BEFORE THE IOWA INDUSTRIAL COMMISSIONER NEAL HORTON, Claimant, File No. 837636 vs. A R B I T R A T I O N GREENFIELD TRANSPORT COMPANY, INC., D E C I S I O N Employer, F I L E D and SEP 29 1989 CARRIERS INSURANCE COMPANY by IOWA INSURANCE GUARANTEE IOWA INDUSTRIAL COMMISSIONER ASSOCIATION, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Neal R. Horton, against Greenfield Transport Company, Inc., employer, and Carriers Insurance Company by Iowa Insurance Guaranty Association, insurance carrier, to recover benefits as a result of an alleged injury on February 15, 1985. This matter came on for hearing before the deputy industrial commissioner in Fort Dodge, Iowa, on September 6, 1989. The record consists of the testimony of claimant, Evelyn Horton, Robert Horton, and Patricia Swanstrom; claimant's exhibits 1 through 6 and 8 through 15; and defendants' exhibits 1 through 6. ISSUES The issues for resolution are: 1. Whether claimant's disease of multiple sclerosis arose out of and in the course of his employment, and, if so, did it occur for purposes of 85.23 and 85.26 on December 24, 1983 or February 15, 1985. 2. Whether claimant's disease of multiple sclerosis is causally connected to his alleged injury on February 15, 1985. 3. Whether claimant's claim is barred under the provisions of 85.23 of the Iowa Code (notice of injury); and 4. Whether claimant's claim is barred under the provisions of 85.26 (limitation of action). REVIEW OF THE EVIDENCE Evelyn Horton, claimant's mother, testified that claimant had no injuries or illnesses prior to December 24, 1983 except for the usual childhood illnesses. She said claimant was in good health until December 24, 1983. Mrs. Horton stated her son was interested in cars and had built and raced cars beginning after his high school graduation. She said he also owned a motorcycle. Mrs. Horton indicated claimant umpired softball games when in college and worked as a mechanic after his two years at Iowa Central College. Mrs. Horton revealed claimant is 35 years old and moved away from home at age 27. Mrs. Horton testified she noticed claimant wasn't feeling well on Christmas Eve 1983. She indicated that he was shaking and cold and went into the living room to sleep. She said claimant woke up two or three hours later. Mrs. Horton said that claimant told her and her husband that he was called to service the employer's truck that broke down on the highway at 2:00 to 3:00 a.m. December 24, 1983, and that he was required to lie on the ground under the truck in minus 23 degree weather. Mrs. Horton stated that on Christmas Day, 1983, claimant still was not feeling well and claimant told her his face felt numb as if he had been given Novocain. Claimant indicated to her that he was also developing double vision. Mrs. Horton said claimant was taken by his father to University of Iowa Hospitals in January 1984 for tests. He said.they went to Mayo Clinic in February 1984. Mrs. Horton said that claimant and his father went to Mayo Clinic for the second time in February 1985. She indicated that at that time she noticed slight shaking and tremors in claimant. Mrs. Horton testified that in approximately January 1986 claimant was unable to do his regular activities and that he has been unable to drive for the past year. She said claimant sold his motorcycle because he was no longer able to hold it up or drive it. Mrs. Horton said she noticed a personality change in claimant after his first visit to Mayo Clinic in February 1984 and that he seemed to be down in the dumps. Mrs. Horton testified that after claimant's exposure to cold on early morning December 24, 1983, he gradually went downhill to the present and never regained any stability or good health again. Mrs. Horton stated that when claimant and his father returned home from Mayo Clinic in February 1984, they did not know nor were they told by any doctors what the illness was. She said the family thought that whatever he had was caused by the coldness claimant incurred on December 24, 1983. Mrs. Horton contends the tests given to her son in February 1984 did not show multiple sclerosis. She emphasized that neither she, claimant, or the rest of the family knew of the multiple sclerosis diagnosis until February 1985. Robert Horton, father of claimant and husband of Evelyn Horton, testified to most of the same things as his wife. There was no conflict in their testimony which was cumulative in nature and will not for the most part be set out herein again. Mr. Horton testified to claimant's good health and of no injuries prior to December 24, 1983. He said he first noticed a change in claimant's health after the cold weather incident in the early morning of December 24, 1983. Mr. Horton said claimant told him his cheek was numb and he was having double vision. Mr. Horton said that he noticed a change in claimant in January 1984. He indicated claimant's attitude and personality began changing. He observed that claimant seemed to have something on his mind and he didn't appear right. Mr. Horton said he drove claimant to the University of Iowa Hospitals in January 1984 and to Mayo Clinic in February 1984. He emphasized that he asked the doctors about claimant's condition and the doctors did not knew what claimant had. Mr. Horton said he asked the doctors if they know about the claimant getting cold and whether the cold could have caused claimant's problem. He indicated they never answered. Mr. Horton said the doctors told claimant to go home and let nature take its course and return in one year. Mr. Horton indicated that after he and claimant returned from the Mayo Clinic in February 1984, he checked into the heaters and chemicals claimant was exposed to at work and determined that they were not the cause of claimant's problems. He contends the cold weather incident on December 24, 1983 caused claimant's present condition. Mr. Horton said that he first knew of claimant's multiple sclerosis diagnosis through a report sent to claimant shortly after claimant returned from Mayo Clinic in February 1985. He indicated claimant continued to work after the return in February 1985, that claimant's health was gradually deteriorating, and claimant was having trouble using his hands. He indicated claimant's shaking was becoming worse. Mr. Horton emphasized that after he and claimant returned from the Mayo Clinic in February 1985 and received the report, he told claimant to notify defendant employer as to claimant's multiple sclerosis diagnosis. Mr. Horton understood claimant had told Mr. Robeson, defendant, employer's vice president at that time. Mr. Robeson is now president. Patricia Swanstrom is claimant's older sister. Much of her testimony was cumulative in nature to the testimony of her father and mother and will not be repeated herein. Her testimony was not in conflict with her parents. Claimant testified after his parents and sister. Claimant said he is 35 years old and is a high school graduate. Claimant stated he studied mechanics for two years at Iowa Central College. Claimant stated that he holds his head with his hand during the hearing and his testimony to stabilize his head and prevent continuous shaking and wears a neck collar to prevent irritation. Although he was sitting in a wheelchair during the entire hearing, claimant stated he can walk to some extent if he has a guide, like a wall, to help him. Claimant indicated his equilibrium is not good. Claimant testified he had no medical problems or injuries prior to December 24, 1983 except normal childhood illnesses, a few colds, and a broken hand as a child. Claimant said he was on call 24 hours a day as an employee of defendant employer. Claimant revealed that on December 24, 1983, at approximately 2:00 to 3:00 a.m., he was called by a security guard for defendant employer to start a stalled company truck on a highway east of Fort Dodge. Claimant said the temperature was a record 23 degrees below zero with strong winds blowing and drifting snow. Claimant said he worked on the company truck which was disabled by the gelling of its diesel fuel for approximately four hours. Claimant stated he laid on the cold concrete under the truck trying to change the fuel filter. He said diesel fuel ran onto him, snow was drifting around him, and that his sweat shirt hood fell off his head. Claimant indicated he wore a sweat shirt with hood and a jean jacket on December 24, 1983 but could not wear gloves while working on the truck. Claimant said he was unable to start the truck and returned to defendant employer's shop. Claimant testified he then returned home, took a hot shower and then returned to work for eight to ten more hours that same day even though it was Christmas Eve, a company holiday. Claimant indicated his father came to defendant employer's place of business to bring claimant to his parents' home for the usual yearly Christmas Eve dinner that evening. Claimant said he was very tired and cold while at his parents on Christmas Eve and had impaired vision. Claimant testified that on Christmas Day he continued to feel very cold, developed double vision