BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD G. TOPPING, Claimant, File No. 832009 vs. A R B I T R A T I O N JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Donald G. Topping, against his self-insured employer, John Deere Dubuque Works of Deere & Company, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury allegedly sustained on January 21, 1985. This matter came on for hearing before the undersigned deputy industrial commissioner on October 6, 1987 in Dubuque, Iowa. A first report of injury was filed on November 3, 1986. The record in this case consists of the testimony, of claimant, of Ronald Hable, of M. Lee McClenahan, M.D., as well as of joint exhibits 1 through 25, as identified on the submitted exhibit list. ISSUES Pursuant to the pre-hearing report, the parties stipulated that claimants rate of weekly compensation is $359.46; that claimant was off work on account of his alleged injury from January 21, 1985 to March 21, 1985 with any permanent partial disability benefit payments to commence on March 22, 1985; and, that, should claimant be entitled to recovery, the defendant is entitled to a credit under Iowa Code section 85.38(2) for sick pay, disability income and medical and hospitalization expenses paid. The issues remaining to be decided are whether claimant gave appropriate notice of his injury as required under Iowa Code section 85.23; whether claimant's claim is barred as filed beyond the applicable statute of limitations, that is, section 85.26; whether claimant's injury arose out of and in the course of claimant's employment; whether a causal relationship exists between the claimed injury and any permanent partial disability; and, whether claimant is entitled to benefits and the nature and extend of any benefit entitlement. REVIEW OF THE EVIDENCE Claimant testified that he is 37 years old and a high school graduate who has also obtained a one-year community college degree in drafting. He has no medical training. Claimant began work for John Deere Dubuque Works in May, 1972 at age 21 as a chip and grinder in the foundry. Claimant reported he did not TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 2 have hand problems at that time. Claimant originally commuted from Monticello, Iowa to Dubuque, Iowa and now commutes from Onslow, Iowa to Dubuque, Iowa to work at John Deere Dubuque Works. In his first year as a chip and grinder, claimant used pneumatic chipping hammers and light tools to grind castings and to clean three-cylinder block cases. In May, 1973, he was transferred to line material handling, where he drove an electrically-powered hand truck. Claimant stated that, after working in the chip and grind job for approximately three or four months, his hands started falling asleep while he was driving and were stiff and sore in the morning. He reported they also fell asleep in the evening. Claimant indicated that his hands were better after his transfer in May, 1973 and that their condition did not interfere with his hunting, basketball or other outside activities. From June 25, 1973, claimant worked in shakeout transfer for approximately 14 days. He described such as medium to heavy work involving striking a casting with a mall and then hanging the casting on a conveyor belt. Claimant reported that he was sore all over while doing the job and had hand stiffness. On June 26, 1973, after one day's work in shakeout transfer, claimant saw his personal physician, Otto Semft, M.D., a family practitioner. Claimant stated that Dr. Semft prescribed medication, but did not diagnose his condition. Exhibit 2 is a note of Dr. Semft of June 27, 1973 in which he reported claimant had severe muscle cramps in his arm and in which he advises a job change. Claimant could not recall giving the company medical department this note, even though such is recorded in the company notes. He did not recall seeing the company doctor for symptoms in June, 1973, but did recall telling the company nurse that his arms were better after he became used to the job. Claimant agreed that, from May, 1972 until June, 1973, he had reported to the John Deere medical department on approximately 30 occasions for various problems. He indicated he had not complained about his hands during that time because his hands were not a problem while he was working. He indicated that his hands felt their best at work since he was moving them. Claimant also testified that John Deere personnel did not ask him whether he had any symptoms or whether he considered any symptoms to be job-related. Claimant worked chip and grind from, July 16, 1973 to February 18, 1974. He reported that his problems returned, but that his hands loosened up at work, although he had continuing difficulties when working above his head, when his hands "would go to sleep." Claimant reported he did not miss either work time or recreational activities on account of his hand condition during that period. From February 18, 1974 until August 25, 1986 claimant performed five different machinist jobs. Of those jobs, only machine hand involved manual machine operation. Claimant worked machine hand from April 18, 1977 to November 14, 1982 and from February 7, 1983 to August 25, 1966. Claimant reported that, while working on his machinist jobs, he had sporadic symptoms only, consisting of morning stiffness and his hands falling asleep when he worked with his arms at or above neck level. Claimant reported that he lost no work time between 1974 and 1984 on account of his hand symptoms. TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 3 On December 27, 1984, claimant saw R. Scott Cairns, M.D., a board-certified orthopaedic surgeon. Claimant saw the doctor after discussing his own symptoms with a co-worker who was experiencing symptoms which the co-worker related to carpal tunnel syndrome. Following electromylographic studies, Dr. Cairns performed carpal tunnel releases on January 21, 1985 on the right and on February 20, 1985 on the