BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DOUGLAS STRAUSS, : : Claimant, : : File No. 833243 vs. : : BIL-MAR FOODS, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : KEMPER GROUP, : : Insurance Carrier, : Defendants. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Douglas D. Strauss, claimant, against Bil-Mar Foods, employer, and Kemper Group, insurance carrier, defendants, for benefits as a result of an alleged back injury from repeated bending while on the job which allegedly occurred in May 1984. A hearing was held in Storm Lake, Iowa, on January 6, 1989, and the case was fully submitted at that time. Claimant was represented by Peter J. Leehey. Defendants were represented by Thomas M. Plaza. The record consists of the testimony of Douglas D. Strauss, claimant, Dale R. Carver, Human Resources manager, and joint exhibits A through Z, AA, BB and CC. Claimant's counsel presented a claimant's hearing brief and a statement of claimant's costs at the time of the hearing. The deputy ordered a transcript of the hearing. Both attorneys submitted outstanding posthearing briefs. STIPULATIONS The parties stipulated to the following matters at the time of hearing: 1. That an employer-employee relationship existed between the employer and claimant at the time of the alleged injury; 2. That the rate of compensation in the event of an award of benefits is $155.59 per week; Page 2 3. That the provider of medical services and supplies would testify that their charges were reasonable and defendants are not offering contrary evidence; 4. That the causal connection of the expenses to treatment for a medical condition upon which claimant is now basing his claim is admitted but that the causal connection of this condition to a work injury remains an issue to be decided in these proceedings; 5. That in the event of an award of benefits, defendants are entitled to a credit under Iowa Code section 85.38(2) for the previous payment of $645.44 for disability income payments and $1,468.72 in medical expenses; 6. That defendants assert no claim for credit for workers' compensation benefits paid to claimant prior to hearing; and, 7. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: 1. Whether claimant sustained an injury which arose out of and in the course of his employment with employer; 2. Whether the injury was the cause of temporary disability during a period of recovery; 3. Whether claimant is entitled to temporary disability benefits and, if so, the nature and extent of benefits to which he is entitled; 4. Whether the injury was because of permanent disability; 5. Whether claimant is entitled to permanent disability benefits and, if so, the nature and extent of benefits to which he is entitled; 6. Whether claimant is entitled to medical expenses; 7. Whether claimant gave timely notice pursuant to Iowa Code section 85.23 was asserted as an affirmative defense by defendants; and, 8. Whether claimant commenced this action in a timely manner pursuant to Iowa Code section 85.26 was asserted as an affirmative defense by defendants. Page 3 PRELIMINARY MATTERS Claimant objected to defendants' exhibit F, page iii, a medical report of John J. Dougherty, M.D., dated December 13, 1988, and defendants' exhibit F, pages ggg and hhh, a medical report of Joel T. Cotton, M.D., dated December 6, 1988. Paragraph 6 of the hearing assignment order dated July 28, 1988 provides: Witness and Exhibit Lists. A list of all witnesses to be called at the hearing and a list of all proposed exhibits to be offered into the evidence at the hearing along with copies of all written exhibits not previously served shall be served upon opposing parties no later than fifteen (15) days prior to the date of hearing. Fifteen days prior to hearing would be December 22, 1988. Claimant's counsel admitted that he received joint exhibit F, page iii, on December 21, 1988, along with the witness and exhibit lists and that exhibit F, pages ggg and hhh, were served on him on December 15, 1988. Wherefore, since these exhibits were timely served, claimant's objection is overruled and exhibit F, pages ggg, hhh and iii were admitted into evidence. Defendants objected to claimant's exhibit 1, the deposition of Jo Weeces, a vocational rehabilitation consultant, and the four attached deposition exhibits. Deposition exhibit 1 is a written report of Jo Weeces, M.Ed, counselor, dated December 23, 1988. The deposition was taken on December 30, 1988. Defendants' objection was erroneously overruled at the time of the hearing and the exhibit was admitted into evidence under an erroneous interpretation of paragraph 7 of the hearing assignment order which states: "All evidentiary depositions shall be taken by the date of the hearing." (Hearing assignment order dated July 28, 1988) That ruling is now reversed. Defendants' objection to claimant's exhibit 1 is sustained. Claimant's exhibit 1, the deposition of Jo Weeces, vocational rehabilitation counselor, along with the four deposition exhibits, is not admitted into evidence. The written report of Counselor Weeces, dated December 23, 1988, and the deposition of this witness, dated December 30, 1988, were neither timely generated or served on defendants pursuant to paragraph 6 of the hearing assignment order. Claimant's witness and exhibit lists, which showed the report and deposition of Jo Weeces, were not served on defendants until December 23, 1988. Therefore, claimant's exhibit 1, the deposition of Jo Weeces and the four deposition exhibits, were neither timely generated nor served on defendants in compliance with paragraph 6 of the hearing assignment order and are, therefore, excluded from evidence. (Transcript pages 17 to 31) This deposition and the four deposition exhibits, even though they remain in the industrial commissioner's file, were not examined or considered in the determination of the issues in this case. Page 4 Defendants objected to claimant's exhibit 2, a medical report, dated December 23, 1988, and received by defendants' attorney on December 28, 1988. Defendants' objection to claimant's exhibit 2 was sustained and claimant's exhibit 2 was not received into evidence for the reason it was not timely served pursuant to paragraph 6 of the hearing assignment order. Claimant did not wish to make an offer of proof of the exhibit and withdrew it at that time. (Transcript pages 15 and 16) Defendants' exhibit D, a video at defendant employer's plant was shown at the hearing and the custody of this video was placed in defendants until the expiration of all appellant periods on this claim. Defendants' exhibit G, a video of the testimony of Arthur Ames, was not received into evidence for the reason that the deposition itself was admitted into evidence in written form as to exhibit D. The deputy agreed to watch the video at the hearing but defendants elected not to show the video at that time. At the conclusion of the hearing claimant moved to amend the date of injury on the original notice and petition to conform to the proof to show an onset of symptoms in March of 1984 which finally caused claimant to terminate his employment in March of 1985 (Tr., p. 135). It is not necessary to amend the petition to conform to the proof in workers' compensation proceedings and claimant's motion is overruled. Technical forms of pleading have been abolished (Iowa Rule of Civil Procedure 16). Each averment of a pleading shall be simple, concise and direct (Iowa R.Civ.P. 69b). Iowa law does not require the petition to identify a specific legal theory. A pleader is not required to allege a legal theory or spell out elements of a cause of action as in common law pleading. Haughland v. Schmidt, 349 N.W.2d 121, 123 (Iowa 1984). A petition is sufficient if it apprises a defendant of the incident giving rise to a claim and the general nature of the action. State Savings Bank of Hornich v. State Bank of Onawa, 368 N.W.2d 161, 163 (Iowa 1985). The rules of civil procedure require only that fair notice of a claim be given. Schill v. Careage Corporation, 353 N.W.2d 416 (Iowa 1984). The key to pleading in an administrative matter is nothing more than or less than the opportunity to prepare and defend. Hoenig v. Mason & Hanger, Inc., 162 N.W.2d 188, 192 (Iowa 1968). Page 5 An application for arbitration is not a formal pleading subject to technical rules of pleading. There is no requirement for the same conformity of proof to pleading as in ordinary actions. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 373; 112 N.W.2d 299 (1961). The same has been said of workers' compensation review-reopening actions. Coghlan v. Quinn Wire & Iron Works, 164 N.W.2d 848, 850 (Iowa 1969). An arbitration petition may state the claim in a general manner. Technical rules are not observed and defendant need only be generally informed as to the basic material facts upon which the employee relies as a basis for compensation. Iowa Workers' Compensation Law and Practice, Lawyer and Higgs, Section 21-5. The industrial commissioner and deputies are required to make decisions based on the facts presented even if they are different or contrary to the theory pled. Johnson v. George A. Hormel & Company (Appeal Dec. June 21, 1988); McCoy v. Donaldson Company, Inc. (Appeal Dec. April 28, 1989). Shank v. Mercy Hospital Medical Center (Appeal Dec. August 28, 1989). Any variance between pleading and proof is immaterial unless it misleads a defendant to his prejudice. Coughlan v. Quinn Wire and Iron Works, 164 N.W.2d 848 (Iowa 1969); Yeager, 253 Iowa 369; 112 N.W.2d 999. There is no evidence that defendants have been misled to their prejudice. On the contrary, defendants knew the issues and evidence extraordinarily well as evidenced by the report of Dr. Cotton, defendants' evaluator, on December 6, 1988, just one month prior to the hearing. Furthermore, the petition specifically stated in item 10, How did injury occur: "Repeated bending while on the job at Bil-Mar Foods in Storm Lake." Therefore, a cumulative injury, as distinguished from a noncumulative injury, was alleged in the first place. Defendants are knowledgeable about cumulative injuries as indicated by their defense of this case. Page 6 FINDINGS OF FACT INJURY It is determined that claimant did sustain a cumulative injury to his back which occurred on December 7, 1988, the first day claimant was forced to lose work due to the injury. Claimant started to work for employer on October 15, 1982. He worked as a leg dropper until approximately February or March 1984. Claimant described in words and physically demonstrated that this job consisted of making a cut through the leg with a knife in his right hand, then he would break the leg out of the socket of the body of the turkey, and then he cut the turkey along the back so that the thigh and drum would hang down. This operation was performed at approximately shoulder height on birds which were hung upside down and came toward him on a conveyor line. (Tr., pp. 35-38) In February or early March 1984, claimant transferred to wing deboning. He also described in words and physically demonstrated this process. He would grab the wing with his left hand, then make a cut with a knife in his right hand down along the bone, and then with the left hand he would break the wing out of the socket of the body of the turkey and cut it off. (Tr., p. 38) Claimant further contended and demonstrated that he performed this job in a slightly bent over position and that the product was waist high or a little below. In addition, claimant contends that since he was neither experienced or qualified to perform this job, it was necessary for him to lean to the right in order to start his cut and finish his operation before the turkey had advanced beyond his position on the line. In short, claimant contends that he performed this job in a bent over position which required him to lean and reach to the right and to the left as the turkey proceeded along the conveyor line. Claimant further testified that after he performed wing deboning for approximately one week to a week and a half, he developed a pain beneath his left shoulder blade just left of the midline of his thoracic spine (Tr., pp. 39-41). Claimant reported the problem to his supervisor and the plant nurse and he was sent to see Mark S. Schultz, D.O., at the Family Health Center, who was the employer's physician (Tr. pp. 42-44). Claimant had previously shown a reduced tolerance for repetitive work. On November 4, 1982, prior to this injury, one of the physicians at the Family Health Clinic reported that claimant had trouble gripping with his right hand and that in the morning he can't close his hand. The physician noted that claimant drops legs at Bil-Mar. This was diagnosed as tendonitis right forearm and wrist, with possible early carpal tunnel syndrome. (Ex. F, p. r) Again, on April 6, 1983, the same physician noted that claimant developed a lump over his left wrist and that the patient drops about 5000 legs a day with his left wrist. The physician surgically removed a ganglion cyst from the left wrist. The physician noted "I told the patient I thought the cyst probably was secondary to repetitive motion." (Ex. F, p. r) Page 7 The records of the Family Health Center show that claimant was first seen by the same physician, reported to be a Dr. Daniels, on March 27, 1984 for this injury. The doctor reported that claimant developed lower thoracic pain after performing a different job for one and one-half weeks. He noted that claimant had previously dropped legs for one and one-half years. Dr. Daniels diagnosed lower thoracic back strain and recommended a different job if the back pain persists in a week (Ex. F, p. s). Claimant then saw Dr. Schultz at the Family Health Center on April 26, 1984, who noted that the problem developed on a job in which he did a lot of bending. He noted claimant was switched back to his previous job but was still having thoracic pain which gradually gets worse while he is at work (Ex. F, p. s). On June 27, 1984, Dr. Schultz reported that the pain was increasing and recommended that he stop his job performed with his arms above his mid-thoracic area. On November 6, 1984, Dr. Schultz reported that a job off the line which involved a lot of bending, twisting and lifting had aggravated his back again and involved his lower back as well (Ex. F, p. t). Claimant continued to treat with Dr. Schultz in November 1984 for back pain which claimant contends was caused by work. On December 1, 1984, Dr. Schultz referred claimant to William Follows, M.D., an orthopedic surgeon. Dr. Follows saw claimant on December 4, 1984. In his history, Dr. Follows stated: "He got into problems about February of this year when they started him on a job which required him bending over a little bit and although he has gotten off that job since then he has continued to have problems." (Ex. F, p. k) Dr. Follows' orthopedic examination, neurologic examination, and x-rays were negative. He diagnosed "muscle and ligament strains." (Ex. F, p. k) He prescribed medication, ultrasound, physical therapy and exercises (Ex. F, p. k) On July 10, 1986, Dr. Follows gave a report which stated that claimant did show a limitation of motion on December 4, 1984. Further, he did not feel that the injury represented a permanent injury or disability at that time. He only saw claimant on the one occasion on December 4, 1986. Dr. Schultz reported on December 6, 1984 that claimant reported a pain in his back from his job at Bil-Mar which involves a lot of bending, twisting and lifting. The doctor diagnosed paravertebral strain, thoracic lumbar strain (Ex. F, p. n). Claimant received almost daily intensive physical therapy at the Sports Rehab & Physical Therapy, Inc., from December 4, 1984 through December 31, 1984 (Ex. F, pp. kkk, lll, l, m, o, p and q). Claimant also received seven chiropractic adjustments at the the Walsh Chiropractic Office in Storm Lake from February 1, 1985 to February 15, 1985 (Ex. F, p. z) Claimant was examined at the Mayo Clinic from February 22 to 25, 1985 by the Department of Nephrology, Department of Orthopedics and Department of Medicine and Rehabilitation. Steven M. Dittes, M.D., of the Mayo Clinic, reported on March Page 8 5, 1985, to Arthur Ames, M.D., claimant's personal physician, that their physical examination, laboratory tests and x-rays were generally normal. Dr. Dittes concluded: In summary, we found Mr. Strauss to be a reasonably healthy 21-year-old with musculoskeletal lower and upper back pain. There seemed to be no particular stress and no evidence of depression present and his story seemed quite straightforward. An MMPI was performed and was entirely unremarkable which further reached to the conclusion that the patient is suffering from significant musculoskeletal pain....The patient had recently found that there was an opportunity for a less physically exerting job and he was encouraged, if this was reasonable, to attempt this. (Ex. F, p. aa) Dr. Schultz made a report on July 14, 1986 in which he stated that he saw claimant on several occasions for muscle and ligament strains. He did not recall any specific injury that initiated this, however, he did recall that claimant had a lot of trouble working with his arms over his waist and also trouble with prolonged standing. He said he last saw claimant on January 10, 1985 when his diagnosis was chronic back pain, etiology uncertain. Thomas J. Kass, D.C., reported that he saw claimant as a new patient on June 25, 1986 for chronic mid-thoracic pain which radiated under the left scapula. Claimant contends the condition began while working for Bil-Mar Foods in Storm Lake. Dr. Kass diagnosed "This man appears to have suffered an acute subluxation of the T6 with left intercostal neuritis radiating under the left scapula (Ex. F, p. oo). He treated claimant on two occasions and claimant discontinued his treatments because he felt that they were not helping him (Ex. F, p. oo). The medical evidence shows that claimant first saw his own personal physician, Arthur Ames, M.D., as early as May 17, 1984 for muscle and