and numbness in his right cheek. Claimant said he went to a local doctor because of his double vision and cheek numbness and because people noticed his right cheek was drooping. Claimant said his local doctor referred him to the University of Iowa Hospitals. Claimant agreed with his father's testimony that claimant walked out of the University of Iowa Hospitals in January 1984 before all the tests were performed. Claimant indicated that several students were duplicating the tests and that the doctor with whom he had the original appointment was not going to be there until the next day. Claimant said he then made a February 1984 appointment with Mayo Clinic. Claimant contends he told Donald Layton, M.D., of the Mayo Clinic, about getting cold on December 24, 1983, but he did not believe the doctor was listening. Claimant said he still had cheek numbness and double vision on the February 24, 1984 Mayo Clinic visit. Claimant indicated he was not told what was causing his condition or given a diagnosis after either the Iowa City January 1984 or the Mayo Clinic February 1984 tests. Claimant said he was told by the Mayo Clinic to go home and let nature take its course over the next year and return in February 1985. Claimant testified he returned to Mayo Clinic in February 1985 and was given an MRI test. This test showed five black pinhead spots on the cerebellum. Claimant said shortly after he returned home from his 1985 Mayo Clinic visit, he received a report from Mayo Clinic that he was diagnosed as having multiple sclerosis. Claimant said this was the first time he ever knew from any source that he had multiple sclerosis. Claimant said he told Mr. Robeson, the president of defendant employer, two days after receiving the Mayo Clinic diagnosis that he had multiple sclerosis. He said Mr. Robeson laughed. Claimant said he had told Robeson in 1984 of his December 24, 1983 incident and his doctor and clinic visits resulting therefrom. Claimant stated he continued to work until June 1985 when Mr. Robeson fired him. Claimant contends that Mr. Robeson tried to get claimant to quit his job for a period of time before claimant was finally fired. Claimant said he is under the care of Joseph M. Doro, D.O., who heads the Iowa Lutheran Hospital multiple sclerosis department. Claimant emphasized that since the December 24, 1983 incident his health has deteriorated and he has never been back to normal health. Donald D. Layton, M.D., a neurologist, testified by way of deposition on June 6, 1989., that around 1960 he wrote a publication dealing with multiple sclerosis. Dr. Layton said he is currently familiar with the current medical knowledge concerning the etiology of multiple sclerosis as a treating physician. When asked about the etiology or the cause of multiple sclerosis, Dr. Layton answered: A. Well, as of today it's.not known. There's a great deal of research directed toward trying to find the etiology; obviously toward trying to find a means of prevention and a means of treatment. But the first object is to try to find the cause or causes of multiple sclerosis. And as of today most people believe that --it's going to be the co-existence of two conditions being met in the same individual. One of them will have something to do with a genetic predisposition, set up in an individual's personal genes, that would make them liable. And those are fairly well narrowed down now. That might be considered kind of the lock. But the second ingredient would be a key, and that is totally unknown at this time. Speculation includes the possibility that it is an infective particle or something we don't even know about yet. (Donald D. Layton, M.D., Deposition, Defendants' Exhibit 2, Pages 7-8) Dr. Layton was asked, and answered as follows: Q. Would it be fair to say, then, that at the present time the medical community has not reached any general accepted conclusion concerning to what extent environmental factors, if any, play a role in triggering the disease? A. I believe that it would be fair to say that environmental factors have been effectively excluded as having anything to do with the disease. Maybe what you're talking about or think about is the incidence in temperature climates, as opposed to warm climates. But most people think that it has more to do with nutrition and diet, rather than temperature. Q. Is there any generally-accepted conclusion in the medical community that any particular virus, Lyme disease, retro virus, measles, have an impact or causal connection? A. No. I said that it probably -- most people think it will be something like that. But whatever it is, has not been identified. (Layton Dep., Def. Ex. 2, P. 10) Dr. Layton said he first saw claimant in February 1984 through a referral by a Dr. Pinchera, of Fort Dodge, Iowa. Dr. Layton said that multiple sclerosis was suspected but not diagnosed on the 1984 visit. Dr. Layton said that on claimant's February 1985 visit, multiple sclerosis was confirmed. Dr. Layton said claimant returned the third time in 1986 and claimant's condition had worsened considerably. Dr. Layton was asked and answered as follows: Q. Do you have an opinion to a reasonable degree of medical certainty whether or not a single exposure to cold, such as that articulated by Mr. Horton, was causally related to the onset of his multiple sclerosis? A. Yes, I have a strong opinion that it was not caused by exposure to cold. Q. Do you have an opinion to a reasonable degree of medical certainty whether or not the exposure to exhaust fumes from a vehicle on the same day, or the combination of that event and the cold exposure, was causally connected to the onset of his symptoms relating to multiple sclerosis? A. I do. And that it is not. (Layton Dep., Def. Ex. 2, p. 17) Dr. Layton said he disagreed with Dr. Doro's opinion that: [T]here is, to a reasonable degree of medical certainty, evidence that stress triggers the onset of MS, and since Mr. Horton identified the cold incident as the only stressful incident in his life at about the time of the onset, then one can conclude that that exposure to cold caused the triggering or onset of the clinical manifestations. (Layton Dep, Def. Ex. 2, pp. 17-18) Dr. Layton further answered: A. Well, I disagree with it totally in the sense that I don't even believe that stress will trigger multiple sclerosis. It will often cause symptoms to be worse and and [sic] occasionally symptoms can be first noticed after times of stress. But think about what I've just said. Multiple sclerosis is a very, very common disease. There are many, many people with that disease. And so many, many people with stresses, also. They're bound to co-exist, even in time. (Layton Dep., p. 18) Dr. Layton admitted in his research and study in writing his article that he did not review the possibility of the relationship of the cold exposure and the onset of multiple sclerosis. He did acknowledge that those multiple sclerosis people in his study were from Minnesota where it is cold. He said he did not inquire about the research candidates and their degree of cold exposure. Joseph M. Doro, D.O., a neurologist, testified by deposition taken September 29, 1988. He indicated he has never conducted any experiments or investigations on multiple sclerosis nor has he written any publications. Dr. Doro said his knowledge of multiple sclerosis arises from his involvement with multiple sclerosis patients, with the Multiple Sclerosis Society from mid 1970's to the present and his residency training. Dr. Doro acknowledged that the etiology of multiple sclerosis is unclear, that it is found primarily in people of Northern European ancestry, and people located further from the equator. He also indicated that more people are beginning to think that a generic predisposition is the greater factor. Dr. Doro testified that: "I think most people agree now that it's primarily a disease involving the immune system; and that's the reason why you develop the symptoms that you do." (Doro Deposition, Claimant's Exhibit 6, page 11) Dr. Doro answered with a "no" when asked: "Is there any consensus in the medical literature at this time as to any one particular environmental factor or toxin or virus that definitely causes multiple sclerosis?" (Doro Dep, Cl. Ex. 6, p. 11) Dr. Doro said he first saw claimant on June 6, 1988 at the Multiple Sclerosis Center at Iowa Lutheran Hospital. Dr. Doro could not recall any scientific medical literature concluding that a single exposure to cold causes multiple sclerosis. He indicated stress is now known to be the most common cause of people with multiple sclerosis causing their exacerbation of their symptoms. Dr. Doro described stress as: Stress can be anything. Stress is a physiologic phenomenon and is not just a mental phenomenon. It's not a negative phenomenon. Stress is any type of stimulus which causes the fight or flight reaction to develop in the body. Now, this can be illness, this can be mental stress. Within the confines of mental stress, it could be something negative or it could be something positive: People moving, people getting