9998 Filed March 20, 1992 BYRON K. ORTON EAN before the iowa industrial commissioner ____________________________________________________________ : BENNETT NELSON, : : File Nos. 916703 Claimant, : 837062 : vs. : A P P E A L : WILSON FOODS, INC., : D E C I S I O N : Employer, : Defendant. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed October 10, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BENNETT NELSON, : : Claimant, : File Nos. 837062 : 916703 vs. : : A R B I T R A T I O N WILSON FOODS, INC., : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ On July 26, 1989, Bennett Nelson (claimant) filed two petitions for arbitration as a result of injuries to claimant's back occurring on October 28, 1986 and April 4, 1989 respectively. Wilson Foods Corp. (Wilson or defendant) was identified as employer and self insured. On April 29, 1991 these matters came on for hearing in Storm Lake, Iowa. The parties appeared as follows: the claimant in person and by his counsel Harry Smith of Sioux City, Iowa and Wilson by its counsel David Sayre of Cherokee, Iowa. These cases were consolidated on April 5, 1990. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, and Michael Payne. 2. Joint exhibits 1-13. stipulations In connection with both injuries, the parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. c. At the time of both injuries, claimant was married and was entitled to two exemptions. d. The parties agree that the amount of costs to be taxed for both cases equals $65.00. Additionally, in connection with the injury that occurred on October 28, 1986, the parties agreed as follows: a. The claimant sustained an injury on October 28, 1986, which arose out of and in the course of his employment. b. The injury caused temporary disability that has been paid. c. The extent of entitlement to weekly compensation for temporary total disability or healing period, has been paid. d. The commencement date for permanent partial disability, is October 28, 1986. e. The rate of compensation, in the event of an award, is Page 2 $263.79 per week. f. Defendant makes no claim for employee nonoccupational group health plan benefits paid prior to hearing. Additionally, in connection with the injury that occurred on April 1, 1989, the parties agreed as follows: a. The commencement date for permanent partial disability, is June 4, 1989. b. The rate of compensation, in the event of an award, is $271.30 per week based on a gross weekly wage of $433.50 per week. c. Defendants make a claim for employee nonoccupational group health plan benefits paid prior to hearing in the amount of $1,861.74. issues For the injury that occurred on October 28, 1986, the issue for resolution is as follows: Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. For the injury that occurred on April 1, 1989, the issues for resolution are as follows: 1. Whether claimant sustained an injury on April 1, 1989 which arose out of and in the course of his employment with Wilson. 2. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of hearing, claimant was 55 years old. At the time of his first injury, on October 28, 1986, claimant was almost 51 years old. At the time of the second incident, claimant was 53 years old. Claimant is a high school graduate and has had no post high school educational training. Claimant has received on-the-job training. After claimant left high school, claimant worked as a farmer, a carpenter, and as a welder. In 1958, claimant was drafted and served two years in the United States Army. Claimant was honorably discharged in August of 1960. After claimant was discharged, claimant owned his own farm, worked at a manufacturing job, worked for IBP in Dakota City and then took a job with Wilson in 1968. 2. While claimant has been with Wilson, the focus of Wilson's business has changed. In 1968, Wilson was a pork and beef slaughter plant. Wilson discontinued the slaughter portion of its business in Cherokee. Now the plant processes meat only. Claimant has worked at a variety of jobs at Wilson. Claimant has worked on the hog kill floor. He has marked and popped kidneys, measured back fat, and pulled leaf lard. Since 1986, claimant has worked in the wiener room where he has boxed wieners and picked out wieners that did not meet Wilson's standards. Additionally, claimant has run the frank-o-matic and the peeler in this Page 3 room. 3. Claimant has had various work injuries in his lengthy tenure with Wilson. Claimant has suffered prior back injuries beginning on January 11, 1984 when claimant suffered a lumbar strain moving barrels on the dock he slipped on some ice. Claimant lost no time from this injury. Claimant's next injury was suffered on October 26, 1984, when he suffered a low back strain. As a result of this injury, claimant was off work until sometime after November 16, 1984. Claimant returned to work with no restrictions. 4. On October 28, 1986, claimant was doing some rework in the wiener room. This job required claimant to dump wieners into a tub for remixing. Claimant was carrying this tub of wieners on his shoulder when he slipped. Claimant did not fall. At the time of this injury, claimant felt pain in his back. Claimant was returned to work on December 12, 1986. After the accident on October 28, 1986, claimant's x-rays showed some lipping of the vertebral bodies in his lumbar spine. No acute injury was seen at that time. However, radiologist D. C. Rife, M.D., noted that there was some narrowing of the posterior spinal canal consistent with spinal stenosis. Claimant returned to work with no restrictions after this injury. Claimant was paid temporary total disability for the period of time that he was off work. 5. On April 29, 1987, claimant again was complaining of low back pain. He indicated that there was no specific injury. He was given Advil and returned to work. 6. On April 1, 1989, claimant was performing his regular and usual duties in the wiener room. In his job, claimant twisted and turned to fill boxes full of wieners. He stayed later that night than usual. His back was sore when he went home. The next morning, claimant had difficulty getting out of bed. After claimant called in to advise that he could not work due to back pain, he took himself off work on April 3, 1989. His statement to the nurse was that he had back pain but there was no specific injury. 7. After claimant reported his back pain, he was examined by Dr. Garner, the company physician. Dr. Garner referred claimant for x-rays. On April 4, 1989, Glenn Van Roekel, M.D., x-rayed claimant's back. The results from the x-ray revealed that claimant's lumbar spine showed minimal arthritic changes manifested by end plate lipping. Dr. Van Roekel noted that there was no rotatory scoliosis or spondylolysis. Dr. Van Roekel also performed a CT scan of the lower three interspace levels. He found that claimant had a symmetrical bulging disc between L3 and L4 which was producing slight pressure on the dural sac. He also noted that claimant had a slight bulging disc at L4-L5 and L5-S1 levels but they were not producing much pressure on the dural sacs. The CT scan also showed that claimant's central neural canal size was generally small, but that the dural Page 4 sac was also small. The facet joints showed some arthritic changes and there were arthritic changes around the L4 vertebral body. Dr. Van Roekel's impression was that claimant showed no evidence of definite disc herniation but there was evidence of bulging disc and the size of the neural canal could be contributing to claimant's problem. Once the results of these studies had been obtained, Dr. Garner referred claimant to Michael T. O'Neil, M.D., an orthopedic surgeon in Omaha, Nebraska for further treatment. 8. On April 11, 1989, Dr. O'Neil had an opportunity to examine claimant. Claimant's history indicated that claimant had experienced low back pain intermittently for approximately seven years. The precipitating injury, according to claimant's history, was when he slipped on some ice in 1984. Claimant told Dr. O'Neil that he had returned to work after the incident in 1984 and had no problems with the exception of aching pain in his back until approximately 1986 when he experienced recurrent low back pain without radicular symptoms. Claimant again did well with physical therapy and heat and was able to return to work and was doing well until approximately March 30, 1989. At that time, for some reason claimant experienced an insidious onset of low back pain and left buttock and left posterior thigh pain to the level of the ankle. Claimant further indicated that since the onset of his symptoms his pain had improved. At the conclusion of his examination, Dr. O'Neil indicated that claimant was suffering from low back pain secondary to degenerative lumbar disc disease which was verified by the CT scan. Dr. O'Neil gave claimant a lifting restriction of 30 pounds and he suggested that he go back to work as of April 12, 1989 to determine whether he can tolerate this type of activity. Between April 12, 1989 and claimant's return to work, claimant had a course of physical therapy treatment. The physical therapy was apparently helpful and reduced claimant's pain symptoms. 9. On May 23, 1989, claimant was again examined by Dr. O'Neil, who noted that claimant had been doing quite well with the physical therapy in Cherokee until he had a sudden flare-up of back pain and left buttock and thigh pain without any recognized change in his activity or trauma. Claimant was reaching for a set of keys when he had the flare up. After the flare up, claimant did not return to work due to persistent back symptoms and leg symptoms. Dr. O'Neil continued the physical therapy treatment and also kept claimant off work. 10. Claimant was released to return to work on June 12, 1990. Claimant's attendance record from Wilson indicates that he was sick the week of June 4 through June 9, 1989 due to his back. Thereafter, claimant's attendance records show that claimant had no further sick time after June 9, 1989 until June 14, 1990. After June 14, 1990, claimant had no other sick days during 1990. Claimant had no sick days up to the date of the hearing on April 29, 1991. Moreover, claimant has received no medical care for his back since Page 5 June 1990. 11. Claimant was evaluated by Pat Luse, D.C., on February 19, 1990. In the history given by claimant, claimant identified his injury of October 28, 1986 as the beginning point for his back problems. Claimant did not advise Dr. Luse that he had suffered injuries to his back on January 11, 1984, and October 26, 1984. Additionally, claimant did not report to Dr. Luse that he had had intermittent back pain from 1984 through 1989. Claimant indicated at the time of the examination that he was currently experiencing lower back pain and leg pain which began suddenly. Claimant told Dr. Luse that he had a lifting restriction of 25 pounds. Dr. Luse reviewed the CT scan study of the lumbar spine, and the reports from Dr. Garner and Dr. O'Neil. Dr. Luse found that claimant had a limited range of motion in his back and that all other sensory and motor test findings were normal. Dr. Luse also reviewed radiographic studies that were taken in his office of claimant's lumbar spine. Dr. Luse noted that there were narrowed disc spaces between levels L3, L4, and L5 but that the articular facets appear to be intact. Dr. Luse found a mild scoliosis to the right on the lumbar spine and that claimant was suffering from bulging discs at L3, L4 and L5 and chronic lumbar sprain/strain with myositis and neuralgia. Based on this one time evaluation, Dr. Luse found that claimant had an impairment of five percent. Additionally, Dr. Luse restricted claimant from frequent bending and repetitive motion activities involving claimant's lower back. Dr. Luse also imposed a lifting restriction of no more than 25 pounds. The bill that was prepared by Dr. Luse's office for the evaluation totaled $260. Dr. Luse's bill indicated that the cause of claimant's back injury was unknown. 12. A review of claimant's wage history with Wilson shows that claimant has over the course of the past eight years transferred from zero bracket rated jobs up to a high of a four bracket rated jobs(1). Claimant's base pay currently is $9.07 per hour. His current job is a three bracket job. Overtime work is frequently available at Wilson. Overtime work is paid at a rate of $13.61 per hour. Wages for Sunday work are double time. 13. Overtime work is purely voluntary. Overtime work that is available is posted three days prior to the date when workers are needed. The list describes which departments need workers. Individuals volunteering for overtime work does not know what work they will be doing when they show up for the overtime hours. When the worker arrives for overtime work, a list of jobs is available and the most senior members then can go down the list and select the jobs that they wish to perform. Each department has its own seniority ladder as well. An overtime worker is (1). Wilson uses a bracket system to pay differentials to its workers depending on the skill required to perform a certain job. Each bracket equals five cents per hour over the base wage paid to the worker. Page 6 accorded no seniority in the department where they are doing overtime work. Generally, the least desirable job is the work available for an overtime worker. These jobs require lifting, or are on a fast assembly line. Michael Payne, Wilson personnel and labor relations representative, indicated that approximately 90-95 percent of the Saturday and Sunday work would not be in excess of claimant's 30 pound lifting restriction. If claimant found that the overtime work he had been assigned was in excess of his restrictions, he could decline the work and go home. However, claimant was unaware that he was free to leave if he determined that the particular job that he was going to be assigned was in excess of his lifting restriction. However, claimant did know that if he signed up for a job and could not perform the job because of his restrictions he would have the right to decline the job due to his restrictions. 14. Generally, claimant's department averages about 50 hours per week. So claimant automatically has overtime in his department in addition to the overtime he can elect to work on the weekends. Claimant did not work a substantial amount of overtime after the 1986 injury. He occasionally tried overtime work but he did not perform it regularly. Claimant has had an opportunity to work overtime since his April 1, 1989 incident. Claimant voluntarily self selected himself out of jobs that were available for overtime because he felt that the jobs would not meet his restrictions. Claimant believes that his lifting restriction is 20 pounds even though no doctor has indicated that his lifting restriction is 20 pounds. Claimant is able to do his work with no problems currently. 15. Presently, claimant experiences pain when he comes home from work. His legs are a little aching and his back is sore. Claimant can not shovel snow and he has flare-ups of back pain from time to time. CONCLUSIONS OF LAW Claimant urges that the combination of his injuries in 1986 and 1989 resulted in a permanent disability that has impaired his earning capacity. In order to reach this conclusion, claimant urges that the April 1, 1989 injury was a work related injury. Wilson contends that the injury of 1986 was a temporary aggravation of claimant's preexisting back condition and did not result in any loss of earning capacity. Moreover, Wilson argues that the injury complained of on April 1, 1989 was not a work related injury, but rather a nonwork related aggravation of claimant's preexisting back condition. I. October 28, 1986 A. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. Initially, the question of whether the October 28, 1986 injury resulted in any permanency will be analyzed separately to determine if this injury standing alone caused Page 7 an industrial loss for the claimant. The claimant has the burden of proving by a preponderance of the evidence that the injury of October 28. 1986, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607,613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. The only evidence of permanency that was offered by claimant was the report of Dr. Luse. Dr. Luse did not have an accurate history of the claimant's back problems. Claimant omitted the fact that he had suffered an injury to his back in 1984 and that he had complaints of back pain of unknown origin intermittently since that time. Dr. Luse was not claimant's regular treating doctor. Dr. Luse saw claimant only once, nearly four years after the injury. Finally, Dr. Luse's conclusions are inconsistent. He opines that the cause of claimant's current back complaints all flow from the injury of October 28, 1986 but the billing that was submitted after the evaluation indicated that the cause of the injury was unknown. Given these factors, Dr. Luse's opinion will be accorded little weight. Other than the opinion of Dr. Luse, there is insufficient evidence in the record to demonstrate that claimant suffered an industrial loss after his injury in 1986. After a period of physical therapy treatment and time off work claimant returned to his job with no restrictions and no functional impairment by the treating physician. Claimant's earning capacity was not diminished by the back injury he suffered in 1986. Claimant's wage history reflects that he was regularly working 2 bracket jobs until 1989 when he bid onto a zero bracket job.(2) Claimant voluntarily changed his jobs in the plant from the date of the 1986 injury. Claimant was not forced to take these jobs because of the injury to his back. With nothing more in the record, claimant has failed to sustain his burden of proof on the issue of whether the injury of 1986 caused a loss in earning capacity. This conclusion renders the other issues raised in connection with the October 28, 1986 injury moot. II. April 1, 1989 injury. (2). Claimant's wage history reflects that he was performing a 2 bracket job as a boxer at the time of the incident in 1986. Thereafter, he bid to another 2 bracket job on April 14, 1987 as a frank feeder and inspector. In 1988, claimant bid to another 2 bracket job as a boxer. Claimant was laid off between July 3, 1989 and September 3, 1989. He was rehired as an inspector feeder in 1989 and then bid onto a zero bracket job as a laborer. On January 22, 1990, claimant bid onto a 4 bracket job as an 8600 line and then bid to a three bracket job on May 7, 1990 as an 8600. Page 8 A. Whether claimant sustained an injury on April 1, 1989 which arose out of and in the course of his employment with Wilson. In connection with the April injury, claimant has the burden of proving by a preponderance of the evidence that he received an injury on April 1, 1989 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. A determination that an injury "arises out of" the employment contemplates a causal connection between the conditions under which the work was performed and the resulting injury; i.e., the injury followed as a natural incident of the work. Musselman, 154 N.W.2d at 130; Reddick v. Grand Union Tea Co., 296 N.W. 800, 804 (Iowa 1941). The Supreme Court has defined a personal injury for the purposes of workers' compensation cases. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case the Court found that a personal injury, is an injury to the body, the impairment of health, or a disease, not excluded by the Workers Compensation 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. The injury to the human body 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 Almquist Court further observed that 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. A personal injury includes a disease Page 9 resulting from an injury. However, the result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This is true, even though natural change may come about because the life has been devoted to labor and hard work. Results of those natural changes do 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. In this instance, there is insufficient evidence to demonstrate that claimant suffered a work related injury or even an aggravation at work of a preexisting back condition. Claimant indicated that his pain had come on suddenly for unknown reasons. Claimant's history of back ailments suggests that he has a history of intermittent back pain with sudden onset of pain for no apparent reason. This symptom pattern occurred while claimant was off work and reaching for a set of keys. Claimant was examined by Dr. O'Neil, an orthopedic surgeon on two occasions. Dr. O'Neil found that claimant had pain secondary to degenerative disk disease. He imposed a 30 pound lifting restriction on claimant as a result of this diagnosis. Dr. O'Neil did not indicate that claimant's pain had been caused by his work. Nor did Dr. O'Neil indicate that the degenerative disk disease had been caused by or aggravated by claimant's work. Claimant is not entitled to compensation for the results of a preexisting injury or disease. Bearce v. FMC Corporation, 465 N.W.2d 531, 536 (Iowa 1991); Olsen v. Goodyear Service Stores, 125 N.W.2d 251, (1963); Rose v. John Deere Ottumwa Works, 76 N.W.2d 756, 760-61 (Iowa 1956). Without more, the claimant has failed to sustain his burden of proof that he suffered a work related injury or aggravation to a preexisting condition as a result of his work. Since the injury is not work related, claimant will take nothing from this proceeding for the consequences of his degenerative disk disease. This conclusion renders the other issues raised in connection with the April 1, 1989 injury moot. III. Combination of the 1986 injury and 1989 injury. The claimant argues that the combination of these two injuries has caused an industrial loss. Wilson argues that there has been no such showing. When considering the effects of multiple injuries on the earning capacity of an injured worker, the case of Bearce v. FMC Corporation, 465 N.W.2d 531 (Iowa 1991) is instructive. The court found that an employer should not be responsible for an industrial disability the employer did not cause. Where claimant has suffered a prior injury but has returned to work full time, earning full time wages without any physical restrictions, does all the assigned work, seeks no medical attention, loses no time from work due to the injury and suffers no drop in pay, the claimant has not suffered an industrial loss. Bearce, 465 N.W.2d at 536-37. In this instance, there was no industrial loss from the Page 10 first injury. Claimant returned to full time work, earning full time wages without physical restrictions. Claimant did all of his assigned work including the usual overtime work in the department. Claimant sought medical attention for his back on one occasion but was given pain medication for the pain complaint. Thereafter, claimant sought no medical attention for his back for a nearly two years. Claimant indicated that he had lost no time from work for his first back injury and his attendance records reflect this fact. Finally, claimant has suffered no loss in pay. He is working the same regular and overtime hours that he was working prior to the incident in 1986. Claimant had no restrictions after the incident in 1986 and worked voluntary overtime on an occasional basis. There is insufficient evidence to demonstrate that claimant is foreclosed from voluntary overtime work. Rather, claimant has not signed up for overtime work because he believes that he cannot do the work. There may be a loss of earning capacity from the second injury due to the lifting restriction, but this injury is not work related. When the two injuries are combined there is still no industrial loss. The lifting restrictions flow from the second nonwork related injury. The functional impairment rating has been accorded no weight. Consequently, the claimant has failed to sustain his burden of proof in demonstrating that the combination of the two injuries resulted in an industrial loss. THEREFORE, it is ordered: 1. That claimant shall take nothing from these proceedings. 2. The costs of these actions shall be assessed to claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of October, 1991. ______________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Page 11 Copies to: Mr. Harry Smith Attorney at Law PO Box 1194 Sioux City, IA 51102 Mr. David L. Sayre Attorney at Law 223 Pine St. PO Box 535 Cherokee, IA 51012 5-1402.40 - 5-1108.50 Filed October 10, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : BENNETT NELSON, : : Claimant, : File Nos. 837062 : 916703 vs. : : A R B I T R A T I O N WILSON FOODS, INC., : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1402.40 Claimant failed to sustain his burden of proof regarding disability from injuries he suffered to his back. Claimant had no functional impairment from first injury in 1986 and no restrictions. Claimant continued to do the same work. There was no loss of earning capacity. 5-1108.50 Claimant found to have degenerative disc disease, had a flare-up of pain at home after working a shift. The onset of pain was sudden and according to the medical records of unknown origin. Claimant had symptom pattern of sudden onset of back pain without any specific injury. Evidence was insufficient to support a finding that the second injury arose out of and in the course of claimant's employment. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONNA R. TEBBE, WIDOW OF : DENNIS L. TEBBE, DECEASED; : SANDRA SNITSELAAR AS NEXT : RRIEND OF TIMOTHY LEE TEBBE, : File No. 837157 MINOR SON OF DENNIS L. TEBBE, : DECEASED; DONNA R. TEBBE AS : NATURAL MOTHER OF KIM TEBBE, : MINOR SON OF DENNIS L. TEBBE, : DECEASED, : N U N C : Claimant, : P R O : vs. : T U N C : PROFESSIONAL BUILDING : O R D E R MAINTENANCE, : : Employer, : : and : : INSURANCE COMPANY OF NORTH : AMERICA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ Pursuant to the undersigned's decision filed April 28, 1992, a question came as to a couple factual matters that need clarification even though they did not basically enter into or change the final decision or order. Additionally, further clarification was desired as to part of the order. In the decision, the undersigned stated that the action for equitable apportionment was brought by the claimant, Donna R. Tebbe. This is, in fact, in error as said application was brought by the defendant insurance carrier. Additionally, the decision reflected that the sum of $4,680.46 for the period in dispute beginning December 1, 1989 up to and not including October 5, 1991, was held in escrow. In fact, that money had already been paid by the insurance carrier to Donna R. Tebbe. The decision granted said sum to Donna Tebbe and said decision gave the insurance carrier credit for payment of the same. The parties agreed that the weekly payments due beginning October 5, 1991 would be paid one-third to the guardian and conservator, Sandy Snitselaar, on behalf of Timothy Tebbe and the other two-thirds to Donna Tebbe. THEREFORE, it is ordered: That the first two paragraphs of the Order of the Page 2 decision filed April 28, 1992, are stricken and in lieu thereof the following should be inserted: That defendants shall pay to Donna R. Tebbe, as surviving spouse of Dennis L. Tebbe, the sum of four thousand six hundred eighty and 96/100 dollars ($4,680.96). This sum represents the period in dispute; namely, December 1, 1989 up to and not including October 5, 1991 (one-third of 96 weeks). These funds have already been paid to Donna R. Tebbe, as surviving spouse of Dennis L. Tebbe. That defendants shall pay the one hundred forty-six and 30/100 dollars ($146.30) weekly benefits that will continue to be due and owing for the period beginning October 5, 1991, by paying one-third or forty-eight and 76/100 dollars ($48.76) to Sandra Snitselaar, guardian and conservator of Timothy Lee Tebbe, as long as she is guardian and conservator and as long as the current dependent status under the provisions of Iowa Code section 85.31 is in existence. IT IS FURTHER ORDERED: That in all other respects, the arbitration decision entered into on April 28, 1992, is hereby ratified and confirmed. Signed and filed this ____ day of May, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Ms Christine L Crilley Attorney at Law 500 Higley Bldg P O Box 75062 Cedar Rapids IA 52407 Page 3 Mr John M Bickel Attorney at Law P O Box 2107 Cedar Rapids IA 52406 Ms Allison M Heffern Ms. Lynn Wickham Hartman Attorneys at Law 1715 First Ave SE P O Box 607 Cedar Rapids IA 52406 Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONNA R. TEBBE, WIDOW OF : DENNIS L. TEBBE, DECEASED; : SANDRA SNITSELAAR AS NEXT : RRIEND OF TIMOTHY LEE TEBBE, : File No. 837157 MINOR SON OF DENNIS L. TEBBE, : DECEASED; DONNA R. TEBBE AS : NATURAL MOTHER OF KIM TEBBE, : D E C I S I O N MINOR SON OF DENNIS L. TEBBE, : DECEASED, : O N : Claimant, : E Q U I T A B L E : vs. : A P P O R T I O N M E N T : PROFESSIONAL BUILDING : MAINTENANCE, : : Employer, : : and : : INSURANCE COMPANY OF NORTH : AMERICA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on April 24, 1992, in Des Moines, Iowa. This is a proceeding in which the claimant seeks equitable apportionment of the weekly compensation payments received as a result of the death of Dennis L. Tebbe on October 30, 1986. Since a majority of the facts are undisputed, and by the agreement of the parties and the attorneys, this hearing proceeded in a manner different than normal in that the attorneys initially gave their understanding of the facts and what the testimony of the parties would be and then the parties were given an opportunity to state any additional facts for the record. Although the parties were allowed cross-examination, there was very little due to the nature and understanding of the parties in this case. Testimony was given by the surviving spouse of Dennis L. Tebbe, Donna Tebbe, and Sandra Snitselaar, the currently appointed guardian conservator of Timothy Lee Tebbe, minor son of Dennis L. Tebbe, deceased. The attorney for the claimant, Christine L. Crilley, made a statement. Lynn Wickham Hartman, attorney for guardian and conservator, also gave a statement. Defendant insurance carrier and its attorney, John Bickel, also had an Page 2 opportunity to make a statement. The exhibits submitted were joint exhibits 1, 2 and 3, and claimant's exhibit A. issue The issue for resolution is who is entitled to the back workers' compensation payments for the period beginning December 1, 1989 up to and not including October 5, 1991, as to one-third of the weekly benefit of $146.30, which for the 96 weeks amounts to $4,680.96. findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: The defendant insurance carrier is taking