ligament problems. He advised claimant to stick with the company-authorized physicians because he agreed with their treatment and they would be paid by the employer whereas his charges would not be covered. Claimant saw Dr. Ames again on February 18, 1985, March 4, 1985 and March 25, 1985. He agreed with the Mayo Clinic consultation concerning exercise, weight loss and to avoid bending and lifting stress on his back. Claimant did not see Dr. Ames again until June 21, 1986 for back ache of the upper back aggravated by movement which he continued to diagnose as muscle or ligament strain. On August 7, 1986, Dr. Ames recorded in his notes: "Probably sec to injury, probably a muscle strain since this problem started while he was working on a different job at BilMar Foods." (Ex. F, p. ff) Page 9 Dr. Ames reported on August 9, 1986: In considering his situation, it is important to note that before the time he was working at BilMar he never had any indication of back problems so it would seem logical that he must have somehow injured it while working at BilMar. As far as the nature of the injury the x-rays, as reported by the Mayo Clinic, have been totally normal so it must have been a muscle ligament injury that never healed properly. Since it has been going on so long, I would expect it to be permanent and I would expect him to have some permanent disability from this since he does have a lot of discomfort when he bends, lifts or works with his arms raised up in the air. I hope this information helps. (Ex. F, p. hh) Claimant continued to see Dr. Ames through 1986 and 1987. Dr. Ames referred claimant to the University of Iowa Hospitals and Clinics on February 6, 1987 (Ex. F, p. qq). On February 20, 1987, a Dr. Farber (full name unknown), examined claimant along with a Dr. Shaffer (full name unknown). He suspected a herniated nucleus pulposus of the thoracic spine. He ordered an MRI (Ex. F, p. zz). The University x-ray on February 20, 1987 reported: "AP and lateral views of the thoracic spine demonstrate normal alignment. The vertebral body heights and disc spaces are within normal limits. There is no evidence of intraosseous abnormality." (Ex. F, pp. yy, h, zz and i) Claimant returned to the University on March 12, 1987 for the MRI which came out as a negative examination. The report stated: The cervical and thoracic spine were visualized to the level of T11-T12 disc space. The cervical as well as thoracic cord is normal in appearance. The spinal subarachnoid space is of normal dimensions. There is no evidence of herniated disc in either the cervical or thoracic spine. No mass lesions evident. (Ex. F, p. c) Claimant was instructed on a TENS unit (Ex. F, pp. b and e). He testified that he preferred not to use the TENS unit because it only masked the pain and did not cure it. On July 17, 1987, Dr. Ames noted that the pain was aggravated by any movement, particularly bending, lifting and raising his arms over his head. He stated claimant had a partial permanent disability of his back of 20 percent (Ex. F, pp. aaa and bbb). Page 10 Dr. Ames gave a deposition on December 2, 1988 in which he stated that he is a board certified family practice physician and that he had been claimant's personal physician since September 1973. He examined his notes and stated that claimant had never been treated at any time previously for a back complaint (Ex. D, pp. 2-6). The doctor's notes at the Family Health Center show that claimant was given a pre-employment physical examination on October 12, 1982 and concluded: "Given unlimited hire at Bil Mar." (Ex. F, p. r). Dr. Ames testified several times in his deposition that claimant's employment was the cause of the back injury. At the time of claimant's initial visit on May 17, 1984, he thought that the problem was caused by his work and that the Bil-Mar doctors thought the back problem was caused by his work. Dr. Ames said it sounded to him like it was a work injury and that he should continue with the Bil-Mar doctors because he knew them to be quite good and that claimant would have insurance coverage for them (Ex. D, pp. 7 and 8). Dr. Ames stated that he agreed with the evaluation made by Dr. Follows, the orthopedic surgeon, in Spencer, Iowa, and the evaluation of the various medical specialists at the Mayo Clinic (Ex. D, pp. 9-17). He referred claimant to the University of Iowa and continued to treat him through July 15, 1987, at which time he prescribed an antidepressant because claimant became discouraged because of his persistent continuing back pain (Ex. D, pp. 18-23). Dr. Ames was asked for his opinion on causal connection and he replied: "My opinion is that this back problem was caused from his work at Bil-Mar." (Ex. D, p. 24) He further testified "My opinion is that this -- since it's -- since it's continued for such a long time, unchanged, that it will be permanent." (Ex. D, p. 24). Dr. Ames stated that the permanent partial disability of 20 percent that he had previously mentioned in his reports translated to a 4 percent impairment to the body as a whole (Ex. D, p. 25). Dr. Ames elaborated on his opinion about causal connection on cross-examination in these words: Page 11 Simply the fact that, according to our record, he had never had any back problems before, and according [to] the record, from our office and from the Family Health Center, he started having discomfort in this specific spot while he was doing a specific job at Bil-Mar. And the findings of discomfort in that area aggravated by movement had persisted very consistently since that. And I believe -- I believe him to be an honest and reliable person. (Ex. D, p. 34) Dr. Ames reiterated his opinion by stating "...but the situation remains that I believe him to be honest and reliable, and he did develop this problem while working on this job and has persisted." (Ex. D, p. 41) The final dialogue on causal connection between Dr. Ames and defendant's counsel was as follows: Q. Yeah. How can we say it's anything but coincidental knowing so little about what he was actually doing? A. I apologize for not being better prepared on the exact nature of that job, but I am presuming that the job involved arm and shoulder work and back work that could affect that area. And I am presuming -- and maybe we should bring this in here now -- that originally our friends at Bil-Mar agreed that this was from work, did they, or did they not? Q. I don't know if that really matters for your medical opinion. A. Okay. No problem. No problem. It doesn't at all. Forget that. Anyway, you've heard my opinion, and you're entirely right. It's based on the fact that he was doing that job, and that's when things started. (Ex. D, pp. 41-42) Page 12 Dr. Ames stated that his 4 percent permanent impairment rating was not based on the AMA Guides but rather his own personal judgment (Ex. D, pp. 42-43). Claimant was examined by John J. Dougherty, M.D., for defendants on October 1, 1987. Dr. Dougherty proceeded on the history given by claimant that his back pain occurred when he changed jobs from leg dropping to wing deboning. He said, "It appears to be more of a chronic strain of the dorsal spine." (Def. F, p. eee) Dr. Dougherty did not make a specific statement on causal connection. He did, however, award a permanent impairment rating. He stated: As far as permanent partial impairment, this is certainly a difficult problem to assess because basically, I don't think he has any permanent partial impairment from a physical standpoint that is demonstrable. The functional disability he states is related to his complaints. I think in trying to determine the physical disability as a result of his complaints referable to pain when he does something is most difficult. Based on this, one might give him approximately 5% of the body, but I would really think he's not entitled to anything more. (Ex. F, p. eee) Claimant was also examined by Joel T. Cotton, M.D., a neurologist for defendants, on December 5, 1988. Dr. Cotton concluded: It is my opinion, based upon a reasonable degree of medical certainty, that Mr. Strauss' neurological examination is normal and he is without neurological impairment. Based on a reasonable degree of medical certainly [sic], there is no persistent disability in this individual from a neurological standpoint and that he is at a state of maximal medical benefit. In addition, based on a reasonable degree of medical certainty, it is my opinion that there is no limitation on this individual's ability to perform all usual and customary activity. Based on a reasonable degree of medical certainty, the job performed in the spring of 1984 did not produce any permanent injury on the basis of the history obtained from the patient, the medical records I reviewed, the examination I performed on Mr. Strauss, and after review of the video tape showing the four activities performed at Bil Mar Foods by the patient possibly during that injury. Ex. F, pp. ggg and hhh) Page 13 Dr. Dougherty gave a final letter on December 13, 1988, which stated: Reviewing his record, it would