married. Things that we think of as being happy events are very stressful events in life. Q. So a lot of times any unusual situational event in one's life whether it's negative such as the death of a relative or positive such as marriage or changing jobs can create stress? A. Yes. (Doro Dep., Cl. Ex. 6, pp. 18-19) Dr. Doro was asked: Are you saying then that in your opinion that Mr. Horton's single exposure to cold originated the disease process that resulted in multiple sclerosis? A. I'd be saying that his exposure to cold was what precipitated his initial exacerbation of his disease. Q. But it didn't cause the disease? A. We don't know what causes the disease. Q. Right. No one knows that? A. Right. Q. You're saying that you feel that the episode of cold exacerbated the symptoms? A. Yes. Q. Do you know what other stress factors in his life may have exacerbated the symptoms? A. No, I don't. (Doro Dep., Cl. Ex. 6, pp. 21-22) Dr. Doro was then asked: Q. Do we have any way of judging whether or not Mr. Horton's multiple sclerosis would have become symptomatic to the extent it is today with or without that single episode of cold exposure? A. It's hard to say what.his disease would have been. Q. When you used the term a reasonable degree of medical certainty in discussing causation, what do you mean by that? A. That looking at the situation, looking at what happened at one point and then what followed afterwards that it's reasonable to assume that there was a causal connection between the two. (Doro Dep., Cl. Ex. 6, pp. 23-24) Dr. Doro wrote on July 7, 1988: However, after reviewing Mr. Horton's history, I feel that within a reasonable degree,of medical certainty I could say that there was a causal relationship between the onset of his symptoms and his exposure to the cold. However, one could make the argument that he would have developed MS at some time in his life anyway, but the cold was the precipitating factor. (Cl. Ex. 3) The Mayo Clinic records reflect the following: 2/10/84 Outside x-ray Head 1-31-84: Neg. Head CT with and without contrast 1-31-84. (Baker) Chest PA stereo Neg. (Ward) "reb" 2-14-84 No neurol DX 2/14/84 Results of tests all normal. Symptoms unchanged. A change MNR scan & see same day (Dr. Layton) General discussion with pt & father. They have mentioned the diagnosis of M.S. & I have said that this is possible, though there is no supporting evidence on test results. Steroid not advised at present. 2/15/85 Multiple Sclerosis 2-15-85 M.R.I. Head-#NA-3102-Multiple focal areas of prolonged T-2 signal in booth cerebral hemisphere consistent with the diagnosis of multiple sclerosis. There may also be a couple of areas of prolonged T-2 signal in the upper brain stem. (Nichols) "alf" 4/3/87 Multiple Sclerosis recheck (Cl. Ex. 2) An article provided by the National Multiple Sclerosis Society, Iowa Chapter, stated: The effects of temperature are seen in many cases of multiple sclerosis. Extremes of both heat and cold appear to have an adverse effect, but increased symptoms are seen most often in the presence of heat. This is sometimes known as Uhthoff's sign. It is thought that increased body temperature ray disrupt nerve transmission, which can result in a variety of multiple sclerosis symptoms, including visual and coordination problems. Indeed, a diagnostic procedure in use for a number of years, the "hot bath test", will sometimes demonstrate an increase in multiple sclerosis symptoms when a person was submerged in a hot bath. It is recommended that the temperature-sensitive person with multiple sclerosis avoid excessive heat, particularly if experience tells him that such exposure results in incapacitating body weakness. (Cl. Ex. 4) An article in the Journal of Neurology, Neurosurgery and Psychiatry 1986; 49:113-123, The Mystery of the Origin of MS, by W. I. McDonald, sets out in its conclusion: "What can we now say about the origin of multiple sclerosis? That it is a disease produced by an environmental agent in genetically susceptible individuals in whom there is an abnormality of the immune mechanism." (Cl. Ex. 4, Article P. 121) APPLICABLE LAW AND ANALYSIS Iowa Code section 85.26 provides, in part: An original proceeding for benefits under this chapter or chapter 85A, 85B, or 86, shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed or, if weekly compensation benefits are paid under section 86.13, within three years from the date of the last payment of weekly compensation benefits. Iowa Code section 85.23 provides: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on February 15, 1985 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128. The claimant has the burden of proving by a preponderance of the evidence that the injury of February 15, 1985 is causally related to the disability on which he now bases his 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). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and cases cited. 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 v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 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). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Iowa adopts the discovery rule which provides that the period of limitations does not begin to run until the claimant knows of his or her injury and its probable compensable nature. Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256 (1980). Claimant is 35 years old and as stipulated by the parties, is permanently totally disabled. Claimant was working for defendant employer on December 24, 1983. Claimant was a mechanic on call 24 hours a day. There is testimony that claimant was called on an emergency by defendant employer on December 24, 1983 at 2:00 to 3:00 a.m. Several witnesses referred to the cold incident occurring on the morning of Christmas Eve. Because of the nature of the day and hours involved, the record was clarified at the end of the testimony. Wherever the witnesses referred to the morning of December 23, 1983, it was in fact the morning of Christmas Eve, December 24, 1983. Claimant testified that at 2:00 to 3:00 a.m. on December 24, 1983, it was a record cold 23 degrees below zero. The employer requested claimant try to start a disabled company truck on the highway outside Fort Dodge, Iowa. Claimant described the necessity to lie on the ground three to four hours while attempting to change a fuel filter and get the truck operating. Claimant told of the fuel oil spilling down his arm, his coat hood falling off his head and the blowing snow drifting around his body as he struggled without gloves to fix the employer's truck. Claimant testified he was unable to start the truck, which was located in a precarious position along the highway. Claimant eventually hauled the truck to defendant employer's garage and went home to take a hot shower. Claimant then returned to work for an additional eight to ten hours. Claimant's father finally came to defendant employer's work place to pick up his son so that the family could celebrate the annual Christmas Eve dinner and events. Claimant described the numbness and coldness he felt Christmas Eve. Claimant said he was tired and slept some at his parents. He had double vision. Claimant was not improving and he sought medical help. Claimant went to the University of Iowa Hospitals in early January 1984 and returned without a diagnosis. It appears claimant did not go through all the possible tests at that time due to the unavailability of the doctor with whom he had the appointment. Claimant immediately thereafter set up an appointment with Mayo Clinic. Certain tests were performed with normal results. Claimant returned without a diagnosis. There was a notation that possible multiple sclerosis was suspected but the tests showed nothing at that time. Claimant was to go home and let nature take its course and return in one year. Claimant returned to Mayo Clinic around the first of February 1985, at which time he had several tests performed, one being an MRI. Claimant returned home and was notified he had multiple sclerosis. Claimant, his sister, and his parents testified this was the first time they knew of any diagnosis and particularly that the claimant was diagnosed as having multiple sclerosis. Iowa has adopted the discovery rule. Claimant first knew he had multiple sclerosis in February 1985. The Mayo notes indicate in February 1985 is when the attending doctor wrote this diagnosis in claimant's Mayo Clinic records. The undersigned finds that February 15, 1985 is the date of injury for the purposes of the application of Iowa Code sections 85.23 and 85.26. There is considerable testimony that claimant or his father notified or discussed claimant's medical problems in 1984 and 1985 with the employer. The undersigned finds that the employer was orally notified timely and, also, the employer had actual notice of claimant's medical and hospital appointments, the events of December 24, 1983, and the ultimate diagnosis by Mayo Clinic in February 1985. The employer took certain actions to cause claimant to quit his job soon after February 15, 1985. Claimant