BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD K. MATHIS, Claimant, File No. 840015 vs. A P P E A L IOWA DEPT. OF TRANSPORTATION, D E C I S I O N Employer, F I L E D and DEC 28 1989 STATE OF IOWA, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE Claimant appeals from an arbitration decision denying claimant benefits and the ruling on the motion requesting permission to submit additional evidence. The record on appeal consists of the transcript of the arbitration hearing and joint exhibits 1 through 12. Both parties filed briefs on appeal. Claimant filed a reply brief. ISSUES The issues on appeal are: 1. Whether the deputy commissioner erred in denying claimant's motion to submit additional evidence. 2. Whether the deputy commissioner erred in finding that claimant failed to meet his burden of proof as to permanent partial disability and odd-lot. REVIEW OF THE EVIDENCE The arbitration decision filed December 15, 1988 adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Claimant failed to show for the hearing scheduled November 14, 1988 at 4:00 p.m. in Council Bluffs. Counsel for claimant was present. The hearing was conducted as if claimant was present. Claimant then had three days to submit a brief showing of good cause to support their motion for permission to submit additional evidence. In an affidavit filed November 17, 1988, claimant stated that his brother-in-law died on November 2, 1988. Claimant stated that he was involved with the funeral and forgot about himself. Claimant's request for permission to submit additional evidence was denied on November 30, 1988. The parties stipulated claimant's injury on November 26, 1986 arose out of and in the course of employment with defendant, there is a causal connection between claimant's back injury, and the disability which he is basing his claim. APPLICABLE LAW Division of Industrial Services Rule 343-4.31 states: "No evidence shall be taken after the hearing." Division of Industrial Services Rule 343-4.28 states in pertinent part: The commissioner shall decide an appeal upon the record submitted to the deputy industrial commissioner unless the commissioner is satisfied that there exists additional material evidence, newly discovered, which could not with reasonable diligence be discovered and produced at the hearing. Division of Industrial Services Rule 343-4.23 states in pertinent part: Continuances of hearings in contested cases shall be granted only by the industrial commissioner or the commissioner's designee. Requests for continuance shall state in detail the reasons for the request and whether the opposing party accedes to the request. The industrial commissioner or the commissioner's designee shall enter an order granting or denying the request. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). 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, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257. A worker is totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity, that a reasonable, stable market for them does not exist. When a combination of industrial disability factors precludes a worker from obtaining regular employment to earn a living, a worker with only a partial functional disability has a total industrial disability. Guyton v. Irving Jensen Company, 373 N.W.2d 101 (Iowa 1985). ANALYSIS Division of Industrial Services Rule 343-4.23 requires that a request for continuance shall state, in detail, the reasons for such a request, attorneys for claimant failed to state any reason to justify a continuance. Claimant's attorney stated that he had "no idea why he [claimant] is not here." A continuance is only appropriate where good cause is shown or in emergencies. Certainly, the death of a close relative could be a good reason to support a motion for continuance. However, the deputy needed some reason to grant a continuance and none was given at the time of the hearing. A request for a continuance is a prospective rather than a retrospective event. A deputy cannot grant a continuance of a hearing after the fact. Therefore, the request for continuance was properly denied. It would be inappropriate for the deputy to take additional evidence after the hearing. Division of Industrial Services Rule 343-4.31 clearly states that no evidence shall be taken after the hearing. Since the hearing was completed on November 14, 1988, the deputy lacked the authority to take additional evidence after that date. Finally, on appeal, Division of Industrial Services Rule 343-4.28 limits the ability of the industrial commissioner to admit additional evidence. The rule provides that only newly discovered evidence shall be admitted upon a showing that it could not be discovered and produced at the hearing. Claimant's testimony is not newly discovered evidence. While the industrial commissioner empathizes with claimant and his family during their time of loss, the commissioner lacks the authority to admit additional evidence unless it satisfies rule 4.28. The underlying problem appears to be a lack of communication between claimant and his attorney. The statutes and rules regarding a hearing are to aid both parties in preparation and presentation of their case. The statutes and rules do not differentiate between claimant and defendants, both have rights that are protected by the law and are entitled to their day in court. To grant claimant's request for a continuance would not only unduly prejudice the defendants it would also establish an unworkable precedent for future hearings. The statute limits the commissioner's ability to help the claimant in this situation. Claimant failed to prove permanent partial disability and odd-lot. FINDINGS OF FACT 1. Claimant had an injury that arose out of and in the course of his employment with defendant employer on November 26, 1986. 2. Claimant fell on his back out of a truck on November 26, 1986. 3. Claimant has not worked for the.defendant employer since the injury on November 26, 1986. 4. As a result of his injury, claimant has some permanent impairment. 5. There is no evidence that claimant is not employable. 6. There is no evidence as to claimant's education. 7. There is no evidence as to claimant's prior work experience. 8. There is no evidence as to claimant's attempts to find employment following his injury. CONCLUSIONS OF LAW Claimant has failed to meet his burden in proving he is permanently partially disabled. Claimant has failed to meet his burden in proving he is an odd-lot employee. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That claimant shall receive no further benefits as a result of this proceeding That claimant shall pay the costs of this action including the cost of transcription of the arbitration hearing. Signed and filed this 28th day of December, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Jon H. Johnson Attorney at Law P.O. Box 659 Sidney, Iowa 51652 Ms. Vicki R. Danley Attorney at Law P.O. Box 488 Sidney, Iowa 51652 Mr. Robert P. Ewald Assistant Attorney General, Department of Transportation 800 Lincoln Way Ames, Iowa 50010 1803 - 2906 - 4100 Filed December 28, 1989 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD K. MATHIS, Claimant, vs. File No. 840015 IOWA DEPT. OF TRANSPORTATION, A P P E A L Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. 2906 A continuance can only be granted prospectively upon a showing of good cause or an emergency. A deputy is unable to take additional evidence after the hearing. Finally, the industrial commissioner can only admit additional evidence that is newly discovered and could not be discovered at the time of the hearing. 1803 - 4100 Claimant failed to meet his burden in proving he is permanently partially disabled and an odd-lot employee. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD K. MATHIS, Claimant, File No. 840015 vs. A R B I T R A T I O N IOWA DEPT. OF TRANSPORTATION, D E C I S I O N Employer, and STATE OF IOWA, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by claimant, Donald K. Mathis, against Iowa Department of Transportation, employer, and State of Iowa, insurance carrier, to recover benefits as the result of an injury sustained on November 26, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner in Council Bluffs, Iowa, on November 14, 1988. Claimant failed to show for the hearing and the deputy allowed claimant's attorney to file within three days a showing of good cause of claimant's absence as to whether to allow claimant's testimony by deposition after the closing of all other evidence herein. The ruling as to whether to allow this additional testimony would be made by another deputy specifically designated for matters of this nature. Claimant filed his motion requesting to submit additional testimony along with claimant's affidavit. Said motion was denied by Deputy Industrial Commissioner Helenjean Walleser and claimant's post-hearing personal testimony was not allowed. The record in this proceeding consists of the testimony of Lloyd Akers and joint exhibits 1 through 12. ISSUES Pursuant to the prehearing report, the parties stipulated claimant's injury arose out of and in the course of employment, there