BEFORE THE IOWA INDUSTRIAL COMMISSIONER DANIEL E. SMITH, Claimant, File No. 838605 vs. A R B I T R A T I 0 N DOBBS HOUSE, INC., D E C I S I 0 N Employer, and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Daniel E. Smith, claimant, against Dobbs House, Inc., employer, and Liberty Mutual Insurance Company, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained November 24, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner March 8, 1988. The record was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of the claimant and Robert Kenney; and joint exhibits A through C, inclusive. Claimant's answers to interrogatories were also received into evidence although not marked as an exhibit. ISSUES Pursuant to the prehearing report and order submitted and approved March 8, 1988, the following issues are presented for determination: 1. Whether claimant's injury is causally connected to the disability on which he now bases his claim; and 2. The nature and extent of claimant's entitlement, if any, to disability benefits. FACTS PRESENTED Claimant sustained an injury which arose out of and in the course of his employment November 24, 1984 when a safety guardrail broke loose and landed on his left shoulder, neck, and the back of his head. After two weeks, claimant noticed he was feeling a "tingling" in his shoulder and was dropping things with his left hand and therefore sought medical attention for the first time since the injury. Claimant was initially treated with warm compresses, "electricity" and a cortisone injection. He continued to work at his regular job with defendant employer until defendant insurance carrier referred him to Scott B. Neff, D.O., on March 6, 1985, who administered an injection. Claimant explained that none of this treatment provided any lasting benefit and that Dr. Neff eventually "gave up" with no recommendations for further treatment. Claimant testified he contacted the insurance company who told him they would find another doctor. However, two days later claimant presented himself at Mercy Hospital complaining of neck pain and was referred to Robert T. Brown, M.D., who prescribed medications and ran another EMG which was negative. Claimant explained he was eventually referred to the University of Iowa Hospitals and Clinics and that when he later returned to see Dr. Neff, Dr. Neff again had no offer of additional treatment. Claimant explained that after the first time he was released to return to work by Dr. Neff, he did return as instructed. He described the job to which he returned as having lesser physical requirements than the job he held at the time of his injury, but that it required him to lift and work overhead. Claimant stated he was taken off the job a second time by a representative of defendant insurance carrier and that he did not return to work after this period of unemployment because of a dispute with the employer over whether he quit or was discharged. Claimant is currently employed in a maintenance position with Villa of Patricia Park earning approximately $5.50 per hour. Claimant testified that he was earning $6.35 per hour with defendant employer at the time of his injury and $5.15 per hour when he left work on the second occasion. Claimant explained that he had previously worked for Villa of Patricia Park on a part-time basis as a painter but that he had to give that up because of the requirement that he work over head. Claimant testified that his current symptoms are not unlike those he has had all along: He has pain on the top of his shoulder, down into his arm and up across his neck which swells on the left side when he attempts heavy lifting or overhead work; he has numbness in his left shoulder and sometimes in the tips of his fingers on the left hand; and pain at the "trigger point" area of his back between the shoulder SMITH V. DOBBS HOUSE, INC. Page 3 blades. Claimant testified that he is neither currently under any medical care nor that he has any medical appointments for further care. Robert Kenney, general manager for Dobbs Unit 716, testified claimant was offered two positions subsequent to his injury, but because the jobs involved evening hours and claimant had been working days, claimant rejected each one as the hours interfered with his other job. On December 21, 1984, claimant, on referral from the Dietz Clinic, came under the care of Joshua Kimelman, D.O., of Orthopedic Associates, P.C. Dr. Kimelman noted claimant had essentially full, "excellent" range of motion of the left arm without evidence of atrophy and that the x-ray of the left shoulder was within normal limits. Dr. Kimelman ruled out rotator cuff tear and the arthrogram performed was negative. Dr. Kimelman gave claimant a 1:1:1/2 injection in the left A/C joint, noting relief from discomfort on January 23, 1985. Approximately one month later Dr. Kimelman noted claimant was no longer getting the tingling and numbness that was previously the subject of complaint. Claimant discontinued treatment with Dr. Kimelman in March 1985 when he was referred to Scott B. Neff, D.O., by defendant insurance carrier. Claimant was first seen by Dr. Neff March 6, 1985 who, after examination and injection to the subacromial bursa, concluded: In summary, I feel that this patient has two problems. I feel he has had a muscle contusion to the posterior aspect of his left shoulder and neck, secondary to his injury. This is the result of the muscle spasm and trigger point tenderness, and this should be treated with trigger point injections, physical therapy, and conservative treatment. He does have impingement syndrome, and the left subacromial bursa and coracoacromial ligament area, but this is not his area of primary complaints. SMITH V. DOBBS HOUSE, INC. Page 4 I would like him to remain off work for a period of ten days and I would like to re-evaluate him again .... The scapular syndrome is a situation with which I am sure you are familiar. It is frustrating to treat, and can result in a pain/spasm/pain frustrating vicious cycle. It is generally associated with underlying stress, or can be made worse with stress, and is called the "cerviocothoracic tension state" by many authorities. It is generally not a disabling condition, and it is generally not permanent. (Joint Exhibit A, part 5, page 1) EMG studies done April 10, 1985 were interpreted as totally normal and claimant was released to return to work on May 8, 1985 with Dr. Neff stating: "I do not believe there are any significant abnormalities with reference to this patient, and I see no reason to restrict him from work activity at this time." (Jt. Ex. A, pt. 5, p. 3) When claimant was again seen on July 1, 1985, Dr. Neff appears not to doubt claimant's subjective symptoms of pain but admits "I don't have anything to offer him, and don't have any idea why his neck is puffing up...." (Jt. Ex. A, pt. 5, p. 4) However, because of persistence of the symptoms, Dr. Neff made arrangements for claimant to be seen at the University of Iowa neurosurgery and the department of physical medicine. In October 1986, Dr. Neff noted claimant stated nothing had changed in his condition and the functional capacity evaluation, conducted in association with Thomas Bower, L.P.T., a physical therapy consultant, resulted in an impairment rating of one percent to the upper left extremity based on "a very slight loss of abduction of approximately 15 degrees.O On July 15, 1985, claimant was evaluated by Thomas B. Summers, M.D., who concluded: I find no evidence of serious injury or residuals of injury in the case of Mr. Smith. Certainly, there is no evidence of neurologic deficit or orthopedic deficit on examination at this time. I am inclined to feel that the functional element here is sizeable in degree and contributing to the symptomatology in whole or in large part. Copies of reports submitted by other examiners concerned with care and treatment of Mr. Smith in the recent past are reviewed at length and noted. Appropriate diagnostic studies have been carried out, including arthrography and electromyography. I see no reason for any further studies or treatment in the case of Mr. Smith at this time. It is my feeling that he is capable of regular and gainful employment and without restriction, if he can be so motivated. (Jt. Ex. A, pt. 8, pp. 3-4) Claimant was seen in the neurosurgery outpatient clinic of the University of Iowa Hospitals and Clinics on July 28, 1986 and SMITH V. DOBBS HOUSE, INC. Page 5 was evaluated by David W. Beck, M.D., assistant professor of neurosurgery. Dr. Beck found claimant to be well muscled with no evidence of atrophy; that his rhomboid, supraspinatus, and infraspinatus muscles were within normal strength; that his entire motor examination was normal; that sensory examination revealed a subjective decreased pin sensation to the left side of the neck; and that he had full range of motion of the cervical spine. Dr. Beck also reported that cervical spine x-rays were obtained and were unremarkable. Dr. Beck, in a report dated July 29, 1986, concluded: It is my impression that Mr. Smith probably had a soft tissue injury to the left side of his neck. It is curious that he has this numb feeling which would really be in the distribution of either C2 or cutaneous nerve. Because of the lack of any muscle atrophy, I doubt if he has injured any of his brachial plexus. I have nothing really to offer Mr. Smith. I know