left. Claimant reported that Dr. Cairns had said carpal tunnel syndrome could be work-related when claimant asked Dr. Cairns regarding such in December, 1984. Claimant stated this was the first time he had heard that the condition could be work-related, but that he did not discuss work details with Dr. Cairns at that time. Claimant stated that, in May, 1986, he saw F. Dale Wilson, M.D., a board-certified surgeon, who advised him that his carpal tunnel syndrome was related to his work in the John Deere foundry in 1972. Claimant reported that M. Lee McClenahan, M.D., John Deere plant physician, conducted an approximately 15-minute examination related to claimant's hands. Claimant reported that Dr. Cairns evaluated him at John Deere's request and that that examination lasted from 10-15 minutes with another 10-15 minutes spent on x-rays and 5 minutes spent on grip testing at Finley Hospital. Claimant reported that, when he returned to work in March, 1985, his hands felt great and that his only symptoms consisted or a fuzzy, numb feeling in his first three fingers and a loss of strength. He reported that he also needed to look while he was grasping small objects and that he had limited backward movement of his right thumb. He indicated that being in a cold environment also created a loss of sensation in his fingertips. Claimant agreed that exhibits 5, 6, 7 and 8 are medical disability claim forms. He reported he checked the blocks indicating his condition was not a work-related illness or accident because it had not had a sudden onset and because it was not an illness. John Deere personnel helped claimant complete the forms, but claimant testified they did not explain the significance of the questions on the forms. Claimant reported that John Deere personnel gave him no information regarding carpal tunnel syndrome and that the personnel department knew he would be off for surgery prior to his carpal tunnel release, but that John Deere personnel did not ask him how his carpal tunnel condition had developed. Claimant agreed he has never personally advised John Deere that his condition was work-related, but stated that John Deere's counsel was so advised following Dr. Wilson's report when claimants counsel forwarded a copy of the report to the defendants counsel. Claimant reported he was unaware that work-related claims were handled differently at John Deere. Ronald Hable remembered claimant as an employee he had supervised in the John Deere foundry from May 1, 1972 to February 18, 1974. Mr. Hable could not remember claimant speaking to him of problems with his arms and hands. Mr. Hable described the chip and grind operation per a video tape of such. He reported that the chipping hammer has a 10- to 12-inch chisel which is controlled by the right thumb. He reported that the right hand TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 4 holds the hammer while the trigger is operated with the thumb. The hammer is piston-driven and vibrates while in operation. Hable opined that, in 1972 or 1973, a regular worker would have worked approximately six hours to make his chip and grind incentive while a new worker might have had to work eight hours to do so. Hable described the "shake-out" transfer operation. He reported that, in "shake-out" transfer, one grinds with an eight-inch grinder or a smaller grinder for inside grinding. He describes the operation as involving "all hand small work." Later, the operator knocks off excess metal with a sledge hammer. Hable agreed he had not heard of carpal tunnel syndrome until 1985 when he discussed it with Clem Koerperick, a John Deere general foreman. He reported that the two acknowledged the condition may be caused by constant use of vibrating tools. Hable reported that, since that time, safety bulletins and reports have been issued regarding carpal tunnel syndrome. Mervin Lee McClenahan, M.D., reported that he is medical director of John Deere Dubuque Works and has been such since 1982. Dr. McClenahan is a board-certified family practitioner who graduated from the University of Iowa Medical School in 1960. He reported that he had completed a mini-residency" in occupational medicine at the University of Cincinnati. The doctor testified he first became aware of claimants hand problems on approximately May 20, 1986 when he received a copy of a report of Dr. Wilson from defendants counsel. The doctor reported he saw claimant on June 24, 1986 and asked claimant about his problems at work in 1963 and 1984. He reported that claimant responded that no particular job in that time span seemed to aggravate claimant's condition. Dr. McClenahan stated that claimant reported that driving, helping his step-father farm or working on a car with wrenches seemed to cause the condition to flare up. Dr. McClenahan opined that no job claimant had held from April, 1977 would have caused his carpal tunnel syndrome. The doctor reported that he had received Dr. Cairns' office and operative notes and then had referred claimant to Dr. Cairns for further evaluation and a permanent partial impairment rating. He reported that Dr. Cairns had opined that, under the AMA guides, claimant had a permanent partial impairment of five percent of the upper extremity equalling five percent of the hand for both hands. Dr. McClenahan stated his belief that persons with a propensity toward carpal tunnel syndrome are very likely to develop the condition while working in chip and grind and like jobs, but also opined that claimant's jobs from 1974 onward were not such that he would have believed claimant would have developed carpal tunnel syndrome from them. Dr. McClenahan expressed his belief that claimant could not have functioned for ten years in other jobs and activities with a moderate degree of compression of the median nerve if he had acquired that degree of compression from his chip and grind job. The doctor opined that, with a moderate degree of compression, symptoms would exist most of the