BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS DRAPER, Claimant, File Nos. 838428 vs. 850771 WILSON FOODS, A R B I T R A T I O N Employer, Self-Insured, D E C I S I O N and, F I L E D SECOND INJURY FUND OF IOWA, JUN 15 1989 Defendants IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding in arbitration brought by the claimant, Thomas G. Draper, against Wilson Foods, employer, self-insured, and Second Injury Fund of Iowa, to recover benefits as a result of an injury sustained on or about April 3, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner in Storm Lake, Iowa, on March 24, 1989. The record consists of the testimony of the claimant, claimant's exhibits 1 through 13, and defendants' exhibits A through G. Attorneys for all the parties were present, but the claimant stated that Wilson Foods, the defendant employer, is no longer involved in this matter and that the claimant is not seeking any benefits from this defendant but is only looking to the Second Injury Fund of Iowa. The attorney for the Second Injury Fund agreed that that was the understanding. The attorney for Wilson Foods, who was prepared to present a defense, withheld any presentation of his defense, asking of questions or cross-examination due to the claimant's and Second Injury Fund's statement and stipulation. ISSUES The issues for resolution are: 1. Whether claimant's injury on or about April 3, 1987 arose out of and in the course of his employment; 2. Whether claimant's disability is causally connected to his injury on or about April 3, 1987; 3. The extent of claimant's permanent disability; and 4. Whether claimant is precluded from trying the above issues in an action against the Second Injury Fund when the claimant has already in the past collected for another injury from the Second Injury Fund. REVIEW OF THE EVIDENCE Claimant testified that up to the time he began working for defendant employer in 1977, he worked basically at manual labor jobs. Claimant stated he graduated in the upper one-third of his high school class in 1974. Claimant said he went one semester to college and withdrew for lack of money, and enlisted six months in the navy from which he received a medical discharge in February of 1976. The medical problem was not service-connected. Claimant stated that he had a spine fusion involving the seventh-eighth vertebra when he was 16 years old which resulted from an infection. Claimant indicated he played basketball in his senior year but was the tenth player on the squad. Claimant began employment with defendant employer in June 1977 in the fresh pork production department. Claimant described the production nature of his work, which involves hams moving on a conveyor belt and claimant performing certain cuts: In 1985 or 1986, claimant said the pace was 600 to 700 hams per hour and one man per ham. Claimant testified he had a left wrist carpal tunnel release performed in 1980 and a right wrist carpal tunnel release performed in August 1982. Claimant contended that his carpal tunnel problems never went away and that he has lack of grip strength, finger movement, numbness and tingling in both hands. Claimant said it is worse now than before. Claimant emphasized that there was no improvement since the surgery. Claimant stated that every flexion or any pressure of the arm feels like he is hitting his funny bone. Claimant indicated that lifting a gallon of milk causes pressure on the nerve and tingling in the left hand. Claimant said he has not worked since April 17, 1987, his last day of work for defendant employer. Claimant disclosed that he has lived with his back problem for seventeen years and that certain jobs bother him more than others. Claimant indicated that due to his lack of seniority, he is unable to get other jobs in the plant other than the pace table and that the defendant employer has no light duty jobs for him. Claimant testified that in April 1987 he had nerve tests done and they showed nerve damage. Claimant said he sought retraining at Northwest Iowa Tech College in an electrical course which began in September 1988 full-time and he hopes to complete a four year course in two years, namely, in 1990, and graduate with an associate of arts degree applied science. Claimant indicated he presently has a 2.89 cumulative average. Claimant indicated that he is receiving ADC, tuition help from vocational rehabilitation, a Pell grant and a student loan. Claimant stated that in April 1987, surgery was discussed regarding a left ulnar nerve transplant. Claimant decided no surgery because "surgery doesn't help." Claimant contends some doctors say it will help and others say no. Claimant contends that he had surgery on his right arm which still bothers him. Claimant emphasized he had no injury to the left elbow prior to April 1987 except bumping his funny bone. Claimant testified that he is still listed as an employee at defendant employer which maintains his seniority, but there are no other benefits. Claimant stated the employer has no light duty jobs now and claimant has made no serious application for work although he admitted he applied for jobs sufficient to be able to collect unemployment benefits. Claimant indicated that his second injury in December 1979 resulting in a right carpal tunnel surgery performed in August 1982 is his first injury in the present hearing, and the second injury for purposes of this present hearing occurred on or around April 3, 1987 as a result of a series of cumulative traumas involving his left arm. Claimant also contends a cumulative injury to his back resulting in the same April 3, 1987 injury date. Claimant said that if it were not for his left ulnar nerve problem, he believed he would be working at defendant employer today. Claimant admitted that he had back problems since 16 years of age and would go home from work stiff and aching. Claimant acknowledged that he presently has no specific restrictions. The medical evidence indicates that the claimant had back surgery in 1972 or 1973 at age 16 which was a result of an infection and resulted in a fusion of T7-T8 vertebra. Claimant also had a work-related left carpal tunnel surgery on July 17, 1980 and a work-related right carpal tunnel surgery on August 10, 1982. On May 1, 1985, claimant had a work-related release of common extensor of the wrist from the right lateral condyle. In a decision dated February 28, 1984, file number 692302, Draper v. Wilson Foods, self-insured, and Second Injury Fund of Iowa, the deputy found that both carpal tunnel surgeries were a result of two separate injuries. That deputy found that the claimant had a 9 percent impairment to each hand and that the claimant's second injury resulting in the right carpal tunnel surgery in August of 1982 