certainly appear that there is no reason to restrict his activity from an objective standpoint. We've gone over the findings of the Mayo Clinic and Iowa City. The only other thing is, his history does suggest that he does have problems with standing for long periods of time. I think from an objective standpoint, I couldn't see any reason to restrict his activity. From a subjective standpoint, if he can't take it, then one might have to consider that. (Ex. F, p. iii) Claimant clearly established by the testimony of Dr. Ames, his personal physician, who saw him from May 17, 1984 right up to the time of hearing, that claimant's employment was the cause of this injury. Dr. Ames unequivocally stated that the employment was the cause of the injury. The only contradictory evidence is Dr. Cotton, who only saw claimant on one occasion for a defense evaluation for purposes of litigation over four and one-half years after the injury first manifested itself. The opinion of Dr. Ames is preferred over the opinion of Dr. Cotton. Rockwell Graphic Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). The treating physician had more opportunity to form his expert opinion than the one time examiner of defendants. Lemon v. Georgia Pacific Corp., II Iowa Indus. Comm'r Rep. 204, 205 (Appeal Dec. 1981); Clement v. Southland Corporation, I Iowa Indus. Comm'r Rep. 56, 58 (1981). Dr. Ames' primary responsibility was the recovery of the patient whereas Dr. Cotton's primary responsibility was to make a report for defendants. Dr. Schultz was also an employer-retained and authorized physician who treated claimant from March 27, 1984 through January 10, 1985. Even though Dr. Schultz finally concluded that claimant had chronic back pain, etiology unknown, his office notes clearly show that he suspected claimant's job was the cause of his back pain and that his primary treatment mode was to change claimant's duties. Dr Follows, the orthopedic surgeon, proceeded on the history of an employment-related injury, treated claimant on the basis of that history, did not dispute that this history for the complaints was incorrect, and did not suggest any other cause for claimant's back complaints. The Mayo Clinic doctors also accepted claimant's history of changing jobs as the cause for his complaints and concurred that the primary treatment modality should be a change of employment which was less strenuous. Page 14 The pre-employment physical examination and Dr. Ames' history for claimant going back to 1973 showed no evidence of any prior back complaints whatsoever. From the foregoing evidence, it is determined that claimant sustained an injury which arose out of and in the course of his employment with the employer, the first symptoms of which began to occur in March 1984. It is further determined that claimant has sustained a cumulative injury. Claimant demonstrated and described in words the hand and arm movements to perform leg dropping and wing deboning. Claimant also performed thigh deboning and trim scaling. These jobs also required repetitive movements of the hands and arms, however, claimant did not perform these jobs in a bent over position while leaning and reaching from right to left with his hands and arms outstretched in front of him, which was the case in wing deboning. Dale Carver, the human resources manager, testified that the plant processed about 12 birds per minute and that if 10,000 turkeys were processed, claimant would have handled approximately one-third of them or 3,300 turkeys in the leg dropping job (Ex. C, p. 6). Dr. Daniels, of the Family Health Center, indicated that claimant drops about 5,000 legs a day (Ex. F, p. r). The exact count was not given for wing deboning but the witnesses seemed to proceed on the basis that it would be similar to leg dropping. The video demonstrated that all four of these jobs were repetitive hand and arm motion jobs. The video did not show the wing deboners bending forward or leaning from right to left. However, claimant explained that he was not a qualified wing deboner and he needed to perform the job in this manner in order to keep pace with the speed of the line. Other testimony showed that the wing deboning line had been changed to a different room from when claimant performed that job and Carver could not answer specific questions about the manner in which it was performed previously and currently. Defendants indicated that claimant was an avid golfer and also may have lifted beer cases when he worked in his parents' bar and grill. However, there was no evidence of any kind, medical or nonmedical, that golfing caused or contributed to claimant's back complaints. Nor was there any evidence that working for his parents was the cause of claimant's back complaints. Claimant testified that he had not worked for his parents since high school. Even then, there was no evidence that he lifted beer cases or that he injured his back in the employment of his parents. Page 15 Based upon the fact that claimant sustained a cumulative injury, it is determined that the injury date is December 7, 1984, when claimant, because of pain, was no longer able to perform the job. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). CAUSAL CONNECTION - TEMPORARY DISABILITY Claimant is entitled to temporary disability benefits for three different periods of time for which he was off work during a period of recovery. Claimant saw Dr. Follows on December 4, 1984 (Ex. F, p. k) and began an intensive course of physical therapy on that date (Ex. F, p. ll). Claimant testified that he first lost work on December 7, 1984 (Tr., p. 58). In mid-December, Dr. Schultz commented that since he had been seen by a specialist, this treatment should be given a fair trial and claimant was continued off work for another two weeks (Ex. F, p. u). Dr. Schultz returned claimant to work full-time on January 2, 1985 (Ex. F, p. v). Claimant is entitled to 3.857 weeks of healing period benefits for the period from December 7, 1984 through January 2, 1985. On February 18, 1985, Dr. Ames stated: "Has been disabled for any work starting 2-1-85." (Ex. F, p. ff) On March 4, 1985, Dr. Ames said: "I gave him a note that he is OK for work but should avoid work that involves a lot of stress on his back." (Ex. F, p. ff). Therefore, claimant is entitled to healing period benefits again from February 1, 1985 through March 4, 1985, a period of 4.571 weeks. Dr. Ames took claimant off work again on September 19, 1986. He stated: "He has musculoskeletal pain he had too much pain to perform his current occupation and I advised him to stop work foir [sic] the sign co. He's anxious to try work that avoids lifting much or working with hands and arms above shoulder level." (Ex, F, p. qq) Page 16 On October 15, 1986, Dr. Ames said that claimant could return to work in these words: "He can try light work, he can't do anything heavy that involves a lot of pulling or pushing and can't work above his head. I am going to try and get IA City appointment for him." (Ex. F, p. qq) Therefore, claimant is entitled to 3.857 weeks of healing period benefits for the period from September 19, 1986 through October 15, 1986. These three periods of temporary disability for healing period total 12.285 weeks. Dr. Ames said that claimant's disability was caused by this injury. Even though Dr. Schultz formerly stated that the etiology was unknown, his notes disclose that he suspected that claimant's work was the cause of his disability because his primary method of treatment was to have claimant try other jobs to alleviate claimant's back complaints. Furthermore, Dr. Dittes, of the Mayo Clinic, endorsed a change of employment as a remedy for claimant's condition which certainly indicates that claimant's work was suspected to be the cause of his injury and his disability. Claimant had no prior history of back complaints going back to 1973 and he was given an "unlimited hire" endorsement at the time of his pre-employment physical examination by Dr. Daniels. There was no evidence that golf or lifting beer cases had ever caused any injury or back complaints to claimant of any kind at any time. CAUSAL CONNECTION - PERMANENT DISABILITY For the reasons stated in the foregoing section, it is determined that the injury was the cause of permanent disability. It is further determined that claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent partial disability benefits. There is no objective evidence of a severe traumatic bodily injury. Claimant was examined by numerous physicians. Dr. Follows is an orthopedic surgeon. He was examined in the internal medicine department, orthopedic department and physical medicine department at the Mayo Clinic. He was examined by two orthopedic surgeons at the University of Iowa Hospitals and Clinics. His final diagnosis appears to be chronic back pain by Dr. Schultz and muscular ligament strain that never healed by Dr. Ames. A MMPI and the opinion of various doctors verified that there was no psychological overlay, however, there is evidence that claimant did suffer