time and would go away with a change of positions. He opined that leaving the job which had produced the carpal tunnel syndrome would likely relieve some symptoms, but would not alleviate compression already present. The doctor opined that, if claimant had developed carpal tunnel TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 5 syndrome on his chip and grind job, the nature of the work would have prevented his continuing without repair or surgery. He reported as atypical the reduction of carpal tunnel symptoms during the work day and states that generally the condition worsens throughout the day. He later stated, however, that symptoms may be more noticeable in the evening with night awakening, but may be better tolerated during the day. He states, however, that compression would give symptoms almost all of the time or "I would say all the time." Dr. McClenahan reported it would not be impossible for a family practitioner in June, 1973 to have confused carpal tunnel syndrome with cramps in the forearm. Job descriptions for intricate chipper, material handler, shakeout transfer, machine hand, machine tool operator and mechanic were in evidence. The descriptions were generally consistent with testimony given at hearing. On July 29, 1986, Dr. Cairns opined that, if claimant was engages in an occupation requiring repetitive hand motion, or the use of vibrating, percussion of power tools, an excellent chance existed that such job demands had contributed to or caused claimant's condition. He reported that, as of December 27, 1984, claimants pertinent physical findings were mild diminution of sensation over the ring finger, more on the radial side than on the ulnar side, and that claimant then had a negative Tinel and negative Phalen sign. The doctor reported that EMGs subsequently confirmed severe bilateral median nerve neuropathy. On December 22, 1986, Dr. Cairns opined that it was unlikely that occupational exposure to work in chip and grind in 1972 would have had any bearing on claimant's median nerve neuropathy treated in 1985. The doctor reported that a review of claimant's job classification would "not tend to make one feel that there has been any unusual work exposure which would tend to precipitate his median nerve neuropathy." The doctor further opined that, if the conditions of repetitive hand motions and the use of vibrating or power tools had not been present, it was unlikely that there was a "significant occupational contribution to his medical problem." On January 20, 1987, Dr. Cairns saw claimant for evaluation of permanent physical impairment. He reported that claimant had no obvious atrophy, but had some limited range of motion of the first MP joint of the thumb which he suspected was secondary to degenerative change and not secondary to his median nerve neuropathy. Sensation was intact to pin prick, although it might have been slightly diminished in the right ring finger. Claimant's grip strength on the right was 125 pounds and, on the left, 145 pounds. X-rays revealed some degenerative changes in the first MP joint. Dr. Cairns rated claimant's permanent physical impairment as five percent of each upper extremity or "10% of the upper extremity." On May 8, 1986, by way of report, Dr. Wilson opined that claimant's injury occurred at work, stating: [T]he timing points to his work using air controlled vibrating instruments while he was at work on the "chip TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 6 and grind" in the foundry. There was an aggravation of this: He had improved and he returned back to this job while he was in the foundry on the "shake-out" unit. This exposure to vibrations and jolt and jar of the wrist is the causative factor with respect to symptoms, pathology and impairment reported on this examination. The doctor then evaluates claimant's impairment as follows: Impairment evaluation: I. Right hand: A. Motion loss: Thumb CMC 7% PMC 31% 44% Thumb 18% hand = 16% Extremity B. Pain, thumb area 1 C. Weakness: Below in "D" D. Nerve involvement: median nerve, 0 - 60 includes sensory changes and strength 15 32% Impairment of the right TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 7 extremity. II. Left Hand. A. Motion loss 0 B. Pain 0 C. Weakness 0 D. Nerve involvement: Power and sensation, 0 - 60 10% 10% Left extremity APPLICABLE LAW AND ANALYSIS Our prerequisite concern is whether claimant's claim is barred as filed beyond the applicable statute of limitations. Claimants claim is in arbitration and was filed on October 7, 1986. In his original notice and petition, claimant claims a January 21, 1985 injury date. That date corresponds with the date of claimants right carpal tunnel release surgery. Left carpal tunnel release surgery was performed on February 20, 1985. Section 85.26(l) provides that a proceeding in arbitration be filed within two years from the date of occurrence of the injury for which benefits are claimed. Hence, if claimant claims an injury in 1985, his petition was timely filed. However, claimant contends his condition developed in 1972 while working in chip and grind. He relies upon the discovery rule to now assert his claim. Under the discovery rule, the two-year period in which to file a claim in arbitration does not begin to run.until the worker should know the injury is both "serious and work-connected." A reasonable person standard is applied in determining when the worker should have known that the injury was serious and work-connected. The workers intelligence and education is considered under that standard, however. Orr v. Lewis Cent. School Dist., 298 N.W.2d 256, 257 (Iowa 1980); Robinson v. Dept. of Transp., 296 N.W.2d 809, 812 (Iowa 1980). Claimant contends he was unaware of a work relationship to his problems until Dr. Wilson so stated on May 8, 1986. Claimant relies upon his absence of medical training to so contend. We find claimant's position untenable, however. Claimant appears to be a fairly bright, well-spoken