resulted in no industrial disability. The deputy concluded that the claimant established entitlement to permanent partial disability payments for 9 percent of his right hand and further concluded second injury fund liability as claimant was found to have a 7 1/2 percent industrial disability. Another decision was filed on the same date, involving the same parties except for the second injury fund, file number 650773, Draper v. Wilson Foods, self-insured. That file was the result of claimant's injury in May of 1980, which resulted in the July 17, 1980 carpal tunnel release. The claimant was found to have a 9 percent impairment to his left hand. In both of the above cases, the deputy found that claimant had an ulnar nerve difficulty or problem, but this problem was considered unrelated to the subject matter of that particular litigation. In the decision file 692302, at page 6, and decision 650773, at page 6, there is the following: Dr. Blenderman re-evaluated claimant and in a letter dated June 1, 1981 lowered his disability rating. He commented that "[a]ny remaining disability of the upper extremities is as a result of the subluxation of the ulnar nerves at the level of the elbows, rather than as a result of the carpal tunnel syndrome." More specifically the doctor thought numbness and awakening at night would be attributable to the ulnar nerve. At page 7 of said decision 692302, under the Applicable Law and Analysis, the deputy wrote: Claimant's current complaints are in the hand and wrist. Claimant also has an ulnar nerve problem which is unrelated to the compensable median nerve difficulty which is the subject of this litigation. The ulnar nerve may account for upper extremity problems he has from time to time. Again, the record viewed as a whole, confines claimant's disability to his hand. At page 7 of decision 650773, the deputy repeated basically the same words. On July 14, 1986, Richard P. Murphy, M.D., wrote among other things in his impression: 3. Extensor tendinitis, left elbow. 4. Right carpal tunnel release 1983 with possible recurrent carpal tunnel syndrome. 5. Left carpal tunnel release, left carpal tunnel syndrome with possible recurrence. (Defendants' Exhibit D, page 70) On November 25, 1986, Oscar M. Jardon, M.D., Associate Professor of the University of Nebraska Medical Center, saw the claimant with epicondylitis of the left arm and recommended that claimant continue to utilize a tennis elbow splint. This doctor indicated that claimant could continue some work. Prior to this date, the medical evidence indicates that claimant had problems in his right elbow, but there was no reference to any medical treatment in connection with the right elbow that would indicate additional treatment or complaints concerning the left elbow. In Claimant's personnel file, it appears that the claimant was complaining of pain in his left elbow and/or wrist or both beginning around May of 1986 and from that point on up until the latter part of 1987. On May 22, 1987, Dr. Jardon noted that the claimant was "still having subluxing of the ulnar nerve on the left with continued ulnar nerve symptoms." (Claimant's Exhibit 5) On October 26, 1987, Dr. Jardon wrote: Mr. Draper does have about a 9 percent residual disability at the left wrist. In addition, he has some numbness, tingling and symptoms of subluxation of the ulnar nerve in the left arm which would represent some partial permanent disability due to pain discomfort and sensory deficit. This is listed in the AMA book on Guides to Permanent Impairment at 10 percent which would give him partial permanent disability in the left arm of 19 percent. (Cl. Ex. 7) On January 18, 1988, Dr. Jardon reiterated the percent of impairment that he made on October 26, 1987 and further indicated: It is my opinion that his carpal tunnel syndrome is related to the nature of his employment. This condition seems to be fairly common in persons working in a meat packing plant using their hands to grip and do repeated manipulations that are necessary within a meat packing plant surrounding. I don't believe that Mr. Draper is malingering, but I believe that he does try whenever possible to maximize his symptomatology. However, I have tried to take this into account in giving the evaluations I have given in the past. (Cl. Ex. 8) On February 13, 1989, Dr. Jardon wrote: I do think that this repetitive hand work has irritated the ulnar nerve because of the subluxation problem. It is entirely possible that the subluxation is a result of repetitive hand work. As a matter of fact, I'm absolutely certain that repetitive hand work has caused symptoms as it relates to the ulnar nerve at the elbow in the left arm. On June 18, 1986, Scott B. Neff, D.O., wrote: This gentleman says that he wants time off work to allow his elbow to heal, and, as you know, he has had right lateral epicondylar release surgery, and bilateral carpal tunnel surgical releases performed elsewhere. He also says he had about a two week history of soreness in his left elbow, with pain in the general area of the lateral epicondyle. The pain goes up his arm also which is not in an anatomic distribution, and, when asked to grip firmly, the grip is inappropriate in strength when compared to the appearance of intensive activity. In other words, he is not gripping as hard as his facial expressions would have him appear to. (Def. Ex. D, p. 141) APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on or about April 3, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury on or about April 3, 1987 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). 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. 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." 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, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). 