits 1 through 9 and defendant's exhibits A through DD. ISSUES Claimant seeks compensation for permanent partial disability resulting from carpal tunnel syndrome. It was stipulated that claimant contracted carpal tunnel syndrome and that such was an injury which arose out of and in the course of employment. The only issue is determination of claimant's entitlement to compensation for permanent partial disability based upon the condition. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. As stipulated by the parties, claimant developed carpal tunnel syndrome and such constitutes an injury which arose out of and in the course of employment. Claimant underwent left carpal tunnel decompression surgery on July 24, 1986 and a similar surgery on the right hand on August 21, 1986 (exhibit N, page 7). Following the surgeries, claimant was placed in physical therapy to increase the strength in her handS. Claimant returned to work November 2, 1986. On March 30, 1987, John E. Sinning, Jr., M.D., the treating physician and surgeon, indicated that claimant had full range of motion, excellent resistant strength and flexion-extension. He referred claimant to physical rehabilitation for testing of her hand and wrist strength (exhibit O, page 4). The results of that testing are not in evidence. Claimant testified that she suffers from residual weakness and pain in her hands and that her hands are not as mobile as they were before she developed the disorder. She is not undergoing further treatment for the condition. She has no known medically imposed activity restrictions due to the condition. Claimant testified that her wrists are so weak that she cannot lift a skillet off the stove with one hand. She stated that the right hand is much worse than the left. APPLICABLE LAW AND ANALYSIS The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Claimant has the burden of proving the extent of any alleged disability. Carpal tunnel syndrome is a scheduled member disability which is compensated under the provisions of Iowa Code section 85.34(2)(1) for one hand or Code section 85.34(2)(s) if the injury affects both hands. Division of Industrial Services Rule 343-2.4 makes the Guides to the Evaluation of Permanent Impairment published by the American Medical Association prima facie evidence of scheduled member disability. The evidence presented in this case does not contain any rating of physical impairment or loss of use of either of claimant's hands. The evidence does not contain any objective showings of loss of range of motion or loss of grip strength. In fact, the only indication in that regard which appears in the record fails to demonstrate any abnormalities (exhibit 0, page 4). The only evidence of disability is claimant's testimony regarding her complaints. Complaints of the type which claimant voiced are not uncommon following carpal tunnel release surgery. Such complaints, in the complete absence of any medical evidence dealing with impairment or disability, could support an award. In this case, however, the indications from Dr. Sinning are in direct conflict with claimant's stated complaints. It is therefore determined that claimant has failed to prove, by a preponderance of the evidence, that she has any permanent disability as a result of her carpal tunnel syndrome. FINDING OF FACT 1. The evidence in this case fails to demonstrate that it is more likely than not that claimant has any permanent loss of use of either of her hands as a result of the carpal tunnel syndrome which she developed as a result of her employment activities with Oscar Mayer Company. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant has failed to prove, by a preponderance of the evidence, that she is entitled to any compensation for permanent partial disability based upon carpal tunnel syndrome. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 17th day of April, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Albert J. Stafne, Jr. Mr. Thomas H. Preacher Attorneys at Law 2535 Tech Drive, Suite 200 Bettendorf, Iowa 52722 Mr. Richard M. McMahon Ms. Vicki L. Seeck Attorneys at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801-1550 1402.40, 1803, 3700 Filed April 17, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER RUTH ANN (GAJESKI) CARTER, Claimant, File No. 830031 vs. A R B I T R A T I O N OSCAR MAYER COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. 1402.40, 1803, 3700 Claimant's testimony, which was contradicted by medical records, was held to be insufficient to prove the existence of permanent partial disability resulting from carpal tunnel syndrome. The evidence contained no rating of permanent impairment and no medically-imposed activity restrictions.