is a causal connection between claimant's injury and the disability upon which he is basing his claim, claimant's injury occurred on November 26, 1986, claimant's healing period is from November 27, 1986 to May 13, 1987, and if permanent disability is found claimant's injury is to the body as a whole and should be rated industrially. The issues remaining for resolution are: MATHIS V. IOWA DEPT. OF TRANSPORTATION PAGE 2 1. Whether there is permanent partial disability; and, 2. Whether the odd-lot doctrine is applicable. REVIEW OF THE EVIDENCE There is no testimony by claimant. On January 7, 1987, William Smith, M.D., examined claimant and found that as a result of falling out of a truck onto his back, claimant had a lumbar contusion. Dr. Smith indicated no further treatment was needed. Later, Dr. Smith, in a report dated November 9, 1988, wrote: Please find enclosed a copy of my office notes from October 26, 1988. Since that time I have had an opportunity to review x-rays done in Doctor Rodabaugh's office or at the Grape Community Hospital in Hamburg, Iowa from November 26, 1988. The compression fracture that I noted on his x-ray the last time I saw Mr. Mathis in the office was indeed present at that time, November 26, 1988 and had degenerative change, anterior spurring around it. This would indicate to me that this fracture was a pre-existing condition prior to his fall. I think you are aware that he has had other plain films and CAT scans to evaluate his lumbar spine. Mr. Mathis is troubled with a fairly steady and continuous [sic] backache with limitation of motion. He does not have leg pain. He is unable to do his previous type of work which required some lifting. I would rate him as having a ten per cent permanent partial disability of the body as a whole as a result of his arthritis in his spine. I feel that the fall he sustained on November 26, 1986 aggravated the pre-existing condition of osteoarthritis in his spine and of the ten per cent permanent partial disability of the body as a whole, and that the fall was the proximate cause of five per cent of this disability. (Joint Exhibit 4) Another doctor whose name is not legible on the report signed by said doctor on January 13, 1987 found lumbosacral strain and indicated further treatment was needed and did not know whether the patient on that date would be able to resume work, including light work. John A. Haggstrom, M.D., of the Magnetic Imaging Centre, in a report dated April 7, 1987, reported as follows: 1. Mild to moderate (grade III to IV) herniation of the L3-4 disc. 2. Degenerative disc disease at L4-5 with a mild (grade III) protrusion of the disc and annulus along with posterior spurring. 3. Mild (grade III) protrusion of the lumbosacral disc with degenerative change. 4. Old superior plate compression deformity of T12. MATHIS V. IOWA DEPT. OF TRANSPORTATION PAGE 3 .... There is a superior plate compression deformity of T12 which is old. There is noted to be signal loss in the T12-Ll, Ll-2, and L2-3 discs that is probably not unusual for the patient's age of 61 years. There is irregular loss in signal intensity in the L3-4 disc with a central disc protrusion which is mild to moderate. This impinges upon the thecal sac of the canal. The L4-5 disc is narrowed with almost complete loss of signal in the disc. There is a mild diffuse protrusion of this disc. Posterior spurring is noted at this level. The lumbosacral disc is narrowed with a mild left paracentral protrusion of the disc. This shows minimal impingement upon the lower aspect of the thecal sac. (Joint Exhibit 10) Kenneth D. Rodabaugh, M.D., in a medical report of June 18, 1987, indicated claimant complaint's on claimant's May 13, 1987 exam continued to be: low back pain radiating into both hips especially [sic] on the right and, although improved, cannot maintain any physical exertion (lifting, walking, riding) for more than 30 - 45 minutes before pain recurrs [sic] requiring rest and heat for 1 - 2 hours to relieve. He cannot bend at the waist and has some pain and difficulty arising from sitting to standing position at most times. He is felt to have degenerative disk disease Lumbar Spine with chronic ligamentous strain subsequent to and markedly exacerbated (rendered symptomatic) from his previous fall sufficiently stable and severe as to preclude his return to work probably permanently but of insufficient degree and/or clarity to render surgical intervention either desirable or advisable. Therefore, his disability is felt to be of a severity and permanency to preclude gainful employment now or in the foreseeable future consistent with his training and/or experience. (Jt. Ex. 4) Lloyd Akers, who was claimant's supervisor, indicated that the claimant has not worked for defendant employer since his injury and the reason he gave was because of the back injury one and one-half to two years ago. Mr. Akers has no plans of claimant returning to work but understood that claimant retired or took disability. Claimant was an Equipment I Operator requiring snow shoveling, loading and unloading posts, snow fences, rolling snow fences, installing long snow blades on equipment, lifting and a lot of normal labor, oftentimes involving two men pulling, pushing and lifting. He never knew claimant to have had a back injury or similar problems prior to this November 26, 1986 injury. As claimant's supervisor, Akers was in contact with claimant every morning assigning jobs. Claimant had stayed at the Equipment Operator I job level all of MATHIS V. IOWA DEPT. OF TRANSPORTATION PAGE 4 this time even though Akers had started as an Equipment Operator I and then moved up to III and then the supervisor position. APPLICABLE LAW AND ANALYSIS Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn.315, 320, 41 N.W.2d 433, 436 (1950). The claimant was not present to testify. There is no evidence from claimant, himself, as to his age, education, mental capacity, training, and the types of work that claimant has sought since November 26, 1986. There has been no evidence that claimant is not employable in the competitive labor market. The undersigned had not seen claimant firsthand to observe his demeanor. Claimant's failure to testify leaves this record void of the evidence needed for the claimant to make a prima facie case of the odd-lot doctrine application. 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 Hospital 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 v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, 255 Iowa 1112, 125 N.W.2d 251; Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. See also Barz, 257 Iowa 508, 133 N.W.2d 704; Almquist, 218 Iowa 724, 254 N.W. 35. Dr. Smith opined that the claimant's fall sustained on November 26, 1986 aggravated the preexisting condition of osteoarthritis in claimant's spine and gave a 10 percent permanent partial disability of the body as a whole and felt that the fall was the proximate cause of 5 percent of this disability. Dr. Smith is competent to determine the percent of impairment but not disability. The percent of disability is for the determination of this deputy based on all the evidence. Impairment is only one of the factors in a determination of industrial disability. Dr. Rodabaugh's report of June 18, 1987 does not reveal that the complaints of claimant are objectively supported by the doctor's examination or personal observance. His report can be read as a recitation of claimant's comments, not the doctor's findings. MATHIS V. IOWA DEPT. OF TRANSPORTATION PAGE 5 It is not within the expertise of Dr. Rodabaugh to conclude that claimant's condition precludes gainful employment now or in the foreseeable future consistent with claimant's training or experience, because he is not an expert in employment. Furthermore, the record does not reflect that Dr. Rodabaugh had a complete history of claimant's training or experience. Claimant did not testify. The record is totally lacking of this evidence. The claimant was not present at the hearing so the undersigned knows nothing of this claimant from the record to be able to make the necessary factual determinations of claimant's post-injury physical condition, ability to work, to be gainfully employed, his training, his motivation, what work he has sought since November 26, 1986 or activities in which claimant has been involved or has performed since the November 26, 1986 injury. It is obvious from Mr. Akers' testimony that claimant has not been promoted or elevated from the position claimant began prior to 1978. The record suggests that this is due to the capabilities and nature of the claimant, which without his personal testimony and appearance leads to no other conclusion. It is obvious claimant is limited in his income earning capacity, but without further evidence on claimant's education, work experience, training, mental capacity, post-injury job search since date of injury for the deputy to analyze, one can only speculate as to claimant's loss of earning capacity. It must be remembered that it is claimant's burden in proving his industrial disability. Akers testified he understood claimant retired or took disability. FINDINGS OF FACT WHEREFORE, IT IS FOUND: 1. Claimant had an injury at work on November 26, 1986 when claimant fell on his back out of a truck. 