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. Before the second injury fund is triggered three requirements must be met. First the employee must have lost or lost the use of a hand, foot, leg or eye. Second, the employee must sustain another loss or loss of use of another member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and second injury. See Allen v. The Second Injury Fund, State of Iowa, 34 Biennial Rep., Iowa Indus. Comm'r 15 (1980); Ross v. Service master-Story Co., Inc., 34 Biennial Rep. Iowa Indus. Comm'r 273 (1979). The fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Section 85.64. Section Injury Fund v. Mich. Coal Company, 274 N.W.2d 300 (Iowa 1970), Second Injury Fund v. John Deere Component Works, Iowa Supreme court Case No. 88-399,filed February 22, 1989. This 33-year-old claimant has had numerous injuries during his years working at defendant employer. Claimant has had several surgeries. Those most notable are his 1972 or 1973 nonwork-related vertebra T7-8 fusion at age 16, a work-related left carpal tunnel surgery on July 17, 1980, a work-related right carpal tunnel surgery on August 10, 1982, and a work-related release of common extensor of the wrist from the right lateral condyle operation on May 1, 1985. Claimant believes that he has not had satisfactory results from his carpal tunnel surgeries. In February 1984, there were two decisions written by a deputy industrial commissioner involving this claimant and defendant employer, and one of those cases also involved the second injury fund. The deputy found a 9 percent impairment of both wrists. The deputy referred to an ulnar nerve problem in both decisions and emphasized in those decisions that the ulnar nerve was not an issue before the deputy at that time. It was obvious that both decisions involved a carpal tunnel cumulative-type injury. The second injury alleged in the February 28, 1984 decision, 692302, referred to above that resulted in a right carpal tunnel surgery will hereafter be referred to as the first injury in this case under consideration. This first injury occurred in December of 1979. The deputy found that there was no industrial disability as to this first injury. The claimant contends the second cumulative injury occurred to his left ulnar nerve and left elbow on April 3, 1987. The medical evidence shows that the symptoms involving the left ulnar nerve and left elbow of claimant occurred over a period of time due to the repetitive nature of claimant's work. The greater weight of medical evidence and the history of this claimant indicates that the claimant's present left elbow and ulnar nerve problems are the result of a cumulative injury arising out of and in the course of the claimant's work. The undersigned deputy so finds. Dr. Jardon opined that repetitive hand work has caused the symptoms as it relates to the ulnar nerve at the elbow of the left arm. Claimant's left ulnar nerve problems are a result of a work-related injury, but because of a cumulative nature of this injury, it is obviously a result of claimant's repetitive work and a causal connection is hereby found between the claimant's current left elbow and ulnar nerve subluxation and the claimant's work injury on or about April 3, 1987. The second injury fund contends that the ulnar nerve problem was an old problem that was considered or disposed of in the prior decisions of February 1984. As previously referred to, the deputy in both of those decisions applicable hereto specifically indicated that the ulnar nerve problems were not an issue in those decisions. The medical evidence indicates that claimant was having problems with the ulnar nerve at that time. The claimant's repetitive work continued in the meat packing industry and this repetitive action of the claimant's strenuous work lead to claimant's present condition and resulted in him leaving work with this defendant, the last time on April 17, 1987. The second injury fund further contends that since the claimant has collected second injury benefits in the past, that claimant cannot be entitled to second injury fund benefits again regardless of the circumstances. The second injury fund takes a position that the issue of the nature and extent of any entitlement of benefits from the second injury fund is precluded from consideration because of results of the decision referred to in February of 1984. If the second injury fund were correct in its position, then a person who collected on two separate injuries involving a person's two arms could not collect on two separate injuries involving a person's legs. The undersigned acknowledges that claimant cannot collect for the same injury under the same fact twice. This is not the case in the present matter. Claimant is not precluded from proceeding in this matter by the mere fact that he has collected in the past for another different injury from the second injury fund. Dr. Jardon had previously opined a 9 percent residual disability to claimant's left wrist from a prior injury and opined that claimant had some additional numbness, tingling and symptoms of subluxation of the ulnar nerve of the left arm which he related to the claimant's work and indicated an additional 10 percent impairment. Dr. Jardon had opined a 9 percent residual disability of the left wrist (hand). When this doctor opined a 10 percent impairment to the left arm due to the ulnar nerve injury, he added the 9 percent hand to the 10 percent arm and concluded a 19 percent permanent impairment to the left arm. The undersigned believes Dr. Jardon either misread or failed to convert the 9 percent impairment of the hand to 8 percent impairment of the upper extremity as per Table 9 in the AMA Book on Guides to Permanent Impairment. This would result in an 18 percent permanent impairment to the left arm rather than 19 percent. Although Dr. Jardon then concluded that this would bring the claimant's partial permanent disability to the left arm to about 19 percent, it is clear that the doctor meant 19 percent permanent impairment. Although Dr. Jardon indicated that the claimant was not malingering, he did believe that the claimant was trying to maximize his symptomatology but took this into consideration in giving him the impairment evaluation. There are similar areas in the claimant's past history in which he has obviously attempted to maximize his symptoms. Dr. Neff, on June 18, 1986, commented "...when asked to grip firmly, the grip is inappropriate in strength when compared to the appearance of intensive activity. In other words, he is not gripping as hard as his facial expressions would have him appear to." (Def. Ex. D, p. 140) In August of 1984, when claimant saw Dr. Jardon for a right shoulder problem, Dr. Jardon noted: "He claims that this made the shoulder worse. Normally this hardly ever happens, so I begin to wonder the validity of the whole complaint." (Def. Ex. D, p. 105) In claimant's petition and in his testimony, he also mentions that his back was injured on this April 3, 1987 injury date, but there is no medical evidence of this fact. Claimant has failed to prove any work-related back injury and any disability resulting therefrom. Claimant is of a young age with many productive years ahead of him. He has not worked since April 17, 1987. The defendant employer apparently has no light duty jobs. Claimant testified that he has made no serious applications for jobs since leaving defendant employer except that he did apply for unemployment and only sought jobs to comply with the unemployment benefits requirement. Claimant has had back problems since he was 16 years old which resulted from a fusion in his back and appears that his limitations and