BEFORE THE IOWA INDUSTRIAL COMMISSIONER GLORIA STOLTZ, Claimant, File No. 830058 vs. A R B I T R A T I O N KELLER INDUSTRIES, INC., D E C I S I O N Employer, and PACIFIC EMPLOYERS INS./CIGNA Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Gloria Stoltz, claimant, against Keller Industries, Inc., employer, and Pacific Employers Insurance/CIGNA, insurance carrier, defendants, for benefits as a result of an injury which allegedly occurred on February 7, 1986. On September 13, 1988, this case was heard by the undersigned. This case was fully submitted at the completion of the hearing. The record consists of the testimony of claimant, joint exhibit A, claimant's exhibit 1 and defendants' exhibit 1. The parties stipulated claimant was an employee of defendant at the time of the alleged injury. They also stipulated claimant is entitled to the commencement of benefits on May 13, 1987, if liability is established. ISSUES The issues presented by the parties at the time of the hearing are whether claimant received an injury arising out of and in the course of her employment; whether there is a causal relationship between the alleged injury and the disability on which she is now basing her claim; the extent of scheduled member disability, if any, to which she is entitled; the rate of compensation; and section 85.27 benefits. FACTS PRESENTED Claimant testified that on February 7, 1986, she was injured when while making backs of ladders, she experienced a sharp pain in her right elbow. Claimant had been using pliers and operating a power drill immediately prior to her injury. Management was notified of the injury and claimant was given an ace bandage for her elbow. On the following Monday, claimant was sent to the doctor where she was diagnosed as having "tennis elbow." Claimant returned to work. On February 19, 1986, claimant was seen by Forest Dean, M.D. STOLTZ V. KELLER INDUSTRIES, INC. PAGE 2 for a lateral epicondylitis of the right arm. Dr. Dean injected claimant with Depomedral; she was given Motrin for inflammation, and a splint for her elbow. Dr. Dean referred claimant to David Naden, M.D., in July of 1986. Claimant was diagnosed as having a lateral epicondylitis of the right elbow. Dr. Naden performed surgery on July 30, 1986. Claimant testified she returned to work around the first part of September in 1986 where she was placed on light duty for one week only. Claimant continued her employment until January 23, 1987 when she walked off the job. In November of 1986, claimant was seen by John E. Sinning, M.D., and later by William R. Irey, M.D., of Orthopedic Surgery Associates since Dr. Naden had left the geographical area. Dr. Irey later referred claimant to the University of Iowa. At the University of Iowa, claimant was seen by W. F. Blair, M.D., and Nils S. Erikson, M.D. Claimant has been working at Wendy's since February of 1986 where she has been employed on a part-time basis. Claimant's responsibilities have included cooking hamburgers and French fries, performing some lifting, cleaning tables and removing trays. Prior to the date of the alleged injury, claimant had been bowling three games per week. Claimant returned to her bowling league in August of 1987. From that time through April of 1988, and since August of 1988, claimant has bowled three games per week. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that she received an injury on February 7, 1986 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure, 188 N.W.2d 283 (Iowa 1971); STOLTZ V. KELLER INDUSTRIES, INC. PAGE 3 Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of February 7, 1986 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). 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). ANALYSIS Claimant has established that she sustained an injury to her right elbow which arose out of and in the course of her employment. The injury occurred on February 7, 1986 while claimant was making backs of ladders. At the time of the injury, claimant was earning $3.50 per hour. Claimant was earning $3.65 per hour when she voluntarily quit her employment. Since the date of the injury, claimant has been treated for a lateral epicondylitis of the right arm. Claimant testified she is still- experiencing swelling of her right hand and arm. She related there are good and bad days as far as the pain in her arm is concerned. Claimant also indicated she is restricted with her housekeeping chores, and while she is able to work eight to ten hours per week, some of the work is. accomplished by using her left hand. Claimant has resumed her bowling activities on a weekly basis. Claimant has been evaluated. According to Dr. Irey, claimant has a permanent partial impairment. In his report of December 23, 1987, he writes: The patient was seen at the University of Iowa Rheumatology Dept. and they felt that she may have an early form of some type of arthritis and has started a program of aspirin and Motrin. They are also concerned about her blood pressure and apparently she is taking medication for that. STOLTZ V. KELLER INDUSTRIES, INC. PAGE 4 Tenderness remains the same over the lateral aspect of her elbow. Examination shows full range of motion of her elbow including full flexion and extension, pronation and supination. We discussed the nature of permanent partial impairment ratings. I think that her chronic lateral epicondylitis is really a separate issue from her underlying possible arthritic condition. At any rate I think the work undoubtedly has aggravated the condition. I think this would be an appropriate time for an impairment rating. On the basis of continued discomfort with normal range of motion and virtually normal strength, I would assign a 5% permanent partial impairment rating to the right upper extremity. This information is based on the, "Guides to the Evaluation of Permanent Partial Impairment" published by the American Medical Association. Because she has normal motion she does not fit in the normal tables and so the 5% value is primarily based on mild decrease in strength and continued discomfort with lifting. No other physician has provided an impairment rating. Claimant has been referred to a rheumatologist by Dr. Irey. However, Nils S. Erikson, M.D., a rheumatologist, writes in his letter of December 10., 1987: Gloria A. Stoltz presented for evaluation of a possible evolving rheumatic