2. Claimant has not worked for defendant employer since the injury of November 26, 1986. 3. As a result of his injury, claimant has some permanent impairment. 4. There is no evidence that claimant is not employable. 5. There is no evidence as to claimant's education. 6. There is no evidence as to claimant's prior work experience. 7. There is no evidence as to claimant's attempts to find employment following his injury. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has failed to meet his burden in proving he is an MATHIS V. IOWA DEPT. OF TRANSPORTATION PAGE 6 odd-lot employee. Claimant has failed to prove what his industrial disability is as a result of his November 26, 1986 injury. ORDER THEREFORE, IT IS ORDERED: Claimant shall receive no further benefits as a result of this proceeding. Claimant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 15th day of December, 1988. BERNARD J. OMALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: MATHIS V. IOWA DEPT. OF TRANSPORTATION PAGE 7 Mr. Jon H. Johnson Attorney at Law P O Box 659 Sidney, IA 51652 Mr. Robert P. Ewald Assistant Attorney General Tort Claims Division Hoover Building Des Moines, IA 53019 1401; 1402; 1803 Filed December 15, 1988 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER DONALD K. MATHIS, Claimant, File No. 840015 vs. A R B I T R A T I O N IOWA DEPT. OF TRANSPORTATION, D E C I S I O N Employer, and STATE OF IOWA, Insurance Carrier, Defendants. 1401; 1402; 1803 Claimant failed to prove entitlement to industrial disability where he did not show for his hearing but the hearing proceeded without him. BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILBUR G. HUNTINGTON, Claimant, File No. 840030 vs. A R B I T R A T I O N ALUMINUM COMPANY OF AMERICA D E C I S I O N DAVENPORT WORKS, F I L E D Employer, Self-Insured, DEC 29 1989 Defendant. INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding in arbitration brought by Wilbur G. Huntington, claimant, against Aluminum Company of America-Davenport Works, employer, hereinafter referred to as Alcoa, a self insured defendant, for workers' compensation benefits as a result of an alleged injury on November 14, 1986. On June 13, 1989 a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the.following matters: 1. On November 14, 1986, claimant received an injury which arose out of and in the course of his employment with Alcoa. 2. Claimant is not seeking healing period benefits beyond that which is already been paid by Alcoa in this proceeding. 3. The work injury of November 14, 1986 is a cause of permanent disability. 4. Permanent disability benefits awarded herein shall begin on August 1, 1988. 5. Claimant's rate of weekly compensation shall be $328.40. 6. All requested medical benefits have and will be paid by the defendants. ISSUE The only issue submitted by the parties for determination in this proceeding is the extent to claimant's entitlement to weekly benefits for permanent disability. STATEMENT OF THE FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred in this statement, all of the evidence received at the hearing was reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statements should be viewed as preliminary findings of fact. Claimant testified that he was injured when he was helping on a machine in the Davenport Alcoa factory. Claimant accidentally caught his right hand in the machine smashing his thumb and the tips of three fingers. Claimant was immediately taken to a local hospital and later referred for specialized care at the University Iowa Hospitals and Clinics. Claimant was discharged from the University Hospitals a week later and was eventually seen by an orthopaedic surgeon in the Davenport area, Richard R. Ripperger, M.D. Dr. Ripperger diagnosed a crush injury to the right thumb and open fracture of metacarpal and proximal phalanx and open injury to the metacarpalphalangeal joint with questionable viability of the thumb itself. Following surgery, these two thumb joints were eventually fused at 20 degrees of fluction. On January 23, 1989, Dr. Ripperger rated claimant's permanent impairment consisting of 26 percent of the right hand. Later following some correspondence with the defense counsel, Dr. Ripperger stated that he had made an error in his first rating and that the rating was actually 18 percent of the hand. Dr. Ripperger did not explain where the original mistake was nor did Dr. Ripperger make any reference to use of the rating guide to arrive at his numerical ratings. Dr. Ripperger's notes in his rating opinions indicate that he measured losses to range of motion of the thumb and fingers; pinch strength; and, grip strength. He made no mention of any measurement or attempt to rate loss of sensation in claimant's fingers. On February 16, 1989, claimant was rated by F. Dale Wilson, M.D. Dr. Wilson found a 43 percent permanent partial impairment to claimant's right hand which equated to a 39 percent permanent partial impairment to the arm or a 23 percent permanent partial impairment to the whole person. This rating was the result of impairment found in claimant's thumb and three fingers of the right hand due to loss of range and motion, deformity, pain, weakness and nerve sensation loss. Again, Dr. Wilson did not indicate whether or not he used a rating guide to arrive at his figures. On March 20, 1989, claimant was further evaluated by Harold Jerslid, M.D. Dr. Jerslid stated that after referring to an impairment evaluation guide, claimant has a 23 percent permanent partial impairment to right hand or 21 percent to the arm due to the hand problems caused by the thumb joint fusions. He also indicated there was a ten percent permanent partial impairment to the arm for the loss of sensation in the thumb and fingers. Claimant testified at hearing he had pain in his thumb and three fingers radiating into the palm of his hand and that his hand and fingers are sensitive to changes in temperature. He states that he has difficulty holding onto hand tools due to loss of motion and strength. APPLICABLE LAW AND ANALYSIS Note: A credibility finding is not found to be necessary in this decision. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. 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. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34 (2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). The major dispute in this case is whether the disability is to the thumb, the fingers, the hand, the arm, or to the body as a whole. We have physician ratings for all of these portions of the body. However, the issue is clear under Iowa law. It is the anatomical location of impairment of the permanent injury not the location of impairment or disability caused by the injury which determines which among the various schedules available under Iowa Code section 85.34 (2) should be used. Lauhoff Grain Co.v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (Iowa 1943). In Lauhoff Grain Co., the Supreme Court even resorted to the use of a well known medical treatise, Grays Anatomy, to arrive at the location of the injury. In that case they found that the injury involved the hip joint and both bones and tissues comprising the hip joint. The Court concluded that such injuries extend beyond the schedule for the appendage operated by the hip joint namely the leg. Benefits were then awarded as a percentage to body as a whole. Similarly in Pooley Lumber the court held that an injury to the shoulder is an injury to the body as a whole and not to the arm. In the case at bar, the injury is found not to be limited to the thumb or fingers because the metacarpophalangeal joint of the right thumb is involved. This joint involves the head of the metacarpal bone and the base of the proximal phalanx bone of the thumb. This joint is now fused and certainly involves injury to the end of the metacarpal bone. The metacarpal bone is a bone of the hand not a bone of the thumb. The case of Coppen v. Lunda Construction Co., 3 Industrial Commissioner's Reports 160 (Appeal Decision 1982) cited by defendant in its brief can be distinguished as no joint between the hand bone and the finger bone or thumb was involved in the frost bite injuries involved in that case. With reference to the extent of disability, we have three ratings. There was considerable difference in approach in each of these ratings by the various doctors which has greatly confused the issue. This may be in large part due to the fact that two of the physicians may have not used a impairment rating guide. Only one physicians stated that he actually used an impairment rating guide, Dr. Jerslid. Therefore, his rating is considered the most creditable and will be used for awarding benefits in this decision. However, Dr. Jerslid's rating must be transposed to a rating of only the hand to award disability. In addition to the 23 percent permanent partial impairment to the hand, Dr. Jerslid gave an additional ten percent to the arm for the loss of sensation to the thumb and fingers. Under the most current AMA Guide for rating impairment, 3rd Addition, a ten percent rating to the arm equates to an eleven percent rating of the hand. Therefore, using the combined values chart in these AMA Guide, an eleven percent impairment and a 23 impairment rating to the hand equates to a combined impairment rating of 31 percent to the hand. Therefore, it is found as a matter of fact that the work injury is the cause of a 31 percent loss of the use of the right hand. Based upon such a finding, claimant is entitled as a matter of law to 58.9 week of permanent partial disability benefits under, Iowa Code section 85.34(2)(1) which is 31 percent of 190 weeks, the maximum allowable number of weeks for an injury to the hand in that subsection. FINDINGS OF FACT 1 On November 14, 1986, claimant suffered an injury to the right thumb and the right index, ring and long fingers from being crushed in a machine while working for Alcoa. 