impairment from that surgery has been with him to the present. Claimant acknowledged that at this time he has no restrictions of any kind and has not taken any medication for his left elbow since November of 1988. Prior to that time, he was taking an anti-inflammatory medication. Claimant testified as to his ability to grip and the alleged pain that he endures daily and what he can't do. He indicated that he has not given too much thought to some things that bother him as he hasn't worked since April 1987. Claimant felt that if it wasn't for his left ulnar nerve problem, he would still be working at Wilson. He believed that he was able to do certain jobs that exist at Wilson but due to his lack of seniority, he would not be able to obtain those jobs. The undersigned believes that the claimant has an increase in impairment as a result of the second injury but also believes that the claimant is over-exxagerating his present condition. Claimant also refuses to consider surgery. There is no evidence as to the predicted success of any surgery, but it appears claimant's attitude toward surgery may have thwarted further consideration by his doctors. Claimant is now going to school and appears to be doing above average work. Claimant worked for defendant employer twelve years and basically has been employed doing most of his working years in the meat packing industry. It is understandable from the multitude of injuries, cuts and bruises that the claimant has suffered along with his other injuries resulting in surgeries, that the claimant could lose incentive to attempt to return to the meat packing industry notwithstanding the amount of wages that can be earned in this occupation. The undersigned finds that the claimant has received an additional 10 percent impairment to his left arm as a result of a cumulative ulnar nerve injury on or around April 3, 1987. Claimant has been substantially limited in the nature and extent of the jobs he can perform due to his back surgery, his right and left carpal tunnel surgeries from which he claims he has not gotten complete satisfaction, and now his second injury involving his ulnar nerve in the left arm. The use of claimant's hands and arms has been essential in any work he has done to date and will continue to be essential even with any potential job prospects based on the education and training he is now obtaining. The claimant has a 9 percent permanent impairment to his right hand and a 9 percent permanent impairment to the left hand all prior to the claimant's second cumulative injury on or around April 3, 1987 which resulted in an additional 10 percent impairment to the left arm. Dr. Jardon concluded a 19 percent impairment to the left arm. Claimant has an 18 percent permanent impairment of the upper left extremity as a result of the combined effects of the first injury in December 1979, resulting in a right carpal tunnel surgery and the second injury to his left arm on or around April 3, 1987. This equates to an 11 percent permanent partial impairment to the body as a whole. Based on all the foregoing considerations and all the factors considered in making a determination of industrial disability, it is determined that the claimant has a 25 percent industrial disability from the combined effects of both the first and second injuries. The formula to determine the liability of the second injury fund is as follows: (l) determine the amount of industrial disability resulting from the combined effects of both the first and second scheduled injuries, (2) subtract the impairment value of the first injury, (3) subtract the impairment value of the second injury, and (4) the resulting figure is the liability of the Second Injury Fund of Iowa (Neelans, Fulton and Albright as decided by the supreme court on February 22, 1989). Applying that formula to this case, industrial disability from the combined effect of both the first and second injury is 125 weeks (500 x .25), minus the impairment value of the first injury to the right hand, which is 17.1 weeks (190 x .09), minus the impairment value of the second injury to the left arm, which is 25 weeks (250 x .10), which leaves 82.9 weeks of liability of the Second Injury Fund of Iowa. Payments are to commence May 21, 1988. FINDINGS OF FACT 1. Claimant received a work-related cumulative injury to his left arm on or around April 3, 1987. 2. Claimant's increased impairment to his left arm is a result of his cumulative ulnar nerve injury on or around April 3, 1987. 3. Claimant has not worked since his last day at defendant employer on April 17, 1987. 4. Claimant is currently seeking retraining at Northwest Tech College in an electrical course of instructions. 5. Claimant has no current medically prescribed work restrictions placed upon him. 6. Claimant sustained a 9 percent permanent impairment to his right hand from the first injury and a 10 percent increase in permanent impairment to his left arm as a result of his second injury on or around April 3, 1987. 7. Claimant has a prior 9 percent permanent impairment of his left hand, which is the equivalent of an 8 percent impairment to his left upper extremity. 8. Claimant has sustained an 18 percent permanent impairment to his upper left extremity as a result of the combined effects of the first injury in December of 1979 resulting in a right carpal tunnel surgery and his second injury to his left arm ulnar nerve on or around April 3, 1987. 9. Claimant has sustained an 11 percent permanent impairment to his body as a whole as a result of the combined effects of the first and second injuries. 10. Claimant has sustained a 25 percent reduction in earning capacity as a result of the combined effects of the first and second injuries. CONCLUSIONS OF LAW THEREFORE, it is concluded: Claimant's second injury on or about April 3, 1987 arose out of and in the course of his employment. Claimant's increased disability to his left arm is causally connected to his injury on or around April 3, 1987. The liability of the Second Injury Fund of Iowa to claimant is 82.9 weeks of permanent partial disability commencing May 21, 1988. ORDER THEREFORE, it is ordered: That the Second Injury Fund of Iowa pay unto claimant eighty-two point nine (82.9) weeks of permanent partial disability benefits at the rate of two hundred thirty-one and 24/100 dollars ($231.24) commencing on May 21, 1988. That the Second Injury Fund of Iowa shall pay accrued weekly benefits in a lump sum. That interest will not accrue pursuant to Iowa Code section 85.30. That the costs of this action are charged to the Second Injury Fund of Iowa pursuant to Division of Industrial Services Rule 343-4.33. That the Second Injury Fund of Iowa file claim activity reports as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 15th day of June, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steve Hamilton Attorney at Law 606 Ontario St P.O. Box 188 Storm Lake, IA 50588 Mr. David L. Sayre Attorney at Law 223 Pine St P.O. Box 535 Cherokee, IA 51012 Ms. Joanne Moeller Assistant Attorney General Tort Claims Hoover building Des Moines, IA 50319 51803; 53202 Filed June 15, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER THOMAS DRAPER, Claimant, File Nos. 838428 vs. 850771 WILSON FOODS, A R B I T R A T I O N Employer, Self-Insured, D E C I S I O N and, SECOND INJURY FUND OF IOWA, Defendants. 