individual. He is a high school graduate. He testified to having problems with his hands from 1972 onward. Claimant sought medical care for his hands.in June, 1973. He then felt his arm soreness was work-related. Had claimant had continuing problems with his hands after originally seeking medical care for what he believed was a work-related problem, one believes a reasonable person of his education and intelligence would have recognized the seriousness and work connectedness of his hand condition prior to either his surgeries or Dr. Wilson's May, 1986 letter. While the statute of limitations issue is dispositive of the claim, we next consider whether claimant received an injury which arose out of and in the course of his employment. Because of the TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 8 nature of the question presented in this particular case, that issue is intertwined with the related subissue of causal connection between the alleged work injury and claimed disability. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on January 21, 1985 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). 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). 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 v. DeSoto Consol. Sch. Dist., 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 v. DeSoto Consol. Sch. Dist., 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 v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934), discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result or changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 9 .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of January 21, 1985 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 4.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). Claimant claims, on the basis of testimony of Dr. Wilson, that he developed bilateral carpal tunnel syndrome while working with air-controlled vibrating instruments while on chip and grind in May, 1972. Dr. Wilson is a general surgeon who examined claimant for evaluation purposes only. Dr. McClenahan, medical director of John Deere Dubuque Works, is a board-certified family practitioner and has additional training in occupational medicine. Dr. McClenahan felt that persons with a propensity toward carpal tunnel syndrome are very likely to develop that condition while working in chip and grind and like jobs. He also opined that claimant's jobs from April, 1977 onward were not such that claimant would likely have developed carpal tunnel syndrome from them. The doctor further opined that claimant could not have functioned for ten years in other jobs and activities with a moderate degree of compression of the median nerve if he had acquired that compression from his chip and grind job in 1972. Dr. Cairns, an orthopaedic surgeon, performed claimants carpal tunnel releases. Dr. Cairns opined that, if claimant was engaged in work requiring the use of vibrating, percussion or power tools, an excellent chance existed that such jobs contributed to or caused claimant's carpal tunnel. Dr. Cairns further opined that it was unlikely that occupational exposure while working in chip and grind in 1972 would have had any bearing on claimant's median nerve neuropathy which he treated in 1985. He further reported that a review of claimant's job classification "would not tend to make one feel there was any unusual work exposure which would tend to precipitate his median nerve neuropathy." The opinions of Drs. McClenahan and Cairns are accepted over the opinion of Dr. Wilson in that both Dr. McClenahan and Dr. Cairns have greater expertise in areas bearing on claimant's situation, namely, occupational medicine and orthopaedic medicine. Both TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 10 doctors believe it unlikely that claimant's carpal tunnel syndrome, treated by way of releases in 1985, related back to work duties performed from 1972 through approximately 1974. Dr. McClenahan further did not believe that jobs claimant held from.April, 1977 onward could have caused his carpal tunnel syndrome. Little evidence was presented as regards those jobs, but generally they did not appear to involve use of vibrating, percussion or power tools which all doctors reported would have aggravated a propensity toward carpal tunnel syndrome. Given the above, we do not find that claimant has shown an injury which arose out of and in the course of his employment consisting of bilateral carpal tunnel syndrome produced by work with vibrating hand tools in chip and grind in the period from 1972 through 1974. Likewise, we do not find evidence in the record as to claimant's work activities from 1974 onward sufficient to show a work contribution to claimant's carpal tunnel syndrome given the express contrary opinion of Dr. McClenahan as to claimant's work activities from April, 1977 onward. Since claimant has not prevailed on the issue of arising out of and in the course of, we need not address the other issues presented. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant began work for John Deere in May, 1972 in the chip and grind department. In 1972, in chip and grind, claimant used pneumatic chipping hammers and light tools to cast grindings and to clean three-cylinder block cases. Claimant reported symptoms after approximately four months in chip and grind which symptoms he described as hands falling asleep while giving and in the evening and being stiff and sore in the morning. Claimant reported that his symptoms did not interfere with hunting, basketball or other outside activities. Claimant worked in shakeout transfer for approximately 14 days from June 25, 1973. Claimant experienced severe muscle cramps in his arm on June 27 , 1973. Claimant visited the John Deere medical department on approximately 30 occasions from May, 1972 through June, 1973 and did not complain about his hands during that time. Claimant's hands were not a problem for him while working