2. The work injury of November 14, 1986 is a cause of a 31 percent permanent partial impairment of the hand. The metacarpophalangeal and interphalangeal joint of the thumb is fused at 20 degrees of flexion. Claimant has a loss of grip and pinch strength. Claimant also has a loss of sensation to the right thumb and the right long, index, and ring fingers. Claimant's hand is sensitive to cold. Claimant is right handed. CONCLUSIONS OF LAW Claimant has established under law entitlement to 58.9 weeks of permanent partial disability benefits as a result of his work injury of November 14, 1986. ORDER 1. Defendant shall pay the claimant fifty eight point nine (58.9) weeks of permanent partial disability benefits at the rate of three hundred twenty eight and 40/100 dollars ($328.40) per week from August 1, 1988. 2. Defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for twenty nine point five weeks (29.55) of permanent partial disability benefits previously paid according to prehearing report. 3. Defendant shall pay interest on the weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 5. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of December, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Francis Vanhooreweghe Attorney at Law 1718 8th Avenue P.O. Box 399 Moline, Illinois 61265 Mr. Thomas N. Kamp Attorney at Law 600 Davenport Bank Bldg. Davenport, Iowa 52801 1803 Filed December 29, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER WILBUR G. HUNTINGTON, Claimant, File No. 840030 vs. A R B I T R A T I 0 N ALUMINUM COMPANY OF AMERICA DAVENPORT WORKS, D E C I S I 0 N Employer, Self-Insured, Defendant. 1803 - Extent of permanent partial disability benefits for a scheduled member injury. It was held that an injury to the thumb and fingers is not limited to the schedules for the thumb and fingers due to involvement of the metacarpophalangeal joint between the metacarpal bone of the hand and the proximal metacarpophalangeal bone of the thumb. Cited was Lauhoff Grain v. McIntosh and Dailey V. Pooley Lumber Co. line of cases for the proposition that involvement of the joint between two bones involves injury to both bones and disability benefits is not limited to the schedule for the appendage operated by the joint. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TRINO NUNO, Claimant, VS. File No. 840109 JOHN MORRELL & CO. A R B I T R A T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Trino Nuno, against his employer, John Morrell & Company, and its insurance carrier, National Union Fire Insurance.Company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on December 17, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner at Sioux City, Iowa, on September 29, 1989. A first report of injury was filed on February 26, 1987. In the prehearing report filed at time of hearing, the parties stipulated that claimant has been paid weekly benefits in a total dollar amount of $876.04. The parties did not stipulate the healing period or temporary total disability period which that amount reflected. There are no filings in this agency's file which reflect those time periods. The record in this proceeding consists of the testimony of claimant as well as of Donna Henry, R.N., and Ronald Kreegar and of joint exhibits 1 through.,49 as well as the agency file as a whole. Rita Frost interpreted for claimant at hearing. ISSUES Pursuant to the prehearing report and the oral stipulations of the parties at hearing, the parties NUNO v. JOHN MORRELL & CO. Page 2 stipulated that claimant did receive an injury which arose out of and in the course of his employment on December 17, 1987. The parties further stipulated that claimant was off work from December 18, 1986 through January 10, 1987 subsequent to that injury and that claimant's rate of weekly compensation in the event of an award is $243.56. The issues remaining to be decided are: 1. Whether a causal relationship exists between the injury and the claimed disability; 2. Whether claimant is entitled to weekly compensation benefits and the nature and extent of any benefit entitlement; and, 3. Whether claimant is entitled to alternate medical care pursuant to section 85.27. Defendants object to such care as not authorized and as not causally related to the injury. Defendants do not agree that costs for such care were fair and reasonable. REVIEW OF THE EVIDENCE Claimant is a 31-year-old native of Mexico. He has been in this country for 15 years and speaks what he characterized as street English. Claimant's education consists of six years of school in Mexico. Claimant testified that he can read easy English words, but cannot write English. Subsequent to coming to the United States, claimant worked as a dishwasher, on bread bakery cleanup, and at various meat packing plants where he generally pulled guts or boned plates. Claimant earned from $5.15 to $7.20 per hour in the meat packing industry. He began work with Iowa Meats, the predecessor company of John Morrell, in 1986. Claimant denied he had had health problems or more than minor work injuries which did not involve his back prior to December 17, 1986. He agreed he had seen Dr. Jennings in May, 1986 for back problems and had also seen a chiropractic physician for back problems prior to December 17, 1986, however. Claimant reported that he felt a sharp shooting pain in his left low back on December 17, 1986 while moving boxes piled at about shoulder level on a conveyor belt. Claimant was subsequently seen by Milton D. Grossman, M.D., Joe.M. Krigsten, M.D., A. Kleider, M.D., and Joseph R. Cass, M.D. Claimant was examined and evaluated by Patrick Luse, D.C., on June 7, 1989 and by Joel T. Cotton, M.D., on August 25, 1989. NUNO v. JOHN MORRELL & Co. Page 3 Claimant returned to work on January 10, 1987. He reported that his back continued to bother him; and that he was placed on light duty; that he subsequently returned to full duty; and that later Dr. Cass took him off work again. The plant was on strike in 1987. Claimant traveled to Mexico and California during the strike to stay with relatives. He reported back pain throughout that time. He returned to Sioux City. While the John Morrell strike continued, he worked for about six months at DuPacCo, a meat packing company in Denison, Iowa. Claimant denied that he had left DuPacCo to avoid paying child support, asserting that he left on account of his back pain. Claimant stated that his back hurt while he was working at DuPacCo, but that he had had no accidents, either there or otherwise during the strike. When the strike ended, claimant returned to John Morrell. He initially pulled chitterlings. He stated that involved side-to-side back movement and produced much pain. Claimant is now on light duty trimming ribs or cutting down ribs. He expressed his belief that he cannot continue to work because the apron he must wear "puts on a lot of pressure" [on his back]. Claimant stated that his back hurts from standing or sitting too long and that his leg gets numb in the morning. Claimant sought treatment from Dr. Luse after his June 1989 examination. Claimant reported that Dr. Luse's chiropractic care has not decreased his pain, but that he has been told that the pain would decrease if he continued treatment. Claimant agreed that he had gone for approximately two years with no medical care, reportedly because the physician had "deceived" claimant by stating only surgery would improve his condition. Claimant described his history with Dr. Cotton as taking approximately eight minutes and the Cotton examination as taking from 5-6 minutes. Claimant agreed he had been scheduled for independent medical examination with Dr. Dougherty on two occasions. Claimant testified that on each occasional his attorneys advised him that the medical examination had been cancelled. At defendants' request, notice is taken of claimant's affidavit reporting claimant's response to application for sanctions, motion to dismiss and motion. in limine filed August 1, 1989. In that affidavit,.claimant stated that he was not advised of Dr. Dougherty's examination apparently scheduled for July 25, 1989. Donna Henry, R.N., reported that she has been a company nurse at John Morrell since August 30, 1987. Ms. Henry reviewed claimant's