he has been on TENS units and anti-inflammatory medications without much relief. I do think he does not have a significant brachial plexus injury or herniated disk, and therefore I am left with the diagnosis of soft tissue injury. (Jt. Ex. A, pt. 11, p. 2) Thomas A. Carlstrom, M.D., neurological surgeon, evaluated claimant November 19, 1987 and found claimant to have a good range of motion of his neck and shoulder with no atrophy of the muscles although he stated there was tenderness diffusely over the shoulder and scapula. On neurological examination, Dr. Carlstrom noted no abnormalities except subjectively diminished sensation over the apex of his shoulder. On December 1, 1987, Dr. Carlstrom stated: "I think this patient experienced a myofascial injury at the time of his altercation with the guardrail in 1984. I see no evidence for a permanent impairment at the present time.O (Jt. Ex. A, pt. 13, p. 1) Approximately one month later, Dr. Carlstrom explained to claimant's counsel: Yes, I do believe that there is pain associated with a myofascial injury; that really is the only symptom that we can associate with it, in fact. The length of time into the future that this patient will experience these symptoms is probably related to his physical activity. If he continues to do heavy work, he can expect to experience remissions and exacerbations more or less permanently. However, I believe it is more likely that over the years, his symptoms will gradually resolve completely. The last physician to see claimant was Jerome G. Bashara, M.D., orthopedic surgeon, who conducted an evaluation and examination on February 19, 1988. Dr. Bashara found the motion of claimant's cervical spine to be restricted and a full range of motion of the left shoulder of approximately 10 to 15 degrees of full abduction lacking. Dr. Bashara appeared to have reviewed previous x-rays and test results and concluded: DIAGNOSES: 1. Myofascial strain, cervical spine, SMITH V. DOBBS HOUSE, INC. Page 6 related to his injury; and 2. Soft tissue injury to the left shoulder, specifically the supraspinatus and ratator cuff muscle group. I would give the patient a 2% permanent partial physical impairment rating of his left upper extremity related to the shoulder diagnosis. I would give the patient a 3% permanent partial physical impairment of his body as a whole related to the myofascial strain of the cervical spine. (Jt. Ex. A, pt. 14, p. 4) 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). The claimant has the burden of proving by a preponderance of the evidence that the injury of November 24, 1984 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). The expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLongOs Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending SMITH V. DOBBS HOUSE, INC. Page 7 beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). A shoulder injury, however, is not scheduled, being an injury to the body as a whole. Alm v. Morris Barick Cattle Company, 240 Iowa 1174, 38 N.W.2d 161 (1949 . Iowa Code section 85.33(l) provides: Except as provided in subsection 2 of this section, the employer shall pay to an employee for injury producing temporary total disability weekly compensation benefits, as provided in section 85.32, until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first. Iowa Code section 85.34(2) provides, in part: Compensation for permanent partial disability shall begin at the termination of the healing period ... For all cases of permanent partial disability compensation shall be paid as follows: .... (u) In all cases of permanent partial disability other than those hereinabove described or referred to in paragraphs "all through "t" hereof, the compensation shall be paid during the number of weeks in relation to five hundred weeks as the disability bears to the body of the injured employee as a whole. ANALYSIS The parties have stipulated that claimant sustained an injury which arose out of and in the course of his employment and that the extent of claimant's entitlement to weekly compensation or temporary total disability/healing period benefits, if any, is March 16, 1985 through April 1, 1985 and May 13, 1985 through June 16, 1985. What is first at issue is whether the disability on which claimant now bases his claim is causally connected to the work injury. As stated above, the question of causal connection is essentially within the domain of expert testimony, although the expert testimony must be considered with all other evidence presented. Initially, it is accepted claimant was asymptomatic of shoulder and neck pain prior to the work injury of November 24, 1984. The physicians from whom claimant received treatment and by whom claimant was evaluated agree that the reason for claimant's need of medical assistance in the first place and his absences from work for the above mentioned periods was the work injury of November 24, 1984. Claimant has, therefore, met his burden of establishing a causal connection between the work injury and any resulting disability. Generally, a claim of permanent disability invokes an initial determination of whether the work injury is the cause of a permanent physical impairment or any permanent limitations in his work activity. By the very meaning of the phrase, a person SMITH V. DOBBS HOUSE, INC. Page 8 with a permanent impairment can never return to the same physical condition he or she was in prior to the injury. See, e.g., Armstrong Tire & Rubber Company v. Kubli, 312 N.W.2d 60 (Iowa 1981) and 2 A. Larson, The Law of Workmen's Compensation, SS67.12. Claimant testified he continues to experience pain in his shoulder, down into his arm, and up across his neck which is aggravated by "heavy" lifting or overhead work, pain which he did not have and work which he could do prior to his injury. Both Dr. Neff, who treated claimant, and Dr. Bashara, who evaluated him, find claimant to have some permanent impairment as a result of the work injury. Although Dr. Carlstrom saw no evidence of a permanent impairment at the time of his examination of claimant, he admits that if claimant continues to do heavy work, claimant can expect to experience remissions and exacerbations more or less permanently. It is, therefore,.accepted claimant has established that the work injury is the cause of a permanent impairment. This finding thus gives rise to the issue of whether claimant's disability is to the upper extremity or extends to the body as a whole. Based upon the situs of the injury (claimant testified the guardrail struck him on the shoulder, neck and back of the head) as well claimant's objective symptoms of pain beyond the upper extremity, it is found claimant sustained, under Alm, an injury to the body as a whole. See also Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Reports 281 (Appeal Decision 1982). In Alm, claimant had a rating of 25-30 percent impairment to the arm and the court, noting the anatomical location of the injury extended from the arm into the shoulder, ruled that the injury was not restricted to a schedule, thus, by law, an injury to the shoulder which produces permanent impairment entitles the claimant to an industrial disability. See also Lauhoff Grain Company v. McIntosh, 395 N.W.2d 834 (Iowa 1986). The mere fact that the rating pertains to a scheduled member does not mean the disability is restricted to a schedule. Pullen v. Brown & Lambrecht Earthmoving, Incorporated, II Iowa Industrial Commissioner Reports 308 (Appeal Decision 1982). Dr. Neff, along with Thomas Bower, L.P.T., found claimant to have a one percent impairment to the upper left extremity. Dr. Bashara found claimant to have a two percent impairment to the upper left extremity and a three percent impairment to the body as a whole. Functional disability 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, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. The 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 later to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it SMITH V. DOBBS HOUSE, INC. Page 9 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 disability 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 to draw upon prior SMITH V. DOBBS HOUSE, INC. Page 10 experience, general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant is 30 years old with a tenth grade education as an average student. He worked for seven years as a gas station attendant and mechanic where he rebuilt carburetors, did tuneups, oil changes, automobile electrical work and where he was able to use the "high-tech" equipment provided by the Amoco Company. Claimant has also rebuilt small engines such as those found in lawnmowers, rototillers and go-carts and also has worked as a laborer, truck and equipment operator and truck foreman for an asphalt company. It is interesting to note that none of the health care providers who saw or treated claimant have placed any restrictions on claimant's employability. Although testifying he could no longer do the "heavy" lifting required of an asphalt laborer, claimant did not indicate he could no longer do any of these other types of jobs. Claimant continued to work for defendant employer in his regular job after his injury and after his return to work lifted as much as 55 pounds. Claimant is currently employed in a maintenance position for Villa of Patricia Park earning approximately $5.50 per hour. He