51803; 53202 Second injury fund benefits awarded. Determined 25% industrial disability as a result of the combined effects of first and second injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LEON CHASE, : : Claimant, : File No. 838429 : vs. : A R B I T R A T I O N : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Leon Chase, claimant, against Wilson Foods Corporation, employer. The record in the case consists of testimony from the claimant, Susan Chase, and Michael Payne; and, joint exhibits 1-48. The matter came on for hearing before the undersigned deputy on March 26, 1991 at Storm Lake, Iowa. issue The sole issue to be determined in the case is whether claimant has sustained an industrial disability. findings of fact The undersigned deputy, having heard the testimony, and having reviewed all of the evidence received, finds the following facts: Claimant was born on September 28, 1939. He graduated in 1958 from Meriden High School in Meriden, Iowa. Upon completion of high school, he first worked in construction, and then became employed by Modern Heating and Cooling, a business which supplied sheet metal, mechanical and plumbing services. Claimant joined the Marines in approximately 1960, and received an honorable discharge in 1966. Claimant began to work for defendant Wilson Foods Corporation after his discharge from the Marine Corp. He has held a variety of jobs at the Cherokee plant, including positions on the beef kill line; rosetting; hide trimming; meat presses; and, sausage packaging. All of these jobs required claimant to perform repetitive lifting and bending. Claimant was injured from he was working on the sausage packaging line. His job duties required him to arrive Page 2 approximately one-half early to set up the machines by adjusting the speed, temperature and film used on the machine. The film weighed approximately 96 pounds, was 20 inches to 24 inches wide, and was located on top of the machine, at claimant's head level. (Claimant is approximately 5' 8" tall). There was also a roll of film on the bottom of the machine, which weighed between 76 to 78 pounds and was 20 inches to 24 inches wide. Each film had to be replaced three to four times a day. In replacing the films on the machine, claimant had to lift the rolls of film and place them in the machine, which required him to bend and reach across the machine. In November of 1986, claimant sustained an injury at the plant. As he was helping to set up the production line, he moved a 600 pound hopper and in so doing hurt his low back. Claimant stated he felt immediate pain in his legs and back. Claimant reported to the company nurse, who sent him to K. O. Garner, M.D. Claimant received treatment from a chiropractor on two occasions in November of 1986, and then was referred to Walter Carlson, M.D. (Joint Exhibit 1) Claimant initially saw Dr. Carlson on December 2, 1986. (Jt. Ex. 2) Claimant was diagnosed as having a ruptured L5-S1 disc on the left side, and presented with an absent ankle jerk. Dr. Carlson recommended a lumbar laminectomy and diskectomy to relieve the problem. (Jt. Ex. 3) Claimant was admitted McKennan Hospital in Sioux Falls, South Dakota on December 7, 1986. (Jt. Ex. 5) He underwent the laminectomy and diskectomy to remove the herniated disc at the L5-S1 level on the left side on December 8, 1986. (Jt. Ex. 21) Claimant was discharged from the hospital three days after the operation. (Jt. Ex. 22) Claimant returned to Dr. Carlson on January 27, 1987. Dr. Carlson recommended a physical therapy program. (Jt. Ex. 2, Page 1) Claimant began a therapy program provided by the company shortly after his surgery. He was released to return to work on March 2, 1987. (Jt. Ex. 9) Claimant returned to his employment with Wilson Foods, and was placed upon the same job to which he was assigned at the time of his injury. Although claimant testified that from March of 1987 to June of 1987 he performed satisfactorily at work, his back condition gradually worsened. In June of 1987, claimant picked up a roll of film to place on the machine, and was unable to complete the work. He reported to the nurse, and was sent to Dr. Carlson for therapy. Dr. Carlson diagnosed a nerve root irritation, and took claimant off of work for one week. He scheduled an epidural block, bedrest and three physical therapy sessions for one week. (Jt. Ex. 12; Jt. Ex. 2, p. 2) Dr. Carlson was of the opinion that claimant would be unable to return to heavy labor as required by Wilson Foods. (Jt. Ex. 11) Page 3 Claimant underwent physical therapy from April of 1987 through September of 1987. (Jt. Ex. 32, pp. 1-3) These services were provided by Dan Hasty, the company physical therapist. Claimant then underwent a functional assessment from September 10, 1987 through November 6, 1987 at the Midwest Back Center, Inc., located in Sioux Falls, South Dakota. (Jt. Ex. 24-31) Final assessment of the functional evaluation was that claimant was able to squat frequently; crouch frequently; and, displayed a good sense of balance. Claimant was able to pull 86 pounds occasionally, and 106 pounds frequently; claimant was able to push 106 pounds frequently and continuously. Based upon the evaluation, claimant was able to carry 42 pounds on the right side occasionally; and, 32 pounds on the right side frequently. He was able to carry 66 pounds on the left side occasionally and frequently. The evaluation assessment also states that claimant can lift occasionally and frequently 45 pounds above his shoulders; from desk to chair, 63 pounds occasionally and 48 frequently; and, from chair to floor 65 pounds occasionally and frequently. (Jt. Ex. 30, pp. 1-3) It was indicated that if claimant were to exceed the various levels, he would stand a 56 percent chance of reinjury, but if he worked at or below the levels indicated, there would be a zero percent chance of reinjury. (Jt. Ex. 31) In the ensuing period from claimant's injury to the present, claimant has received various impairment ratings and restrictions from a multitude of doctors. Specifically, the following assessments can be found in the record: 1. On December 29, 1987, Dr. Carlson made the