John Morrell nursing notes. She noted NUNO v. JOHN MORRELL & CO. Page 4 that there were no back complaints recorded in the nursing notes, apparently from claimant's January 10, 1987 work return, until July 5, 1989. She indicated that claimant has not had a problem communicating with her in English. Ronald Kreegar was claimant's supervisor in 1986. Mr. Kreegar could not recall claimant telling him of back problems, but stated that claimant could very well have done so. Kreegar described claimant's English as sufficient for understanding such that claimant did not need an interpreter, provided things were occasionally repeated. Kreegar reported that claimant is working full-time, approximately 8 to 9 1/2 hours per day, and has done such since his work return. Claimant pulled lard, separated guts, and graded ribs. In grading ribs, 4-7 workers process approximately 1,500 ribs weighing 3-5 pounds each hour. The individual rib is taken off the belt, appropriate cuts are made in the rib, and the rib is placed in a box to a weight of 30 pounds. At 30 pounds, the box is shoved onto a conveyor belt. Twenty to twenty-five boxes are done per hour. In pulling lard, the worker stands on a stand, reaches into the animal's carcass, and pulls lard up and out of the diaphragm. In trimming jowls, individual jowls weighing from three quarters to one and one-half pounds are trimmed and put in a box. The individual stands throughout the day but is not required to lift. Michael Jennings, M.D., saw claimant on March 18, 1986. He reported that claimant had lifted 30-40 pound boxes at work and had had pain between the shoulder blades with recent low back pain. Dr. Jennings kept claimant at work, but imposed a 20-pound lifting restriction. Daniel Rhodes, M.D., saw claimant for follow-up of mild back strain with current apparently lumbosacral or L-5 strain on March 26, 1986. Milton Grossman, M.D., saw claimant:on December 19, 1986 with complaints of low back pain increasing in severity. Claimant apparently received treatment on May 19 and May 20, 1986 and then was released without further care. J. M. Krigsten, M.D., in an undated note, advised that claimant should stop chiropractic therapy.as such may aggravate his condition. Mark Hagen, D.C., on December 17, 1986, advised that claimant was being treated for a low back condition. Dr. Grossman saw claimant on December 17, 1986 for lumbar pain. Claimant was then unable to do straight leg NUNO v. JOHN MORRELL & CO. Page 5 raising. X-rays were taken of the lumbar spine; claimant was taken off work indefinitely. Dr. Krigsten saw claimant on December 18, 1986. Dr. Krigsten then stated that claimant had had no single injury. He diagnosed his condition as back pain with bilateral sciatica including almost complete loss of back flexion and straight leg raising on the left and partial loss of straight leg raising on the right. Reflexes and sensation were described as adequate. Claimant was kept off work with medication prescribed. The diagnosis was of a probable ruptured lumbar disc. On January 2, 1987, Dr. Krigsten reported that an electromylogram ordered for December 31, 1986 had been interpreted as normal. Claimant's x-rays of December 17 1986 showed good alignment of the lumbar spine and no evidence of recent disease or injury abnormality of the bones of the lumbar spine. A. Kleider, M.D., a neurosurgeon, saw claimant for back pain on January 6, 1987. He reported that claimant had a pins and needles feeling on the sole of the foot and problems in the anterolateral aspect of the thigh. Dr. Kleider's history stated that the " . . . problem began in April and has gradually worsened." Straight leg raising was reported as impossible likely due to claimant's inability to relax. Claimant was described as moving awkwardly and as much more relaxed when dressed and ready to leave. Deep tendon reflexes were all active and symmetrical. There was no sensory.deficit. On January 8, 1987, Dr. Krigsten reported that all physical findings including x-rays were subjective and that claimant was able to return to work. Dr. Krigsten also reported that claimant had worked approximately one-half hour before stating he could not stand the pain he was experiencing in his cervical spine, thoracic spine and lumbar spine. Dr. Krigsten reported that claimant's back motions were at 50+ percent and that claimant had no passive muscle spasm, even though he had tenderness throughout the spine. Dr. Krigsten reported no limitation of straight leg raising, negative hip rotation and normal neurological and circulatory exam. His diagnosis was of conversion hysteria. Dr. Krigsten stated that claimant "closely resembles" the description in medical literature of a malingerer. No work restrictions were imposed. On January 13, 1987, Dr. Kleider reported that claimant could straight leg raise bilaterally to 90 degrees and was able to reverse his lumbar lordosis. On January 21, 1987, Dr. Kleider reported that claimant complained of more severe pain and that claimant stated claimant was unable to work. NUNO v. JOHN MORRELL & CO. Page 6 Joseph R. Cass, M.D., saw claimant on January 28, 1987. Dr. Cass indicated that claimant's x-rays revealed spondylolysis at L5 without slip. His impression was of an acute mechanical episode superimposed on the long-standing spondylolysis. He recommended physical therapy and prescribed a back brace. He advised that claimant avoid work involving bending or stair climbing as those apparently aggravated his pain. Forward flexion was described as painful at 30 degrees, left extension and left lateral bending at 25 percent of normal, bilateral straight leg raising was negative, and hip range of motion was not painful, except in the low back. The neurovascular exam was reported as normal. Dr. Cass advised a light-duty work return without lifting. On March 20, 1987, Dr. Cass opined that claimant had suffered an acute episode of chronic mechanical low back pain secondary to his job at John Morrell which has aggravated his preexisting condition of long-standing spondylolysis at L5-Sl. He reported that claimant was last seen on March 16, 1987 with stable low back and upper thoracic pain. The doctor did not recommend surgery, but did recommend a back strengthening program. Patrick Luse, D.C., examined claimant on June 7, 1989 and assigned a permanent partial impairment rating on June 29, 1989. Dr. Luse reported that spondylolysis or grade I spondylolysthesis accompanied by a medically documented injury and.a minimum of six months documented pain and recurrent muscle spasm would result in a eight percent whole person impairment. He further stated that residuals of decreased range of motion, nerve root impairment and muscle spasm would result in a five percent whole person impairment and that the combined value of eight percent and five percent equals 13 percent of the whole person. Dr. Luse indicated that his opinion was based on the Third Edition of the AMA Guides to the Evaluation of Permanent Impairment. Dr. Luse opined that claimant had traumatized a preexisting asymptomatic spondylolysis with his December 17, 1986 work injury. He reported that claimant can expect acute episodes in the future that will affect his ability to work and which may require further treatment. In his July 25, 1989 deposition, Dr. Luse reported that examination of claimant had revealed.normal, active and equal reflexes, except for the right patellar and right Achilles reflex which were decreased. He reported that Pinwheel test revealed decreased sensation on the L5-Sl nerve roots and decreased lumbar range of motion. Dr. Luse stated that, although such is fairly rare, spondylolysthesis can be traumatically induced and that it is possible for NUNO v. JOHN MORRELL & CO. Page 7 trauma to worsen spondylolysthesis. Dr. Luse opined that claimant's December 17, 1986 work injury traumatized preexisting asymptomatic spondylolysthesis. He reported that in his permanent partial impairment rating, the residuals were rated in addition to the condition (of spondylolysthesis itself]. Dr. Luse further stated that asymptomatic spondylolysthesis is unratable under the guides as the guides require a documented injury and persistent pain despite treatment as well as muscle spasm before the condition is ratable. For that reason, he stated that apportionment between the condition pre-injury and post-injury was not possible where the condition was asymptomatic pre-injury. Dr. Luse stated that claimant gave no history of back injury prior to working for John Morrell and that he did not recall claimant's medical records containing information relative to any back treatment in May 1986 or that claimant had had significant pain or symptoms prior to the December 17, 1986 work injury. Dr. Luse further stated, however, that he did not know if one injury produced claimant's condition. He reported that: . . It might have been a-- and more than likely was, a repetitive motion injury to his low back. That [the injury date of December 17, 1986] was just kind of the date, . . . he and the company assigned to the injury. It -- it may well have been that activity in the weeks or months before