a neutral position and did not present any testimony other than there were opportunities for statements to be made. The insurance company's position is that they are not going to take sides as to who is entitled to the proceeds. Said defendants acknowledge that benefits are due and that some are now being held in escrow until the resolution of this matter so that the defendants will not pay the proceeds to the wrong person or to one to whom the entitlement may not be warranted. When the undersigned refers to the claimant's testimony or that the claimant states or the position of the claimant is as follows and the same as to reference to the defendants, this may be the result of either the direct statement or testimony of the claimant or as understood and agreed to by the parties, or the respective parties' legal counsel's statement of what the evidence would show if the proceeding went on a more formal question and answer examination throughout the proceedings. In other words, if the undersigned indicates that claimant or defendants said certain things, this may have been the respective party's attorney actually speaking for the claimant or guardian and conservator and unless absolutely necessary in this decision, the undersigned deputy will not distinguish between a statement of the party's attorney or the parties themselves. Timothy Tebbe, the stepson of the claimant, Donna R. Tebbe, and the minor son of the deceased, Dennis L. Tebbe, who was the husband of Donna R. Tebbe, was born on August 10, 1977, and is 14 years old. Timothy Tebbe left the residence of his stepmother, Donna R. Tebbe, on October 15, 1989, and went to Sandra Snitselaar, his aunt's, residence. Sandra Snitselaar is currently the guardian and conservator of Timothy Tebbe. She was appointed guardian and conservator on or around December 1, 1989, after having filed a petition to be the guardian conservator on November 30, 1989. Prior to Sandra Snitselaar being appointed, the stepmother of Timothy Tebbe had been appointed the guardian conservator having filed her petition on or around November 1986. Donna Tebbe served in that position to December 1, 1989. Page 3 At the time that Timothy Tebbe left his stepmother's residence, the stepmother did not foster the move or desire that Timothy leave and, in fact, the evidence seems to indicate she loved her stepchild and wanted him to stay with her and appeared upset that he was leaving. It appears that, even though Timothy had been indicating a desire to leave his stepmother, this may have been precipitated, fostered or encouraged by the natural mother of Timothy Tebbe, said mother also being the ex-wife of the deceased, Dennis Tebbe. It appears that the final separation from the residence of the stepmother occurred shortly after the stepmother and her other child who is also the child of deceased Dennis Tebbe, went on a vacation and left Timothy Tebbe with his mother, because of school. The evidence indicates there was some problems which also involved calling the police when the stepmother desired that Timothy come back to the residence where he had been living after Donna Tebbe returned from her vacation. It also appears from the evidence that there has not been an acrimonious relationship between the aunt and current guardian conservator, Sandra Snitselaar, and Donna Tebbe, other than the dispute as to the back pay, but that there appears to have not been a good relationship between the deceased's ex-wife and his wife at the time of his death and that the natural mother of Timothy Tebbe, Catherine, had contested Donna Tebbe's petition to be the guardian and conservator of Timothy Tebbe in 1986. It is obvious that Catherine failed in that contested proceeding. It appears from the evidence that in October to December 1989, Catherine Tebbe had a part in trying to get Sandy Snitselaar to be the guardian conservator of Timothy Tebbe in lieu of Donna Tebbe and at that time Timothy had left the home of the stepmother. It appears that Timothy Tebbe has had and is still having emotional problems which has affected his school work and this appears to have resulted from his father's death. The parties presented considerable testimony as to their overall financial picture. It is obvious that Donna Tebbe is living sparsely and basically on her income day to day with certain items that in the future if they occur, could substantially affect her ability to care for herself and her child she had with the deceased. It is obvious that Sandra Snitselaar, who has now gone through a divorce, is also having financial difficulties paying her bills and having enough left to live on in the future. There is no dispute that she has no legal obligation to raise Timothy Tebbe. It is undisputed that she voluntarily agreed to be the guardian and conservator of Timothy Tebbe. It appears possibly that it was Timothy's natural mother, Catherine, that petitioned the court for appointment of Sandy Snitselaar to be guardian and conservator. It is apparent since she was appointed that she accepted that position. It is immaterial whether she realized what that entailed. The fact is she apparently desired to do this. It is also immaterial what influence Catherine Tebbe may have had on her but the undersigned could infer that being an ex-wife of Page 4 Dennis Tebbe that Catherine wanted Timothy not to be with Donna even though the evidence does not show for what reasons. Timothy Tebbe was 12 years old at the time in October and December 1989, deciding where he wanted to live. Under the law, even though it is not improper to ask him, a 12 year old does not usually have the say as to where he wants to live and with that request carrying much weight under the factual situation we have here. The undersigned believes that Catherine Tebbe had influence over Timothy. It is interesting to note that the evidence shows that Catherine, at the time of the divorce with Dennis Tebbe, did not get custody of Timothy, which is normally unusual under the custody decisions that existed in 1989. The current guardian and conservator indicated she did not bring the action for apportionment or possibly take other actions earlier because she did not have the money to pay for an attorney and also that she did not understand or know or wasn't aware of the law in this area. Of course, ignorance of the law is no excuse. This action is brought by Donna Tebbe to try to resolve the dispute. It doesn't appear she really has the financial means to bring litigation either. In fact, it would appear between the two that Donna Tebbe is in worse financial shape than is Sandra. The testimony shows that at the time of Dennis Tebbe's death he and his wife, their son and Dennis Tebbe's son by a previous marriage lived in an apartment and within a year after the death Donna bought a three bedroom house so as to enable the family to live in less crowded conditions. There is also evidence that there was a desire that Timothy Tebbe have his own bedroom and the house she bought enabled that to occur. It also appears that Timothy wanted to stay in the school district and that due to his father's death, Timothy needed some counseling and those facilities were closer and in the vicinity of where the house was purchased. The evidence shows that Donna Tebbe was attempting to be more than fair in allowing one-third of the weekly benefits to be given to Timothy Tebbe or the guardian and conservator on his behalf and that she retained the other two-thirds for herself and the other son. It appears that she made more effort than would have been required to put people on notice of the fact that Timothy Tebbe had left her residence. It appears that social security and the insurance carrier knew this. Iowa Code section 85.43 provides that full compensation shall be paid to the surviving spouse as provided in Iowa Code section 85.31, even where the deceased leaves dependent children but that the industrial commissioner may make an order of record for an equitable apportionment for the compensation payments. Under Iowa Code section 85.31 it indicates that if there is an equitable apportionment done, then it would be reasonable to do it in the manner in which the parties have agreed as to the future. In other words, one-third to the guardian and conservator of Timothy Tebbe as long as the ward is entitled to benefits under the law Page 5 and then the two-thirds to the surviving spouse on her behalf and the behalf of the other dependent child. Donna Tebbe has been very willing to do this one-third, two-thirds split notwithstanding the provisions of Iowa Code section 85.43. The evidence shows that Donna Tebbe gave four payments to the guardian and conservator Sandy Snitselaar on behalf of Timothy Tebbe after Timothy had left Donna Tebbe's residence and these payments included the social security that Donna was getting and one-third of the workers' compensation check minus Timothy's attorney fees. The undersigned sees no need to further set out in detail anymore of the testimony. The undersigned finds that the surviving spouse, Donna Tebbe, has done more than required under the law and as provided under 85.43. She went to the time and expense to bring this action even though she could have waited for someone else to bring it. It is obvious she brought this action because the insurance carrier was withholding payments and these funds were necessary for her to live. Likewise, this action could have just as well been brought by the guardian and conservator. As indicated earlier, under 85.43, the surviving spouse is entitled to all of the benefits unless there is an order to the contrary. Donna Tebbe purchased a house which was suitable for the raising of the deceased's son from a previous marriage, and their son. Those house payments continued to go on even with Timothy leaving. Timothy desired, even though he may have been influenced, to leave his stepmother's residence and to go to his aunt's. Obviously, the plan appeared to be that he was to go to his mother's, but there is not a good relationship in that regard. Sandra Snitselaar is to be admired for desiring to take on another child with her having gone through a divorce and not having the greatest personal means, even though the undersigned believes she is more able financially than Donna. The evidence also shows that Donna was not shirking her duties and would have desired to continue raising Timothy. The whims of Timothy, who is emotionally upset due to the death of his father, is not to be the controlling factor in this matter. The undersigned believes that the intent of the statute is that the surviving spouse comes first. That was the obvious intent of the legislature when it passed Iowa Code section 85.43. The weekly benefits are rather small and we are not talking about much money. With the financial situation of the parties, $50 a week is an important part in order to make ends meet. Sandra Snitselaar has no legal obligation to care for Timothy Tebbe and she could give up her guardian and conservatorship if she feels she cannot financially handle the addition of her nephew into her household. That is a voluntary decision she made. The undersigned finds the $4,680.96 that is in dispute and being held back by defendant insurance carrier, which represents one-third of the $146.30 weekly benefits for the Page 6 96 weeks in question, should be paid to Donna R. Tebbe, the surviving spouse of Dennis L. Tebbe. The undersigned further finds that regarding the payment of weekly payments, after the period in dispute, there shall be paid one-third to the guardian and conservator of Timothy Tebbe and the other two-thirds to Donna Tebbe, surviving spouse. The parties should follow the law as to what is to be done upon the happening of certain future events concerning the payment and distribution of weekly benefits. Defendant insurance carrier shall pay the $97.52 which is two-thirds of $146.30, to Donna R. Tebbe, as surviving spouse of Dennis L. Tebbe and $48.76 to Sandra Snitselaar, as the guardian and conservator of Timothy Tebbe, minor. Sandra Snitselaar shall immediately notify defendant insurance company in writing as to any change of her capacity as guardian and conservator and also as to any change of her or the ward's residency, or whether Timothy Tebbe is enrolled after he reaches the age 18, as a full-time student in an accredited institution. Donna Tebbe shall notify defendant insurance company immediately upon her remarriage. At such time that Timothy Tebbe is no longer considered a dependent under the provisions of Iowa Code section 85.31, said $48.76 shall then be paid to Donna R. Tebbe under the provisions of 85.43 and 85.31, whichever is applicable, under the occurrence of the conditions triggering those provisions. The undersigned is not finding that the two- thirds ($97.52) is to be apportioned between Donna Tebbe and her minor son. The undersigned finds that that amount shall be paid under the provisions of Iowa Code section 85.43 unless those other provisions under said statute and under 85.31 are triggered which would then cause distribution of these benefits to be paid otherwise if payments are still due. Likewise, if Timothy Tebbe returns to live with his stepmother, then those one-third payments referred to herein that were going to the guardian and conservator shall then be paid directly to Donna Tebbe under the provisions of 85.43 unless events occur which would trigger a different distribution under the provisions of Iowa Code sections 85.43 and 85.31. conclusions of law Iowa Code section 85.43 provides, in pertinent part: If the deceased employee leaves a surviving spouse qualified under the provisions of section 85.42, the full compensation shall be paid to the surviving spouse, as provided in section 85.31; provided that where a deceased employee leave a surviving spouse and a dependent child or children the industrial commissioner may make an order of record for an equitable apportionment of the compensation payments. If the spouse dies, the benefits shall be paid to the person or persons wholly dependent on deceased, if any, share and share alike. If there are none wholly dependent, then such benefits Page 7 shall be paid to partial dependents, if any, in proportion to their dependency for the period provided in section 85.31. If the deceased leaves dependent child or children who was or were such at the time of the injury, and the surviving spouse remarries, then and in such case, the payments shall be paid to the proper compensation trustee for the use and benefit of such dependent child or children for the period provided in section 85.31. Iowa Code section 85.31 provides, in pertinent part: 1. When death results from the injury, the employer shall pay the dependents who were wholly dependent on the earnings of the employee for support at the time of the injury, during their lifetime, compensation upon the basis of eighty percent per week of the employee's average weekly spendable earnings, commencing from the date of death as follows: a. To the surviving spouse for life or until remarriage, provided that upon remarriage two years' benefits shall be paid to the surviving spouse in a lump sum, if there are no children entitled to benefits. b. To any child of the deceased until the child shall reach the age of eighteen, provided that a child beyond eighteen years of age shall receive benefits to the age of twenty-five if actually dependent, and the fact that a child is under twenty-five years of age and is enrolled as a full-time student in any accredited educational institution shall be a prima facie showing of actual dependency. It is further concluded that: Donna R. Tebbe is entitled to the amount in dispute, mainly $4,680.96, which represents the one-third of the disputed back pay for the 96 weeks beginning December 1, 1989 up to and not including October 5, 1991. order THEREFORE, it is ordered: That defendants shall pay to Donna R. Tebbe, as surviving spouse of Dennis L. Tebbe, the sum of four thousand six hundred eighty and 96/100 dollars ($4,680.96) which they are holding until resolution of this matter for the period of December 1, 1989 up to and not including October 5, 1991 (one-third of ninety-six weeks). That defendants shall pay the one hundred forty-six and 30/100 dollars ($146.30) weekly benefits that are due for those periods not in dispute by paying one-third or forty- Page 8 eight and 76/100 dollars ($48.76) to Sandra Snitselaar, guardian and conservator of Timothy Lee Tebbe, as long as she is guardian and conservator and as long as the current dependent status under the provisions of Iowa Code section 85.31 is in existence. That the guardian conservator shall immediately notify defendant insurance company of any change of ward's current status which may trigger any change of payments or distribution under the provisions of Iowa Code sections 85.43 or 85.31. That defendant employer shall pay the remaining two- thirds or ninety-seven and 52/100 dollars ($97.52) to Donna R. Tebbe under the provisions of Iowa Code sections 85.43 and 85.31. That Donna R. Tebbe shall also notify defendant employer upon her remarriage or of an occurrence of an event that may trigger a change in the distribution or affect the rights to payments as provided under Iowa Code sections 85.43 and 85.31. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of April, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Ms Christine L Crilley Attorney at Law 500 Higley Bldg P O Box 75062 Cedar Rapids IA 52407 Page 9 Mr John M Bickel Attorney at Law P O Box 2107 Cedar Rapids IA 52406 Ms Allison M Heffern Ms. Lynn Wickham Hartman Attorneys at Law 1715 First Ave SE P O Box 607 Cedar Rapids IA 52406 Page 1 1203 Filed April 28, 1992 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : DONNA R. TEBBE, WIDOW OF : DENNIS L. TEBBE, DECEASED; : SANDRA SNITSELAAR AS NEXT : RRIEND OF TIMOTHY LEE TEBBE, : File No. 837157 MINOR SON OF DENNIS L. TEBBE, : DECEASED; DONNA R. TEBBE AS : NATURAL MOTHER OF KIM TEBBE, : D E C I S I O N MINOR SON OF DENNIS L. TEBBE, : DECEASED, : O N : Claimant, : E Q U I T A B L E : vs. : A P P O R T I O N M E N T : PROFESSIONAL BUILDING : MAINTENANCE, : : Employer, : : and : : INSURANCE COMPANY OF NORTH : AMERICA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1203 Dispute involved who should receive $4,680.96, which was one-third of the $146.30 weekly benefits for the period of December 1, 1989 up to and not including October 5, 1991 (96 weeks). The guardian and conservator of Timothy Tebbe, the minor son of decedent, who left the residence of stepmother on or around October 1989, sought a right to the $4,680.96. His father died in a work accident on October 30, 1986. Claimant, surviving spouse, was the stepmother of Timothy and had one other son with the deceased. She bought a house after her husband's death to satisfy the family needs and provide a separate room for Timothy to keep him in the same school district as he desired, etc. Stepmother desired to continue to provide a home for the 12-year old stepson who was emotionally affected by the death of his father. It appeared the ex-wife and natural mother of Timothy may have had some influence on Timothy to move. She had not gotten custody of the child when she divorced the deceased. She Page 2 recommended Timothy's aunt be the guardian and conservator in 1989 and the stepmother let her. Prior to the December 1, 1989 appointment, the stepmother was the guardian and conservator of Timothy. That guardianship and conservatorship was unsuccessfully and hotly contested by the natural mother. Deputy held the surviving spouse is to receive the $4,680.96. See Iowa Code sections 85.43 anc 85.31. The parties agreed prior to hearing that benefits therein are to go one-third to guardian and conservator on behalf of Timothy and two-thirds to surviving spouse and her child. Deputy ordered two-thirds to be paid to surviving spouse under 85.43. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOYCE MILLER, : : Claimant, : : vs. : : File No. 801804 LAURIDSEN FOODS, INC., : 837426 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : EMPLOYERS MUTUAL COMPANIES : and HARTFORD INSURANCE : COMPANY, : : Insurance Carriers, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on March 13, 1991, in Mason City, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of alleged injuries occurring on August 15, 1985 and September 26, 1986. The record in the proceedings consists of the testimony of the claimant, Thomas F. DeBartolo, M.D., and Don Gifford; claimant's exhibits A through J; and defendants' exhibits 1 through 7. The claimant had filed a motion to impose witness exclusion sanctions and defendants resisted same and filed their own motion to impose witness exclusion sanctions. Both motions were sustained on the record at the beginning of the hearing. The issues for both alleged injuries are: 1. Whether claimant's injuries arose out of and in the course of her employment; 2. Whether claimant's alleged disabilities are causally connected to her alleged injuries; 3. The nature and extent of claimant's disabilities and entitlement to disability benefits; 4. Claimant's entitlement to 86.13 penalty benefits; 5. Who gets credit for benefits paid. The parties stipulated that if an injury is found to have occurred on or after January 4, 1988, then the Hartford Insurance Company is responsible for any liability and would get the credit. If before said date, then Employer's Mutual Insurance Page 2 Company; 6. The rate, except that if an injury is found after February 8, 1987, there would be five exemptions rather than four; and, 7. The payment of costs. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant testified at the hearing and also through her deposition taken June 19, 1989. Claimant is a 36-year-old high school graduate. She related her work history prior to beginning work for defendant employer in 1981. Claimant's prior history involved commercial sewing, assembling radios, and night foreman, as a gas pumper and window washer at a gas station. Claimant's work activity with defendant employer ceased on or about June 15, 1988. Claimant described her positions with defendant employer, namely, as a meat trimmer trimming fat off meat, a pack-off (packing meat into boxes to ship out) and demolder which is part of this pack-off job, and in the sanitation department using high pressure hoses to wash and sanitize equipment. Claimant further described in detail what she did in the particular job (Claimant's Exhibit 5). After leaving defendant employer, claimant worked at Hardee's as her first full-time job beginning in September 1988. She worked at a couple part-time jobs during part of this time, also. Claimant related her medical and accident history prior to beginning work for defendant employer. She indicated there was nothing of significance except she broke her index finger on her right hand between the knuckle and wrist and incurred a lacerated head in a March 1984 auto accident (Def. Ex. 5, pp. 24 and 25). Claimant indicated in her 1989 deposition that the only injury she incurred at defendant employer's was bilateral tendonitis in her forearms and shoulder. Claimant also acknowledged she had depression in July or August 1985 which she seems to initially relate to her having given birth to her child (Defendants' Exhibit 5), but then she indicated that wasn't the reason (Defendants' Exhibit 5, pp. 28 and 29). Claimant indicated her doctor thought it was her thyroid but she wasn't sure what was causing her depression. This existed about nine months. Claimant said she did not go through any counselling or psychological treatment except she was taking antidepressants. Claimant said she had tendonitis off and on in 1986. She said she took a leave of absence in 1986 due to pregnancy. She gave birth to another child in February 1987. While off work, claimant had two carpal tunnel surgeries and an ulnar and cubical release ( Def. Ex. 5, p. 34). Claimant returned to work to the trimmer job in the fall of 1987 after her surgeries, with restrictions by Dr. Ronald S. Bergman (Def. Ex. 5, p. 35). Claimant later was Page 3 told of another position and bid on it as it was a better job and position than her current boning position, so she thought. This bid job was in the pack-off department. Shortly thereafter, claimant wanted to go back to the boning job as the pack-off position was a heavy job involving a lot of lifting. Later, claimant said Dr. Bergman's restrictions were lifted and she was under the care of T.C. Mead, M.D (Def. Ex. 5, p. 37). She commented Dr. Mead's restrictions were unclear to her (Def. Ex. 5, p. 37). Claimant never did go back to the boning position because she was not allowed to go back as there was never an opening. She said she would have returned to boning if there had been an opening. Claimant indicated she was later moved to the sanitation department. Claimant's testimony is confusing in response to defendants' attorney in trying to determine claimant's alleged cause of depression (Def. Ex. 5, pp. 39-43). It appears placing claimant in a night shift job was upsetting to her as she had a baby and wanted to spend time with the family. She later referred to her pain in her hands, neck and shoulder problems and certain employees calling her "baby," etc. (Def. Ex. 5, p. 44). Claimant said she saw a Dr. Bottjen in June 1988 and he sent her a letter indicating that he did not think claimant's depression was work related (Def. Ex. 5, p. 46). She further said no doctor, including Dr. Larson and Dr. Lassise, came right out and said claimant's mental problems were work related (Def. Ex. 5, pp. 46 and 47). It appears claimant was irritated that a Mr. Gifford, her supervisor, was asking her a lot about how she was feeling or doing (Def. Ex. 5, p. 50). This reaction seemed unusual to the undersigned. At the time of her deposition, claimant could not relate who caused her August 1985 or September 26, 1986 injury, nor could she relate her condition or complaints at that time (Def. Ex. 5, p. 60). Claimant testified she had three surgeries in 1987 performed by Dr. Bergman, namely, a left hand carpal tunnel in May, a right hand carpal tunnel in June and a right ulnar cubital release in September 1987 on her right elbow (Def. Ex. 5, p. 64 and 65). Claimant indicated Dr. Bergman released her to go to work in February 1988 (Def. Ex. 5, p. 66). Claimant acknowledged she received workers' compensation beginning when she was off work around November 1986 until Dr. Bergman returned her back to work except during a period when claimant was pregnant. The undersigned is finding claimant's testimony in her deposition confusing and the question as to time is not helping to sort out the sequence of events. Claimant said there was no time she was off work for her injury and period of pregnancy up to her return to work, that she wasn't paid either workers' compensation benefits or defendant employer disability (Def. Ex. 5, pp. 70-72). Claimant also acknowledged that when the impairment rating was made by Dr. Bergman, she received permanent partial disability benefits based on that letter (Def. Ex. 5, p. 72). Page 4 Claimant said she and her husband farm 60 to 80 acres and have 40 to 45 head of cattle, 30 sheep, two horses and a donkey. She does chores such as taking water to the bull in a separate pen. They raise the sheep for the wool and not for mutton. She also drove a tractor. Claimant said she left defendant employer because of depression. She indicated she never felt comfortable going back as she felt she would again be called names and the pain would be there. She didn't think she could handle going back. Claimant explained the nature of her current job at Hardee's and the difficulty in her neck and shoulders that reaching causes her. She indicated that making biscuits aggravates her hands. This was claimant's first job since leaving defendant employer. It began on September 6, 1988. She has had various jobs since that time, such as bookkeeping, answering the telephone, setting up appointments, all sedentary jobs. As of the time of her deposition testimony in June 1989, claimant was still having depression and she did not know what was causing it (Def. Ex. 5, p. 90). Claimant claimed she was treated differently by defendant employer because she thought she was being watched. Claimant said her examination with David J. Boarini, M.D., took eleven minutes and her tests took one-half hour. She said the doctor took no personal history nor did he ask her where she hurt or about her pain. She said Dr. Boarini's examination contributed to her injury. Claimant claims she cannot bowl, play softball or volleyball anymore. Claimant's husband, David Miller, testified by way of his deposition on June 19, 1989 (Def. Ex. 6). He could not connect any of claimant's depression in 1985 to family matters. He indicated claimant cried a lot in 1985 and 1988. He said claimant didn't see the family much due to her job. David J. Boarini, M.D., a neurologist, testified by way of his deposition on May 3, 1990, that his first contact with claimant was January 29, 1990. He mentioned the several medical records, tests and reports of claimant he had from other medical personnel. It appears he spent eleven minutes with claimant. One-half of this was from her examination, the rest was speaking with claimant. He said her main complaint was headaches and soreness in her back around her shoulder blades, neck, elbow and down into her arms (Def. Ex. 3, p. 15). He related the history claimant gave him. He said she was being treated for depression and he indicated she seemed to be depressed. He said the results of claimant's neurological examination was normal and her x-rays were essentially normal. He indicated the 1988 MRI and the 1987 x-rays were of her neck and the 1987 EMG was done on the arms. He thought the MRI showed a bit of compression and narrowing at the C5-6 but it was not significant. He could not ascertain the nature of that defect. He said the 1987 EMG tests were normal. The doctor ruled out thoracic outlet syndrome and indicated that Page 5 cervical narrowing was a normal, degenerative arthritic change (Def. Ex. 3, p. 13). In summary, on direct examination, the doctor opined no abnormality. He found no residuals from claimant's bilateral carpal tunnel surgery. He found no causal connection of claimant's complaint to any work with defendant employer. He found no objective abnormality of any kind to correspond to her complaints (Def. Ex. 3, p. 17). He referred to her February 20, 1990 report sent to Attorney Robert Landess (Def. Ex. 3, dep. Ex. 1). The doctor said it is possible that depression alone can cause or exacerbate muscle stiffness or muscle tension (Def. Ex. 3, p. 21). He said his impairment rating of 2 to 3 percent to each of the