following assessment: Leon Chase is in today. He is still having muscle spasm but has negative straight leg raising. A disability evaluation was performed, and we would be able to give him a maximum impairment of 20% based on page 33C. . . . We will also set him up for a CT scan of his lumbar spine to see if there is any change in that status. (Jt. Ex. 46) Claimant underwent the lumbar CT on January 5, 1988. The impression of the tests was that claimant had a diffuse disc bulge at L4-5, an increased density and loss of tissue plane laterally at L5-1 on the left. (Jt. Ex. 14) Dr. Carlson noted that the results were not unusual given claimant's previous surgery. (Jt. Ex. 15) Although Dr. Carlson was under the impression that claimant would not be able to return to work at Wilson Foods, which was his assessment on June 12, 1987, Dr. Carlson apparently changed his mind, and based upon the functional capacity assessment dated November 3, 1987 (Jt. Ex. 24-31), Dr. Carlson released claimant to return to his Page 4 work. (Jt. Ex. 17; Jt. Ex. 18) 2. Stephen Veit, M.D., made the following notations on February 2, 1988: Claimant was limited to lifting 10 pounds or less above his head. He was able to lift a maximum of 30 pounds out in front of him, and was able to bend forward 30 degrees but could not touch the floor. Claimant complained of chronic pain relieved by walking, worsened with coughing, sneezing, or moving in a sudden fashion. It was recommended that claimant secure a job with alternate sitting and standing duties, with no standing of more than 15 to 30 minutes at a time, and no sitting more than 15 to 30 minutes at a time. (Jt. Ex. 47) 3. On April 29, 1988, Anil Agarwal, M.D. diagnosed claimant as having a post lumbar laminectomy at the L5-S1 space; mild diffuse bulging of the L4-5 level; and, mild lumbar spondylosis. He was of the opinion that claimant had a 20 percent permanent impairment of the body as a whole.(Jt. Ex. 48) 4. On July 5, 1988, A. J. Wolbrink, M.D., examined claimant and obtained a history from him. Dr. Wolbrink was not provided any medical records, and was told that claimant had been given permission to return to work with limitations of no lifting of more than 10 pounds over his head, and no standing for more than 45 minutes, and no sitting for more than one hour. Based upon his examination, Dr. Wolbrink found a nerve root irritation, and possible infection of the L5 disc space. Dr. Wolbrink assessed claimant of having a 19 percent permanent impairment of the body as a whole. (Jt. Ex. 40, pp. 1-3) 5. On September 6, 1990, Dr. Wolbrink apportioned two or three percent impairment of the whole person to a preexisting condition. (Jt. Ex. 41, pp. 1-3) 6. On March 1, 1991, Dr. Garner was of the opinion that claimant would "probably never return to work." He holds the opinion that claimant is totally disabled. (Jt. Ex. 42, pp. 1-2) analysis and conclusions of law Claimant has sustained an injury to his low back, and as a result is entitled to benefits based upon his loss of earning capacity. Therefore, the issue becomes the extent of claimant's 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). As noted earlier, claimant was 51 years old at the time of the hearing, and he is a high school graduate. Claimant worked defendant Wilson Foods for more than 20 years, and of the 600 people employed at the plant, claimant is number 26 in terms of seniority. Job selection at the plant was directed by bidding and by seniority. Claimant's positions within the plant have involved labor intensive type positions, and have required him to do repetitive lifting and bending on a daily basis. Claimant's medical condition prior to the injury indicates he did have some prior low back difficulties, but Page 6 had never incurred an injury which caused him problems in completing his job duties. Nor has he had any permanent impairment from prior back problems. (Jt. Ex. 33-39; Jt. Ex. 43, pp. 1-4) Claimant's condition subsequent to this injury has presented a lengthy healing period; a variety of restrictions, and permanent impairment ratings; and, opinions as to whether claimant can return to work, or whether claimant is totally disabled. His work experience is limited, and claimant has undertaken his own vocational rehabilitation by receiving a degree in the skill of gunsmithing. His potential for a living by owning a gunsmith shop are limited, but claimant has had several successful years in providing these services. However, it is noted that claimant earned $8.92 per hour, 36 hours guaranteed at the plant, and has the opportunity to earn $6.00 an hour for gunsmithing services. Claimant earned a total of $5,000 to $5,500 in each of the last three years in his gunsmithing business. Claimant has sustained an actual loss of earning of 33 percent. Intellectually and emotionally, claimant appeared average. Defendant offered testimony from Michael Payne, Wilson Foods' personnel and labor relations manager. He stated that there were two possible jobs within the plant that would accomodate claimant's work restrictions; however, claimant would be required to bid on the jobs when, or if, they became available. From the evidence presented, it appears that defendant did not actively participate in offering claimant any type of suitable work. Any lighter duty jobs would be available to claimant through the bidding process, just as the same positions would be open to all plant employees, certainly including those with more seniority status than that of claimant. Defendant has made little effort to employ claimant. Claimant has displayed a high degree of motivation to work, evidenced not only by his attempt to return to work after his release in March of 1987, but also evidenced by his pursuit of a new career of gunsmithing. After considering all of the factors that comprise the concept of an industrial disability, it is found that claimant has sustained a loss of earning capacity of 55 percent. order THEREFORE, it is ordered: That defendant shall pay unto claimant two hundred seventy-five (275) weeks of benefits at the rate of two hundred sixty and 09/100 dollars ($260.09) per week beginning January 13, 1990. Page 7 That defendant shall pay the accrued weekly benefits in a lump sum. That defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendant shall pay the costs of this action pursuant to Rule 343 IAC 4.33. That defendant shall file an activity report upon payment of this award as required by this agency pursuant to Rule 343 IAC 3.1. Page 8 Signed and filed this ____ day of June, 1991. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Steve Hamilton Attorney at Law 606 Ontario Street PO Box 188 Storm Lake Iowa 50588 Mr David L Sayre Attorney at Law 223 Pine Street PO Box 535 Cherokee Iowa 51012 5-1800 Filed June 4, 1991 PATRICIA J. LANTZ before the iowa industrial commissioner ____________________________________________________________ : LEON CHASE, : : Claimant, : File No. 838429 : vs. : A R B I T R A T I O N : WILSON FOODS CORPORATION, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1800 Claimant, 52 years old, sustained low back injuries which resulted in lumbar laminectomy and diskectomy. Claimant had 20 percent impairment rating with lifting restrictions. High school graduate, more than 23 years with defendant employer, employer took no active role in rehabilitation, and did not offer suitable, accessible employment. Claimant had undertaken training to open a gunsmithing business. Claimant awarded 55 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL E. McDANEL, Claimant, VS. File No. 838457 USI CHEMICAL CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and CIGNA PROPERTY & CASUALTY CO., Insurance Carrier, Defendants. INTRODUCTION This is an arbitration proceeding brought by Michael E. McDanel, claimant, against USI Chemical Company, employer, and its insurance carrier, Cigna Property & Casualty Company, defendants. The case was heard by the undersigned in Davenport, Iowa on January 3, 1990. The record consists of the testimony of claimant. The record also consists of the testimony of Ronald J. Reiser. Additionally, the record consists of joint exhibits 1-33. ISSUES As a result of the prehearing report and order submitted and approved on January 3, 1990, the issues presented by the parties are: 1. Whether claimant received an injury which arose out of and in the course of employment; 2. Whether there is a causal relationship between the alleged injury and the disability; 3. Whether claimant is entitled to permanent partial or total disability benefits; and, McDANEL V. USI CHEMICAL CO. Page 2 4. Whether claimant is entitled to medical benefits under section 85.27 even though the health insurance carrier paid 80 percent. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. The extent of entitlement to weekly compensation for temporary total disability or healing period, if defendants are liable for the injury, is stipulated to be paid as a wage continuation; 3. The commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be the 16th day of December, 1987; and, 4. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $383.10 per week. FACTS PRESENTED Claimant was born on March 19, 1953. He has an associate of arts degree in general studies. Claimant commenced his employment with defendant in June of 1972. At the time of the hearing, claimant was working as a maintenance technologist. Claimant is right handed. Claimant testified that on November 6, 1986, he was installing a hydraulic pump with co-employee Dale Mussman. The pump, according to testimony, weighed 250 pounds. It was on a platform approximately 12 inches above ground. Claimant testified the pump was near the ledge of the platform. Claimant related, he shoved the pump with his right shoulder. Claimant stated he felt a burning sensation and he grabbed his right shoulder. He stated he reported the incident to the safety department on that date and, as a result, claimant was sent to Xerxes Colah, M.D. Claimant testified he wanted an evaluation from Richard L. Kreiter, M.D. Dr. Kreiter had treated claimant for a prior left shoulder injury; he treated claimant with conservative modalities. Later Dr. Kreiter performed surgery on claimant's right shoulder. Ronald J. Reiser testified for defendants that he was the safety manager on November 6, 1986. He reported he filled out McDANEL V. USI CHEMICAL CO. Page 3 the necessary paperwork for claimant to see Dr. Kreiter. The witness testified that from December 11, 1986 to February 26, 1987, claimant was able to perform his prescribed work duties with only minimal complaints. On the 26th of February, Mr. Reiser testified he had an opportunity to observe claimant at the YMCA. This witness testified he saw claimant for 15 or 20 minutes engaging in power volleyball, including jumping and spiking a ball. Mr. Reiser testified he called Dr. Kreiter relative to the playing of volleyball. According to this witness, he was told claimant should not play this sport. Mr. Reiser testified claimant has not been disciplined because of his shoulder situation, nor has claimant been overlooked for promotions because of the shoulder injury. APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on November 6, 1986, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847,, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). McDANEL V. USI CHEMICAL CO. Page 4 The claimant has the burden of proving by a preponderance of the evidence that the injury of November 6, 1986, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup, 222 Iowa 272, 268 N.W. 598 (1936). An injury to a scheduled member which, because of aftereffects (or compensatory change), creates impairment to the body as a whole entitles claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943). An injury is the producing cause; the disability, however, is the result, and it is the result which is compensated. Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943). McDANEL V. USI CHEMICAL CO. Page 5 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). If 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.2d 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." 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, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). "Claimant is not entitled to reimbursement for medical bills unless he shows that he paid them from his own funds." See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983). ANALYSIS Claimant has established that he sustained an injury which arose out of and in the course of his employment. The injury date was November 6, 1986. At the time of the injury, claimant was performing services for defendant. Claimant was where he was supposed to be. It would be reasonable to assume claimant could be injured while performing services on the plant location. Claimant's job duties gave rise to his injury. Claimant, however, has not established that his work injury was causally related to claimant's claimed disability, including any permanent functional impairment. At the time of claimant's work injury, Xerxes Colah, M.D., determined: McDANEL V. USI CHEMICAL CO. Page 6 Examination of right shoulder, he has marked tenderness over the AC joint as also the subacromial bursa. It is associated with a painful arc. The various management options were explained. He has opted for Motrin 800 mg. t.i.d. Followup in 5 days at which time if he is still symptomatic will consider injecting the area. X-rays of the right shoulder