had led up to that time. Dr. Luse stated that claimant had described his work when injured as involving lifting and twisting and that those two things were most likely to injury a "spondylo." Dr. Luse was not aware of claimant's work activities or any medical treatment in 1988 or 1989. Dr. Luse stated that some of claimant's findings may be more recent findings not present in earlier stages of injury. He reported that claimant had more leg problems and therefore was likely to have changes in reflexes or in skin sensations. Joel T. Cotton, M.D. a neurologist, examined claimant on August 25, 1989 and issued a medical report on August 28, 1989. Dr. Cotton reported that claimant gave a history of a single incident on December 17, 1986 where after lifting and twisting for some time, claimant developed pain in the back and legs which pain has persisted. He reported that claimant denied back problems pre-December, 1986 and denied subsequent injuries or episodes at work that aggravated his pain or his leg numbness. Dr. Cotton reported that NUNO v. JOHN MORRELL & CO. Page 8 claimant's neurological exam was normal, but that a significant discrepancy existed between claimant's straight leg raising test in the seated and supine positions. In the seated position, straight leg raising was 90 degrees bilaterally, and in the supine position straight leg raising was 45 degrees on the right and 30 degrees on the left. Dr. Cotton reported that claimant had diffuse decrease in perception to pin prick and light touch in the left lower extremity including the foot, the leg, and the thigh both anteriorly and posteriorly. He described the discrepancy in straight leg raising and the sensory abnormality in the left lower extremity as not in keeping with known anatomical or physiological mechanisms and reported that for that reason claimant had no neurological impairment. Dr. Cotton stated the following as regards x-ray findings: Two x-rays of the patient's lumbar and lower thoracic spine were reviewed, dated June 7, 1989 (Exhibit 4 and Exhibit 5). They were in addition reviewed by a board certified independent radiologist. These show a grade I (less than 25%) spondylolithesis [sic] at the level of L5-Sl. According to independent medical reports from Dr. Carlson dated January 28, 1987, and Dr. Joseph Cass dated March 20, 1987, this patient has a longstanding spondylolysis at the level of L5-Sl. On neither of these occasions was any spondylolithesis [sic] described on review of x- rays on either of these occasions. More specifically, Dr. Carlson's report dated January 28, 1987, revealed spondylolysis at L5 "without slip". This indicates that the spondylolisthesis [sic] or "slip" did not occur at the time of the December, 1986 accident when the patient was x- rayed and evaluated following that injury. Dr. Cotton assigned claimant a permanent partial impairment rating of four percent of the whole person as a result of his grade I spondylolysthesis. He reported that under the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, a rating of 0-8 percent was appropriate for slippage from 0-50 percent and that claimant had a 25 percent grade I spondylolysthesis which equalled half the maximum value of 8 percent, or 4 percent. Dr. Cotton indicated that pain, decreased range of motion, and muscle spasm were included in the 4 percent rating as explained in the guides and that therefore any additional impairment was on account of nerve root injury. Dr. Cotton opined that no nerve root injury was present. Dr. Cotton NUNO v. JOHN MORRELL & CO. Page 9 stated that he could not opine with any degree of medical certainty that the spondylolysthesis resulted from the December, 1986 injury. He described the spondylolysis as long-standing and clearly preexisting December, 1986. He felt spondylolysis was generally a congenital problem not induced by trauma. In his deposition taken September 12, 1989, Dr. Cotton indicated that spondylolysis would be a problem present since birth whereas spondylolysthesis is a problem that may take place later in life. Dr. Cotton indicated that for spondylolysthesis to be ratable under the Third Edition of the AMA guides, both discomfort and slippage must be present. At his deposition, Dr. Cotton agreed that his findings relative to claimant's right lower extremity were not consistent with Dr. Luse's findings in that Dr. Cotton found no loss of sensation in the right lower extremity, but did find complaints of numbness in the entire left leg. Dr. Cotton reported that he reviewed the medical reports of other physicians and that only Dr. Luse had found abnormalities of the right lower extremities. Dr. Cotton indicated that claimant's subjective complaints to Dr. Luse were not in keeping with those claimant made to Dr. Cotton in that what Dr. Luse had found one month prior to Dr. Cotton's examination was "entirely and completely" different from the findings of Dr. Cotton's exam. Dr. Cotton indicated that the taking of history and examination of an average patient requires from 20-40 minutes with the actual exam requiring a minimum of 10-15 minutes and the actual history requiring a minimum of 10-15 minutes. Claimant's statements for costs of treatment with Dr. Luse were reviewed. APPLICABLE LAW AND ANALYSIS The threshold issue is whether a causal relationship exists between claimant's injury and his claimed disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 17, 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.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 NUNO v. JOHN MORRELL & CO. Page 10 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). 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). 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. A cause is proximate if it is a substantial factor in bringing about the result. It need be only one cause of the result; it need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Similarly, the work incident or activity need not be the sole proximate cause if the injury is directly traceable to it. Holmes v. Bruce Motor Freight Co., 215 N.W.2d 296, 297 (Iowa 1974). Much has been made of the nature of claimant's back condition. Initially, claimant's complaints are quite subjective, are diffuse throughout his::cervical, thoracic and lumbar spine at various times, and differ substantially from physician to physician even when the examinations are chronically reasonably proximate to one another. Such lends support to Dr. Krigsten's January 8, 1987 opinion that claimant's condition was one of conversion hysteria. Claimant, however, apparently does have at least one long- NUNO v. JOHN MORRELL & Co. Page 11 standing.objective back condition which preexisted January 16, 1986, namely spondylolysis at L5-Sl. Dr. Cass on March 30, 1987 opined that claimant had suffered an acute episode of chronic mechanical low back pain secondary to his job at John Morrell which had aggravated that preexisting spondylolysis. Dr. Luse also opined that claimant had traumatized the previously asymptomatic preexisting spondylolysis in the December 17, 1986 work injury. Dr. Luse reported that that traumatization created an expectation of acute episodes in the future which would affect claimant's ability to work and perhaps require further treatment. Dr. Luse's opinion in 1989 would normally lend support to claimant's contention that he continues to suffer on account of the December 17, 1986 work incident. Unfortunately, other evidence presented makes that contention less credible. X-rays of June 7, 1989 apparently revealed spondylolysthesis at L5-Sl. Earlier x-rays of January 28, 1987 revealed spondylolysis at L5 "without slip" indicating that the spondylolysthesis or slip did not occur at the time of claimant's December 17, 1986 work injury. The appearance of the spondylolysthesis subsequent to January 28, 1987 indicates a substantial change in claimant's back subsequent to his last treatment with Dr. Cass regarding his December 17, 1986 work incident, that treatment having been given on March 16, 1987. It raises questions as to whether claimant's current conditions and the assigned permanent partial impairment ratings of Drs. Luse and Cotton can clearly be traced to the December 17, 1986 injury. The problem is compounded by claimant's failure to seek medical care between March 16, 1987 and June, 1989. Claimant in that time did a variety of things other than work for John Morrell. He traveled; he worked for another meat packer; and we assume that he did normal household duties and life activities. Any of the above might have included incidents which could have produced the spondylolysthesis not present in January 1987 but present in June 1989. Given such, it is impossible to trace claimant's current back discomfort to the December 17, 1987 John Morrell injury. It is also impossible to trace any current need for additional medical treatment or any current effect on claimant's ability to work directly to the December 17, 1986 work injury. Both those needs would appear to be more proximately related to claimant's more recently developed spondylolysthesis which development cannot be traced to his work with John