disorder. She has had problems with a painful right elbow for approximately 2 years. The pain began while doing heavy exertion at her factory job. It was clinically diagnosed as lateral epicondylitis, but did not respond to rest, splinting, soft tissue steroid injection, steroid phonophoresis, soft tissue release surgery, or short trials of non-steroidal anti-inflammatory drugs. Shortly after the surgery, the patient noted hand pain and swelling. The hand swelling is generalized, and the pain is localized to the joints. The swellings are cool. Other than stiffness of swelling, no morning gel is noted. Her energy is normal. No other joints are affected. ... The cause of the patient's elbow and wrist pain is not clear. The lateral epicondyle is still tender and probably represents chronic epicondylitis.... While Dr. Erikson's opinion corroborates Dr. Irey's opinion, there is a lateral epicondylitis of the right elbow, Dr. Erikson cannot causally connect a possible arthritic condition to the work related injury on February 7, 1986. However, he does acknowledge that the only affected area is the arm which was injured. His medical charges should be paid by defendants since the treating physician recommended claimant to Dr. Erikson. Claimant testified she has been examined by several physicians at the University of Iowa Hospital and Clinics for possible injuries due to the cortisone injections. which she received subsequent to her work related injury. Claimant has also sought the payment of medical charges for these physicians. The record is devoid of any evidence that services rendered STOLTZ V. KELLER INDUSTRIES, INC. PAGE 5 by William J. Lawton, M.D., William M. Nauseef, M.D., or Tony P. Smith, M.D., are causally connected to claimant's work related injury. In fact, defendants' exhibit 1 supports the position that claimant has been treated for hypertension, an unrelated condition. Since the condition of hypertension is not causally connected to the work related injury, defendants are not required to incur medical expenses for Dr. Lawton, Dr. Nauseef, Dr. Smith, or Dr. Laube. Claimant acknowledges Dr. Laube's treatment is for an unrelated medical problem. The real question which is raised by the parties is whether claimant's arm complaints are causally connected to her injury on February 7, 1986. Claimant has met her burden in showing such a causal connection. The opinion of Dr. Irey, and the testimony of claimant support such a result. The opinion of Dr. Irey supports a finding of permanent impairment. The parties have stipulated that any finding of permanent impairment is a scheduled member disability to the right upper extremity. Claimant has sustained a five percent scheduled member disability. The rate of weekly compensation is found to be $97.19 per week. This rate is calculated as $3.50 per hour for 40 hours per week for a total of $140.00 in gross wages. Claimant is single with three exemptions. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. On February 7, 1986, claimant was injured while working for defendants. CONCLUSION A. On February 7, 1986, claimant received an injury arising out of and in the course of her employment with defendants. FINDING 2. As a result of that injury, claimant sustained a lateral epicondylitis of the right elbow. CONCLUSION B. Claimant met her burden of proving a causal connection between her injury on February 7, 1986 and her right arm and elbow complaints. FINDING 3. Claimant has a five percent permanent impairment of the right upper extremity as a result of the February 7, 1986 injury. CONCLUSION C. Claimant has a permanent partial disability of five percent of the right upper extremity as a result of the February 7, 1986 injury. FINDING 4. Claimant has established that the weekly rate for benefits is $97.19 per week. FINDING 5. As a result of her injury on February 7, 1986, claimant has incurred the following medical expenses which have not been paid by defendants: Dr. Erikson, University of Iowa Hospitals and Clinic $ 85.00 STOLTZ V. KELLER INDUSTRIES, INC. PAGE 6 CONCLUSION E. Claimant has established there is a causal connection of the expenses to treatment for the charges of Dr. Erikson and defendants are liable for the same. FINDING 6. Claimant was in the healing period from July 30, 1986 to October 3, 1986, for a total of five weeks. CONCLUSION F. Claimant is entitled to healing period benefits for the period from July 30, 1986 to October 3, 1986, at the weekly rate of $97.19 per week. ORDER THEREFORE, defendants are to pay unto claimant twelve point five (12.5) weeks of permanent partial disability benefits for a five percent (5%) scheduled member loss of the right upper extremity at a rate of ninety-seven and 19/100 dollars ($97.19) per week. Defendants are to pay unto claimant five (5) weeks of healing period benefits at a rate of ninety-seven and 19/100 dollars ($97.19) per week. Defendants are to reimburse claimant for the amount of Dr. Erikson's charges in the sum of eighty-five and no/100 dollars ($85.00) to the University of Iowa Hospitals and Clinics. STOLTZ V. KELLER INDUSTRIES, INC. PAGE 7 Accrued benefits are to be made in a lump sum together with statutory interest at the rate of ten percent (10%) per year pursuant to section 85.30, Code of Iowa, as amended. Defendants shall receive credit for benefits previously paid. Costs are taxed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a final report upon payment of this award. Signed and dated this 24th day of October, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David W. Newell Attorney at Law 323 E. 2nd St. P. O. Box 175 Muscatine, Iowa 52761 Mr. E. J. Kelly Attorney at Law Terrace Center, STE 111 2700 Grand Ave. Des Moines, Iowa 50312 1108; 1803; 2500 Filed October 24, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER GLORIA STOLTZ, Claimant, File No. 830058 vs. A R B I T R A T I O N KELLER INDUSTRIES, INC., D E C I S I O N Employer, and PACIFIC EMPLOYERS INS./CIGNA, Insurance Carrier, Defendants. 1108; 1803 It was determined that claimant sustained an injury which arose out of and in the course of employment with employer. Claimant was awarded a permanent disability in that a 5 percent scheduled member disability to the right upper extremity was found to be causally connected to the work injury. 2500 Claimant was also awarded 85.27 benefits in part.