was earning approximately $6.35 per hour with defendant employer at the time of his injury. It is unclear from the testimony exactly why claimant did not return to work for defendant employer when work was offered. If claimant did not want to work nights because it interfered with his other employment, defendants clearly cannot be held liable for any asserted loss of earnings when the reason for claimant's failure to return to work was not related to his injury. While claimant also maintains he was not capable of doing the work, he was under no medical restrictions which would have kept him therefrom. Because claimant now has difficulty with lifting that he once did with relative ease as well as problems with overhead work which were not problems before the injury, it is accepted claimant's capacity to earn has been hampered as a result of the work injury. Considering then all the elements of industrial disability in light of the medical evidence as well as the testimony, it is found claimant sustained a permanent partial disability of three percent for industrial purposes. As indicated above, and pursuant to Iowa Code section 85.33, claimant is entitled to healing period benefits for the stipulated periods of March 16, 1985 through April 1, 1985, inclusive, and May 13, 1985 through June 16, 1985, inclusive. FINDINGS OF FACT Wherefore, based on all of the evidence presented, the following facts are found: 1. Claimant sustained an injury which arose out of and in the course of his employment on November 24, 1984 when a guardrail struck him on the left shoulder, neck and back of the head. 2. During the next two weeks following his injury claimant felt a Otingling" in his left shoulder and was dropping things with his left hand and therefore sought medical attention. 3. Claimant has a permanent impairment as a result of the SMITH V. DOBBS HOUSE, INC. Page 11 work injury. 4. Claimant perceives persistent pain in his arm, across his shoulder, into his neck which increases with heavy lifting and overhead work. 5. Claimant is currently employed in a position which does not require either heavy lifting or overhead work. 6. Claimant is 30 years old with a tenth grade education as an average student. 7. Claimant has work experience for which he is still qualified notwithstanding his injury. 8. Claimant is currently under no medical restrictions, no medical care and has no appointments for medical care. 9. Claimant's capacity to earn has been hampered as a result of the work injury. 10. Claimant has sustained a permanent partial disability to the body as a whole as a result of the work injury. 11. Claimant has a three percent industrial disability as a result of his injury. CONCLUSIONS OF LAW Wherefore, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant has established his injury is the cause of the disability on which he now bases his claim. 2. Claimant has established he sustained an injury to the body as a whole. 3. Claimant has met his burden of establishing an industrial disability of three percent as a result of the injury which arose out of and in the course of his employment on November 24, 1984. ORDER THEREFORE, IT IS ORDERED: That defendants shall pay to claimant seven point four two nine (7.429) weeks of healing period benefits for the stipulated periods from March 16, 1985 through April 1, 1985, inclusive, and May 13, 1985 through June 16, 1985, inclusive, at the stipulated rate of one hundred fifty-seven and 79/100 dollars ($157.79) per week. That defendants shall pay to claimant fifteen (15) weeks of permanent partial disability benefits at the stipulated rate of one hundred fifty-seven and 79/100 dollars ($157.79) per week commencing June 17, 1985. That defendants shall receive full credit for all disability SMITH V. DOBBS HOUSE, INC. Page 12 benefits previously paid. That payments that have accrued shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That a claim activity report shall be filed upon payment of this award. That the costs of this action are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 3rd day of May, 1988. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Fredd J. Haas Attorney at Law 5001 S.W. Ninth Street Des Monies, Iowa 50315 Mr. W. C. Hoffmann Attorney at Law 1000 Des Moines Building Des Moines, Iowa 50309 1803; 1803.1 Filed 5-3-88 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER DANIEL E. SMITH, Claimant, File No. 838605 vs. DOBBS HOUSE, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE CO., Insurance Carrier, Defendants. 1803; 1803.1 Claimant was injured when a safety guardrail broke loose and landed on his left shoulder, neck, and the back of his head. The residuals of the injuries extended beyond the upper extremities and therefore under Lauhoff Grain Company, it was found claimant sustained an injury to the body as a whole entitling him to an industrial disability. Claimant's injury was found to have caused a permanent partial impairment although none of the health care providers who either saw or treated claimant placed any restrictions on his employability. Claimant maintained he was precluded from doing "heavy" labor but was not precluded from employment for which he was suited by education and previous experience. Claimant is found to have sustained a permanent partial disability of three percent for industrial purposes. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JACK C. MILLER, File Nos. 838614 826388 Claimant, A R B I T R A T I O N vs. D E C I S I O N ROADWAY EXPRESS, INC., F I L E D Employer, Self-Insured, AUG 07 1989 Defendant. INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by claimant Jack C. Miller against defendant self-insured employer Roadway Express, Inc. to recover benefits under the Iowa Workers' Compensation Act for alleged injuries on July 25, 1986 and September 15, 1986. This matter was scheduled to come on for hearing at 8:30 a.m. on August 7, 1989, at,the industrial commissioner's office in Des Moines, Iowa. The undersigned was present. Neither claimant nor defendant appeared. SUMMARY OF THE EVIDENCE Claimant failed to present any evidence in support of the allegations found in his original notice and petition. At the time of hearing, neither an agreement for settlement nor a request for continuance was on file. Claimant has the burden of proving by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). FINDINGS OF FACT WHEREFORE, it is found: 1. Neither claimant nor defendant appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file with the industrial commissioner. 4. Claimant failed to present any evidence to support allegations of a compensable work injury. ORDER THEREFORE, IT IS ORDERED: Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the course of his employment. Claimant take nothing from this hearing. Costs are taxed to the claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 7th day of August, 1989. WALTER R. McMANUS, DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law 480 6th St. PO Box 209 Waukee, Iowa 50263 Mr. Cecil Goettsch Mr. Brian L. Campbell Attorneys at Law 1100 Des Moines Building Des Moines, Iowa 50309 51400; 51402 Filed August 7, 1989 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JACK C. MILLER, Claimant, File Nos. 838614 vs. 826388 ROADWAY EXPRESS, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N Self-Insured, Defendant. 51400; 51402 Neither claimant nor counsel appeared at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DONALD M. BOGGS, : : Claimant, : File Nos. 846119 & 838618 : vs. : A R B I T R A T I O N : NUTRENA FEEDS, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ introduction These are arbitration proceedings brought by Donald M. Boggs, claimant, against Nutrena Feeds, self-insured employer, defendant. The cases were heard by the undersigned in Sioux City, Iowa on May 1, 1990. The record in the proceeding consists of the testimony of claimant and the testimony of his ex-wife, Cynthia Boggs. The record also consists of joint exhibits A-P. issues/stipulations As a result of the prehearing report and order submitted and approved on May 1, 1990, the issues and stipulations presented by the parties are: issues 1. Whether claimant received injuries on September 15, 1986 and April 20, 1987 which arose out of and in the course of claimant's employment; 2. Whether there are causal relationships between the alleged injuries and the disability; 3. Whether claimant is entitled to temporary disability/ healing period benefits or permanent partial disability benefits; 4. Whether claimant is entitled to medical benefits under section 85.27; 5. Whether claimant is entitled to a medical evaluation under section 85.39; and, 6. Whether claimant is entitled to penalty benefits under section 86.13. stipulations 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged Page 2 injury; 2. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be for September 15, 1986: $382.44 and for April 20, 1987: $366.47 per week; and, 3. Defendant paid claimant zero weeks of compensation. facts presented Claimant is 45 years old. He commenced his employment with defendant in 1967. Several years later claimant was laid off from his employment. He then worked for a different employer. Claimant returned to his employment around 1970. He worked as a bulk unloader/operator for eight years. He worked as a short mix operator for seven or eight years. For the past two years, claimant had worked in the maintenance department. Claimant described a work injury which he maintained occurred in January of 1985. He stated this was the first time where he had ever injured his head or neck. He testified he had rammed his head against a tractor cab while driving. Claimant stated he reported the 1985 incident to his supervisor. Claimant testified that on September 15, 1986, he was working in rail receiving where he was assigned the duty of unloading rail tanker cars. Claimant related he injured himself because he was required to stand underneath a tanker and swing a 36 inch hammer against the underside of a car. Claimant indicated he was forced to stand hunched over and swing a hammer weighing eight to ten pounds. Claimant testified he reinjured himself on April 20, 1987. He stated he had been swinging the sledge hammer again and he felt pain on the lower right side of his neck. He also stated he experienced a headache. In 1987, claimant bid on a housekeeping position. He held that job for approximately one year but he stated he had pain everyday in the neck area. Claimant indicated he obtained his present job in maintenance 20 months prior to the date of the hearing. Claimant described his job duties. He reported he was required to inspect equipment, maintain equipment, grease equipment and lift gear boxes. Medical records were admitted as evidence. Claimant received chiropractic care for a portion of his care. Mark Hagen, D.C., wrote in his report of February 22, 1990: DIAGNOSIS ICD-9-CM 718.88 Hyperflexion/extension injury to the neck 723.1 Cervicalgia (pain in the neck) 723.2 Cerviocranial syndrome Page 3 848.9 Cervical sprain 724.1 Pain in thoracic spine 848.9 Thoracic sprain 784.0 Vascular pain in the head, lightheadedness, loss of balance 307.81 Tension headaches 346.9 Migraine headaches 719.40 Pain in shoulder joint 729.5 Numbness and pain in arms, hands, and fingers 854.0 Carpal Tunnel syndrome TREATMENT Treatment in the care of this patient has been of a conservative nature consisting of gentle spinal adjustments and physio-therapy [sic] in the forms of traction, ultrasound, and electrical stimulation. COMMENTS Due to the nature of Mr. Boggs [sic] injuries, he has a sprain injury to his neck, upper back and middle back. With a sprain injury you will have tearing and overstretching of the ligaments which are part of the soft tissue that holds the bones together. The areas of the ligaments which are torn and overstretched will fill in with scar tissue. Scar tissue is a cheap tissue of the body in which there is no nerve or blood suppply [sic], this tissue does not have the elacicity [sic] of normal ligaments. Since the ligaments are the structures that hold the bones to bones, there will be instability of the spine. Normal everyday activity can cause misalignments of the bones. If this is not corrected, the degenerating process of the bones and its surrounding tissue will be accelerated. Chiropractic care is essential in relieving pain and restoring the structure and function of the body, and also in delaying the degenerating processes that are inevitable. PROGNOSIS Due to the nature of these conditions, and supported by the findings upon examination and evaluation, the patient's prognosis is considered poor. It should be noted that the patient's response to conservative treatment has been consistent and encouraging despite the severity of his condition. RECOMMENDATIONS The patient should receive care and supportive therapy to reduce his symptomatology as needed. It should be noted that Mr. Boggs needs care in every one to two weeks. If Mr. Boggs waits over Page 4 two weeks he develops severe spasms and many headaches from not getting adjusted. It is my opinion at this time that there is no reason to expect any major changes in Mr. Bogg's clinical picture in the immediate future. It is my professional opinion that the patient has reached a point of maximum medical improvement (MMI) under my conservative care. Guides to the Evaluation of Permanent Impairment, AMA, 1988. Manual for Orthopaedic Surgeons in Evaluating Permanent Physical Impairment American Academy of Orthopaedic Surgeons, a standard has been set forth in the rateable impairments for this patient in which he has been assigned these values: Percent whole body permanent physical impariment [sic] and loss of physical function. Cervical Spine Healed sprain, contusion. Persistent muscle spasm, rigidity and pain sub- stantiated by loss of anterior curve revealed by x-ray, consisting of narrowing of intervertebral spaces and some osseous arthritic development. = 20 percent Page 5 Low Lumbar Spine Healed sprain, contusion. No involuntary muscle spasm, subjective symptoms of pain not substantiated by demonstrable path- ology. = 0 percent TOTAL WHOLE MAN IMPAIRMENT = 20 percent It is my professional opinion based on the history as presented by the patient and the above-noted objective findings from examinations that the above noted injuries were sustained in the accident of January 5, 1985. Claimant was also examined on several occasions by Joel T. Cotton, M.D. Dr. Cotton prepared a report dated May 24, 1989. In the report he wrote: Clinical Impression: This individual's neurological examination at this time remains normal. The examination performed today is identical to that performed on May 5, 1987. There is nothing to indicate that his condition has changed in any way from the previous examination except for the fact that movement of the neck can now be accomplished without any subjective complaint of pain while the patient complained of mild subjective discomfort with turning his neck 90 degrees to the right during the May 5, 1987 examination. According to the history given by the patient, he is suffering from chronic headaches which sound to be of a vascular type related to migraine. These migraine headaches specifically cannot be attributed to a head or neck injury in my experience. He does state that the headaches came on within several weeks of the tractor injury in December, 1984, or January, 1985. In this regard, they appear to be temporally related though I am unable to state that a causual [sic] relationship exists between the migraine headaches and the head trauma. There is furthermore no evidence that any additional injury has occurred which would aggravate these migraine headaches. Mr. Boggs also describes a chronic neck pain which appears to be on a musculoskeletal basis. This the patient also states followed the tractor injury of December, 1984, or January, 1985. This again appears to be temporally related to that injury and according to the history obtained from the patient on May 5, 1987, this complaint of neck pain followed the tractor injury within several months. According to the history obtained from the patient on May 5, 1987, there was no additional injury described by the patient as having occurred in 1986. He did report to me an Page 6 aggravation of his complaints two weeks before the May 5, 1987, evaluation when he used the hammer to strike beneath the grain bins. According to the patient May 5, 1987, this exacerbation of his symptoms was resolving by the time I saw him on May 5, 1987, and according to the history obtained from the patient today, he continues to state that that temporary exacerbation of his symptoms resolved. I am personally unable on review of medical records or my previous neurological evaluation of May 5, 1987, to document any particular reinjury occurring in 1986. The patient continues to have chronic complaints which appear to be uneffected by physical activity, time of day, occurring at home, at rest, on weekends, and during vacation. There is nothing from the history I obtained from this patient to indicate that his continued employment has aggravated his underlying condition. This is also confirmed on his neurological examination which continues to be normal at this time and in fact is improved over the May 5, 1987 evaluation when he complained of pain in the neck with movement which is no longer the case. Mr. Boggs at this time has no neurological impairment in the right upper or both lower extremities. He continues to have a pre-existing injury to the left hand. In the presence of an otherwise entirely normal neurological examination, this individual in my opinion is without neurological impairment. In the absence of neurological impairment, there can be no permanent partial disability from a neurological standpoint. In addition, he has recently had a number of radiological studies which are normal. According to Dr. Miller's report, x-rays of the cervical spine are "basically normal with a minimal osteophyte at C6-7, but nothing significant". Also reported according to Dr. Miller were normal flexion and extension films of the neck. An MRI scan of the neck was described as "completely negative". In the presence of those normal tests, I do not feel that additional medical evaluation or treatment would be necessary for his chronic complaints of subjective pain in the neck and migraine headaches. In addition, I can see no justification for continued chi ropractic manipulation for this man's chronic com plaint. Though the patient continues to complain of subjective complaints of chronic migraine headaches and neck pain, he is at this time without any objective evidence of neurological injury. In the