continued to work even though the multiple sclerosis was progressive and debilitating to claimant. Claimant's employer fired claimant in July 1985. It appeared obvious that claimant's condition was worsening and claimant was not able to perform his job as he did before the December 24, 1983 events. The undersigned finds claimant timely notified defendant employer of his injury and that the employer also had actual notice. Claimant's petition was filed on December 22, 1986, within the two years of the discovery of claimant's injury and as in the provisions of Iowa Code section 85.26. It is undisputed that claimant has multiple sclerosis. The parties submitted as exhibits various articles written about multiple sclerosis. Defendants contend the cause of multiple sclerosis is unknown. It appears the specific cause of multiple sclerosis is unknown. It appears most people agree it is primarily a disease involving the immune system, but there is no one consensus in the medical literature as to any one specific factor or toxin or virus that definitely causes multiple sclerosis. Dr. Doro opined that claimant's exposure to cold was what precipitated claimant's initial exacerbations of his multiple sclerosis disease. He emphasized that the cold incident did not cause multiple sclerosis but exacerbated the symptoms. Dr. Doro opined that there was a causal connection between the onset of claimant's symptoms and his exposure to the cold. Dr. Layton basically disagreed with Dr. Doro's medical causation opinion. Dr. Layton has done research projects involving patients who have multiple sclerosis, some of whom lived in Minnesota. It appears Dr. Layton, in part, relied on this study to help form his opinion. Dr. Layton admitted that no question concerning the extent of the patient's exposure to cold was asked. Dr. Doro stated that the study did not involve the relationship of cold exposure to the onset of multiple sclerosis symptoms. The undersigned feels that Dr. Layton's study is flawed as it relates to claimant. Exposure to cold and resulting stress is a big factor as it applies to claimant. The undersigned is curious as,to why the study involves suspected multiple sclerosis patients in the northern colder parts of the country and the effects of cold was not considered. It appears from the literature exhibits that there is a higher number of people with multiple sclerosis where it is colder or farther north and a greater distance from the equator. Claimant had no symptoms of a multiple sclerosis medical condition prior to December 24, 1983 that would suggest any illness that would ultimately debilitate the claimant. The undersigned believes Dr. Doro to be more accurate in his opinion. The undersigned finds that the events occurring on December 24, 1983 did not cause multiple sclerosis itself, but these events precipitated, accelerated and caused to appear symptoms diagnosed on February 15, 1985 as multiple sclerosis. The undersigned finds that claimant had a predisposed condition that was latent and undisturbed until the events of December 24, 1983. The defendant takes claimant as he is. The undersigned finds claimant's multiple sclerosis condition arose out of and in the course of his employment, and that the symptoms of the multiple sclerosis disease which have totally disabled claimant is causally connected to the events occurring on December 24, 1983 and first discovered by claimant on February 15, 1985. Similar issues in this current case has been cited in another jurisdiction with the same results. Conway v. Black Feet Indian Developers, Inc., 669 P.2d 225 (Mont. 1983). Claimant is entitled to have all his medical expenses beginning December 24, 1983 paid by defendants, either by reimbursing claimant for out-of-pocket expenses or paying the provider of the services directly. FINDINGS OF FACT 1. Defendant employer had actual notice of events on December 24, 1983 which ultimately caused symptoms later diagnosed on February 15, 1985 as multiple sclerosis. 2. Claimant timely filed his petition under the provisions of Iowa Code section 85.26. 3. Defendant employer had timely oral and actual notice of claimant's February 15, 1988 multiple sclerosis diagnosis. 4. Claimant has multiple sclerosis and is permanently totally disabled as a result of the symptoms arising therefrom. 5. Claimant had an inactive, latent, underlying multiple sclerosis condition on December 24, 1983, which was discovered on February 15, 1985, and which was aggravated or precipitated and its symptoms triggered by the work-related events that occurred on December 24, 1983. 6. Claimant's debilitating symptoms of his multiple sclerosis disease were incurred as a result of a work-related injury on December 24, 1983, which injury diagnosis was first discovered on February 15,.1985. 7. Claimant suffered extreme cold weather conditions on December 24, 1983, which triggered, precipitated and accelerated a predisposed latent condition in claimant causing symptoms ultimately diagnosed on February 15, 1985 as multiple sclerosis. 8. Claimant's employment was terminated by defendant employer on June 10, 1985. 9. Claimant is permanently totally disabled beginning June 10, 1985. 10. Defendants are to pay claimant's medical expenses set out in claimant's exhibit 8. CONCLUSIONS OF LAW Claimant's debilitating symptoms of his multiple sclerosis disease arose out of and in the course of his employment on December 24, 1983, and that claimant was first informed of the injury diagnosis on February 15, 1985. Claimant's permanent total disability was caused by the work-related injury he received on December 24, 1983, which was not discovered as to its effects until February 15, 1985. Claimant is permanently totally disabled. Claimant timely notified defendant employer as to the notice of his injury as provided under Iowa Code section 85.26. Claimant timely filed his petition as provided under Iowa Code section 85.26. Claimant is entitled to have his medical benefits paid beginning December 24, 1983. ORDER THEREFORE, it is ordered: That defendants pay claimant compensation for permanent total disability at the stipulated rate of two hundred twenty-six and 20/100 dollars ($226.20) per week during the period of claimant's disability commencing June 10, 1985. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Defendants shall pay claimant's medical expenses set out in claimant's exhibit 8 and future medical as a result of claimant's injury of February 15, 1985. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file an activity report upon payment of this award as requested by this agency pursuant to Division of Industrial ServiceS Rule 343-3.1. Signed and filed this 29th day of September, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Ms. Artis I. Reis Attorney at Law 3939 Grand Ave Des Moines, IA 50312 Mr. Brian L. Campbell Attorney at Law 1100 Des Moines Bldg Des Moines, IA 50309 1100; 1108; 2401 2402; 2206; 5-1804 Filed September 29, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER NEAL HORTON, Claimant, File No. 837636 vs. GREENFIELD TRANSPORT A R B I T R A T I 0 N COMPANY, INC., D E C I S I 0 N Employer, and CARRIERS INSURANCE COMPANY by IOWA INSURANCE GUARANTEE ASSOCIATION, Insurance Carrier, Defendants. 2401; 2402 Deputy found February 15, 1985, when claimant first found out the diagnosis of his condition, was the date of claimant's injury for purposes of 86.23 (Notice of Injury) and 86.26 (Statute of Limitations). Claimant timely notified employer and timely filed his petition as to his February 15, 1985 injury date. 1100; 1108 Found claimant's injury rose out of and in the course of his employment and that claimant's multiple sclerosis condition was causally connected to his February 15, 1985 injury. 2206 Found claimant's preexisting, inactive, latent, underlying multiple sclerosis condition on December 24, 1983, which was discovered on February 15, 1985, was aggravated or precipitated and its symptoms triggered by the work-related events that occurred December 24, 1983. 5-1804 Claimant found to be permanently totally disabled. The parties had stipulated that if liability found, claimant was permanently totally disabled. NOTE: Conway v. Black Feet Indian Developers, Inc., 669 P.2d 225 (Mont. 1983) found the same results. The judge in the Conway case made a comment that may be of interest to the deputies and their hard working staff. Although some inherent institutional delay may be expected as a claim lumbers through the claims process, it is clear as day that a 7-year case time is intolerable to a worker. The blame rests squarely on the legislature. It has treated the Workers' Compensation Court as an orphan, leaving it understaffed, underfinanced and underquartered. It has practiced a false economy, because the burden of financing the Workers' Compensation Court is upon industry and those who suffer most from underfinancing are the helpless and the injured. If this case does not shake some legislator's conscience, perhaps nothing will. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CAROL FRY, Claimant, VS. File Nos. 837829 and 846901 AMANA REFRIGERATION, INC., A R B I T R A T I O N Employer, D E C I S I O N and F I L E D LIBERTY MUTUAL INSURANCE CO., JUN 20 1990 Insurance Carrier, INDUSTRIAL SERVICES and SECOND INJURY FUND OF IOWA, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Carol Fry, claimant against Amana Refrigeration, Incorporated, employer, Liberty Mutual Insurance Company, insurance carrier and Second Injury Fund of Iowa, defendants, for benefits as the result of an injury to the right arm which occurred on October 23, 1986 (file number 837829) and an injury to the left arm that occurred on February 9, 1987 (file number 847901). Claimant contends that she first lost work due to the second injury on February 9, 1987 and; therefore, claimant contends the proper date of injury is February 9, 1987. Defendant employer and insurance carrier contend that with respect to the second injury, claimant first complained of an injury on January 28, 1987 and they consider this to be the injury date for the second injury. Defendant Second Injury Fund of Iowa contends that claimant sustained only one injury of a cumulative nature stemming from a preexisting condition and that the injury date should be when claimant first lost time from work for the injury. A hearing was held on November 14, 1989, at Cedar Rapids, Iowa, and the case was fully submitted at the close of the hearing. Claimant was represented by Thomas J. Currie. Employer and insurance carrier were represented by Ralph W. Gearhart. Second Injury Fund of Iowa was represented by Craig Kelinson. The record consists of the testimony of Carol Fry, claimant; Gerald Fry, claimant's former husband; Vera Hansen, witness for claimant; John Hadenfeldt, director of occupational safety; joint exhibits 1 through 4; claimant's exhibits A through G; and employer and insurance carrier exhibits 1 and 2. Several of the exhibits were duplicated by claimant and employer and insurance carrier, even though paragraph 10(2) of the hearing assignment order states that every reasonable effort should be made to avoid duplication. Duplicated exhibits inhibit the decision making process, are difficult to work with, and delay the time in which the decision can be made. The deputy ordered a transcript of the hearing. Claimant's attorney filed a claimant's contention on disputed issues and a hearing brief at the time of the hearing. All three attorneys filed outstanding posthearing briefs. INJURY OF OCTOBER 23, 1986 STIPULATIONS Claimant, employer and insurance carrier stipulated to the following matters with respect to the injury of October 23, 1986: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on October 23, 1986 which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability, that claimant was entitled to and was paid temporary disability benefits from November 13, 1986 through January 1, 1987, and that claimant's entitlement to temporary disability benefits is not a matter in dispute at this time. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is January 2, 1987. That the rate of compensation, in the event of an award, is $226.03 per week. That the charges for disputed medical expenses are fair and reasonable and were incurred for reasonable and necessary medical treatment. The defendants make no claim for credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendants claim no credit for workers' compensation permanent disability benefits paid to claimant prior to hearing. That the temporary disability benefits that were paid to claimant prior to hearing were at the rate of $210.78 per week for 8.143 weeks and that this rate is less than the stipulated rate at the time of hearing and the parties agreed to adjust this between themselves. That there are no bifurcated claims. That claimant withdrew the issue of entitlement to an Iowa Code section 85.39 examination because employer and insurance carrier agreed to pay for this examination and evaluation at the time of hearing. ISSUES The same parties submitted the following issues for determination at the time of hearing: Whether the injury of October 23, 1986, was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which she is entitled. Whether claimant is entitled to certain medication expenses and a bill from St. Luke's Hospital for an EMG in the amount of $309. INJURY OF FEBRUARY 9, 1987 STIPULATIONS Claimant, employer and insurance carrier stipulated to the following matters with respect to the injury of February 9, 1987: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on February 9, 1987 or possibly January 28, 1987 which arose out of and in the course of employment with employer. That the injury was the cause of temporary disability, that claimant was entitled to and was paid temporary disability benefits from February 9, 1987 through March 22, 1987 and that claimant's entitlement to temporary disability benefits is not a matter in dispute at this time. That the commencement date for permanent disability benefits, in the event such benefits are awarded, is March 23, 1987. That the rate of compensation, in the event of an award, is $221.30 per week. That the charges for the disputed medical expenses are fair and reasonable and were incurred for reasonable and necessary medical treatment. That defendants make no claim for credit for employee nonoccupational group health plan benefits paid to claimant prior to hearing. That defendants claim no credit for workers' compensation permanent disability benefits paid to claimant prior to hearing. That the temporary disability benefits that were paid to claimant prior to hearing were at the rate of $228.82 per week which is more than the rate that was stipulated to at the time of the hearing and the parties agreed to adjust this matter between themselves. That there are no bifurcated claims. That claimant withdrew the issue of entitlement to an Iowa Code section 85.39 examination because defendant employer and insurance carrier agreed to pay for it at the time of hearing. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on February 9, 1987 (or alternately on January 28, 1987) which.was the cause of permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which she is entitled. Whether claimant is entitled to certain medication expenses and a bill from St. Luke's Hospital for an EMG in the amount of $309. Whether claimant is entitled to benefits from the Second Injury Fund of Iowa. INJURIES OF OCTOBER 23, 1986 AND FEBRUARY 9, 1987 The Second Injury Fund of Iowa submitted the following issues with respect to both injuries at the time of hearing. Whether claimant sustained two separate injuries or whether claimant sustained one cumulative injury with simultaneous onset of symptoms in both upper extremities. Whether the injuries are to the arms and hands or whether this is an injury to the body as a whole. Whether claimant's injury or injuries are permanent. Whether claimant sustained a disease rather than an injury. Whether claimant's industrial disability, if any, exceeds the combined disability of the two upper extremities separately. FINDINGS OF FACT INJURY TYPE-INJURY DATE-SECOND INJURY FUND OF IOWA LIABILITY It is determined that claimant sustained a loss to both arms caused by a single accident. Iowa Code section 85.34(2)(s). Claimant started to work for employer on August 4, 1986 as an assembler second class (transcript page 53). Employer's general job description is, "Assemble and install parts in units." The balance of the description is a detailed explanation of the skills and responsibilities of the job which entail considerable use of the hands and arms (claimant's exhibit E, p. 24; respondents, ex. 1, page 10). Claimant first experienced problems in her fingers and hands in September of 1986. She testified: A. It was tingling all over on my hands. When I'd go to bed at night, I couldn't sleep because they would hurt so bad. Q. When you say "they", what are you referring to? A. The hands. They just would hurt. Q. Okay. So were you experiencing problems with both hands at that time? A. Off and on. (tr. p. 57) Claimant saw the nurse, the company physician, and was referred to John S. Koch, M.D., an orthopedic surgeon. On November 10, 1986, Dr. Koch stated: Patient comes in in acute distress with the upper extremities.... *** She has acute tenderness about the wrists, the flexors of the thumb of the hands, puffiness of the metacarpal plangeal joints, soreness about the wrist level. She has exquisite tenderness over the flexor pollicis longus tendon bilaterally, triggering effects on the structure. Sensation is intact. (joint ex. 1, p. 22; res. ex. 1, p. 38) Employer's first aid report shows that claimant reported, "trouble 2 weeks-new job. hands & arms pins & needles-night-" (cl. ex. E, p. 1; res. ex. 1, p. 20). Claimant testified and the first aid reports show that the right hand was the major problem at that time (tr. p. 57; cl. ex. E, p. 1; res. ex. 1, p. 21). Employer's first aid report next shows that on November 10, 1986, the same day claimant saw Dr. Koch, that the employee was sent, "home." This report