do not show any abnormalities. Richard L. Kreiter, M.D., opined in his letter of November 17, 1986: I do believe that he probably was pushing or pulling and that he injured his rotator cuff or supraspinatus tendon. I do feel that he has good strength and probably has not sustained a severe tear of the cuff and I do not feel that an arthrogram is warranted at the present time. I would treat this conservatively, hoping this would go ahead and heal uneventfully. Claimant was able to continue working subsequent to his injury of November 6, 1986. He did have some physical therapy but he only saw Dr. Kreiter once in December of 1986. Claimant did not see Kreiter again until February 26, 1987. That was the day on which Ronald Reiser witnessed claimant playing power volleyball at the YMCA. Claimant initially denied playing sports of any kind after November 6, 1986. He stated he was in too much pain to engage in activities like volleyball, basketball and weight lifting. Later, claimant testified he did not play power volleyball. He did state, "he hit the ball once, if at all." Claimant argued there was a difference between playing volleyball and hitting the ball one time. Claimant was not credible. He denied playing volleyball. He did tell his supervisors he did not play volleyball. Claimant was less than candid with his physician. Dr. Hoffman's medical notes did discuss volleyball playing. On the day claimant was observed playing volleyball by Mr. Reiser, claimant also happened to visit Dr. Kreiter with complaints that his right shoulder was becoming worse, "especially with overhead work and pulling and pushing." It is curious to note, claimant did not mention playing volleyball to Dr. Kreiter. Dr. Kreiter's notes for the succeeding day revealed, however: McDANEL V. USI CHEMICAL CO. Page 7 2-27-87 I talked to Michael's supervisor, Ron Reiser, and he told me that Michael has been playing power volleyball which Michael did not tell me. The notes for J. M. Hoffman, M.D., Dr. Kreiter's partner, state on March 2, 1987: He is continuing to have problems and is particularly bothered by overhead activity. He is continuing to work although the pain is worse with overhead activity. He apparently has tried volleyball and has some moderate discomfort with it, particularly with overhead activity. Dr. Hoffman's medical records were consistent with Mr. Reiser's assertion that he had seen claimant playing volleyball. It is the determination of the undersigned that after claimant's injury of November 6, 1986, claimant sustained a right shoulder impingement by engaging in non-work type activities. The non-work activities such as playing volleyball on February 26, 1987, led to claimant's right shoulder surgery. Prior to February 26, 1987, claimant had not sustained any temporary or permanent disability. Claimant was able to continue working prior to February 26, 1987 and his x-rays revealed no abnormalities. Dr. Kreiter determined claimant "did seem to get better," prior to February 26, 1987. As a result of the incident on November 6, 1986, claimant did incur certain medical expenditures. Eighty percent of those charges were covered by claimant's group health insurance plan. Twenty percent of those charges incurred prior to February 26, 1987, were reimbursable to claimant. The reimbursable medical expenses are as follows: 20% 12-31-86 Dr. Ives x-rays $27.00 $5.40 12-31-86 Dr. Ives office visit 27.00 5.40 11-07-86 Dr. Colah office visit 25.00 5.00 11-07-86 Dr. Colah x-rays 27.00 5.40 reimbursable to claimant $21.20 FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: McDANEL V. USI CHEMICAL CO. Page 8 Finding 1. Claimant sustained an injury to his right shoulder on November 6, 1986 and the injury arose out of and in the course of his employment. Finding 2. Claimant continued to work subsequent to his injury of November 6, 1986. Finding 3. Claimant incurred medical expenses as a result of his injury of November 6, 1986. Conclusion A. Claimant did not sustain any temporary or permanent disability as a result of the work injury on November 6, 1986. Finding 4. Claimant played power volleyball on February 26, 1987. Finding 5. Claimant was not credible. Finding 6. Claimant sustained a right shoulder impingement as a result of non-work activities such as playing volleyball on February 26, 1987 at the YMCA. Finding 7. Playing volleyball on February 26, 1987 was not work related. Conclusion B. Claimant is entitled to reimbursable medical expenses in the sum of $21.20. ORDER THEREFORE, defendants are to pay unto claimant reimbursable medical expenses as aforementioned in the sum of twenty-one and 20/100 dollars ($21.20). Claimant takes nothing further from these proceedings. Each party shall bear his/its own costs pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file a claim activity report upon payment of the reimbursable medical expenses. Signed and filed this 28th day of February, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER McDANEL V. USI CHEMICAL CO. Page 9 Copies To: Mr. J. Drew Chambers Attorney at Law 86 1/2 Main Ave P 0 Box 3055 Clinton IA 52732 Mr. Craig A. Levien Attorney at Law 600 Union Arcade Bldg 111 East Third St Davenport IA 52801-1550 1108. 5 Filed February 28, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER MICHAEL E. McDANEL, Claimant, VS. File No. 838457 USI CHEMICAL CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and CIGNA PROPERTY & CASUALTY CO., Insurance Carrier, Defendants. 1108.5 Claimant sustained a work injury to his shoulder on November 6, 1986. However, claimant was able to continue working. On February 26, 1987, claimant was engaged in a volleyball game which was not work related. After February 26, 1987, claimant sustained a right shoulder impingement. Held: Claimant's right shoulder impingement was not caused by the work injury of November 6, lS86. before the iowa industrial commissioner ____________________________________________________________ : HERBERT L. BLAND, : : Claimant, : : vs. : : File No. 838602 ATLANTIC CARRIERS, : : A P P E A L Employer, : : D E C I S I O N and : : GREAT WEST CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed March 29, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Jacob J. Peters Attorney at Law 233 Pearl St. P.O. Box 1078 Council Bluffs, Iowa 51502 Mr. Stephen W. Spencer Attorney at Law P.O. Box 9130 Des Moines, Iowa 50306-9130 9998 Filed November 20, 1991 BYRON K. ORTON WRM before the iowa industrial commissioner ____________________________________________________________ : HERBERT L. BLAND, : : Claimant, : : vs. : : File No. 838602 ATLANTIC CARRIERS, : : A P P E A L Employer, : : D E C I S I O N and : : GREAT WEST CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed March 29, 1991.