upper extremities was based solely upon claimant's subjective complaints. To arrive at this, he did a range of motion test of claimant's neck, shoulder and arm and used the AMA Guides (Def. Ex. 3, p. 31). The doctor did not give claimant any specific work restrictions and suggested continued treatment for her depression (Def. Ex. 3, Def. Ex. 2). The doctor acknowledged that depending on claimant's activities on the day of the examination, the degree of existence of inflammation, tenderness, and range of motion can vary from day to day (Def. Ex. 3, p. 37). If he had found any abnormality, he would have referred claimant to an orthopedic surgeon (Def. Ex. 3, p. 38). He remembered claimant being tearful during her examination and of his telling her that her problems were not work related. He acknowledged there is no basis for an impairment rating on the diagnosis of tendonitis (Def. Ex. 3, p. 44). He acknowledged he did not make the same findings as Dr. DeBartolo. Todd F. Hines, Ph.D., a clinical psychologist, testified by way of his deposition on April 17, 1990, that he evaluated claimant on January 18, and 29, 1990, through a referral from claimant's attorney, Mark Soldat. He indicated he had reviewed certain records of claimant. He referred to a letter from Dr. Bottjen regarding claimant's depression (Def. Ex. 4) and a brief psychological evaluation done when claimant was hospitalized at Mercy Hospital. He took a history and administered over the two days, January 18 and 29, 1990, the Minnesota Multiphasic Personalty Inventory and the Rotter Incomplete Sentences Blank. On the 29th, he also did five other tests (Def. Ex. 4, p. 10). (Claimant also put into evidence the same deposition of Dr. Hines, which is Claimant's Exhibit E.) The only reference hereafter will be to Defendants' Exhibit 4. The parties assured the undersigned when asked whether there was any duplication by responding with a "no." In fact, this, in particular, is an example of duplication and it should easily have been recognized, as Dr, Hines' deposition was introduced into evidence by both sides. In other instances of duplication where both sides introduced the same report or evidence, the undersigned will only refer to one party's exhibit and not both. Page 6 Dr. Hines concluded that claimant was experiencing serious and clinically significant psychological problems and was struggling under the weight of an emotional disorder. In other words, anxiety and depression (Def. Ex. 4, p. 12). To be more specific, he would call it borderline personality disorder. The doctor then testified: It was my judgment that this is a psychological condition that has been with her in all probability for many years. I would date the roots of it back to her childhood and that there had occurred in relatively recent times a precipitating factor that essentially exacerbated this existing personality disorder and precipitated the depression and the anxiety; and that in my opinion that precipitating factor was an awareness which she acquired in 1985 that one of her sisters, Darlene by name, had been sexually abused and molested by their father from the time Darlene was about seven years of age for many subsequent years. The issue of significance for Mrs. Miller is that she also had been sexually abused by her father short of intercourse. That occurred on at least four occasions to her memory at the time she was about 10 or 11 years of age. Mrs. Miller saw herself as the protector of her sisters. She said that very explicitly and blamed and blames herself very deeply and very intensely for the psychological abuse that her younger sister Darlene experienced. (Def. Ex. 4, pp. 12, 13) The doctor indicated claimant's family was highly dysfunctional and claimant experienced what he thought was a classic pattern in an abusive family and was rejected by her mother and removed from the house in the junior year of high school for no apparent reason. Claimant was called the "black sheep" of the family by her mother. Dr. Hines said the family problems were extremely disruptive to the claimant and in 1985 claimant became aware of the sexual abuse of her sister and felt a great responsibility and blame for it (Jt. Ex. 4, p. 14). He opined that claimant's psychological condition is not caused by her work-related injury (Jt. Ex. 4, p. 15). Dr. Hines said claimant's psychological disorder has resulted in claimant having a great deal of anger towards men and is not confined to her father or husband but generalizes to her employers, evaluating and treating physicians and into her life (Jt. Ex. 4, p. 18). Dr. Hines also said claimant's psychological condition interacts with her medical condition and claimant's pain and chronic pain would be expected to be influenced by intensive anger, depression, anxiety, and generally unstable psychological processes (Jt. Ex. 4, p. 20). Dr. Hines indicated that when an individual has a Page 7 serious and significant psychological condition, that impinges the clarity with which one can see a purely physiological malfunction. He said claimant told him she has skin problems, her neck cracks and her right shoulder catches. She then told him, "when I get upset I have shooting pains from the low back to my head." (Def. Ex. 4, p. 22) Dr. Hines did conclude that the MPI test he gave claimant indicated that claimant's pain is also related to a physical anomaly and that her claim of pain is not "all in her head." He said there is also a medical condition causing claimant's pain and she is not malingering and consciously manipulating her experience of pain or disability (Def. Ex. 4, p. 25 and 26). Dr. Hines indicated it is impossible to separate how much pain is caused by physical versus psychological problems. Dr. Hines indicates claimant's pain is unconsciously exaggerated because of her emotional condition and that the pain is amplified. He related that pain is subjective (Def. Ex. 4, pp. 30 and 31). Dr. Hines emphasized on more than one occasion that when one is very angry, one's muscles tighten (Def. Ex. 4, pp. 31, 32). This can exacerbate pain. He opined, without question, that there is an interaction to claimant's psychological and physiological components of this injury. Quantity cannot be discerned in his opinion. Dr. Hines said claimant has a hatred of people, male and female, and this was reflected in her description of how the medical personnel related to her. He described examples (Def. Ex. 4, p. 33). He opined that it is imperative for claimant to enter into long-term individual psychotherapy which will be measured in years rather than months. He indicated this in a letter to claimant's attorney and also related claimant has a history of violent behavior and did report to him thoughts of her doing harm to individuals associated with defendant employer. The doctor thought claimant had the capability of doing harm to individuals associated with her employment and that this should not be taken lightly. (Def. Ex. 4, Dep. Ex. 2). He said claimant is significantly impaired psychologically but he could not give a percent. He related again that claimant has some physiological or medical component but that her psychological condition is a substantial contributing factor to her impairment (Def. Ex 4, p. 49). Thomas F. DeBartolo, M.D., an orthopedic surgeon specializing in upper extremity and hands, testified personally. He went through an exhaustive examination by claimant's attorney. He related the importance of a work history. He described the manner of his physical examination and evaluation. He said it was significant that claimant's nerve problems related to the time of claimant's pregnancy and that carpal tunnel worsens with a pregnancy. He said any arm surgery takes a toll on the arm. He was questioned concerning claimant's May 18, 1987 left carpal Page 8 tunnel release, her right carpal tunnel release on July 2, 1987, and her right ulnar nerve cubital release on September 16, 1987. He found it unusual for a doctor to perform two separate surgeries as was done on claimant's right upper extremity. He said most doctors would do both at once as surgeries weaken the extremity. Dr. DeBartolo discussed the difficulty of diagnosing a thoracic outlet syndrome. The doctor was referred to his report of August 8, 1989 (Cl. Ex. A, p. 72-75), at which time he set out his impairment ratings for claimant, namely: Therefore, using the combined values chart, the patient would have 32% impairment of the right upper extremity, 26% impairment of the left upper extremity. I then feel that because the patient continued to try to do repetitive hand and wrist activity involving lifting with the significant impairment that she had, she then developed increased strain on her dominant right upper extremity with the development of the right shoulder pain and positive thoracic outlet symptoms which I will arbitrarily add an additional 15% of the right upper extremity again using combined values chart making that 42% of the right upper extremity. It is my feeling that the patient's limitation of the cervical spine is again using the AMA Guidelines, 3% of the whole person. Therefore, in summary, the impairment that I feel accurately reflects Mrs. Joyce Miller's function at this time is 3% of the whole person secondary to cervical spine, 42% of the right upper extremity and 25% of the left upper extremity. I have deducted 5% of the impairment of the nondominant left side as is instructed by the AMA Guide. (Cl. Ex. A, p. 75) The doctor causally connected claimant's problems to her work but didn't specifically tie it to any date. He has not seen claimant since August 8, 1989. He opined claimant's symptoms are the result of claimant's carpal tunnel and ulnar nerve releases. He acknowledged that Dr. Hines, as a psychologist, is in a better position to determine claimant's psychological condition as it affects her symptoms and its relation on claimant's subjective symptoms. Dr. DeBartolo, in his diagnosis, relied solely on claimant's meat trimming and multiple jobs with defendant employer in arriving at his causation conclusion. The undersigned notes that Dr. DeBartolo did not know of the beginning of any existing mental problems claimant had that predate any possible injury herein and her personality disorder. It appears this condition may have camouflaged some of the doctor's ability to accurately determine a true cause of claimant's problems. As will be seen later on, there were several doctors who had Page 9 no idea, but may have suspected, a mental problem with claimant that would substantially affect a history and the ability to make a determination of a person's impairment. Claimant's Exhibit A, pages 2, 5 and 8 refer to doctors' reports or accident reports which relate to claimant's alleged April 15, 1985 and September 26, 1986 injuries which were plead in claimant's petition. Claimant leaves the impression that these two dates are only two of several dates of which claimant contends she has an injury but, in fact, if any, it will ultimately be determined to be one injury date based on a cumulative type injury. Confusion under the law and filing procedure as to injury dates results often in the pleading of multiple dates to make sure a correct single injury date is arrived at. There is agency precedence that a deputy can pick a date of injury different than that plead, especially in a cumulative injury case. It appears from the record that claimant's left and right forearms began to bother her by August 20, 1985 (Cl. Ex. A, p. 1) and that by September 26, 1986, her bilateral upper extremity problem surfaced more fully, and on November 7, 1986, a prior initial diagnosis of tendonitis in both forearms occurred (Cl. Ex. A, p. 6). Page 6 indicates that claimant was totally incapacitated beginning September 27, 1986 and then released to work on September 29, 1986. This ultimate diagnosis of tendonitis in both forearms came at an apparent diagnosis of bilateral carpal tunnel (Cl. Ex. A, p. 8). It appears there was a concern of whether claimant pregnancy brought on claimant's carpal tunnel syndrome (Cl. Ex. A, p. 11). Claimant, in fact, gave birth to a child in February 1987. Stephen M. Bolton, M.D., on February 28, 1987, opined claimant's carpal tunnel was caused by her repetitive hand motions at work and not the pregnancy (Cl. Ex. A, p. 12). Page 21 reflects that claimant had a left carpal tunnel release on May 18, 1987. Page 28 reflects claimant had a right carpal tunnel release on July 2, 1987. Page 25 reflects that claimant had a right cubital tunnel release and right ulnar nerve tunnel release on September 26, 1987. On February 9, 1988, Dr. Bergman, who performed the previously referred to surgeries, wrote that he could not find anything clinically wrong with claimant and suggested that she see a neurologist. He commented her complaints are more likely causally connected to her employment (Cl. Ex. A, p. 30). The undersigned notes that it is apparent Dr. Bergman did not know of claimant's mental situation and history. Claimant went to Alfredo D. Socarras, M.D., on February 19, 1988. A neurological examination was essentially normal. He found no objective evidence of a radicular or peripheral nerve involvement. He felt her symptoms are primarily on a muscle and tension basis. He found no functional impairment from the neurological standpoint. Claimant told him she went through a depression in the summer of 1985. It is interesting that it appears Page 10 claimant's carpal tunnel problems seem to increase with her pregnancy and decrease or disappear after the birth of her children in 1985 and 1987 (Def. Ex. 2, p. 155). It does not appear that claimant related to the doctor the nature and the cause of the depression in 1985 like she did to Dr. Hines in 1990. You can see the doctor has a feeling her problems are also related to tension (Cl. Ex. A, pp. 32, 33). Defendants' Exhibit 2, page 153, reflects that Dr. Socarras, on March 10, 1988, could not explain the claimant's symptoms on the basis of her MRI report. Again, the undersigned notes the doctor had no history of claimant's underlying mental problems and history but did notice claimant had tension. On March 24, 1988, Dr. Bergman opined claimant had a permanent partial impairment of 6 percent to her left thumb and 5 percent permanent partial impairment to her right upper extremity due to her elbow injury (Cl. Ex. A, p. 39). On April 15, 1988, Dr. Mead indicates a questionable etiology. He also seems stymied but doesn't have related to him claimant's mental disorder or history as described by Dr. Hines. He didn't think claimant's problems are related to any carpal tunnel or ulnar nerve transfer in the past (Cl. Ex. A, p. 44). On April 25, 1988, R. B. Trimble, M.D., was obviously stymied after examining claimant. Again, he is obviously not aware of the psychological turmoil going on in claimant as described by Dr. Hines. The more the medical doctors or personnel are befuddled by the physical histories, the more the conclusions of Dr. Hines are conclusive and convincing. On June 28, 1988, Dr. Mead commented in his notes that he thinks claimant's emotional makeup currently overshadows a lot of her other problems (Cl. Ex. A, p. 65). On July 6, 1988, he thought claimant's emotional symptoms were making any thought of claimant returning to work a very difficult decision for her (Cl. Ex. A, pp. 65, 66). On February 19, 1991, pursuant to a leading