adds, "To bring under control." (cl. ex. E, p. 5; res. ex. 1, p. 25). Thus, even though the parties stipulated that claimant was paid temporary disability benefits beginning on November 13, 1986, the first aid report shows that claimant first lost time from work on November 10, 1986. Furthermore, the form 2a, shows that temporary disability benefits were begun on November 10, 1986 (res. ex. 1, p. 33). This is also confirmed by employer's attendance records (jt. ex. 2, p. 12; cl. ex. E, p. 25; res. ex. 2, p. 11). The nurse's note for October 23, 1986 further indicates that claimant reported bilateral problems in both hands and arms at that time (jt. ex. 2; cl. ex. E, p. 29; res. ex. 2, p. 16). Claimant testified, described and demonstrated in the court room with several gestures that manual movements were required by both hands and arms simultaneously to operate the RTV caulking gun to caulk the pan into the Amana Radar range (tr. pp. 58 & 85). Dr. Koch performed right carpal tunnel surgery on November 19, 1986 (jt. ex. 1, pp. 2 & 22; jt. ex. 2, pp. 8 & 16; tr. p. 87; cl. ex. E, p. 6; res. ex. 1, p. 24). Dr. Koch's office notes and the form 2a indicate that claimant returned to work on January 5, 1987 (jt. ex. 1, p. 21; res. ex. 1, p. 39 & 33; cl. ex. B, p. 3; res. ex. 1, p. 44). Claimant then operated a screw gun which she fed with screws with the left hand until January 28, 1987 when she reported pain and swelling in her left hand (cl. ex. E, p. 7; res. ex. 1, p. 27; tr. pp. 61 & 92). Claimant again demonstrated that both right and left hand motions were required to perform this operation (tr. p. 93). Dr. Koch performed carpal tunnel surgery on the left hand on February 9, 1987 (jt. ex. 1, p. 20; jt. ex. 2, p. 19; res. ex. 1, p. 40; tr. p. 95). Approximately one week after the left carpal tunnel surgery claimant's left thumb locked up and she required a surgical release of the left thumb (jt. ex. 2, p. 20; jt. ex. 1, p. 1). Dr. Koch stated several times in his deposition that claimant suffered from a bilateral condition (jt. ex. 2, pp. 28-30). John R. Walker, M.D., an orthopedic surgeon, who evaluated claimant, stated: ...After about one month of working at the plant both of her hands became painful and the right thumb, index and long finger became numb. Both hands were also cold and swollen most of the time and it was almost impossible to grasp the tool she needed to work with.... (cl. ex. A) Dr. Walker further opined, "Unfortunately this patient has suffered from the severe effects of a stress type of syndrome and over-use type of syndrome in doing repetitive movements which her musculo-skeletal system unfortunately were not equipped to handle." (cl. ex. A). Two orthopedic physicians at the University of Iowa stated that claimant experienced bilateral hand pain (jt. ex. 1, p. 38). Therefore, (1) claimant testified to bilateral problems in September of 1986; (2) the first aid report recorded bilateral problems on October 23, 1986; (3) the nurse's notes recorded bilateral complaints; (4) Dr. Koch found a bilateral condition on November 10, 1986; (5) Dr. Koch testified to bilateral hand complaints in his deposition; (6) the University of Iowa physicians describe bilateral hand pain; and (7) Dr. Walker found a bilateral problem on August 31, 1987 from the overuse type of syndrome in doing repetitive movements. Therefore, the weight of the evidence is that claimant sustained a cumulative injury which occurred on November 10, 1986, the first day that claimant was forced to leave work due to her disability which arose out of and in the course of employment with employer. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). It is further determined that claimant sustained all of the symptoms at the same time, shortly after claimant began work for employer, even though it was worse on the right at first and subsequently worse on the left after that. Consequently, all of the medical evidence and all of the lay evidence demonstrated a bilateral condition from the very beginning. Therefore, it is found that even though there are two reports of injury, two claim files, and two carpel tunnel surgeries, nevertheless, claimant's testimony, the companies medical record, the nurse's notes, the notes of Dr. Koch, the testimony of Dr. Koch, the report of Dr. Walker, and the University of Iowa report, all establish that claimant received a loss to both hands or arms caused by a single accident or set of circumstances. Iowa Code section 85.34(2)(s); Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Himschoot v. Second Injury Fund, Appeal Decision April 15, 1988, affirmed, Polk County District Court January 30, 1989, Iowa Court of Appeals, affirmed on February 22, 1990 in an unpublished decision. This case is distinguishable from Babe v. Greyhound Lines, Inc., No. 89-113 (Iowa filed March 27, 1990) because in Babe the claimant suffered distinguishable separate injuries. In order to be entitled to benefits under Iowa Code section 85.64 from the second injury fund, claimant must first prove a permanent injury to a scheduled member and second prove a separate permanent injury to a second scheduled member. Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 17-4, stresses that the employee must have a loss to another member or organ. By foot note one, the book points out that an 85.34(2)(s) injury is a single incident and shall be compensated as such. Manifestation of one injury on two occasions does not satisfy the requirement of a second loss. McMurrin v. Quaker Oats Company, I Iowa Industrial Commissioner Reports 222 (1981). The Mcmurrin case is quite similar to this case because there the claimant had developed what was described as de Quervain disease or tendonitis in both wrists. It was held that the claimant did not have a prior loss of a member as contemplated by Iowa Code section 85.64. Therefore, it is determined that claimant is not entitled to second injury fund benefits in the instant case. The injury date for this case is determined to be November 10, 1986, when claimant first lost work due to the disability. The rate of compensation on November 10, 1986 is the rate of com-pensation which is applicable to this case. There is no date of a second injury because there is no separate second injury. PERMANENT DISABILITY-CAUSAL CONNECTION-ENTITLEMENT It is determined that the bilateral carpal tunnel syndrome cumulative injury of November 10, 1986, is the cause of permanent disability. Dr. Koch, the operating surgeon, however, did not believe that the injury was the cause of permanent disability. He determined that claimant was suffering from rheumatoid arthritis, a systemic disorder or disease of the whole body which was being aggravated by her work. He said she had a temporary aggravation of her difficulty which necessitated the surgical decompressions. Dr. Koch concluded, "I do not feel that she will have permanent partial disability as the result of her work or aggravation by the work." (jt. ex. 1, p. 17; res. ex. 2, p. 46; res. ex. 1). Dr. Koch opined in his deposition that he did not feel that there was any permanent impairment from either the right or left hand surgeries (jt. ex. 2, pp. 17 & 22). Dr. Koch believed that claimant's continuing complaints of soreness in her hands, aching pains at night, stiffness, swelling and catching of the ring finger on her left hand with bending activities were related to her underlying general systemic or body condition of rheumatoid arthritis (jt. ex. 2, pp. 23 & 24). Dr. Koch then referred claimant to Michael S. Brooks, M.D., a rheumatologist in his medical group (jt. ex. 1, p. 19; res. ex. 2, p. 41; jt. ex. 2, p. 26). A laboratory blood test taken by Dr. Koch to determine whether there was a rheumatoid factor resulted in a seronegative (blood serum negative) result (jt. ex. 1, p. 19; res. ex. 2, p. 41; jt. ex. 2, p. 26). Dr. Koch completed his testimony with the following comprehensive summary: Q. What is your basic diagnosis of Mrs. Fry's problem as her attending physician? A. As I've indicated, I feel Mrs. Fry is afflicted with a generalized arthritic disorder of the whole body which I became aware of in the course of treating her for conditions related to temporary aggravation in local areas of her body by activities in her employment. Those temporary aggravations were relieved without permanent impairment being incurred by the work activity and that she continued to this day suffering from a generalized disease process unrelated to her employment. And I anticipate that she will continue in the future to be afflicted with this whole body disorder requiring medical, possibly physical, possibly surgical management for difficulties that will arise but in no way related to her former employment. (jt. ex. 2, pp. 27 & 28) Dr. Koch acknowledged that he issued a return to work slip on March 19, 1987, which returned claimant to work as of March 23, 1987 with restrictions of no lifting, pulling or pushing 10 to 20 pounds and a restriction on finger movements and wrist-hand movements (jt. ex. 1, p. 12; jt. ex. 2, pp. 37 & 38). It should be