some depression after his pain persisted for more than two years. Dr. Ames and the Mayo Clinic Page 17 doctors believe that claimant truly suffered the pain. Claimant contends that it has never improved since the first symptoms appeared back in March 1984. Dr. Ames said it was a permanent injury. Claimant contends that he cannot stand for long periods of time and he cannot sit without back support for a long period of time. Claimant said he had trouble working with his arms upraised or extended. Dr. Ames restricted claimant from heavy work, and work which involved bending, lifting or working with his arms and hands extended. Claimant has cooperated with the treatment offered. He was advised to lose weight. Claimant testified and the medical evidence corroborates that claimant did lose weight. Claimant contends that he lost 60 pounds, reducing his weight from 210 to 150 pounds early in his period of recovery (Tr., p. 50 and 74). Claimant testified that he was forced to terminate this employment by mutual agreement with employer because he was unable to perform the work (Tr., p. 75). Dr. Ames determined that claimant has sustained a 4 percent permanent functional impairment. Dr. Dougherty determined that claimant sustained a 5 percent functional impairment based upon his physical complaints which Dr. Dougherty did not dispute. Also, Dr. Dougherty did not see any need for restrictions from an objective standpoint but he stated: "From a subjective standpoint, if he can't take it, then one might have to consider that." (Ex. f, p. ii) Dr. Ames felt claimant should be restricted from heavy lifting, bending and reaching, and working with his arms extended as well as working in a standing position for prolonged periods of time. Thus, claimant is foreclosed from some of the easiest to obtain and sometimes the best paying jobs in the competitive labor market. Michael v. Harrison County, Thirty-fourth Biennial Rep., Iowa Ind. Comm'r 218, 220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe Products Company, I Iowa Indus. Comm'r Rep. 282 (1984). Claimant, born June 10, 1963, was 21 years old at the time of the injury and 25 years at the time of the hearing. Because of his young age, claimant's industrial disability is less serious than it would be for an older worker who is injured at the peak of his earnings career. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Rep., Iowa Ind. Comm'r 34 (Appeal Decision 1979); Walton v. B & H Tank Corporation, II Iowa Ind. Comm'r Rep. 426 (1981); McCoy v. Donaldson Company, Inc., File No. 782670 and 805200 (Appeal Decision April 28, 1989). Page 18 The feasibility of retraining is one of the factors to determine industrial disability. Conrad v. Marquette School, Inc., IV Iowa Ind. Comm'r Rep. 74, 78 (1984). In this case claimant has sought retraining and completed a two year course in electronics, achieved a 3.42 grade point average and obtained a degree (Tr., p. 64). Claimant anticipated that he would obtain employment at the same rate of pay that he was earning for this employer (Tr., pp. 64-65). However, since claimant had not obtained employment at the time of the hearing, the amount of money he might be able to earn in the future is only speculative. Stewart v. Crouse Cartage, File No. 738644 (Appeal Decision February 20, 1987); Umphress v. Armstrong Rubber Company, File No. 723184 (Appeal Decision August 27, 1987). Claimant's earnings were reduced while he attended community college for two years from October 1986 to October 1988. Furthermore, even though he received grants and public assistance, he also borrowed a substantial amount of money in order to complete his education (Tr., pp. 81-85). His part-time employment as a security guard at Iowa Methodist Hospital on weekends and his later employment as a meter reader for a few months during the summer were minimum wage jobs from which he earned far less than the $6.25 per hour he was earning for employer at the time of the injury. Claimant's past employments of grocery store clerk and gas station attendant would appear to be two of the jobs from which he is foreclosed from doing in the future because of the recommended restrictions of Dr. Ames against heavy lifting, bending and reaching, and working with his hands and arms extended. Claimant has a high school education and in addition has now obtained a community college education in electronics, which is a field with a number of opportunities that claimant was exploring at the time of the hearing. Wherefore, based upon the evidence presented, and all of the factors used to determine industrial disability, Peterson v. Truck Haven Cafe, Inc. (Appeal Decision February 28, 1985), Christensen v. Hagen, Inc. (Appeal Decision March 26, 1985), and applying agency expertise, rule 343 IAC 17A.14(5), it has been determined that claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent partial disability benefits. Page 19 MEDICAL BENEFITS Claimant contends that he was entitled to his unpaid medical expenses of $1,940.56 (Tr., p. 72; Ex. F, pp. aa, bb and cc). This is the amount due after the employer is allowed credit for all payments made by the employer and the employer's insurance carrier. The parties stipulated that these charges are reasonable. It is determined that claimant is entitled to $1,940.56 in unpaid medical expenses. NOTICE Since the injury is determined to have occurred on December 7, 1984, there is no question that employer and insurance carrier had notice at that time. Claimant had undergone a great deal of medical treatment, including a number of job changes to try to alleviate his job injury complaints. He took a leave of absence for medical reasons in February 1985. He and Carver agreed that he should terminate his employment on March 4, 1985 because of his inability to perform the job due to his back injury. Even back in March of 1984 claimant reported the injury to his supervisor, Jay Ponsor, and the plant nurse, Dotty Kraft, and cooperated extensively with Dale Carver to try to find a job he could do within the employer's plant that did not exacerbate his back injury. Therefore, it is determined that defendants had actual notice of the injury and did not sustain the burden or proof by a preponderance of the evidence that claimant failed to give notice pursuant to Iowa Code section 85.23. STATUTE OF LIMITATIONS It is determined that this action was timely filed pursuant to Iowa Code section 85.26. The injury occurred on December 7,1984. The petition was filed within two years on November 3, 1986. Page 20 Defendants were not misled about what injury they were defending. There has only been one injury to claimant's thoracic spine on the left at the level of approximately T7, which has been the primary subject of all of claimant's medical treatment with all of the doctors even though earlier he also manifested temporarily some lower back complaints. Consequently, it is determined that this action was timely filed pursuant to Iowa Code section 85.26. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant sustained a cumulative injury to his thoracic spine on December 7, 1984, which arose out of and in the course of his employment with employer. McKeever, 379 N.W.2d 368; Iowa Code section 85.3(1); 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). It is determined that the injury was the cause of temporary disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). It is determined that claimant is entitled to three periods of healing period benefits which were caused by this injury: From December 7, 1984 through January 2, 1985, a period of 3.857 weeks; from February 1, 1985 through March 4, 1985, a period of 4.571 weeks; and from September 19, 1986 through October 15, 1986, a period of 3.857 weeks. The total period of benefits add up 12.285 weeks. Iowa Code section 85.34(1). It is determined that the injury was the cause of permanent disability. Bodish, 257 Iowa 516, 133 N.W.2d 867. Lindahl, 236 Iowa 296, 18 N.W.2d 607. It is determined that claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). It is determined that claimant is entitled to $1,940.56 in medical benefits. Iowa Code section 85.27. Page 21 It is determined that defendants did not sustain the burden of proof by a preponderance of the evidence that claimant failed to give notice of this injury. Iowa Code section 85.23. It is determined that defendants did not sustain the burden of proof by a preponderance of the evidence that claimant failed to timely commence this action. Iowa Code section 85.26. ORDER THEREFORE, it is ordered: That defendants pay to claimant twelve point two eight five (12.285) weeks of healing period benefits at the rate of one hundred fifty-five and 59 dollars ($155.59) per week in the total amount of one thousand nine hundred and eleven and 42/100 dollars ($1,911.42) for the periods previously specified in the findings of fact and conclusions of law. That defendants pay to claimant one hundred (100) weeks of permanent partial disability benefits at the rate of one hundred fifty-five and 59/100 dollars ($155.59) per week in the total amount of fifteen thousand five hundred fifty-nine dollars ($15,559.00) commencing on January 3, 1985, which is the end of the first healing period but further interrupted by the other two periods of healing determined above. That defendants are entitled to a credit in the amount of $645.44 for income disability payments made to claimant prior to hearing under an employee group health plan. That these amounts are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants are charged with the costs of this action, including the cost of the transcript, pursuant to rule 343 IAC 4.33. With respect to claimant's statement of costs attached to the prehearing report, claimant is not entitled to the court reporter expense for the deposition of Jo Weeces in the amount of one hundred twenty-eight dollars ($128.00). However, claimant is entitled to the other costs shown on claimant's statement of costs which are as follows: Page 22 Court reporter charges for the deposition of: Dr. Ames................................ $213.95 Dale Carver............................. 205.95 Claudia Harrington...................... 170.65 Robert Flaherty......................... 130.46 Expert witness fee for Dr. Ames.. .......... 150.00 Total $871.01 That defendants pay to claimant or the provider of medical supplies and services one thousand nine hundred forty and 56/100 dollars ($1,940.56). That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this _____ day of January, 1991. ______________________________ WALTER R. McMANUS DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr David A Opheim Mr Jerry C Estes Attorneys at Law 400 Boston Center P O Box 1314 Fort Dodge IA 50501 Mr Peter J Leehey Attorney at Law 503 Snell Bldg P O Box 1680 Fort Dodge IA 50501 Mr Thomas M Plaza Attorney at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51101 BEFORE THE IOWA INDUSTRIAL COMMISSIONER J. L. VIVIANS, Claimant, File No. 833244 VS. A R B I T R A T I 0 N JOHN DEERE WATERLOO TRACTOR WORKS, D E C I S I 0 N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding in arbitration brought by J. L. Vivians against John Deere Waterloo Tractor Works, his self-insured employer. The case was heard and fully submitted at Waterloo, Iowa on February 13, 1989. The record in the proceeding consists of testimony from J. L. Vivians, Mardra Galloway, Fritz Tegtmeier, Richard McKinney and Myrna Smith. The record also contains jointly offered exhibits A through N. ISSUES Claimant contends that he sustained an injury which arose out of and in the course of his employment in a fall on August 27, 1985 or September 5, 1985. He seeks compensation for healing period and permanent disability based upon injury to his back. The employer admits that claimant sprained his ankle on August 27, 1985, but denies the occurrence of any other injury. The employer further denies that the sprained ankle or the incident which produced it caused any injury to any other part of claimant's body. The claimant seeks payment of medical expenses under Iowa Code section 85.27. The employer denies liability and further states that the treatment claimant received was not authorized. It was stipulated that the employer is entitled to credit under Iowa Code section 85.38(2) for disability income payments in the amount of $12,071.60 paid from November 1, 1985 to August 15, 1986. The employer also contends that claimant's claim is barred by lack of notice pursuant to Iowa Code section 85.23. 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 VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS Page 2 any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. J. L. Vivians is a 53-year-old man who has been employed by the John Deere Waterloo Tractor Works since 1972. Prior to that time, he had worked at a metal shop for approximately 20 years, pumped gas for approximately 6 years, worked as a truck driver and farmed. Claimant's education is limited to the ninth grade. He has no further formal education or technical training and did not serve in the military. Claimant had injured his back in the early 1970's and in 1974 underwent spinal surgery with a fusion performed by John R. Walker, M.D. Since that time, he has had incidents of back pain and physical restrictions upon his activities. Vivians was working as a material handler on August 27, 1985. He stated that his job involved loading carts and putting things into a storage area. Claimant stated that a crane set pallets up against the wall where he stands, but that there is a drop-off of approximately four feet deep if the crane is not in position. Claimant stated that on August 27, 1985, the crane was malfunctioning and was not placing the pallets against the edge where he stands leaving them four or five feet away from the edge. Claimant stated that he had to step over the gap, made a misstep and fell, catching himself with an arm on a steel plate. Claimant stated that his union steward, John Hoppers, helped him climb up out of the area. Claimant stated that another employee also assisted in getting him out of the area and that his supervisor was called. Claimant stated that at the time of the incident his supervisor was Fritz Tegtmeier. Claimant stated that he reported that he fell to Tegtmeier and that he thought Tegtmeier drove a scooter which took him to the medical department where he was seen by the nurse. Claimant was unable to recall telling Tegtmeier anything about whether his ankle, back or other parts of.his body were injured. Claimant testified that at the time of the incident, he was aware he had injured his neck, back, leg and arm. Claimant stated that he saw the nurse and told her what had happened. He stated that she wrapped his leg and ribs because his leg and back hurt. Claimant stated that he told the nurse he had injured his leg and back. Claimant stated that he also had scrapes, including a skinned elbow and stomach which the nurse observed. He was given a cane. Vivians stated that the nurse gave a restricted duty slip to his supervisor and that for the remainder of that day and the following day, he just sat and did not do any actual work. Claimant stated that he saw the nurse again and wanted to go to the doctor, but that the nurse did not send him to the doctor until about a week afterwards. VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS Page 3 Claimant stated that when he finally saw the doctor, he told the doctor that his back and legs hurt and that he had a headache and loss of sensation in his arm. Claimant stated that the doctor took x-rays and told him to go back to work. Claimant stated that he did return to work, but never returned to work as a material handler. He stated that he was on restrictions and was assigned to a sit-down job where he sorted bolts and performed similar activities. Claimant repeatedly denied working any overtime following the injury. Claimant stated that he returned to the company doctor, C. D. Bendixen, M.D., and repeated his complaints concerning his hand, leg and back and was told to see his family doctor. Claimant stated that he then consulted Raymond W. Carson, M.D., who prescribed physical therapy and other conservative treatment which did not resolve his symptoms. Dr. Carson's records show that claimant first sought treatment on September 26, 1985 when he expressed complaints of diarrhea and vomiting. He also related that three weeks prior, he had fallen at work and injured his left ankle, that the doctors had examined the ankle and felt it was okay. Claimant also related that he has had pain in his left hip and down his left leg and in his back. A straight leg raising test was positive. Dr. Carson's notes indicate that claimant has had those complaints since 1974 when the back surgery was performed. Claimant was seen again by Dr. Carson on September 30, 1985 and October 7, 1985. On October 14, 1985, claimant indicated to Dr. Carson that he had been unable to attend the recommended physical therapy because he was working overtime. On October 23, 1985, claimant continued to have back problems and was referred to Dr. Walker for consultation (exhibit B-1, page 11). Exhibit A-2, page 68, shows the employer's medical department record concerning August 27, 1985. The nurse's observation of injury states: "Sprained left ankle, some swelling lateral surf." At the employee description of how injured, the following appears: "My feet [illegible] stepped in high rise to get a tool box, stepped off platform between a pallet and the platform, turned ankle." The following page indicates that ice was applied for 20 minutes and that an ace wrap was placed. The record also indicates that claimant was given a cane and restricted for the remainder of the shift. The record notes that claimant's dressing was repeated on August 28. The record notes that when claimant came to work on the morning of the 28th, he did not have the ace wrap on. It also indicates that Dr. Bendixen would examine claimant prior to the forthcoming long weekend (exhibit