and suggestive type letter from claimant's attorney, Dr. Mead, in part, wrote: I think there was a degree of emotional magnification of her symptoms and I feel that most of her complaints were very subjective and in this way other emotional problems going on would [sic] tend to make these complaints of pain possibly even greater than would be normally in a calm relaxed state. I feel that I was based primarily on the subjective history. She was tender in portions of the body but I could not find any overt swelling or anything objective in that specific concrete nature that I could point to. (Cl. Ex. A, p. 86) He clearly deferred the effect of claimant's emotional Page 11 problems on claimant's physical situation to a psychologist or psychiatrist (Cl. Ex. A, p. 87). The records indicate claimant left work at defendant employer on June 15, 1988, and has not returned. It appears on June 14, 1988, claimant was doing well in her job and the company was accommodating claimant (Cl. Ex. C, p.30). The rehabilitation service records (Dr. Bottjen), (Def. Ex. 2, pp 8-14), indicate claimant had major depression. It is of interest to the undersigned the notation at the bottom of page 14 where claimant denies any stress at home. This seems to contradict other evidence and, in particular, what claimant told Dr. Hines. Defendants' Exhibit 2, page 17 indicates claimant was in a car accident but it does not appear from any medical evidence that there was any residual permanent injuries from this March 1, 1984 injury. Defendants' Exhibit 2, page 29, reflects claimant's depression (August 16, 1985); page 39 (August 2, 1985); and page 32 (May 31, 1985). This May 31, 1985 notation in Dr. Richard's notes denies any home life stresses just like claimant denies any such stresses to Dr. Bottjen (Def. Ex. 2, pp. 8-14). It appears to the undersigned that claimant is suppressing the outside stresses and blaming everything on her work. It appears to the undersigned that the reverse seems to be true, namely, claimant's nonoccupational stresses and mental problems originally rooted on childhood experiences are substantially affecting her work. Defendants' Exhibit 2, page 39, reflects claimant's depression in 1984 after the birth of a child. Defendants' Exhibit 2, pages 44 through 47, the records of R. Larsen, M.D., of St. Joseph's Mercy Hospital, on July 20, 1988, reflect his diagnosis was major depression - family problems and relates a depression episode in 1984 in conjunction with with hypothyroidism. Claimant seemed to have characterological difficulties that will need to be dressed in long-term therapy and claimant has emotional and personality problems so wide ranging that they are difficult or impossible to sort out. It appears that at this time claimant revealed ruminations about work and guilt. M. Peltan, Ph.D., reflects the same on June 31, 1988 (Def. Ex. 2, p. 51). Dr. Bottjen, in the Mercy Hospital notes, reflects on June 27, 1988, "Group therapy: Discusses poor relationship with mother-in-law - who appears to be in an enmeshed relationship with Joyce's husband." (Def. Ex. 2, p. 55) The undersigned notes with interest that claimant has been blaming her problems on work and not on the family problems. It appears the problems discovered by Dr. Hines have been affecting claimant for some time and that she has been suppressing and denying them until they came clearly to the Page 12 surface in detail through Dr. Hines. A functional capacity evaluation summary of June 22, 1988 recommended claimant could return to work in her demolding job (Def. Ex. 2, p. 114). On March 14, 1988, Dr. Bergman wrote that claimant reached maximum medical healing from a surgical standpoint with temporary restrictions set out for five weeks. He opined claimant had a 6 percent permanent partial impairment of the left thumb and 5 percent permanent partial impairment of the right upper extremity (Def. Ex. 2, pp. 124, 126, 127 and 129). He could not clinically find anything wrong with claimant but said her complaints in her arm, neck and shoulder are most likely related to her employment. The undersigned notes the doctor did not have any history of claimant's mental problems or history. He did recommend a neurologist. Dr. Bottjen, on June 20, 1988, wrote that he thought claimant was suffering from a major depressive episode that was indigenous in nature. He basically said it was not caused by her work (Def. Ex. 2, p. 157). There is considerable medical evidence and many doctors involved in claimant's problems and treatment. The undersigned finds that claimant's mental problems are not work related as to any proximate cause but are, in fact, indigenous in nature and were caused by and/or materially and substantially caused by, lighted up and exacerbated by the sexual abuse claimant incurred and her guilt for the sexual abuse her younger sister incurred by a member of the family. The undersigned is disturbed by the fact that the history claimant gave to the doctors was basically devoid of her past family problems and mental problems. It is obvious that several doctors saw a mental type component but could not put their finger on it. It was beyond their expertise. Claimant consistently blamed her problems on her work but, in fact, the undersigned finds claimant's work was affected by claimant's underlying mental disorder and problems dating from her childhood. These problems began coming to the surface before claimant incurred any injury. There is considerable medical evidence in which the medical personnel cannot find the cause of claimant's symptoms based on objective findings. Their opinions were rendered on subjective complaints of claimant, but much of the opinions are severely tainted by the inadequate history given by claimant. Claimant always referred to her work as the cause of her problems. The undersigned believes claimant was not credible in this regard, particularly as time went on. The undersigned questions whether claimant needed the surgeries she had, at least to the extent they were incurred. It appears whenever she became pregnant, at least with her last two children, her carpal tunnel would arise more substantially. Although Dr. DeBartolo did not want to second guess Dr. Bergman, he seemed to question the surgeries based on the lack of subjective findings or tests. The fact is claimant had the surgeries and the undersigned finds the greater weight of medical evidence shows claimant Page 13 incurred simultaneous bilateral work-related carpal tunnel syndromes requiring surgeries on the left on May 18, 1987 and on the right on July 2, 1987, and claimant incurred a right cubital and ulnar tunnel release on September 16, 1987, as a result of a cumulative work injury on September 26, 1986. Claimant's cumulative injury caused claimant to incur a 3 percent impairment to each of her upper extremities. Dr. Bergman indicated claimant had a 6 percent permanent partial impairment of the left thumb and a 5 percent permanent partial impairment of the right upper extremity contributed by the elbow. The greater weight of medical evidence indicates the impairments were to claimant's upper extremities. While the undersigned feels claimant's complaints are substantially effected by her mental disorder, the fact that claimant had surgeries have affected her upper extremities to some degree. Claimant was also complaining of neck and shoulder pain. The greater weight of medical evidence shows no objective findings to indicate a work-related injury. The medical testimony is substantially and materially tainted by the incorrect or inadequate history, and considering claimant's mental problems, the undersigned finds claimant's shoulder, neck or other complaints are not work related. There is no injury regarding those areas that have arisen out of and in the course of claimant's employment, nor is there any causal connection of claimant's complaints to the work injury. Claimant has failed to carry her burden of proof as to those complaints. The undersigned believes that if claimant's mental disorder is solved by the suggested long-term therapy, these other problems may very well disappear. Claimant filed two petitions. From the record, it appears claimant is taking a kitchen sink approach indicating there are several dates that could be picked for a cumulative injury. The undersigned finds a September 26, 1986 date is the most logical date under the total circumstances on the record herein. It is also the date the claimant thought she at least received a cumulative injury. The undersigned finds that claimant did not incur a cumulative work injury on August 15, 1985. Claimant had many periods of time off work. The prehearing report, which is 29 pages long with contentions, etc., attached, is confusing in part as to what the parties are disputing or agreeing to. The parties disputed several issues and in most instances further stated that the attached contentions by the parties probably reflect points of agreement. The purpose of the prehearing report is for the parties to set out their contentions and disputes separately and not to make it as confusing as it is. The parties set out dates that claimant was off work. Coordinating that to the decision herein, claimant had several healing periods and periods of temporary partial disability. The undersigned finds claimant incurred the following periods to which she was entitled to temporary Page 14 partial disability benefits which shows, from the record, they have been paid by defendants, namely: 10/19/87 - 10/25/87 4/11/88 - 4/17/88 10/26/87 - 11/1/87 4/18/88 - 4/24/88 11/2/87 - 11/8/87 4/25/88 - 5/1/88 11/9/87 - 11/15/87 5/2/88 - 5/8/88 11/16/87 - 11/22/87 5/9/88 - 5/15/88 11/23/87 - 11/29/87 5/26/88 - 5/29/88 3/15/88 - 3/20/88 5/30/88 - 6/5/88 3/21/88 - 3/27/88 6/6/88 - 6/12/88 3/28/88 - 4/3/88 6/12/88 - 6/14/88 4/4/88 - 4/10/88 The following periods the undersigned finds are healing periods for which claimant has been paid, namely: 11/7/86 - 10/18/87 2/4/88 - 3/14/88 5/16/88 - 5/25/88 In all instances for purposes of determining any interest due as provided by the law, permanent partial disability benefits would be suspended if any were due while defendants were paying healing period or temporary partial disability benefits. In other words, permanent partial disability benefits would not be payable at the same time as temporary partial disability or healing period benefits are being paid. As to the issue of 86.13 penalty benefits, the undersigned finds that the medical evidence would leave the parties hesitant to know for sure what condition concerning which claimant was complaining was, in fact, work related. There are several letters in the record where an attorney was trying to either clarify a prior report or lead a doctor to a more precise and definite opinion. The claimant's attorney sent claimant to a psychologist obviously with the intent that said psychologist would be opining favorably to the claimant. Claimant's attorney filed two actions and also indicated that there were several dates for which claimant desired the undersigned to attempt to pick an injury date because claimant apparently determined her attorney was unable to pick an injury date and claimant wasn't able to determine when she was injured. It was further obvious from the comments of the parties, the prehearing report, contentions and the evidence that in the end there was, in fact, one cumulative injury, the date of which was to be determined. The undersigned finds that there was not a delay in the commencement or termination of benefits without reasonable or probable cause or excuse and that the claimant is not entitled to any 86.13 penalty benefits. The undersigned finds the greater weight of medical Page 15 evidence indicates claimant incurred a work-related simultaneous bilateral injury to her upper extremities resulting in a 3 percent permanent partial impairment to the upper extremities and that said injury falls under the provision of 85.34(2)(s). Applying the statute and converting the 3 percent to the body as a whole and using the combined charts, claimant has incurred a 4 percent permanent partial impairment to her body as a whole which would entitle her to 20 weeks of permanent partial disability benefits. Said permanent partial disability benefits should begin at the end of claimant's first healing period, namely, October 19, 1987, and would be interrupted by any subsequent healing period and begin again at the end of any subsequent healing period until the total 20 weeks have been paid. The parties disputed the rate. It appears the dispute in part depends on the injury date found by the undersigned so as to determined the number of exemptions. It is undisputed that if the September 26, 1988 injury that was plead in file No. 837426 was the one determined by the undersigned, then claimant would be entitled to four exemptions instead of five which would apply to any work injury that would have occurred after the birth of claimant's last child on February 18, 1987. The undersigned must rely upon the parties' prehearing report and the contentions to determine what the claimant's gross income for the period of the thirteen weeks before September 26, 1986 would be. Based on the poor record, it would appear that the claimant's gross weekly income averaged $350.47, therefore, making the rate applicable herein of $226.65 per week. It is therefore found by the undersigned that the rate for which benefits would be paid is $226.65 per week. The last issue involves the apparent dispute as to costs. Payment of costs is provided by rule 343 IAC 4.33, which additionally refers to an Iowa statute. In addition thereto, as to further determining what may be a court cost, each party is responsible as to their own costs, the cost of a copy of a deposition. This is considered the parties' cost of doing business. The cost of any original deposition would be costs in this case. Additionally, the costs include the reasonable cost of obtaining no more than two doctors' or practitioners' reports. The two highest medical reports of claimant shall be considered costs in this case. The statute and rule is clear as to any other dispute that might be existing between the parties concerning this issue. As to interest, it shall be paid as provided by law. If, in fact, the parties do not know what the law is, or can't figure it, then the parties should hire an accountant or CPA to compute the interest and if the parties cannot agree, then the undersigned may appoint an accountant or CPA and assess the costs to the parties. conclusions of law Claimant has the burden of proving by a preponderance Page 16 of the evidence that she received injuries on August 15, 1985 and September 26, 1986 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injuries of August 15, 1985 and September 26, 1986 are causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not Page 17 anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselman v. Carroll Health Center, III Iowa Industrial Commissioner Report 09 (Appeal Decision 1982). It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that a disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in a gradual injury case is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincides with the time claimant was finally compelled to give up his job. This date was then utilized in determining rate and the timeliness of the claimant's claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. Iowa Code section 85.34(2)(s) provides, in part: "The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such." Workers' compensation benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under Iowa Code section 85.34(2)(s) and that the degree of impairment caused by a partial loss must be computed on the basis of functional, rather than industrial disability. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983). It is further concluded that: Claimant did not incur a depression and mental condition or disorder as a result of a cumulative work injury and that her mental problems are not causally connected to any work injury. Claimant's mental disorder and depression are materially and substantially caused by, but not necessarily limited to, her and her sister's treatment and abuse as a child and not by her work. This abuse did have a material effect on claimant's ability to do her job and her attitude and relationship with her employer and fellow employees. Claimant incurred a cumulative simultaneous bilateral upper extremities injury on September 26, 1986, that arose out of and in the course of claimant's employment which caused claimant to incur three surgeries and a 3 percent permanent impairment to each of claimant's upper extremities. Claimant is entitled to benefits under the provisions of 85.34(2)(s). Benefits are payable at the rate of $226.65 per week. Page 18 Claimant's alleged shoulder, neck and other complaints are not causally connected to any work injury and were substantially and materially effected by claimant's nonoccupational mental disorder and mental problems and conditions. Claimant failed in her burden of proof as to these injuries arising out of and in the course of her employment and any causal connection. Claimant reached maximum healing period on June 15, 1988. Claimant is entitled to temporary partial disability benefits at the rate of $226.65 for the periods of: 10/19/87 - 10/25/87 4/11/88 - 4/17/88 10/26/87 - 11/1/87 4/18/88 - 4/24/88 11/2/87 - 11/8/87 4/25/88 - 5/1/88 11/9/87 - 11/15/87 5/2/88 - 5/8/88 11/16/87 - 11/22/87 5/9/88 - 5/15/88 11/23/87 - 11/29/87 5/26/88 - 5/29/88 3/15/88 - 3/20/88 5/30/88 - 6/5/88 3/21/88 - 3/27/88 6/6/88 - 6/12/88 3/28/88 - 4/3/88 6/12/88 - 6/14/88 4/4/88 - 4/10/88 Page 19 That claimant is entitled to healing period benefits at the rate of $226.65 for the period of: 11/7/86 - 10/18/87 2/4/88 - 3/14/88 5/16/88 - 5/25/88 The employer cooperated with and accommodated claimant. Claimant quit work because of the effects that her nonoccupa tional mental disorder had on her ability to work. Claimant did not incur a work-related cumulative injury on August 15, 1985, which arose out of and in the course of claimant's employment nor was it connected to any complaints or disability from which claimant complains. Claimant is not entitled to any 86.13 penalty benefits as there was no unreasonable delay, commencement or termination of any benefits. Defendant Hartford Insurance Company is not liable for payment of any benefits herein as it was the insurance company for any work injury or incident that occurred on or after January 4, 1988. ORDER THEREFORE, it is ordered: As to file No. 837426 (September 26, 1986 Cumulative Injury): That defendants shall pay unto claimant healing period benefits at the rate of two hundred twenty-six and 65/100 dollars ($226.65) beginning November 7, 1986 through October 18, 1987, February 4, 1988 through March 14, 1988, and May 16, 1988 through May 25, 1988. That defendants shall pay unto claimant twenty (20) weeks of permanent partial disability benefits at the rate of two hundred twenty-six and 65/100 dollars ($226.65) beginning October 19, 1987 until paid except that said permanent partial disability benefits shall be suspended during any subsequent healing period set out herein and continued again until the balance of the payments are paid. That defendants shall pay unto claimant temporary partial disability benefits for the following periods. 10/19/87 - 10/25/87 4/11/88 - 4/17/88 10/26/87 - 11/1/87 4/18/88 - 4/24/88 11/2/87 - 11/8/87 4/25/88 - 5/1/88 11/9/87 - 11/15/87 5/2/88 - 5/8/88 11/16/87 - 11/22/87 5/9/88 - 5/15/88 11/23/87 - 11/29/87 5/26/88 - 5/29/88 3/15/88 - 3/20/88 5/30/88 - 6/5/88 3/21/88 - 3/27/88 6/6/88 - 6/12/88 3/28/88 - 4/3/88 6/12/88 - 6/14/88 4/4/88 - 4/10/88 Page 20 That permanent partial disability benefits are not payable during those times in which temporary partial benefits or healing period benefits are being paid. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That claimant takes nothing regarding file No. 801804 (alleged August 15, 1985 injury). That defendants shall pay the costs of these actions, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. That where defendants are referred to above in this order, it shall not be applicable to the Hartford Insurance Company in that there is no liability for any injury herein regarding said Hartford Insurance Company as their insurance coverage did not occur within the injury date determined herein. Therefore, defendants in this order shall only refer to Lauridsen Foods, Inc. and Employers Mutual Insurance Company. Signed and filed this ____ day of April, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Mark S Soldat Attorney at Law 714 E State St Algona IA 50511 Mr Robert C Landess Attorney at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 M4 George H Capps Mr Frank A Comito Attorneys at Law P O Box 971 Des Moines IA 50304 5-1100; 1803; 1803.1 4000; 1108.20; 1108.50 1400 Filed April 26, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : JOYCE MILLER, : : Claimant, : : vs. : : File No. 801804 LAURIDSEN FOODS, INC., : 837426 : Employer, : A R B I T R A T I O N : and : D E C I S I O N : EMPLOYERS MUTUAL COMPANIES : and HARTFORD INSURANCE : COMPANY, : : Insurance Carriers, : Defendants. : ___________________________________________________________ 1803; 1803.1; 4000 Claimant awarded 20 weeks of permanent partial disability benefits, some healing period and temporary partial disability on her September 26, 1986 cumulative and simultaneous bilateral upper extremity injury under 85.34(2)(s). Claimant was not awarded 86.13 penalty benefit. 5-1100; 1108.20; 1108.50; 1400 Found claimant's mental problems did not arise out of and in the course of claimant's employment and were not causally connected to her injuries but, in fact, were rooted in her and her sister's sexual abuse as children. These problems surfaced before any injury occurred. This indigenous personality disorder affected claimant's ability to work and claimant's psychologic problems effected claimant's physical complaints and true physical disability. Claimant took nothing from her alleged August 15, 1985 cumulative injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : NOLA CURRY, : : Claimant, : : vs. : : File No. 837459 BURGER KING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE FARM INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Nola Curry, claimant, against Burger King, employer, and State Farm Insurance Company, insurance carrier, as defendants. The record in the case consists of testimony from the claimant; and, joint exhibits 1-9. The matter came on for hearing before the undersigned deputy on March 21, 1991 at Des Moines, Iowa. The parties stipulated that claimant's injury caused temporary disability for a period of time; however whether claimant sustained a permanent disability due to the injury is still in dispute. If claimant has sustained a permanent disability, her loss of earning capacity, or industrial disability must be addressed. findings of fact The undersigned deputy, having heard the testimony and having reviewed all of the evidence received, finds the following facts: Claimant was 55 years old at the time of the hearing. She is married and has five (5) children. Claimant attended Des Moines Technical High School until the tenth or eleventh grade, but did not graduate. She has not received her GED, nor has she taken any adult education or trade classes. Claimant began to work as an elevator operator for J.C. Penney in 1953. After approximately one year, she began to work in a restaurant owned by her parents. She performed Page 2 cooking, waitressing, and cleaning duties. In 1955, claimant stopped working outside of the home, and became full-time mother and homemaker. In September of 1985, claimant began to work for defendant, Burger King. She performed a variety of duties, including working on the "Whopper" board to make sandwiches; running the printer for orders; waiting on customers; cleaning; cooking; and, operating the cash register. She worked on a part-time basis, although she worked overtime hours if necessary. Claimant was injured on April 21, 1986. She was working on the sandwich board which required her to turn from one counter to another in order to add the necessary ingredients for the sandwiches. The floor had recently been mopped, claimant turned, slipped and fell on her buttocks. Claimant felt stiff, and felt as though she had been "jammed from tail to neck." Claimant continued to work, although she testified that each day that went by, she felt more pain in her neck, back and legs. Claimant received medical treatment four weeks after the injury, on May 16, 1986. Initially, claimant received treatment from Robert Shelton, D.C. Dr. Shelton took x-rays of the cervical and lumbar spine, which were essentially negative for fracture or pathology. He recommended an MRI. His initial diagnosis was that of acute traumatic cervical and thoracic strain with attending myalgia, as well as acute traumatic strain/sprain of the sacrococcygeal ligaments. She was treated with spinal adjustments and manipulations; ultrasound; and, hot packs. Claimant returned to work at Burger King in September of 1986. Although she felt her condition had improved, her work duties aggravated her condition, and claimant stated she could hardly walk after her shift. Claimant continued to see Dr. Shelton until October of 1986. She was referred to Marvin Dubansky, M.D., and was first treated by him on October 14, 1986. (Joint Exhibit 1, #2) Dr. Dubansky examined claimant, and she was treated with an injection in the coccyx. She was instructed to use a rubber ring when sitting in a chair, and was also advised to take sitz baths. (Jt. Ex. 1, #2, pages 5-6) Claimant returned to Dr. Dubansky on October 23, 1986. He noted good range of motion of the hip, knee, shoulder and hand, but on examination found tenderness in the cervical dorsal, mid-dorsal, lumbosacral and coccyx areas. He recommended no further treatment. (Jt. Ex. 1, #2, p.7) Claimant sought treatment from Michael Stein, D.O., on November 1, 1986 on referral from Dr. Dubansky. Dr. Stein performed a neurological examination, and his clinical impression was that he did not find any objective findings. He ordered an electromyogaphic (EMG) study, which was normal. (Jt. Ex. 1, #3, pp. 11-15) Claimant returned to Dr. Dubansky on December 22, 1986. Page 3 He recommended physical therapy at Mercy Hospital Medical Center, as claimant was still complaining of pain in the low back. (Jt. Ex. 1, #2, p. 8) Claimant began physical therapy on February 25, 1987. The attending physician, James Blessman, M.D., noted that claimant complained of low back pain without any identifiable structural defect on physical examination. He felt she was developing a chronic pain syndrome, and actively sought, through an exercise program, to rehabilitate her. He recommended she stop smoking and decrease her weight. (Jt. Ex. 1, #7, pp. 39-40) The physical therapy notes indicate that claimant made little, if any progress, yet her symptoms increased, with complaints of aching in both arms and numbness of both hands. She was given a TENS unit which helped, but her condition remained essentially the same. Discharge notes from Dr. Blessman dated May 4, 1987 indicate that x-rays were normal; EMG studies of the lower extremity were normal; physical examination was normal; gait and reflexes were normal; range of motion of the lumbar spine was normal; and, straight leg raising tests were negative, bilaterally. Dr. Blessman discharged claimant and felt "that she could return to her previous employment working in the food preparation area of a fast food restaurant, specifically Burger King." He limited her from lifting more than 30 pounds and limited repetitive bending or stooping. He also recommended an exercise program available at the Mercy Wellness Center. (Jt. Ex. 1, #8, p. 38) Claimant testified that she continued follow-up treatment one time a month for six months at the Pain Center. Therapy included pool and water and physical exercises; stress management; relaxation techniques; and, physical therapy, if scheduled. The records indicate that claimant continued to seek medical attention from Mercy Hospital Medical Center from March 30, 1988 through April of 1988. She was eventually referred to William Boulden, M.D. (Jt. Ex. 1, #8, pp. 45-46) He saw her on several occasions, from July of 1988 through August of 1988. He reviewed the MRI, and concluded it was normal. Dr. Boulden's final assessment was that a soft tissue injury to be treated with conservative modalities. He was of the opinion that claimant had sustained no permanent disability. (Jt. Ex. 1, #1, pp. 1-4) analysis and Conclusions of law The first issue to be addressed is whether claimant's injury caused a permanent disability. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The claimant has the burden of proving by a preponderance of Page 4 the evidence that the injury of April 26, 1986, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Claimant's condition has been evaluated by several health care providers. Although there are conflicting views as to the extent of the injury and claimant's overall physical status, the undersigned finds substantial evidence in the record to support a finding that claimant has sustained a permanent disability due to her work-related fall at Burger King. Dr. Blessman causally linked the injury and claimant's pain, and medically restricted some of claimant's activities. Claimant credibly testified that she still experiences some low back discomfort upon over-exertion. The next issue to be determined is whether claimant has sustained an industrial disability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). Page 5 A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Subsequent to the injury at Burger King, claimant went to work at Flo's Restaurant in Des Moines as a waitress for $2.50 per hour. Claimant worked from late January of 1989 through August of 1989 on a part-time basis. Claimant testified that the work bothered her back, and as a result she had to quit. Claimant also worked for K Mart as a cashier for four weeks in February and March of 1990. She earned approximately $4.00 per hour on a part-time basis, but quit because the work aggravated and caused pain in her low back and legs. Claimant then returned to Flo's Restaurant in October of 1990 and worked for approximately two months. Again, she Page 6 stopped working due to the pain. Since October of 1990, claimant has not worked, nor has she looked for any type of a job. She has undergone no vocational rehabilitation because she does not feel she is qualified to do things other than waitressing. She has received no unemployment. Claimant has received one functional impairment rating, which was given on March 2, 1988 by Dr. Shelton: As stated in the Human Spine in Health and Disease, pages 283 and 423, 2nd American edition. "Contusions of the coccyx resulting from a fall upon the buttocks plays an important role in coccyxgeal pain." Although the A.M.A. guide to the evaluation of permanent impairment, does not specifically mention coccyx pain, it does state that loss of function due to sensory deficit, pain or discomfort of the sciatic nerve can have up to a 10% whole body disability. This information can be found on page 55, table 9, column 1 of the A.M.A. guide to the evaluation of permanent impairment. Using this criteria, I would rate Mrs. Curry the maximum 10% whole body disability. (Jt. Ex. 1, #5, p. 20) Dr. Blessman declined to give claimant an impairment rating, but restricted her lifting capacity to no more than 30 pounds, and limited repetitive bending or stooping. (Jt. Ex. 1, #7, p. 31; Jt. Ex. 1, #8, p. 38) Dr. Blessman released claimant to return to her previous employment of working in the food preparation area of a fast food restaurant. As stated previously, claimant did not finish high school and has not received her GED. The central question focuses on claimant's loss of earning capacity. Although she has been given an impairment rating, the rating is primarily based upon pain. It has been noted by the Agency, that pain which is not substantiated by clinical findings is not a substitute for impairment. See, Waller v. Chamberlain Mfg., II Iowa Industrial Commissioner Report 419, 425 (1981). The record does not indicate any substantial, significant clinical findings which correlate with the objective pain expressed by claimant. Various conservative modalities have been prescribed and treatment has been rendered, and claimant has shown some improvement. She has been released to return to work in the same type of employment in which she was working at the time of the injury. Neither the chiropractor nor any of the physicians with whom claimant has treated limited her lifting activities in such a manner as to prevent her from working in a fast food restaurant. Claimant has a limited work history, and the evidence does not suggest that she has held jobs which require her to lift more than 30 pounds. It is conceivable Page 7 that claimant would have to repetitively bend and/or stoop in fast food restaurant work, or any type of waitressing job. After considering the evidence as it relates to the factors which comprise an industrial disability, it is found that claimant has a five (5) percent industrial disability. order THEREFORE, it is ordered: That defendants shall pay unto to claimant twenty-five (25) weeks of permanent partial disability benefits at the rate of sixty-five and 99/100 dollars ($65.99) per week, commencing on April 12, 1987; That defendant shall pay the accrued amounts in a lump sum and shall receive credit against the award for weekly permanency benefits previously paid; That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30; That defendants shall pay the costs of this proceeding, pursuant to rule 343 IAC 4.33; That defendant shall file a claims activity report as requested by the agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of June, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr David D Drake Attorney at Law West Towers Office Complex 1200 35th Street, Ste 500 West Des Moines Iowa 50265 Ms Judith Ann Higgs Attorney at Law 701 Pierce Street Ste 200 PO Box 3086 Sioux City Iowa 51102 5-1800 Filed June 10, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : NOLA CURRY, : : Claimant, : : vs. : : File No. 837459 BURGER KING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE FARM INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800 Claimant, 55 years old, fell at work and bruised her tailbone. Treating physician imposed a 30 pound lifting restriction and limited bending, lifting and stooping activities. Chrisopractor imposed a 10 percent functional impairment based on pain. Claimant was a part-time worker at a fast food restaurant at the time of her injury. She was awarded five percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT D. LEONHARD, Claimant, File No. 837603 vs. A R B I T R A T I O N HYMAN FREIGHTWAYS, INC., D E C I S I O N Employer, F I L E D and MAY 9 1989 TRANSPORT INDEMNITY COMPANY, INDUSTRIAL SERVICES Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Robert D. Leonhard against defendant employer Hyman Freightways, Inc., and defendant insurance carrier Transport Indemnity Company to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on December 14, 1984. This matter came on for hearing in Burlington, Iowa, on April 26, 1989, and was considered fully submitted on that date. The evidence in this case consists of claimant's exhibits 1 through 12, inclusive, and defendants' exhibits A through D, inclusive. In addition, claimant testified personally. ISSUES Pursuant to the prehearing report approved by the deputy at hearing, the parties have stipulated: To the existence of an employment relationship at the time of the alleged injury; that claimant sustained an injury on December 14, 1984, arising out of and in the course of that employment; that the injury caused temporary total disability from December 14, 1984 through March 18, 1985 and again from March 28, 1988 through May 9, 1988; that the work injury did not cause permanent disability; that affirmative defenses are waived; that all requested medical benefits have been or will be paid by defendants. Issues remaining to be resolved include claimant's rate of compensation (although it was stipulated that claimant's marital status was married and he was entitled to four exemptions) and the extent to which defendants are entitled to credit on the basis of benefits voluntarily paid prior to hearing. REVIEW OF THE EVIDENCE Claimant entered into an owner-driver lease agreement with defendant Hyman Freightways on November 4, 1983, and operated under that agreement at the time of his injury. He was injured when his abdomen was punctured by the handle of a pallet jack. A surgical repair was performed, but claimant required additional surgical treatment several years later when he continued suffering from an infection due to his body's reaction to mesh that had been placed in the original wound. Pursuant to claimant's lease agreement with defendant, the truck itself was paid 62% of total revenues for given trips. Claimant was deemed an employee of Hyman Freightways, and was paid for his services as a driver 26% of the gross revenues, and was additionally paid 36% of the gross revenues for the use of the equipment. Claimant agreed in his testimony that employer had the right to hire a different driver for the tractor and that claimant would receive only the 36% lease fee if he did not personally drive. At the time of his injury, claimant had earned $23,968.50 as wages (the 26% of total revenues agreed upon), and was disabled for the balance of 1984. He was also paid $50,248.90 pursuant to the lease agreement for use of the equipment. Both parties treated the wage portion of the total in a different manner than the equipment rental portion. Claimant did so on his 1984 federal tax return in evidence, showing wages and profits from business separately. Defendant reported the wages portion on a W-2 form and the rental portion on a miscellaneous income form 1099. Defendants paid benefits from December 14, 1984 through March 18, 1985 on a voluntary basis at a weekly rate of $291.57. APPLICABLE LAW AND ANALYSIS Computation of compensation rates is performed under Iowa Code section 85.36, and the various subparagraphs thereunder. Weekly earnings are defined as "gross salary, wages, or earnings of an employee . . . for the work or employment for which the employee was employed,. . ." "Gross earnings" are defined in Iowa Code section 85.61(12) as "recurring payments by employer to the employee for employment, before any authorized or lawfully required deduction or withholding of funds by the employer, excluding irregular bonuses, retroactive pay, overtime, penalty pay, reimbursement of expenses, expense allowances, and the employer's contribution for welfare benefits." It is undisputed on this record that claimant essentially wore two hats: One as an employee, one as a lessor of equipment. The parties recognized the duality of claimant's position by breaking down his compensation into the labor component and lease component. There is no indication that this was an arbitrary or irrational approach, and is in fact consistent with claimant's testimony that he would have been paid only the lease portion had another driver been utilized by defendant employer. The fighting issue in this case is whether claimant's rate of compensation should be based only upon the labor portion of his compensation or upon the entire compensation earned by the truck and driver during his tenure in 1984. The undersigned is of the view that the portion of claimant's compensation attributable to the leasing of equipment cannot be considered earnings from employment, and therefore fall outside of the statute as cited above. The industrial commissioner has dealt with this issue in the past. Tuttle v. Mickow Corp., file number 672377, (Remand Decn., December 20, 1988); Christensen v. Hagen, Inc., file number 643433, (App. Decn., March 26, 1985). The factual situations in those cases were a good deal more complex in terms of the agreement reached between respective freight companies and owner-operators. The undersigned is of the view that these precedents are controlling as to the issue of whether compensation based upon the leasing of equipment is to be included in earnings. It is not. However, the arithmetical calculations employed in those cases do not seem appropriate to the case at hand, since the parties have themselves made a clear differentiation between wage income and lease income. Based on the foregoing, it is held that claimant's rate of compensation should be calculated on the basis of his earnings from driving during 1984 and not on his compensation for leasing his truck to defendant. Therefore, claimant's earnings for 1984 are $23,968.50. A review of the various paragraphs under section 85.36 of The Code shows that 85.36(6) appears to be the appropriate section for calculation of claimant's rate. That is, claimant was paid "by the output" as opposed to on a time basis such as hourly or weekly; there is no indication that he was a part-time employee. Calculation of rate under 85.36(6) is to be computed by dividing by 13 the earnings of the employee "earned in the employ of the employer" in the last completed period of 13 consecutive calendar weeks preceding the injury. The parties in this case did not favor the record by presenting evidence as to claimant's earnings in the 13 weeks preceding the injury. However, counsel agreed on the record that there is no reason to believe that those 13 weeks were dissimilar from the other weeks claimant worked in 1984. Therefore, it appears to the undersigned that the appropriate method for determining claimant's rate is to divide his entire 1984 earnings from employment by the number of weeks he was employed. As 1984 was a leap year, it contained 366 days. Because of his injury, claimant was disabled during the last 18 days of the year, so he worked during 348 days. Three hundred forty-eight divided by 366 is .95082. Multiplying 52 weeks by .95082 yields 49.4426 weeks, which is what claimant actually worked in 1984. Claimant's gross wages in 1984 of $23,968.50 divided by 49.4426 weeks equals a gross weekly average wage of $484.77. An examination of the workers' compensation benefit schedule effective July 1, 1984 and published by the industrial commissioner shows that the rate for a married individual with four exemptions and gross weekly wages of $484.77 is $300.86. Therefore, this is claimant's appropriate rate. FINDINGS OF FACT THEREFORE, based upon the evidence presented, the following ultimate facts are found: 1. During calendar year 1984, claimant was employed as a truck driver by defendant Hyman Freightways, Inc., operating under an owner-driver lease agreement in which he both leased equipment to defendant and drove the equipment as an employee. 2. Pursuant to the agreement, claimant was compensated on the basis of 62% of the gross revenues earned by the truck for freight hauling; this was further divided by the parties into a 26% payment to the driver of the truck for labor and a 36% payment to the owner of the truck as lessor of equipment. 3. Claimant suffered an injury arising out of and in the course of his employment on December 14, 1984, and was temporarily disabled for the balance of that calendar year. 4. As of the date of his injury, claimant had earned as the labor component of his lease agreement the sum of $23,968.50, or-an average gross weekly wage of $484.77. 5. At the time of his injury, claimant was married and had four exemptions. 6. As stipulated, claimant was temporarily totally disabled from December 14, 1984 through March 18, 1985 and again March 28, 1988 through May 9, 1988; he has suffered no permanent disability. 7. Defendants voluntarily paid benefits from December 14, 1984 through March 18, 1985 at a calculated rate of $291.57. He was not paid compensation for his second period of temporary total disability. CONCLUSIONS OF LAW WHEREFORE, based upon the principles of law previously cited, the following conclusions of law are made: 1. Claimant's correct rate of weekly compensation is $300.86. 2. Claimant's rate of compensation must be calculated on the basis of his labor in employment and not on his function as a lessor of equipment. ORDER THEREFORE, IT IS ORDERED: Defendants are to pay unto claimant temporary total disability benefits from December 14, 1984 through March 18, 1985 [thirteen point-five seven one (13.571) weeks] and from March 28, 1988 through May 9, 1988 [six point one four three (6.143) weeks] at the rate of three hundred and 86/100 dollars ($300.86) totalling five thousand nine hundred thirty-one and 15/100 dollars ($5,931.15). Defendants shall be entitled to credit for thirteen point five seven one (13.571) weeks of compensation paid at the rate of two hundred ninety-one and 57/100 dollars ($291.57), for a total of three thousand nine hundred fifty-six and 90/100 dollars ($3,956.90). The benefits awarded shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. The costs of this action shall be assessed to defendants pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 9th day of May, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. William Bauer Attorney at Law Sixth Floor, Burlington Building P.O. Box 517 Burlington, Iowa 52601 Mr. Richard M. McMahon Attorney at Law 600 Union Arcade Building 111 East Third Street Davenport, Iowa 52801-1550 3001 Filed May 9, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT D. LEONHARD, Claimant, vs. File No. 837603 HYMAN FREIGHTWAYS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and TRANSPORT INDEMNITY COMPANY, Insurance Carrier, Defendants. 3001 Truck owner/operator's rate was calculated on the basis of labor component of total compensation, and not lease component for use of equipment. Distinguishing Tuttle v. Mickow Corp., (Remand Decn., December 20, 1988, file number 672377), the parties' breakdown of total compensation package was accepted.