as they felt their best while he was moving them. Claimant worked chip and grind from July 16, 1973 until February 18, 1974. Claimant reported continuing problems during that time, but TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 11 stated that his hands loosened up at work, although he had continuing difficulties working above his head. Claimant is a high school graduate; he is bright and well-spoken. Claimant filed his petition on October 7, 1986. On May 8, 1986, Dr. Wilson opined that claimant's carpal tunnel syndrome related back to claimant's work in chip and grind. In 1972, claimant commuted from Monticello, Iowa to Dubuque, Iowa to work at John Deere Dubuque Works. Claimant subsequently commuted from Onslow, Iowa to Dubuque, Iowa to work at John Deere Dubuque Works. Claimant helped his step-father in farming while working at John Deere Dubuque Works. Claimant worked on auto repair with wrenches while working at John Deere. Repetitive hand motion or use of vibrating, percussion or power tools may produce carpal tunnel syndrome in a person having a propensity toward that condition. TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 12 After leaving chip and grind, claimant performed five different machinist jobs, only one of which involved manual machine operation. Dr. Wilson is a board-certified surgeon. Dr. Cairns is a board-certified orthopaedic surgeon. Dr. McClenahan is a board-certified family practitioner with additional training in occupational medicine. Claimant's work activities after leaving chip and grind did not contribute to the development of his carpal tunnel syndrome. Claimant could not have engaged in the activities in which claimant engaged from, 1972 onward had his carpal tunnel syndrome been produced in his chip and grind work. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant's claim is barred as filed beyond the applicable statute of limitations. Claimant has not established an injury which arose out of and in the course of his employment with John Deere Dubuque WorKs consisting of carpal tunnel syndrome bilaterally developing while working in chip and grind in 1972 and resulting in bilateral carpal tunnel releases in 1985. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing from this proceeding. Claimant and defendant pay equally the costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 19th day of July, 1988. HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Stephen J. Juergens Attorney at Law 200 Security Building Dubuque, Iowa 52001 Mr. Leo A. McCarthy Attorney at Law TOPPING V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY PAGE 13 Suite 222, Fischer Building P.O. Box 239 Dubuque, Iowa 52004-0239 1108, 2402 Filed July 19, 1988 HELENJEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD G. TOPPING, Claimant, File No. 832009 vs. A R B I T R A T I O N JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY, D E C I S I O N Employer, Self-Insured, Defendant. 1108, 2402 Claimant's claim barred under Iowa Code section 85.26. Claimant did not show injury which arose out of and in the course of his employment where claimant claimed he had worked from 1972 to 1974 onward with carpal tunnel syndrome until surgery in January and February, 1985. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MELVIN L. VAN CANNON, Claimant, vs. File No. 832018 DEPARTMENT OF TRANSPORTATION, A P P E A L Employer, D E C I S 1 0 N and STATE OF IOWA, Insurance Carrier, Defendants. STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent total disability benefits. The record on appeal consists of the transcript of the arbitration hearing and joint exhibits 1 through 5. Both parties filed briefs on appeal. ISSUES Defendants state the issues on appeal are: I. This case was wrongly decided because the deputy industrial commissioner inaccurately and erroneously stated the issue of the case and the claimant's burden of proof which resulted in erroneous findings of fact and conclusions of law in support of the decision. II. This case was wrongly decided because the deputy industrial commissioner erroneously concluded that a preponderance of evidence showed the claimant suffered a personal injury on December 16, 1985, which arose out of and in the course of his employment and caused the subsequent disabling stroke during coronary artery bypass surgery on January 9, 1986. REVIEW Or THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. VAN CANNON V. DEPARTMENT OF TRANSPORTATION Page 2 APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. FINDINGS OF FACT 1. In September 1985, while at home, claimant experienced chest pain requiring hospitalization . 2. After an angiogram was performed, it was discovered claimant suffered from coronary artery disease and angioplasty was performed . 3. After surgery claimant underwent cardiac rehabilitation and was released to return to work December 1, 1985 symptom-free and without restrictions. 4. Claimant returned to work December 2, 1985, to his regular job and was able to perform his regular duties including working 17 hours during a snowstorm . 5. On December 16, 1985, while at work performing the assigned task of chopping frozen dirt and ice from a truck bed, claimant experienced chest pain, radiating down his arms, severe enough to require emergency care and hospitalization. 6. While hospitalized, claimant had a repeat angiogram and open heart surgery was recommended. 7. Quintuple coronary bypass graft operation was performed January 9, 1986, during which claimant suffered stroke syndrome (cerebral infarction). 8. William S. Wheeler, M.D., L.A. Iannone, M.D., and Paul From, M.D., agree the work incident precipitated the chain of events which ultimately led to claimant's disability and/or materially aggravated claimant's underlying heart disease. 