presence of normal neurological examination, there is no reason in my opinion this Page 7 individual could not pursue all usual and customary activity without restrictions. I find nothing to indicate from his history or subsequent examinations that his continued employment has in any way produced either subjective worsening of his complaints or objective changes in his examination. Medical records also indicate claimant was examined by Daniel J. Miller, M.D., a neurological surgeon. Dr. Miller prescribed nerve blocks. He opined the following relative to claimant's condition: ...Otherwise throughout, motor was normal and the remainder of the Neurological examination was normal. Range of motion in the neck appeared to be normal also. He did demonstrated [sic] wasting in the First Dorsal Interosseous Muscle on the left. The patient's plain Cervical Spine films were basically normal with a minimal Osteophyte at C67, but nothing significant. The flexion-extension films were normal and I referred the patient for an MRI Scan. This Scan was completely negative and on a return visit I recommended that the patient undergo Physical Therapy of the Cervical Spine region with ultra sound, heat and massage. I also recommended Motrin, and as he was describing a solitary spot in the mid-line of the Posterior, approximately, C6 Region, being the location of his chronic pain and being tender to palpation, I recommended that he undergo a Trigger Point Injection. He was also describing headaches in the Suboccipital Region, which pass over the right side of his head, and I felt that for this he should undergo a right Occipital Nerve Block. It is my impression, overall, that the patient has chronic pain secondary to a Cervical Sprain with a chronic Myofascial type pain syndrome. Also, perhaps, a right Occipital Neuralgia. I plan on seeing him again after these blocks, and I will try to keep you informed as to how we proceed. Once again, thank you for his referral. The medical evidence also shows claimant was examined on several occasions by John J. Dougherty, M.D., an orthopaedic physician. Dr. Dougherty, according to his letter of April 20, 1987, took a medical history from claimant. The physician stated: ...He first presented himself on 1-11-85. He gave a history that he was injured at work on 12-15-84 while removing snow in a tractor. The tractor came to a sudden stop and jarred the patient inside the cab. Patient at that time told me he didn't fly off the tractor, did not hit his head and he had no pain initially, merely tightness in his neck. Said at that time he had a stiff neck Page 8 for 5-6 days, but he hadn't missed any work. Said at that time he had a headache, although he's had headaches occasionally for years, but now he wakes up in the morning with a stiff neck and he gets a headache....Then I did not see him again until 1-21-87, approximately two years later. At that time, he complained of his neck. He also dated it back to the time of the incident of 12-84. At this time, he told the girls he struck his head on a cab, but in 1985, he told me he did not hit his head. ... With regard to whether he's reached maximum medical recovery, my only other suggestion along this line might be that he be seen by a neurologist. However, the neurologist in Sioux City doesn't want to get involved in these types of problems. What is the cause of his current complaints? On reviewing his x-rays and comparing them with previous films, they don't appear to be much different. He does have a minimal straightening of the cervical spine, but disc spaces appear to be maintained. He does have a mild scoliosis to the right in the cervical spine, but I think this is probably secondary to a scoliosis to the left in the dorsal spine. According to him, he apparently didnt' [sic] do too bad from 1-85 until 9-86. I'm not sure exactly what precipitated recurrence of his problems and complaints in September of 1986. Based on the fact that he continued to work every day and the fact that, according to his deposition, he does seem to have problems whether he's working or not, I'm not sure we can definitely asociate [sic] this with working. It certainly does not appear that any further diagnostic studies are indicated. I just would question if a myelogram would show us much. He did get some relief from the injection. I think he should be seen by a neurologist who probably should evalute [sic] him and possibly treat him more vigorously from a migraine type of headache diagnosis and see if he got relief. There is a suggestion that his scoliosis may be a little more in the dorsal spine than it was two years ago, which is probably just a normal progressive thing. It would appear to me that his complaints are probably more now than they were in 1985. However, I'm not sure that I can explain why that be [sic] the case. I would really question if this is associated with his work. The fact that he did not seem to have any significant problems from 1985 until September of 1986, certainly makes one question the severity of the Page 9 intial [sic] injury and whether this could still be giving him problems. Basically, I guess my feeling would be that he did not sustain any significant injury to his neck at the time of the original injury of January of 1985. I'm not sure we can adequately explain his present complaint. I would not feel that further chiropractic treatments are indicated. I don't understand the mechanism of using a gun which the chiropractors do. It would certainly appear to me that, if anything, that would only aggravate the situation. Based on the fact that he's been working every day since the incident, I just can't conceive that his work would have caused any aggravation of his complaints. I can only reiterate again that I'm not sure here whether diagnostic studies are going to be significant. My only other suggestion, as I mentioned above, would be to have him seen by a neurologist with the idea of possibly further investigation from a headache evaluation. Possibly switching drugs around to see if it might not help, would be a consideration. Possibly his headaches and complaints of pain in the neck are more on some type of a vascular problem, like a migraine headache, than actually related to his injury of December of 1984 or the work he does. As you can see from my office notes, I think it just does not present a clear case of one over the other and I'm not sure, based on the findings, that I can explain his continued complaint. Admittedly, he does have the scoliosis which could be increasing just with every day living or the onset of headaches not really related to his work. Medical records also demonstrate claimant was seen by A. Kleider, M.D., on February 10, 1987. Dr. Kleider opined in his medical note for that date: This is a 41-year-old, right-handed man who came because of a sore spot on the right side of his neck, some neck stiffness and recurrent headaches. On or about 1-4-85 he was thrown forward when the forklift truck that he was driving came abruptly to a halt. He was not knocked out. He really hasn't missed any work to speak of as a result of that injury. Nevertheless, since that time he has had stiffness of his neck and that sore spot mentioned and then typically that sore spot would from time to time get worse and develop into a whole right-sided headache. He used to get up to three a day, now he gets about three to four a week. Typically, the headaches last 3-4 hours and often they are associated with vomiting. They typ ically are throbbing headaches. He has never had it on the left side. In spite of this frequency, Page 10 he has hardly ever lost work because of the problem. He claims that his health is otherwise good but in 1971 he had a wrist fracture which required surgery on the right and in 1977 he got shot in the left arm and has had some left hand disability (mainly an ulnar nerve deficit) ever since. EXAMINATION: Revealed a man whose range of cervical spine movement was near normal. There was no weakness in any of the upper extremity muscle groups except for the hand intrinsics on the left which were atrophied and he had the typical claw deformity of an ulnar paresis. Fundoscopy was unremarkable and extraocular movements were full. No bruits could be heard about the head or neck or over the orbits. IMPRESSION: This man has clearly had some sort of a flexion extension injury to his neck. I suspect that his headaches may well be the result of migraine with questionable relationship to his actual injury. My recommendation is that he be treated as a migraine patient to see if that would help. Dr. Kissel might want to do that or he might want to refer the patient on to one of the neurologists. From the neck injury point of view, I just think we need to offer him reassurance and not much else. applicable law Claimant has the burden of proving by a preponderance of the evidence that he received injuries on April 20, 1987 and September 15, 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). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The 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 (l963) 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 Page 11 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). The claimant has the burden of proving by a preponderance of the evidence that the injuries of April 20, 1987 and September 15, 1986 are 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 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Page 12 Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 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 (1960), and cases cited. analysis Claimant has not proven by a preponderance of the evidence that his claimed disability is casually related to either the alleged injury on September 15, 1986 or to the alleged injury on April 20, 1987. There is a wide disparity of opinions. Dr. Hagen, claimant's treating chiropractor, casually relates claimant's condition to a work injury date of January 5, 1985. This appears to be the same incident described by claimant where he rammed his head inside a tractor cab while clearing snow from some railroad tracks. The January 1985 date, however, is not in issue before the undersigned. Dr. Dougherty does not relate claimant's claimed condition to an injury date of either September 15, 1986 or to an injury date of April 20, 1987. Dr. Dougherty opines the claimant's condition is a vascular problem, like a migraine headache. The physician does not casually connect claimant's condition to any work condition, even the incident occurring in December of 1984. Dr. Cotton is unable to find a causal relationship between claimant's migraine headaches and the alleged injuries of September 15, 1986 or April 20, 1987 and between the headaches and the head trauma work incident of December 1984. Dr. Cotton does not find claimant's employment to have caused or to have aggravated claimant's reported condition, in any respect. Only Dr. Hagen, a chiropractor, has found causation and that is between an injury date which is not under consideration before this division. None of the medical doctors have found the requisite causal connection. The undersigned has determined the greater weight of the evidence is with the medical doctors relative to the issue of causation. See Reiland v. Palco, Inc., Thirty-Second Biennial Report of the Industrial Commissioner 56 (1975). Claimant has not established the necessary causal connection to prevail. findings of fact and conclusions of law Page 13 WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: Finding 1. Claimant sustained a work incident in December of 1984 which resulted in claimant banging his head against the inside of a tractor cab. Finding 2. The work incident which occurred in December of 1984 is not an issue before the Division of Industrial Services. Finding 3. Claimant sustained neck pain and headaches several months after the work incident which occurred in December of 1984. Finding 4. No medical practitioner has attributed claimant's neck pain and headaches to injury dates of September 15, 1986 and/or April 20, 1987. Conclusion A. Claimant has failed to prove by a preponderance of the evidence that his neck pain and headaches were caused by alleged work injuries on September 15, 1986 and/or April 20, l987. Page 14 order Claimant takes nothing from these proceedings. Each party shall bear its own costs. Signed and filed this ____ day of May, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harry H. Smith Mr. Dennis McElwain Attorneys at Law 632-640 Badgerow Bldg P O Box 1194 Sioux City IA 51102 Mr. Thomas M. Plaza Attorney at Law 200 Home Federal Bldg P O Box 3086 Sioux City IA 51102 1100; 5-1108 Filed May 17, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : DONALD M. BOGGS, : : Claimant, : File Nos. 846119 & 838618 : vs. : A R B I T R A T I O N : NUTRENA FEEDS, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1100; 5-1108 Claimant did not prove by a preponderance of the evidence that his neck pain and headaches were causally related to his alleged injuries of September 15, 1986 and April 20, 1987. Claimant's treating chiropractor causally related claimant's condition to an alleged work injury in December of 1984. The December 1984 incident was not a date where a petition had been filed. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JEAN WASHBURN Claimant, vs. File No. 838620 WACKENHUT CORPORATION, A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Jean Washburn, claimant, against Wackenhut Corporation, employer, and Home Insurance Company, insurance carrier, defendants, for benefits as the result of an injury that occurred on July 8, 1985. The hearing was held in Burlington, Iowa, on October 16, 1987, and the case was fully submitted as the close of the hearing. The record consists of the testimony of Jean Washburn, claimant, Glen Washburn, claimant's husband, Claimant's Exhibits 1 through 39 (with pages numbered 1 through 63) and Defendants' Exhibits A through N. Claimant's attorney filed an excellent brief.. No brief was received from defendants' attorney. Defendants did voluntarily provide the agency with a transcript of the hearing. STIPULATIONS The parties stipulated to the following matters at the hearing. That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on July 8, 1985, which arose out of and in the course of employment with employer. That tHe injury was the cause of temporary disability; that claimant is entitled to and has been paid temporary disability benefits from July 9, 1985 to July 12, 1985, and that temporary disability benefits are not an issue in this case at this time. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That claimant's gross weekly earnings from employer for the 13 weeks prior to hearing is $828.93; claimant is married and is WASHBURN V. WACKENHUT CORPORATION PAGE 2 entitled to two exemptions. That the provider of medical services would testify that the fees charged are reasonable for the services and supplies delivered and that defendants are not offering contrary evidence. That defendants claimant no credit for nonoccupational group health plan benefits or workers' compensation benefits paid prior to hearing. That there are no bifurcated claims. ISSUES The parties stipulated to the following issues at the time of the hearing. Whether the injury was the cause of any permanent disability. Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits. Whether claimant is entitled to medical benefits. Whether claimant is an odd-lot employee. The parties requested a determination of the proper rate of weekly compensation. SUMMARY OF THE EVIDENCE All of the evidence was examined and considered. The following is a summary of the evidence most pertinent to this decision. Claimant was 49 years old at the time of the injury and 51 years old at the time of the hearing. She attended school through the eighth grade. Past employments include: nurse's aide jobs, private sitting jobs, custodial work and maintenance work. Claimant was employed by employer from May 23, 1985, until she terminated her employment on August 10, 1985, in order to take a full-time job (Exhibit 11, page 22). Claimant was a part-time employee for this employer. She testified that she normally worked one or two days a week. Claimant admitted to prior problems with her shoulder and back and had received workers' compensation benefits; however, she testified that these problems had been resolved prior to the instant injury. Claimant testified that she was pain free and could do whatever she wanted to do when she started to work for this employer. She did not take a preemployment physical examination. Claimant worked as a security guard for employer. She was assigned to work at the Sheller-Globe Company. Claimant carried a time clock and punched approximately 40 time clock stations. She stated that it took two hours to make rounds. She walked possibly two miles in making rounds. Her duties involved checking heavy metal doors that weighed possibly 200 pounds. WASHBURN V. WACKENHUT CORPORATION PAGE 3 On July 8, 1985, claimant was pulling down an overhead door with a chain. It came down about 18 inches and then it jerked back up and she went up with it. She had a hold of the chain with both arms, but it was her left arm that was jerked and this jerk lifted her off of the floor (Transcript pages 13 & 14). Claimant reported the injury to her supervisor, Laura (full name unknown), who told her not to pull down any more doors. Claimant sought medical attention on her own authority from a doctor of her own choosing. She saw William A. Vance, D.C. She said that Dr. Vance took an x-ray and gave her an adjustment. Claimant stated that she was off work from July 9, 1985 to July 12, 1985. Then she worked until August 10, 1985, when she quit to take a full-time job sitting with a lady who was recovering from surgery. Dr. Vance reported that claimant hurt her neck, left shoulder and lower back. He added that claimant has a great deal of nervous tension and her symptoms tend to recur under stress (Ex. 2, p. 4). His office records show that he treated claimant prior to this injury for generally the same complaints that she had after the injury. On February 17, 1984, he reported a neck injury and that claimant could not turn her head without pain. On May 21, 1984, he treated claimant for headache, pain in the neck, shoulder and low back which occurred when she helped her husband lift the lawn mower from a truck. On May 14, 1985, she reported tingling to her left hand, left leg and foot. On May 23, 1985, she reported that she lifted a box at home to put it on a shelf and suffered leg pain at L-5 and right S-1. Records of Dr. Vance showed that he continued to treat claimant for these and various other