A-2, pages 68 and 69). Dr. Bendixen examined claimant on August 28, 1985 and noted claimant to have considerable swelling and tenderness over the left lateral malleolus with more tenderness anterior to the malleolus. An ankle x-ray was negative for fracture. Dr. Bendixen felt that claimant had a sprain of the left ankle and placed him on a restriction against prolonged standing or walking for the remainder of the week. Dr. Bendixen indicated that claimant should be ready VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS Page 4 to return to work on September 3, 1985 (exhibit A-2, page 70). The disposition record at the top of page 73 of exhibit A-2 indicates that Dr. Bendixen placed restrictions on claimant's activities and authorized him to return to work on September 3, 1985. The duty disposition record found at the bottom of page 73 of exhibit A-2 shows that claimant was released for regular work on September 4, 1985. Page 8 of exhibit A-1 indicates that on September 4, 1985, claimant returned the cane and was authorized to return to his regular job. Page 8 of exhibit A-I indicates that claimant was seen by the doctor on August 28, 1985, that he had been given a cane on August 27, 1985, and that his dressing had been checked or replaced daily, except for the Labor Day weekend. The records show that claimant had sustained a similar injury in 1981 (exhibit A-2, pages 52-56). Exhibit A-2 page 74 confirms that claimant stepped into a gap at pick face #19, that the high rise was not working properly, and that a repair order had been issued. It also confirms that tool boxes should be stored in paint racks (a type of cage) rather than on pallets. Claimant stated that the repairs were not made until after his injury. Registered Nurse Myrna Smith, the plant nurse, stated that she rendered first aid to claimant on August 27, 1985 and filled out the report found at exhibit A, page 68, except for the first line of the description of the accident. Smith stated that claimant complained of nothing other than his ankle and that she did not dress any abdominal abrasions on that date or any subsequent date. She stated that the injury was not serious and that if claimant had complained of his back, she would have put it in the notes. Smith stated that the type of incident which he reported to her is not consistent with the type of incident shown in Dr. Walker's reports. Fritz Tegtmeier, claimant's supervisor on August 27, 1985, stated that the material handler works at normal floor level and that the crane which positions pallets operates on a level approximately three feet below the normal floor level. Tegtmeier stated that there is no more than two or three inches of clearance between a paint rack and a superstructure when it is positioned and that it is not possible for there to be a gap of one foot or larger between the ledge and where the material handler walks. Tegtmeier stated that he first obtained knowledge of claimant's sprained ankle when he saw claimant with a cane and that he had not accompanied claimant to the medical department. Tegtmeier stated that claimant might have had light duty work for a couple days. He could not state with certainty whether claimant ever resumed regular duty. Tegtmeier stated that he was not aware of claimant sustaining any other injuries subsequent to August 27, 1985. Tegtmeier stated that there was no way a person could have stepped far enough into the gap which sometimes was present in order to scrape their thigh. When shown the accident report from 1981, Tegtmeier stated VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS Page 5 that it might have been a different high rise and that he was not in that department in 1981. Tegtmeier stated that a metal kickplate was installed in order to reduce the gap which sometimes occurred. Richard McKinney, the Deere & Company safety director in August and September of 1985, stated that there was no possible way claimant could have fallen into a 3-foot or 4-foot hole. He stated that installation of the metal kickplate is the corrective action which was taken after claimant's injury. Exhibit K, page 2 depicts the kickplate and K-3 purports to depict the size of the gap without a kickplate. Exhibit K, pages 4, 5 and 6 depict that a beam runs in the gap approximately nine inches below the floor level. Claimant was seen by John R. Walker, M.D., an orthopaedic surgeon, on November 1, 1985. Claimant expressed complaints including constant aching in his low back, left leg, foot and toe numbness, stiff neck, ache in the left forearm, and headaches. The physical examination revealed marked restriction in all ranges of motion of the cervical spine, normal grip in the upper extremities, tenderness in the low lumbar region and marked restriction of all back motions. The Lasegue and straight leg raising tests were positive. Dr. Walker felt that claimant was beginning to develop spinal stenosis and had suffered a recent injury to the lumbar and cervical spine in the form of a sprain. Claimant was taken off work and has not since returned to work at John Deere. Over the following months, claimant was treated with therapy and other conservative treatment. His complaints worsened, rather than resolved, with his period of absence from work. He,was eventually referred to other specialists for testing and consultation. Claimant was evaluated at the Mayo Clinic on May 12, 1986. Jay Clarke Stevens, M.D., felt that claimant's symptoms were due to a conversion reaction with left hemiparesis. A physician from the Department of Psychiatry did not feel that formal psychiatric care would benefit claimant. An aggressive physical rehabilitation program was recommended (exhibit F). Claimant was evaluated by R. B. Raju, M.D., psychiatrist, on June 27, 1986. Dr. Raju stated that claimant did not demonstrate evidence of clinically significant anxiety or depression. He stated that even though Mayo Clinic diagnosed a conversion system, he was unable to elicit any psychological conflicts or depressive equivalent. He stated that in his judgment it is very likely that claimant was malingering. He referred claimant for individual counseling (exhibit D). Claimant was evaluated by A. Nakhasi, M.D., a board-certified neurologist, on October 3, 1986. Dr. Nakhasi agreed that claimant had musculoskeletal neck pain and muscle contraction neck aches. VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS Page 6 He felt that since the weakness in claimant's left arm and left hand was variable and fluctuating, it was of functional etiology. He did not recommend any further diagnostic testing (exhibit I). David F. Poe, M.D., an orthopaedic surgeon, examined claimant on October 15, 1986. Dr. Poe found claimant to have low back and left lower extremity pain with weakness and neck and left upper extremity pain with weakness. He could demonstrate the weakness on physical examination, but had no orthopaedic explanation for it. Dr. Poe recommended that claimant continue treatment with Dr. Raju and that continued outpatient measures in the nature of physical therapy for claimant's left upper and lower extremities would be helpful. He did not recommend that any further diagnostic testing or orthopaedic surgery be performed. Dr. Poe again saw claimant on March 28, 1987. At that time, he felt that the prognosis of claimant ever returning to gainful employment was poor regardless of whether any further treatment was performed. He felt that claimant was a poor candidate for surgery or other conventional treatment (exhibit G). Claimant was evaluated at the University of Iowa Hospitals and Clinics on April 9, 1987. Claimant was diagnosed as probably suffering from chronic pain syndrome secondary to degenerative arthritis in the lumbar and cervical spine and that he was status post-fusion L5-Sl (exhibit E). Claimant underwent a symptom magnification evaluation on May 18, 1987 at Allen Memorial Hospital. Several inconsistencies in claimant's stated and demonstrated abilities were noted. It was concluded that there was a very strong probability of symptom magnification (exhibit H). Dr. Walker was deposed on June 28, 1988. During the deposition, it is noted that on March 17, 1988, claimant presented himself for treatment in a wheelchair and indicated that he was getting worse (exhibit N, page 21). Dr. Walker expressed the opinion that claimant was totally impaired due to the John Deere accident and that it is unlikely that claimant could return to work no matter what type of treatment was rendered (exhibit N, pages 25 and 29). Dr. Walker stated that claimant's condition was a result of his previous back problems and surgery, the fall that he sustained at John Deere, and an intervening incident when claimant struck by a cart at the Hy-Vee grocery store. Dr. Walker stated that the commencement of claimant's actual physical problems occurred with the fall at John Deere (exhibit N, page 23). Dr. Walker stated that claimant also has a conversion reaction which is secondary to the long delay in obtaining the treatment