9. Claimant incurred medical expenses as a result of his injury which have been paid under defendants' non-occupational group plan. 10. A bona fide dispute existed as to the benefits owed claimant with regard to the issue of causation. VAN CANNON V. DEPARTMENT OF TRANSPORTATION Page 3 CONCLUSIONS OF LAW Claimant has established he suffered an injury on December 16, 1985, which arose out of and in the course of his employment and which materially aggravated preexisting heart disease. Claimant has established the work injury is causally connected to the disability on which he now bases his claim. Claimant has established medical expenses are causally connected to the work injury and defendants' liability therefor under Iowa Code section 85.27. Claimant has not established entitlement to penalty benefits under Iowa Code section 86.13. Defendants are entitled to credit under Iowa Code section 85.38(2) for benefits paid under a non-occupational group plan. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants pay to claimant permanent total disability benefits at the stipulated rate of one hundred eighty-four and 16/100 dollars ($184.16) per week for the period of his disability That defendants pay all medical expenses pursuant to Iowa Code section 85.27 and are entitled to a credit for all medical expenses paid under a non-occupational group plan. That payments which have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That defendants pay all costs including costs of transcription of the arbitration hearing pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file claim activity reports pursuant to Division of Industrial Services Rule 343-3.1(2), as requested. Signed and filed this 21st day of February, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT O. RILEY, Claimant, vs. File No. 832021 ROGER GLASNAPP, d/b/a GLASNAPP TRANSFER, A R B I T R A T I O N Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Robert O. Riley against Roger Glasnapp, his former employer, and Allied Mutual Insurance Company, the employer's insurance carrier. The case was heard and fully submitted on January 26, 1988 at Fort Dodge, Iowa. The record in this proceeding consists of testimony from Robert O. Riley, Diane Riley, Roger Glasnapp, Marlene Glasnapp, Renee Haden, Greg Williams, Ronald Helmbrecht and Duane Segebarth. The record also contains claimant's exhibits 1 through 34 and defendants' exhibits B and B-1. ISSUES Claimant alleges that he sustained an injury to his back which arose out of and in the course of his employment on or about September 16, 1985. Claimant seeks compensation for industrial disability and to recover expenses of medical treatment and transportation expenses under Iowa Code section 85.27. The issues presented for determination are whether Riley sustained an injury on or about September 16, 1985 which arose out of and in the course of employment with Roger Glasnapp; whether the alleged injury is a proximate cause of any temporary or permanent disability; determination of claimant's entitlement to compensation for temporary total disability or healing period and permanent disability; and, determination of claimant's entitlement to section 85.27 benefits. Defendants assert that claimant failed to provide timely notice under the provisions of section 85.23 of The Code. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The RILEY V. ROGER GLASNAPP PAGE 2 conclusions in the following summary should be considered to be preliminary findings of fact. Robert O. Riley is a 47-year-old man who dropped out of high school at age 17. He has held a variety of jobs, all of which involved a substantial amount of physical activity. In 1961, Riley was severely injured in a motor vehicle accident where he suffered fractured vertebrae. For a period of time following that injury, his bladder function was impaired. The sensation in his lower extremities was also affected. Approximately two years after that 1961 accident, Riley resumed a relatively normal level of activity and engaged in physical employment. In 1975, while working for a farmer, Riley was injured while loading hogs. He was off work for one and one-half years following that incident, was paid workers' compensation and was awarded a 25% permanent partial disability settlement. Claimant commenced employment with Roger Glasnapp in 1978, initially working part-time and moving to a full-time status in 1980. Even when working full-time, Riley was laid off and received unemployment from the first of December until the first of March each year. Riley performed a variety of activities including truck driving, farm implement repair, farm implement operation and general farm work. Riley testified that, on September 16 or 17, 1985, he was injured while either putting weights on Glasnapp's 4450 John Deere tractor or while taking them off. Riley stated that he felt no immediate pain or difficulty while performing the activity, but that, later that afternoon, pain started in his mid-back at the belt line. Riley testified that Glasnapp was present when the weights were being moved and that, on the following day, he reported to Roger Glasnapp that he had done something to his back. Riley testified that Glasnapp asked him what he had done and Riley replied he was uncertain. Riley testified that he sought treatment from a doctor of chiropractic medicine on September 30 and had informed Roger Glasnapp that he needed to take time off in order to go to the chiropractor in order to get his back fixed prior to the harvest. Riley testified that he was off work one week beginning on September 30, 1985 in accordance with the doctor's recommendations. Riley testified that he informed the doctor that he had injured his back putting wheel weights on a tractor. Riley stated that he continued to work for Glasnapp until the end of December, 1985 performing various activities. Riley stated that he continued to work for Glasnapp throughout the winter as needed and drew unemployment when he was not working. Riley testified that, in May, 1986, Glasnapp loaned him $350 in order to pay for a CT scan at University Hospitals at