complaints through December 15, 1985 (Ex. 4, pp. 5-7). Claimant said that she next saw Robert R. Kemp, M.D., a general practitioner and general surgeon, who was a doctor of her own choice. Dr. Kemp referred claimant to Rouben Mirbegian, M.D., an orthopedic surgeon. Dr. Kemp's records show that he did not see claimant until October 17, 1986 (Ex. 1, pp. 1 & 2). The evidence shows that claimant saw Dr. Mirbegian on October 21, 1986 (Ex. 15, p. 26). Dr. Mirbegian referred claimant to Julio del Castillo, M.D., a neurosurgeon in Quincy, Illinois (Ex. 18, P. 31). Dr. del Castillo saw claimant on December 10, 1986 (Ex. 3, p. 11; Ex. 21, p. 35) for a very complex and wide-spread history of trouble that originated on December 8, 1980, when two doors fell on her and injured her neck, left shoulder and back with pain radiating down into her left hip. He said that claimant was discharged but continued to hurt. He added that when claimant could not get social security disability, she took a second job as a security guard. Then on July 8, 1985, the overhead door reinjured her left shoulder and her old pains, which had been improving, became aggravated. Claimant described pains to Dr. del Castillo in her left neck, left shoulder blade and left arm radiating to her left hand. Dr. del Castillo found that the reports of two previous EMG tests, taken on two previous occasions, showed quite normal results. He related that claimant's symptoms were ill defined and diffuse and offered a multitude of possibilities. He found nothing to indicate thoracic outlet syndrome. Dr. del Castillo WASHBURN V. WACKENHUT CORPORATION PAGE 4 said that his primary diagnosis was conversion and anxiety, but that this has been going on for six years. He recommended a cervical and lumbar myelogram and an arthrogram of her left shoulder. Claimant related to Dr. del Castillo that she had already seen a psychiatrist (Ex. 21, pp. 35-37). Dr. Mirbegian reported that his attempt to do an arthrogram was not successful (Ex. 18, p. 31). This is explained by the report of R. C. Kimmell, M.D., who reported on December 22, 1986, that his attempt to perform a left shoulder arthrogram was not successful. He said that claimant was apprehensive and complained during the administration of anesthesia. She could only tolerate lcc of contrast injection despite generous amounts of local anesthesia. Therefore, the examination was terminated without satisfactory imaging (Ex. J, p. 11). Dr. del Castillo noted that claimant told him that J. A. Gwaltney, Jr., M.D., examined claimant's shoulder for the possibility of a rotator cuff tear. Claimant said that Gwaltney felt that her shoulder was quite normal and that she did not have one (Ex. 22, p. 40; Ex. I, p. 3; Ex J, p. 9). Dr. del Castillo did perform the cervical and lumbar myelogram on December 18, 1986 (Ex. 22, pp. 38-42; Ex. 24, p. 42). The cervical myelogram was normal. The lumbar myelogram disclosed a ruptured disc between the fourth arid fifth lumbar vertebra that was fairly large in size. It also disclosed a small indentation between L-5 and S-1. The doctor said that it was not possible to tell how long it had been there. X-rays of the lumbar spine demonstrated chronic degenerative arthritis, moderate scoliosis and some straightening of the dorsolumbar curve. He said he also performed an MRI of her neck and it, too, was normal (Ex. 38, pp. 27-30; Ex. 24, p. 42). The doctor testified that he never did reach a decision as to the exact reason for this hernia (Ex. 38, p. 34). The doctor said he was aware of the injury of December 8, 1980, when the doors fell on claimant, but there were numerous other prior injuries that he was not aware of and that she did not tell him about. The doctor said that claimant would not need surgery for this herniated nucleus pulposus unless the pain got so bad that she could no longer stand it. He said that her injury of July 8, 1985, could have aggravated a preexisting herniated nucleus pulposus (Ex. 38, p. 37). However, it was his medical opinion that the injury of July 8, 1985, sprained her neck and sprained her ligaments and that the diagnosis of chronic strain is medically a good diagnosis (Ex. 38, p. 41). The doctor believed that claimant had suffered a permanent functional impairment of 20 percent of the body as a whole, five percent of which was attributable to subjective neck pain (Ex. 38, pp. 41 & 42). When claimant reapplied for a job with employer, on October 10, 1986, she completed and signed an employment application in which she stated that she had never been treated for any bone or joint disorder or arthritis or for back injury, back problems or backache (Ex. L). At the time claimant resigned from employer she wrote a letter on August 13, 1985. In this letter she stated that she was resigned to take full-time employment. She did not give any indication that she was suffering any pain or disability from the injury of July 8, 1985, at that time (Ex.M). Defense counsel pointed out to claimant that she had suffered a large number of prior injuries, many of which affected WASHBURN V. WACKENHUT CORPORATION PAGE 5 her neck, left shoulder and back. She also suffered a number of other injuries affecting other parts or areas of her body. Some of the prior injuries, which appear to be pertinent, are as follows: 08-05-76 Left side of shoulder and left side Ex. 0 of back. 09-15-76 Upper left leg and pelvis Ex. P 01-10-77 Tail bone and low back and lower leg Ex. Q muscles. 06-28-77 Middle of back, neck & head Ex. R 02-16-78 Hip hurting Ex. T 11-16-78 Neck hurt and lower stomach Ex. U 03-15-79 Neck, back and left hip Ex. W 03-22-79 Left arm and stomach Ex. X 04-05-79 Neck, back and headache Ex. Y 09-13-79 Left thigh Ex. BB 12-06-79 Left side of neck, shoulder and back Ex. CC 12-20-79 Left rib and shoulder blade Ex. CC 04-21-80 Left side of back Ex. FF 04-22-80 Left side of back Ex. GG 09-30-80 Neck, back and hip Ex. II 10-02-80 Ribs and left side Ex. JJ 10-22-80 Left leg and back Ex. KK 12-08-80 Left shoulder, neck and back Exs. B,C, I,LL Claimant settled the injury of December 8, 1980, with the workers' compensation carrier for a substantial amount of money on or about February 18, 1982 (Ex. MM). Claimant has at least one other workers' compensation settlement for other injuries (Ex. NN). Claimant saw two other doctors one time each. Raymond Hanks, Jr., D.C., reported in December of 1986, that he treated claimant for the injury of July 2, 1985. He did not make a professional medical statement that the injury of July 2, 1985, was the cause of her complaints, nor did he find any permanent impairment (Ex. 16, pp. 27-29). Claimant also consulted Lowell D. Barrowes, M.D., one time, on February 27, 1987 (Ex. 5, p. 13; Ex. 12, p. 23). Claimant testified that Dr. Barrowes said that he could not do anything for her. The x-rays of claimant's lumbar spine for the injury of WASHBURN V. WACKENHUT CORPORATION PAGE 6 December 8, 1980, were normal (Ex. 35, p. 57). Claimant testified that there are a number of things that she can no longer do. She cannot stand, sit, walk, vacuum, walk down steps, do dishes, make the bed, paint, remodel, ride a bicycle, mow the grass, drive the car, carry groceries, scrub floors, wash and wax windows, do laundry, pick up her new granddaughter, cook very much or wash her own feet. She cannot sleep and she uses a heating pad most of the time. Claimant admitted that she saw Dr. Vance, the chiropractor, as her own choice of physician on July 8, 1985. He returned her to work the following day on July 9, 1985 (Ex. 2, p. 4; Ex. 14, p. 25). Claimant acknowledged that she had seen Dr. Vance prior to this injury for headaches, pain in her neck, left shoulder, back and left leg. Dr. Vance recorded L-5 and right S-1 leg pain. Defense counsel pointed out that claimant had not admitted this treatment in her earlier deposition; but claimant distinguished that these were different pains and that they were gone at the time of the deposition (Tr. pp. 29-31). Claimant admitted that after the injury on December 8, 1980, to her neck, left shoulder and left hip, that she was off work for several weeks, was given a disability rating by Koert Smith, M.D., and received a workers' compensation settlement for that injury. Glen Washburn, claimant's husband of 34 years, testified WASHBURN V. WACKENHUT CORPORATION PAGE 7 that claimant can no longer wash clothes, do the dishes, vacuum, make her bed or do her housework. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of July 8, 1985, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works,.247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant did not sustain the burden of proof by a preponderance of the evidence that the injury of July 8, 1985, was the cause of permanent disability. Defendants very definitively proved that claimant has sustained numerous injuries to her neck, left shoulder, back and hips. Claimant sustained at least 18 prior injuries to one or more of these body areas, dating back to 1976. Claimant sustained a serious injury on December 8, 1980, lost several weeks from work and received a substantial workers' compensation settlement for this injury. The injury of July 8, 1985, also affects the same general areas--the neck, left shoulder, back and hip. In February and May of 1984, and again in March and May of 1985, claimant was treating with Dr. Vance for the same general complaints to the neck, left shoulder and hip. On May 23, 1985, Dr. Vance said in his notes it was L-5 and right S-1 leg pain (Ex. 2, p. 5). Claimant continued to see Dr. Vance for the same general complaints through December 15, 1986. Dr. Vance reported that claimant could return to work on the following day after this injury. He also stated on the surgeon's report that a permanent defect was not indicated. He gratuitously added that claimant has a great deal of nervous tension and her symptoms tend to recur under stress. Claimant was not hospitalized and no x-rays were taken (Ex. 2, p. 4). Dr. Kemp, the general practitioner and general surgeon, and Dr. Mirbegian, the orthopedic surgeon, did not make any statement on whether claimant had or had not sustained a permanent impairment. Dr. Mirbegian and Dr. Kimmell attempted a left shoulder arthrogram but it was unsuccessful due to claimant's intolerance for the procedure. Claimant then reported to Dr. del Castillo that Dr Gwaltney told her that her shoulder was quite normal. Dr. del Castillo said that the EMG reports he looked at, WASHBURN V. WACKENHUT CORPORATION PAGE 8 that were taken on two different occasions, were normal. He said claimant's symptoms were diffuse and ill defined. His primary diagnosis was conversion and anxiety but that this had been going on for six years already. Claimant told Dr. del Castillo that she had already seen a psychiatrist at the time that she applied for social security disability. Dr. del Castillo did perform a cervical and lumbar myelogram and a cervical MRI. The cervical tests were normal. A lumbar myelogram showed a large herniated nucleus pulposus. The doctor could not tell how long it had been there. It did not show up on the lumbar x-ray in December of 1980 at the time of the earlier injury, and it did not show up on the lumbar x-ray at the time of the myelogram either. Apparently, this herniation was detectable only by the lumbar myelogram. Claimant testified that she never did have a CT scan and could not take an MRI while she was conscious because she had claustrophobia. Dr. del Castillo did not say that the herniated nucleus pulposus at L-4, L-5 or the indentation at L-5, S-1 were caused by the injury of July 8, 1985. He did not know how it was caused or when it was caused. He said it was possible that it could have been aggravated by the injury of July 8, 1985, but he did not say that it was in fact caused or aggravated by that injury, nor did he say that it was probably caused or aggravated by that injury. Dr. del Castillo's x-rays did reveal chronic degeneration of the spine, arthritis, moderate scoliosis and some straightening of the dorsolumbar curve. The doctor said that claimant did not tell him about her many other injuries prior to July 8, 1985. She only described the one injury on December 8, 1980. Dr. del Castillo did not say what caused the 20 percent permanent functional impairment, of which, five percent was attributable to the neck. Dr. Hanks, the chiropractor, who saw claimant for a social security examination, did not give a formal medical opinion on the cause of claimant's complaints, but he did record the description of the injury that claimant gave to hint. Dr. Hanks did not find that claimant was permanently impaired (Ex. 16, pp. 27-30). Claimant saw Dr. Vance, Dr. Kemp, Dr. Barrowes, Dr. Mirbegian, Dr. Hanks, and Dr. del Castillo. All of these doctors were chosen by claimant. The first five doctors did not give a statement to indicate that claimant sustained any permanent impairment. Dr. del Castillo found permanent impairment but he could not say what caused it. Considering the large number of injuries., that claimant had sustained to her neck, left shoulder, back and hip prior to July 8, 1985, in particular, the treatment that she received from Dr. Vance in May of 1984 and May of 1985, and considering that claimant settled the workers' compensation claim for the injury of December 8, 1980, which affected the same general areas, then claimant has not sustained the burden of proof by a preponderance of the evidence that the injury of July 8, 1985, was the cause of any permanent impairment or disability. Complaints to the neck, left shoulder, back and hip preexist and continue after this injury. The same must be concluded as to claimant's anxiety and conversion. Dr. del Castillo said that it had been ongoing for at least six years when he saw claimant in December of 1986. In conclusion, claimant has not proven that the injury of July 8, 1985, was the cause of any permanent impairment or disability and therefore, is not entitled to any permanent disability benefits for this injury, WASHBURN V. WACKENHUT CORPORATION PAGE 9 Claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to medical benefits other than the initial treatment with Dr. Vance in July of 1985. Claimant testified that she chose all of the doctors on her own. She was not sent to them by the employer or the insurance carrier or any physician chosen by the employer or insurance carrier. The treatment performed by Dr. Vance in August and September of 1986 cannot be determined to be work related by any of the evidence in the record. It appears to be a continuation of claimant's normal chiropractic.maintenance care or a chronic condition. Dr. del Castillo was not an authorized physician. Even though he did find a herniated nucleus pulposus that had not previously been discovered, he could not say that it was caused by the injury that occurred on July 8, 1985. There was no evidence that Dr. Barrowes was an authorized physician, nor did he state that he treated a work-related injury. The question of whether claimant is an odd-lot employee is, therefore, moot as well as the issue of the proper rate of compensation. FINDINGS OF FACT Wherefore, based upon the evidence presented the following findings of fact are made. That claimant sustained an injury on July 8, 1985, while employed by employer when she pulled down on the chain of an overhead door and it recoiled on her and injured her neck, left shoulder and hip. That Dr. del Castillo stated that in his opinion she received a shoulder sprain and ligament sprain from which she should have recovered in a few weeks. That Dr. Vance,.her own physician, indicated this was a minor injury and returned claimant to work the following day. He further indicated that claimant suffered from nervous tension and stress factors that caused these complaints to recur. That Dr. Vance, Dr. Kemp, Dr. Barrowes, Dr. Mirbegian, and Dr. Hanks did not find that claimant had sustained any permanent impairment or disability. That Dr. del Castillo did find that claimant had a herniated nucleus pulposus but that he could not state when or how it happened. That Dr. del Castillo found that claimant had a 20 percent permanent functional impairment of the body as a whole, but he did not say how or when it was caused. That Dr. del Castillo said that claimant had anxiety and conversion, but that it predated this injury for about five or six years. That claimant received a workers' compensation settlement for the injury of December 8, 1980, which affected the same areas of the body. That claimant chose all of the treating physicians herself without any prior authority from the employer, the insurance carrier or any doctor selected by them. WASHBURN V. WACKENHUT CORPORATION PAGE 10 CONCLUSIONS OF LAW Wherefore, based upon the evidence presented and the principles of law previously discussed, the following conclusions of law are made. That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury of July 8, 1985, was the cause of any permanent impairment or disability. That claimant did not sustain the burden of proof by a preponderance of the evidence that she is entitled to the payment of medical expenses. ORDER THEREFORE, IT IS ORDERED: That no amounts are owed by defendants to claimant for the injury of July 8, 1985. That defendants are to pay for the transcript of the hearing, which they volunteered to pay for at the time of the hearing. That all of the other costs of this proceeding are to be paid for by claimant pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services rule 343-3.1. Signed and filed this 27th day of October, 1988. WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. James Hoffman Attorney at Law Middle Road Keokuk, IA 52632 Mr. Michael Liebbe Attorney at Law 116 E 6th St. P.O. Box 339 Davenport, IA 52805-0339 1402.40; 1402.60 Filed October 27, 1988 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JEAN WASHBURN, Claimant, vs. File No. 838620 WACKENHUT CORPORATION, A R B I T R A T I O N Employer, D E C I S I O N and HOME INSURANCE COMPANY, Insurance Carrier, Defendants. 1402.40; 1402.60 Claimant with chronic long term neck, back, left shoulder and left hip problems, with numerous prior repeated injuries to the same areas, did not sustain the burden of proof by a preponderance of the evidence that this injury, a sprain injury, was the cause of permanent disability. Claimant was denied permanent partial disability and medical expenses. Page 1 2401 Filed April 15, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : JOHN E STANGL, : : Claimant, : : vs. : : File No. 838622 FISHER CONTROLS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2401 Claimant failed to give timely notice and defendants did not have actual notice of injury. Decision contains several cites.