noted that Dr. Koch's restrictions are not consistent with a rating of zero permanency. Even though Dr. Koch was the treating physician, and even though his opinion may appear to be very convincing on the surface, Dr. Koch's testimony is determined not to be the weight of the evidence on the issue of causal connection and entitlement to permanent disability. Dr. Koch admitted in his deposition testimony that he did not administer any sort of grip strength test on claimant. He did not measure the pinch between the thumb and forefinger on either or both hands. Dr. Koch acknowledged that he did not have any measurement figures at all. Dr. Koch explained that he did not take any measurements because these tests require the total cooperation on the part of the patient and if you get subjective responses rather than objective responses the readings are unreliable. Furthermore, the doctor conceded, "My examination here was not for purposes of evaluation as to degree of impairment or disability and therefore critical measurements were not made of these." Dr. Koch further admitted, "I did not make any record of measurement of degree of motion, flexion, extension or rotation involving the extremities." (jt. ex. 2, pp. 40 & 41). Therefore, it is clear that Dr. Koch did not use the Guides to the Evaluation of Permanent Impairment, third edition, published by the American Medical Association. He did not use the Orthopedic Surgeon's Guide to arrive at his conclusions. And he did not take any measurements which would form the basis for an accurate evaluation of impairment based entirely on professional judgement. Therefore, Dr. Koch's statement of zero impairment must be disregarded as unreliable. The following evidence of record is totally irreconcilable with Dr. Koch's opinion that claimant suffered no permanent impairment from this injury. Even though claimant was released to return to work after the second and third surgeries on March 23, 1987 she was discharged by employer for the reason that she was unfit to perform factory work (cl. ex. E, p. 33; res. ex. 1, p. 19). This discharge was based on Dr. Koch's release of March 19, 1987. Claimant testified that she was told by employer that she was unable to perform factory work (tr. pp. 63-75). John B. Hadenfeldt, director of occupational safety, testified, "With the medical reports that we had at that time Carol had weight restrictions, 10 to 20 pounds, she also had permanent restrictions of finger movement and hand and wrist movement, and at that time we didn't have any jobs that we could put her into." Dr. Brooks completed a very thorough examination of claimant on June 22, 1987. Dr. Brooks is a rheumatologist, a specialist in arthritis. Dr. Brooks stated: A CBC done in April revealed a normal hemoglobin of 14.3 with a white count of 9.2 and a sedimentation rate of 3. Her rheumatoid factor at that time was negative and I note that a rheumatoid factor done back in 1986 by Dr. Bickel was also negative. On the basis of today's examination and the laboratory tests available thus far, I feel that the most likely diagnosis would be one of a fibrositis syndrome with a questionable underlying mild polyarticular arthritis. She does appear to have had documented carpal tunnel syndrome and this may very well have precipitated this flareup [sic] in her fibrositis symptoms. (jt. ex. 1, p. 14; res. ex. 1, p. 40) Thus, Dr. Brooks, the arthritis specialist, did not find that claimant had rheumatoid arthritis. When Dr. Koch was asked whether fibrositis and polyarticular arthritis were the same, he gave an answer which appears to be equivocal (jt. ex. 2, pp. 41 & 42). Claimant was also seen by William W. Eversman, Jr., M.D., an orthopedic surgeon in Dr. Koch's medical group, on January 15, 1988 and again on February 24, 1988. Like Dr. Brooks, he examined claimant's entire history and did a very thorough physical examination. He did not find that claimant had rheumatoid arthritis and never mentioned this condition in either of his extensive office notes. He suggested that she be examined at the University of Iowa. Dr. Eversman refused to give an impairment rating because he did not believe that she could adequately cooperate with the permanency rating series of tests in view of her views that she expressed to him at that time (jt. ex. 1. pp. 30-33). By comparison with Dr. Koch, it should be noted that he did not attempt to propose a zero impairment rating, when he felt that claimant could not or would not cooperate with the necessary tests, but candidly admitted that he could not give a rating. Claimant was examined at the University of Iowa on February 1, 1989 by Dr. Newport and Dr. Steyers (full names unknown). These doctors did not make a finding of rheumatoid arthritis, but rather assessed, "Industrial hand pain of unknown etiology" (jt. ex. 1, p. 38). Neither doctor attempted to evaluate claimant's permanent impairment. A copy of their report was sent to Dr. Eversman (jt. ex. 1, p. 38). Thus, it is determined that Dr. Koch's determination that claimant did not sustain a permanent impairment or disability is unreliable because (1) his determination that claimant suffered from rheumatoid arthritis is not supported by Dr. Brooks, a rheumatologist; Dr. Eversman, an orthopedic surgeon; or the two orthopedic doctors at the University of Iowa; (2) two previous laboratory blood serum tests were negative for rheumatoid arthritis; and (3) Dr. Koch candidly admitted that he really didn't perform an impairment evaluation on claimant and he took no measurements of any kind to support his opinion that claimant did not sustain any permanent impairment. The weight of the evidence is that claimant did sustain a permanent impairment. Dr. Brooks wrote on March 28, 1988: In terms of whether these symptoms were caused or aggravated by her work at Amana, I would state that her excessive use of the hands while working at Amana could certainly have caused the carpal tunnel syndrome and initial symptoms that she experienced while she was there. ...and that at least by her history the entirety of her problems involving the hands began with her employment at Amana. I would therefore consider them related... (jt. ex. 1, p. 34) The omitted portion in the quotation above is the doctor's comments on reflex sympathetic dystrophy syndrome. These words are omitted because claimant did not prove that she has reflex sympathetic dystrophy syndrome in the first place, save that it was caused by this injury. A friend of hers was diagnosed with this disease and claimant requested the doctors to examine her for it also. None of the doctors found that claimant had reflex sympathetic dystrophy syndrome. Dr. Brooks did establish that claimant's employment, "could certainly have caused the carpal tunnel syndrome." (jt. ex. 1, p. 34). Dr. Walker found, "Unfortunately this patient has suffered from the severe effects of a stress type of.syndrome and over-use type of syndrome in doing repetitive movements which her musculo-skeletal system unfortunately were not equipped to handle." (cl. ex. A). The testimony of Dr. Brooks and Dr. Walker, coupled with claimant's testimony that she had no prior problems with her hands before this employment (tr. p. 80) which was corroborated by her former husband (tr. pp. 114, 115) and claimant's witness Hansen (tr. p. 121) and with an absence of any medical evidence in the record of any problems with her hands prior to 1986 added to Dr. Walker's opinion which is based on this work injury that: At the present time I would state that she has a permanent, partial impairment of the left, upper extremity amounting to 20% of this member. As far as the right, upper extremity is concerned, it is my opinion that she has a permanent, partial impairment of 8% of the entire left, upper extremity. (cl. ex. A, p. 4) In conclusion, Dr. Koch's testimony that claimant did not sustain a permanent impairment is determined to be unreliable. The testimony of Dr. Brooks to the effect that claimant's impairment and disability could possibly be related to this employment injury, although insufficient alone to support a finding of causal connection, when coupled with Dr. Walker's report, which is built on the history of this injury, along with the nonexpert testimony of claimant, claimant's husband, and Hansen is sufficient to establish a causal connection of this injury to permanent impairment and disability. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966); Anderson v. Oscar Mayer and Company, 217 N.W.2d 531, 536 (Iowa 1974). The weight of the expert and nonexpert evidence in this case establishes that the injury was the cause of permanent disability. Klinker v. Wilson Foods Corp., Thirty-fourth Biennial Report of the Industrial Commissioner 167, 168 (Appeal Decision July 27, 1979). A cause is proximate if it is a substantial factor in bringing about the result. It only needs to be one cause, it does not have to be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Based on agency experience, technical competence, and specialized knowledge which may be utilized in the evaluation of the evidence [Iowa Administrative Procedure Act 17A.14(5)] it is determined that Dr. Walker's impairment ratings are higher than are normally experienced for similar injuries when rated by other orthopedic surgeons. It is determined in this case that claimant has sustained a 10 percent impairment to the left upper extremity and a 5 percent impairment to the right upper extremity. Ten percent of the upper extremity converts to 6 percent of the body as a whole. Five percent of the upper extremity converts to 3 percent of the body as a whole. Table 3, page 20, Guides to the Evaluation of Permanent Impairment, third edition. Six percent of the whole person and 3 percent of the whole person combines to 9 percent on the combined values chart at page 246 of the Guides. Nine percent of 500 weeks is 45 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(s). The proper rate of compensation at the time of this injury on November 10, 1986, is $226.03 per week according to the stipulation of the parties for this approximate injury date. Claimant's testimony concerning her residual complaints after the two carpal tunnel surgeries and the trigger thumb release, as well as her description of the activities that she can no longer do or is restricted in doing, are quite similar to other claimants in carpal tunnel syndrome cases and support the amount of impairment that is determined for claimant in this case (tr. pp. 73-79, 96-104). MEDICAL EXPENSES The parties stipulated that the charges for disputed medical expense are fair and reasonable and were incurred for reasonable and necessary treatment. The issue is whether they are causally connected to this injury. Claimant's attorney asserted that claimant was seeking reimbursement for the prescription medications ordered by Dr. Koch during his period of treatment (ex. D, pp. 3-12) and by Dr. Brooks during his period of treatment of claimant (ex. D, pp. 1 & 2). Claimant testified that all of these prescriptions prescribed by these two doctors would be for her hands and arms. Claimant also testified that Dr. Brooks ordered the EMG in the amount of $309 from St. Luke's Hospital (cl. ex. C). Dr. Koch verified in his deposition that he did prescribe Prednisone, Disalcid and Orudis for claimant. (jt. ex. 2, pp. 10, 23 & 26). These medications are further verified by Dr. Koch's notes as well as the medication Indocin (jt. ex. 1, pp. 19-22; res. ex. 1, pp. 38-41). Therefore, it is determined that these prescriptions were caused by this injury because they were prescribed by the treating physician during the period of his treatment based on Dr. Koch's diagnosis of the injury. These prescription items total $389.59. Claimant is entitled to recover $389.59 for these prescription drugs ordered by Dr. Koch. At the same time, a reading of Dr. Brooks' office notes and reports does not disclose that he ordered the medications for which claimant seeks reimbursement, or,that he ordered them for this particular injury, nor is there any evidence in the materials from Dr. Brooks that he ordered the EMG on September 8, 1987 which cost $309. Furthermore, this EMG date does not tie in with any of the times which Dr. Brooks examined claimant. Therefore, it is determined that claimant is not entitled to any of the other medication expenses shown for Dr. Brooks or any other doctors in claimant's exhibit D, pages 1 through 12. Claimant is not entitled to recover the cost of the EMG. TAXATION OF COSTS Claimant submitted an itemized list of costs with the pre-hearing report. The parties stipulated that these costs had been paid by claimant. Claimant is entitled to recover these costs as follows: Medical report of Dr. John S. Koch-$30, medical report of Dr. John R. Walker-$85 and deposition transcript of Dr. Koch-$48.49. These items total $163.49 and claimant is entitled to recover these costs. Division of Industrial Services Rule 343-4.33(2) and 343-4.33(6). CONCLUSIONS OF LAW The following conclusions of law are made: That claimant sustained a cumulative injury of bilateral carpal tunnel syndrome which occurred simultaneously in both the right and left hand and wrist on November 10, 1986, which arose out of and in the course of employment with employer. Iowa Code section 85.3; Iowa Code section 85.34(2)(s); 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). Furthermore, the cites in the findings of fact to McKeever, Simbro, Himschoot, McMurrin, and Lawyer and Higgs, also apply to this conclusion of law. It is determined that the injury is the cause of permanent disability. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). Furthermore, citations to Giere and Anderson in the findings of fact also apply to this conclusion of law. That claimant is entitled to 45 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(s). That claimant is entitled to recover $389.59 in medical expenses for prescription drugs. Iowa Code section 85.27. That claimant did not sustain the burden of proof by a preponderance of the evidence that she sustained separate injuries to the body members specified in Iowa Code section 85.64 and; therefore, claimant is not entitled to any benefits from the Second Injury Fund of Iowa. That claimant did not sustain the burden of proof by a preponderance of the evidence that the other prescription drugs or the EMG expense was caused by this injury and therefore, claimant is not entitled to recover these medical expenses. Iowa Code section 85.27. That claimant is entitled to recover costs as designated above in the total amount of $163.49 from defendant employer and insurance carrier. ORDER THEREFORE, IT IS ORDERED: That defendant employer and insurance carrier pay to claimant forty-five (45) weeks of permanent partial disability benefits at the rate of two hundred twenty-six and 03/100 dollars ($226.03) per week in the total amount of ten thousand one hundred seventy-one and 35/100 dollars ($10,171.35) commencing on January 6, 1987. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant employer and insurance carrier pay to claimant or the provider of services three hundred eighty-nine and 59/100 dollars ($389.59) for prescription drug expense ordered by Dr. Koch. That the costs of this action, including the cost of the transcript of the hearing and the one hundred sixty-three and 49/100 dollars ($163.49) defined above, are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That all defendants file any claim activity reports which might be requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 20th day of June, 1990. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas J. Currie Attorney at Law 3401 Williams Blvd. S.W. PO Box 998 Cedar Rapids, Iowa 52406-0998 Mr. Ralph W. Gearhart Attorney at Law PO Box 2107 Cedar Rapids, Iowa 52406-2107 Mr. Craig Kelinson Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 51401; 51402.40; 51402.60; 52206; 52209; 3201; 53202; 53203; 51803; 52501; 2700; 52907 Filed June 20, 1990 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CAROL FRY, Claimant, vs. File Nos. 837829 and 846901 AMANA REFRIGERATION, INC., A R B I T R A T I O N Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. 51401; 51402.40; 51402.60; 52206; 52209; 3201; 53202; 53203 Claimant did not prove separate injuries. All of the lay evidence and medical evidence demonstrated bilateral carpal tunnel syndrome that occurred simultaneously, even though the right hand was worse at first and the left hand was worse later. It was determined that this was an 85.34(2)(s) injury and claimant was not entitled to second injury fund benefits. 51803 Treating physicians opinion was rejected. His diagnosis of rheumatoid arthritis was not supported by the other four doctors in the case, two of whom were in his own office. His imposition of restrictions was irreconcilable with his opinion that there was no impairment. He admitted he took no measurements and made no evaluation; therefore, he did not have any basis for even a rating based on professional judgment. Claimant's evaluator gave ratings of 20 percent and 8 percent, but those were determined to be higher than similar cases and were cut back to 10 percent and 5 percent, all of which converted and combined to 9 percent of 500 weeks or 45 weeks of permanent partial disability benefits. 5201, 2700 Claimant allowed the prescription drugs she proved. The others and an EMG she did not prove were disallowed. 52907 All costs and certain requested costs were allowed to claimant. 5-1302 Filed March 30, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : DAVID MORET, : : File No. 845182 Claimant, : 837989 : vs. : : R E V I E W - WILSON FOODS CORPORATION, : : R E O P E N I N G Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ 5-1302 Claimant had previously settled two injuries via agreements for settlement. At hearing, he tried to argue that he should have been compensated for simultaneous injuries. The medical evidence did not support his arguments and the cases were deemed review-reopening proceedings. Claimant failed to show a change of condition, and took nothing from the proceedings.