Iowa City. At Iowa City, Riley was treated by Dr. Collalto and J. W. Weinstein, M.D. (exhibits 15, 20 and 27). Both physicians related the increased complaints regarding claimant's back to an injury that occurred in September of 1985. Claimant was also evaluated by A. J. Wolbrink, M.D., an orthopaedic surgeon, who likewise related a portion of claimant's spinal problems to the alleged September, 1985 incident (exhibit RILEY V. ROGER GLASNAPP PAGE 3 23). All the physicians, when asked, related a portion of Riley's permanent impairment to the alleged September, 1985 injury. Riley testified that he is afflicted with back and leg pain and problems with bowel and bladder control. Riley stated that he is restricted in his ability to work, particularly activities involving lifting, bending and anything which stresses his back. Riley stated that he has back pain 24 hours per day for which he takes prescription medication. Over the years, both prior to and since the alleged injury, Riley has engaged in employment activities such as mechanical work, cutting salvage iron and cutting wood to heat his home. Roger Glasnapp, Riley's former employer, testified that, in the fall and particularly in September of 1985, there would have been no need to change tractor wheel weights. Glasnapp denied being present at any time in September of 1985 when Riley would have been changing tractor wheel weights. Glasnapp denied being told by Riley that he had injured his back while working for Glasnapp. Glasnapp testified that, on a morning in September, 1985, Riley had told him that he had picked up a lot of iron the preceding evening and that he needed to do it because the other local iron cutter was going to get whatever Riley did not. Glasnapp stated that, in late September, Riley told him that his back was bothering and that he was going to go to a chiropractor, but that Riley made no mention that he thought the problem was work-related and did not submit any bills for treatment or make any claim for workers' compensation benefits at that time. Glasnapp stated that, after going to the chiropractor, Riley returned to work and appeared to be no different than he had been previously. Glasnapp stated that Riley worked throughout the harvest and was able to do all that was asked of him without complaining of back pain. Glasnapp stated that Riley worked as needed over the winter and could have performed activities such as driving a truck or machine repair. Glasnapp stated that he first knew claimant was seeking workers' compensation for his back as a result of a telephone call from his insurance agent's office. Glasnapp stated that, in May of 1986, he and his wife had advanced $350 to Riley in order to pay for a CT scan at Iowa City. Glasnapp stated that Riley had told him he had pain in his back that was going into his leg, but he did not say anything about it being work-related. Marlene Glasnapp, Roger Glasnapp's spouse, stated that she performs the bookkeeping and dispatching for Glasnapp Transfer and maintains all records of the business. Marlene Glasnapp stated that Riley did not make any complaint of injuring his back while working for her and her husband in 1985, although she was aware he went to a chiropractor. Marlene Glasnapp stated that Riley did not submit any bills from the chiropractic treatments for payment. Marlene Glasnapp stated that Riley had gone to Iowa City and returned and told her he needed a CT scan and that it would cost $350. Marlene stated that Riley indicated he was afraid he might have cancer and Marlene and Roger Glasnapp advanced him $350. Marlene stated that, when Riley worked for them in May, 1986, she applied half of his earnings to the $350 advanced and paid the other half to him. Marlene stated that, when discussing the CT RILEY V. ROGER GLASNAPP PAGE 4 scan cost, Riley asked if they had any insurance which would cover him and that she told him the only insurance would be workers' compensation which covers accidents and injuries, but not cancer. Marlene Glasnapp testified that the first knowledge she had that Riley claimed his back condition was work-related was when her daughter, who is employed at her insurance agent's office, phoned and informed her of his claim. Marlene stated that she then prepared the first report of injury which appears in exhibit 17. Renee Haden is the daughter of Roger and Marlene Glasnapp. Haden testified that, in 1986, she was office manager at the Lytton Community Insurance Agency. Haden stated that she helped prepare a first report of injury that is in the record as defendants' exhibit B from information Riley provided to her. Haden stated that Riley, when he came to the office, was uncertain as to the date of injury and took a partially completed first report off injury form home to complete and then returned it. Haden ,stated that the portion written in blue ink was filled in when Riley returned the form. Haden stated that exhibit B-1 was completed within one or two days after Riley returned it. Haden stated that she phoned her mother and advised her that Riley was filing a claim. Duane Segebarth testified that he has been employed as a truck driver for Glasnapp Transfer for 13 years, but that he occasionally helps with the farming operation. Segebarth stated that he worked with Riley during the fall of 1985 and heard Riley tell of cutting iron from Ron Helmbrecht. Segebarth stated that Riley never told him that he had hurt his back while working at Glasnapp's and never discussed anything that had happened to his back, except that at one time, while having coffee at Glasnapp's, Riley mentioned Iowa City for back problems. Ronald Helmbrecht testified that Riley had agreed to salvage iron located on Helmbrecht's farm for one-half of whatever the iron sold for. Helmbrecht stated that the agreement was made in the spring and that he wanted the iron removed, but that, by September, Riley had not finished and another iron cuter had expressed interest in