which Dr. Walker had recommended (exhibit N, pages 27 and 39). Dr. Walker stated that his opinions were based on the history presented by claimant as is fully set forth in a report dictated on October 17, 1986 and found in the record at exhibit C-2, pages 64 and 65. Dr. Walker stated that in his opinion an ankle sprain would not cause the back VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS Page 7 problems which claimant exhibited (exhibit N, pages 42-45). Claimant stated that at the present time he experiences pain in his back, leg and arm for which he takes pain pills. He stated that at times his leg gives out without warning. He stated that his ability to engage in standing, sitting, bending and lifting are impaired. Mardra Galloway, claimant's step-daughter, stated that claimant's physical condition was satisfactory prior to August 27, 1985, on which day claimant came home from work wrapped up on his leg and chest. Galloway stated that claimant reported that he had fallen and was sore. She stated he moved slowly and moaned. Galloway stated that since August 27, 1985, claimant's physical condition has weakened and that he no longer will stoop over or bend. She stated that he drops things and is unable to lift as he did prior to the accident. Claimant stated that he had recently attempted to return to work at John Deere and was sent by Dr. Bendixen back to Dr. Poe and to Allen Memorial Hospital and Dr. Walker. Claimant stated that he is willing to try to return to work, but that he does not feel he could perform his old job as a material handler. The records reflect that on August 3, 1988, claimant reported to Dr. Bendixen that he felt better and that he would like to return to work. Claimant was referred to Dr. Poe who on August 9, 1988, indicated that there was no reason why claimant could not return to work. The report indicates that claimant expressed no pain and demonstrated that he was able to walk and engage in activities (exhibit A-3, pages 136-138). Claimant was referred to Allen Human Services for a three-week work hardening program. Claimant attended once but then asked to discontinue the program so that he could return to work (exhibit A-3, page 139). Dr. Bendixen confirmed claimant's previous restrictions and raised his lifting limit to 40 pounds (exhibit A-3, page 141). Dr. Walker indicated that claimant could return to work without restrictions (exhibit A-3, pages 142 and 144). APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS Page 8 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 "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986). Claimant has alleged alternative injury dates of August 27, 1985 or September 5, 1985. The only record of injury, and the only injury which claimant specifically acknowledged was the one of August 27, 1985. The employer has consistently disputed the occurrence of any injury affecting claimant's back on August 27, 1985 or September 5, 1985. The only work injury which they concede is that claimant sprained his ankle on August 27, 1985 as is reflected by the John Deere medical department records. Those records make no mention of any complaints or observable injury affecting any part of claimant's body other than the left ankle. The record in this case also shows a major dispute regarding the size of the hole or gap into which claimant slipped or fell on August 27, 1985, or on the alternate date of September 5, 1985. The photographs indicate a gap of much less than the three or four feet of which claimant testified. The description of claimant's work area and the crane mechanism as provided by representatives of the employer Tegtmeier and McKinney are in irreconcilable conflict with the testimony provided by claimant. The photographs in exhibit K are in irreconcilable conflict with claimant's testimony. The incident which occurred in 1981 where claimant stepped into the gap and scraped his thigh could have occurred in a gap that was approximately six or eight inches wide. It does not demonstrate that the gap could have been as large as three feet. Despite the fact that claimant has the burden of proof, he did not call either of the persons whom he stated witnessed his fall. It is therefore determined that claimant has failed to prove that he sustained any injury other than a sprain of his left ankle on August 27, 1985 or September 5, 1985. The record fails to show that claimant missed any time from work or that he is entitled to receive any other benefits available under the Iowa workers' compensation laws as a result of the sprained ankle. Claimant clearly does have problems with his back which preexisted August 27, 1985. It is certainly possible that even an incident which could cause a sprained ankle could aggravate a preexisting back condition. Such an aggravation would, however, normally be expected to resolve itself within a few weeks. Such is certainly not what occurred in this case. Claimant's overall credibility in this case is impaired by the indications of malingering and symptoms magnification. Although other physicians did not characterize claimant as malingering, they did note material discrepancies between his stated symptoms and the findings made during the physical examinations and diagnostic tests. Claimant's own testimony contains conflicts VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS Page 9 regarding the amount of time delay between when he was injured and was sent to Dr. Bendixen and regarding whether or not he worked overtime subsequent to August 27, 1985. There is a further conflict in the record of this case since claimant reported to Dr. Bendixen in August of 1988 that he was greatly improved and ready to return to work while claimant had been in a wheelchair as recently as March 21, 1988 when he visited Dr. Walker. When all the material facts of the case are considered, it is determined that claimant's credibility is not sufficient to overcome the conflicting evidence regarding the manner in which he was injured on August 27, 1985, his lack of reporting any injury other than to his ankle, and in general the validity of his claim of injuring his back on August 27, 1985. Claimant has therefore failed to prove, by a preponderance of the evidence, that he is entitled to recover any benefits under the Iowa workers' compensation laws. FINDINGS OF FACT 1. J. L. Vivians injured his left ankle on August 27, 1985 when he stepped into a gap between his work place floor and a crane and pallet upon which tool boxes were moved to the vicinity at which he was working. 2. The gap into which claimant stepped was no wider than one foot and was subsequently repaired by placing a 6 1/2 inch wide piece of metal. plate over the area where he had stepped and fallen. 3. Claimant failed to establish the credibility of his testimony regarding the manner in which the incident occurred and the resulting complaints and symptoms. 4. Claimant failed to prove, by a preponderance of the evidence, that he injured his back in any manner, either directly or indirectly, as a result of the accident that occurred on August 27, 1985 or any possible accident that may have occurred on September 5, 1985. 5. The only injury which J. L. Vivians sustained on August 27, 1985 was a sprained left ankle. 6. The sprained left ankle did not cause claimant to miss any time from work or to incur any medical.expenses. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant sustained an injury to his left ankle on August 27, 1985 which arose out of and in the course of his employment with John Deere Waterloo Tractor Works. VIVIANS V. JOHN DEERE WATERLOO TRACTOR WORKS Page 10 3. Claimant has failed to prove, by a preponderance of the evidence, that he sustained any injury, other than to his left ankle, on August 27, 1985 or September 5, 1985. 4. Claimant is not entitled to recover any benefits of any nature under the Iowa workers' compensation laws as a result of the sprained ankle that occurred on August 27, 1985. 5. Claimant is not entitled to recover any benefits under the Iowa workers' compensation laws for any other injury which is alleged to have occurred on August 27, 1985 or September 5, 1985. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against the claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 20th day of October, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John S. Pieters Attorney at Law 2315 Falls Avenue Suite 3 Waterloo, Iowa 50701 Mr. John W. Rathert Attorney at Law 620 Lafayette Street P.O. Box 178 Waterloo, Iowa 50704 1402.20, 1402.30 Filed October 20, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER J. L. VIVIANS, Claimant, File No. 833244 VS. A R B I T R A T I 0 N JOHN DEERE WATERLOO TRACTOR WORKS, D E C I S I 0 N Employer, Self-Insured, Defendant. 1402.20, 1402.30 Claimant, with a preexisting back problem, failed to prove, by a preponderance of the evidence, that back complaints were valid or that they arose out of an incident which was conceded by the employer wherein claimant sprained his ankle. The claim. was denied.