salvaging it. Helbrecht stated that, shortly thereafter, less than a week, someone did salvage the better iron while Helmbrecht was gone, but left the tin and wire. Helmbrecht testified that, shortly after making the agreement, Riley, his wife and children salvaged some of the iron, but left the rest sit for over the summer. Helmbrecht stated that he had settled with Riley on the iron for the work that was done in the spring of 1985, but that they had not settled for any work done subsequently. Diane Riley, claimants spouse, testified that, on or about September 16, 1985, Robert came home and informed her that he had been hurt at work lifting weights. Diane Riley stated that claimant went to Dr. DeVries, a chiropractor. Diane Riley stated that she discussed claimant's condition with Marlene Glasnapp shortly after claimant was injured. Diane stated that she told Marlene Glasnapp that Robert had been injured while working for Glasnapp's. Marlene Glasnapp denied being informed of such by Diane Riley. RILEY V. ROGER GLASNAPP PAGE 5 Exhibits 14 and 18 consist of records from DeVries Chiropractic Offices. A portion which is entitled "Confidential Patient Information" indicates that claimant was seen on September 30, 1985 and reported pain in his left hip which had started approximately a week earlier. The record makes reference to claimant having had his back broken and being knocked backwards loading hogs. The records do not specifically contain any portion which asks for a history with regard to the patient's current complaints or their onset. Exhibit 17 is a first report of injury prepared by Marlene Glasnapp. It indicates that the employer first knew of claimant's condition on a date which appears to be either May or June 4, 1986. Exhibit B is the first report of injury as returned by Robert Riley to Renee Haden at the insurance office and exhibit B-1 is that same report as completed by Renee Haden. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on or about September 16, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128, 130 (1967); Crowe v. DeSoto Consol. Sch. Dist., 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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the RILEY V. ROGER GLASNAPP PAGE 6 body, the impairment of health, or,a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960). Claimant's burden is to prove is that it is probable, as RILEY V. ROGER GLASNAPP PAGE 7 opposed to merely possible, that he was injured in the manner in which he alleges. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1956). The appearance and demeanor of all the individuals who appeared at hearing and testified was observed by the undersigned. The testimony with regard to whether or not Riley was injured while working with tractor weights in September of 1985 presents irreconcilable conflict between the testimony from Robert and Diane Riley and the testimony from Roger and Marlene Glasnapp. The record of this case shows Robert Riley to have had two serious injuries to his back prior to September of 1985. It is likely that Robert Riley's back has been a problem ever since it was initially injured in 1961. The first written corroboration of Riley's claim which can be found in the record appears to be either the first report of injury or his early treatment at the University of Iowa Hospitals. In any event, the earliest written corroboration appears to have originated in April or May of 1986. It is considered to be of significant importance that Riley continued to work through December on a full-time basis and thereafter continued to work on a part-time basis until May of 1986. There is evidence that Riley may have been injured while working for Glasnapp in 1984 without submitting the treatment expenses for payment. Having observed Riley and his activities since September of 1985, in light of his prior back problems, it would not be difficult for the undersigned to believe that Riley would have worked without complaint, even though he were experiencing pain. Nevertheless, the burden of proof rests with the claimant. It is determined that the credibility of Robert.and Diane Riley is not sufficiently strong to prevail over the irreconcilably conflicting testimony from Roger and Marlene Glasnapp. When the evidence is in equipoise, as it is in this case, the claimant has failed to carry the burden of proving that he was injured as he alleged. FINDING OF FACT 1. Robert Riley has failed to introduce sufficient evidence to show that it is more likely than not that he was injured while handling tractor weights as part of the duties of his employment with Roger Glasnapp on or about September 16, 1985. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The claimant, Robert O. Riley, has failed to prove, by a preponderance of the evidence, that he sustained an injury on or about September 16, 1985 which arose out of and in the course of his employment with Roger Glasnapp, d/b/a Glasnapp Transfer. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that each party is responsible for the costs incurred by that party in this proceeding and that neither shall receive an award of costs from the other. RILEY V. ROGER GLASNAPP PAGE 8 Signed and filed this 17th day of November, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Steve Hamilton Attorney at Law 606 Ontario Street P.O. Box 188 Storm Lake, Iowa 50588 Mr. Claire F. Carlson Attorney at Law 7th Floor, Snell Building P.O. Box 957 Fort Dodge, Iowa 50501 1402.30 Filed November 17, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT O. RILEY, Claimant, vs. File No. 832021 ROGER GLASNAPP, d/b/a GLASNAPP TRANSFER, A R B I T R A T I O N Employer, D E C I S I O N and ALLIED MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.30 Where the evidence was found to be in equipoise, it was held that the claimant failed to carry the burden of proving that he sustained an injury which arose out of and in the course of employment with his employer.