Morrell. Hence, it cannot be said that claimant has established any permanent partial disability that is traceable to his December 17, 1986 work incident with John Morrell. NUNO v. JOHN MORRELL & Co. Page 12 Dr. Cass' opinion testimony supports claimant's contention that he suffered temporary total disability as a result of the December 17, 1986 work injury, however. Dr. Cass apparently treated claimant for acute episode of chronic mechanical low back pain from January 28, 1987 through March 16, 1987. Claimant had earlier been off work for the December 17, 1986 work incident from December 18, 1986 through January 10, 1987. Claimant clearly is entitled to temporary total disability benefits through that period. Additionally, claimant testified that Dr. Cass later took him off work on account of his work injury. Apparently, claimant's testimony relates to the time between January 28, 1987 and March 16, 1987. Claimant's testimony in this regard is neither substantiated nor controverted. It does differ from the stipulation of the parties, however. This agency is not bound by a stipulation of the parties if that stipulation is factually erroneous. If Dr. Cass actually took claimant off work at any time from January 28, 1987 through his termination of treatment with claimant on March 16, 1987, claimant would be entitled to temporary total disability benefits for any time lost from work at Dr. Cass, direction. As claimant has not established a permanent partial disability related to his December 17, 1986 work injury, we need not address the issue of industrial disability entitlement. We do address the issue of whether claimant is entitled to alternate medical care pursuant to section 85.27. Claimant apparently is seeking payment of care from Dr. Luse rendered from June 7, 1989 onward and seeking an order requiring defendants to pay for additional care with Dr. Luse. Defendants object to such care as not authorized and as not causally related to the injury. Where defendants have accepted an injury as compensable, they have a right to choose the medical care for such injury. An exception to this general principle occurs where defendants have abandoned claimant in that they have failed to provide claimant with appropriate medical care despite claimant's communicating to them the need for such care. See Holbert v. Thompson Engineering Co., 32nd Biennial Report, Iowa Industrial Commissioner 78, 80 (App. Decn. 1975). Nothing suggests that that was the case in this claim. The evidence does not demonstrate that claimant attempted to communicate with defendants regarding a need for further medical care. Indeed, claimant did not even visit, the employer's nursing station from January 10, 1987 through July 5, 1987. While claimant is not a native of the United States, his language skills and his understanding of the requirements of the American work setting are sufficient that minimum effort reasonably could have been expected of him. Hence, defendants, objection to prior care with Dr. Luse as NUNO v. JOHN MORRELL & CO. Page 13 unauthorized is well founded. Additionally, claimant has not established the requisite causal connection between any current need for care and the December 17, 1986 work incident. As discussed above, claimant now has a spondylolysthbsis which was not present in January 1987. The current existence of that condition strongly suggests an intervening cause to claimant's current back complaints. Likewise, the subjectivity and varying nature of claimant's complaints also mitigates against any finding that those are related to the December 17, 1986 work injury. Therefore, claimant's request for alternate care, either by way of payment of prior care with Dr. Luse or by way of an order for future care with Dr. Luse fails on causation grounds. Furthermore, the record does not suggest that care with Dr. Luse would necessarily be beneficial to claimant. Claimant had earlier been advised to discontinue chiropractic care. Claimant himself has indicated that he does not feel that care with Dr. Luse has been beneficial. Those facts also mitigate against any ordering of alternate care by way of chiropractic care with Dr. Luse. FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant sustained an injury arising out of and in the course of his employment on December 17, 1986 while working for the employer John Morrell & Company. Claimant's December 17, 1986 injury consisted of an acute mechanical episode of chronic low back pain which aggravated a preexisting condition of long-standing spondylolysis at L5-Sl. Subsequent to that work injury, claimant saw a variety of physicians and had a variety of subjective back complaints throughout the cervical, thoracic and lumbar spine. Claimant's complaints often varied vastly with different physicians over a brief period of time. Objective findings were minimal. Claimant did not seek medical care from March 16, 1987 through June 7, 1989. From March 16, 1987 through June 7, 1989, claimant did a variety of things other than work at John Morrell, including travel, working for another meat packing company, and normal life activities. NUNO v. JOHN MORRELL & Co. Page 14 X-rays of January 28, 1987 revealed long-standing spondyloiysis at L5-Sl without slip. X-rays of June 7, 1989 revealed spondylolysthesis at L5-Sl. Claimant's spondylolysthesis at L5-Sl developed subsequent to January 28, 1987 and does not relate back to his December 17, 1986 work injury. Claimant's current back complaints may relate to his current back condition of spondylolysthesis and not to his work injury and his then existing condition of spondylolysis at L5-Sl. Claimant did not attempt to inform his employer of a need for medical care from March 16, 1987 through June 7, 1989. Claimant's current need for medical care may relate to his currently existing spondylolysthesis at L5-Sl and not to his December 17, 1986 work injury. Chiropractic care with Dr. Luse has not improved claimant's back condition. Claimant in the past was advised to discontinue chiropractic care as harmful to his back condition. Claimant was off work from December 18, 1986 through January 10, 1987 on account of his work injury. Dr. Cass may have taken claimant off work at times from January 28, 1987 through March 16, 1987 on account of his work injury. CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has not established that his injury of December 12, 1986 is the cause of permanent partial disability. Claimant has established that.his injury of December 17, 1986 is the cause of temporary total disability from December 18, 1986 through January 10, 1987 and from January 28, 1987 through March 16, 1987 during those times when claimant.was actually off work at Dr. Cass' instruction. NUNO v. JOHN MORRELL & CO. Page 15 Claimant is entitled to temporary total disability benefits from December 18, 1986 through January 10, 1987 and from January 28, 1987 through March 16, 1987 during that time in which claimant was actually off work at Dr. Cass' instruction. Defendants receive credit for benefits previously paid. Claimant is not entitled to payment of costs already incurred with Dr. Luse. Claimant is not entitled to payment of costs for any future care incurred with Dr. Luse. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant temporary total disability benefits at the rate of two hundred forty-three and 56/100 dollars ($243.56) per week from December 18, 1986 through January 10, 1987 and from January 28, 1987 through March 16, 1987 during that period in the latter time frame where claimant was actually off work at Dr. Cass' direction. Defendants receive credit for temporary total disability benefits previously paid claimant. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to Iowa Code section 85.30 as amended. Claimant and defendants pay costs equally pursuant to Division of Industrial Services Rule 343-4.33. Defendants file a final payment report when this award is paid pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 13th day of April, 1990. HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER NUNO v. JOHN MORRELL & CO. Page 16 Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Thomas M. Plaza Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 5-1108, 5-1803, 2500 2700 Filed April 13, 1990 HELENJEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER TRINO NUNO, Claimant, VS. File No. 840109 JOHN MORRELL & CO., A R B I T RA T I O N Employer, D E C I S I O N and NATIONAL UNION FIRE INSURANCE COMPANY, Insurance Carrier, Defendants. 5-1108, 5-1803 Claimant not entitled to permanent partial disability where medical evidence established that claimant developed spondylolysthesis at L5-Sl subsequent to injury and where claimant had gone over two years without medical treatment subsequent to the injury and prior to discovery of the spondylolysthesis. 2500, 2700 Claimant found not entitled to payment of costs of chiropractic care where defendants had not abandoned claimant after assuming liability for his injury; where claimant had not sought authorization prior to obtaining the care; where causal relationship between the desire for chiropractic care and the work injury was not shown; and, where the record indicated that chiropractic care was not in claimant's best medical interest. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANNE MOSLEY, Claimant, File No. 840117 vs. A R B I T R A T I O N JOHN DEERE COMPONENT WORKS, D E C I S I O N Employer, Self-Insured, Defendant. INTRODUCTION This is a proceeding brought by Dianne Mosley,,claimant, against John Deere Component Works, self-insured employer, defendant, for benefits under the Iowa Workers' Compensation Act. The case was heard by former Deputy Industrial Commissioner Garry D. Woodward. On July 13, 1988 the case was transferred to the undersigned by David E. Linquist, Industrial Commissioner. The record consists of the testimony of: Dianne Mosley, claimant, Teresa Keys Hall, former employee of defendant, Thomas H. Clark, general supervisor of defendant, Joe DeMartino, supervisor of skilled trade of defendant, Ronald Coussens, former supervisor of claimant Pat Kramer, industrial nurse at defendant's cite in Waterloo, and Mark R. Suiter, former physical therapist of defendant. The record also consists of the following exhibits: Claimant's exhibits 1-A, l-E, 1-C, 1-D and claimant's exhibits 2, 3, 4, 5, 6, and 7. The record also consists of employer's exhibits: Al, A2, B1-Bl3, Cl-C3, D26, D27, El-El4, Fl-F6, Gl-G7, H-4, H-6, H-7, H-8, H-9 and I and J. At the hearing on this case, defendant did renew its motion for sanctions against claimant. Defendant contends they are entitled to expenses including attorney's fees pursuant to the ruling on motion to compel which was filed by Larry Walshire, Deputy Industrial Commissioner. Claimant denies the ruling entitles defendant to such expenses. Claimant also filed a motion for sanctions against defendant. Former Deputy Industrial Commissioner, Garry D. Woodward, overruled both motions for sanctions, costs and expenses. ISSUES The issues presented by the parties are: 1. Whether claimant suffered an injury arising out of and in the course of her employment; and, MOSLEY V. JOHN DEERE COMPONENT WORKS PAGE 2 2. Whether claimant's alleged injury resulted in any permanent partial disability. EVIDENCE PRESENTED Claimant, was an executive secretary at John Deere Component Works in Waterloo, Iowa. Her employee performance appraisal at defendants indicated she was an effective employee who consistently met commitments. The claimant testified that around December 17, 1985, she injured her left knee. According to her direct testimony she reported: A. I stepped off the step outside our office and twisted it. Q. What was the date? A. Around about December 15th. Q. 19 what? A. '85. Q. Do you remember the approximate time? A. It was in the afternoon. Q. Okay. And you said you stepped off of a step. Was this right there on the Employer's premises? A. Yes, it is. Q. Okay. At the time that you stepped off the step, what exactly did you feel in your knee? A. I felt a twisting sensation and my knee kind of give out. Q. What did you do at that point? A. Kind of limped around because I thought I had a charley horse. Q. Was it something that prohibited you from walking or were you able to walk and finish out the rest of the day? A. I was able to walk and finish out the rest of the day. (Transcript page 17, line 11 - page 18, line 9) Several months after the date of the alleged injury, claimant sought medical treatment for her knee. Surgery was performed on April 15, 1986. As of May 27, 1986, claimant was released to return to her regular work duties by David F. Poe, M.D., P.C. MOSLEY V. JOHN DEERE COMPONENT WORKS PAGE 3 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 she received an injury on December 17, 1985, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The 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). The claimant has the burden of proving by a preponderance of the evidence that the injury of December 17, 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, 261 Iowa 352, 154 N.W.2d 128 (1967). ANALYSIS On review of the evidence, the question whether the injury arose out of and in the course of claimant's employment must be answered in the negative. Claimant has not proven her case by a preponderance of the evidence. Claimant, therefore, will take MOSLEY V. JOHN DEERE COMPONENT WORKS PAGE 4 nothing from this proceeding. There is no evidence to indicate there were any eyewitnesses to the alleged injury on the 15th or the 17th of December. Moreover, the testimony is overwhelming that claimant did not report the alleged injury after its alleged occurrence. Testimony reveals that supervisors did not learn of claimant's knee injury until they had witnessed claimant walking on crutches nearly three months after the incident allegedly took place. Claimant maintained under cross-examination that on March 11, 1986 she encountered Tom Clark and Joe DeMartino. Claimant stated both individuals witnessed her limping and she related to them, "...I hurt my knee hen, at Deere's." (Tr., p. 33, lines 11-12) Tom Clark, supervisor of salaried employees, testified he had never been advised by claimant that she had injured her knee at work. He further reported that if a work related injury had been reported to him, he would have had to follow certain safety rules. Joe DeMartino, supervisor of skilled trades and hourly employees, testified as a witness for the employer. He related that the claimant had never reported to him any work related injury allegedly occurring on the 15th or 17th of December, 1985. Mr. DeMartino indicated the first time he had discovered that claimant had an injury was when he observed the claimant using crutches. Ronald Coussens, supervisor for claimant, testified claimant did not report her injury in mid-December of 1985. Mr. Coussens affirmed he would be the proper individual to whom the claimant would report such an injury. Mr. Coussens did relate that claimant had discussed a knee injury with him on March 11, 1986, but was not informed that the injury was work related. Additionally, Mr. Coussens testified that if claimant had informed him of the work related injury, he would have been required to compile a written record. No such report was written. Claimant also testified she reported the fall at John Deere to Teresa Keys Hall, a co-employee. Ms. Hall, who testified for the employer, denied claimant had ever discussed a December 15 or 17 work injury with her. Ms. Hall did recall claimant had indicated prior to December of 1985 that claimant had purchased an exercise device. Ms. Hall revealed that in March of 1986 she first learned about claimant's knee injury. The medical records do not corroborate claimant's position that her injury arose out of and in the course of her employment. The medical records at employee's place of business do not reveal there was a work related injury which caused claimant's knee injury. Rather, medical records indicated the injury was an "outside one." Pat Kramer, industrial nurse for John Deere, testified she reviewed the medical department activity logs and affirmed that the first date reflected in the records where the claimant had voiced knee complaints was on March 11, 1986 at 10:40 a.m. Ms. Kramer reported she had personally seen the claimant and although MOSLEY V. JOHN DEERE COMPONENT WORKS PAGE 5 she had no present memory at the time of the hearing, explained she marked the medical log as dealing with an outside rather than a work related injury. Ms. Kramer also indicated she provided claimant with Extra-Strength Tylenol and Motrin for knee pain. According to the medical log, a notation for march 25, 1986, was recorded that the injury was an "out side injury." Mark Suiter, former physical therapist with John Deere, was called by the employer to testify. He remembered one occasion when he had seen the claimant for her knee but made no written recording of the visit. He related if a visit was non-work related no paper work, other than the medical log, would be generated. if the injury was an in-plant injury, the patient would be referred to the company physician. Mr. Suiter stated that because he had not completed additional paper work, he could only surmise the injury was in outside injury. Mr. Suiter reported that at the time of claimant's visit, he applied ice to the claimant's knee because of swelling but that did not indicate the injury was work related. There is additional medical evidence which indicates the injury was not the result of a work related injury. In a medical record notation for March 11, 1986, Russell Adams, M.D., writes: "Has noted increasing L knee pain in the past 2 months, worse since aerobic exercise." During her deposition claimant indicated she had seen Dr. Adams on that date. Later, at the hearing, claimant denied seeing Dr. Adams on March 11, 1986. The claimant also denied talking with Dr. Adams on that date over the telephone. She reported she was assessed a $23 charge even though she did not keep her appointment. The claimant, at the hearing, reported she had told Dr. Poe she had twisted her knee. Nevertheless, Dr. Poe in his letter of March 11, 1986, to Dr. Adams, writes: Thank you for referring Dianne Mosley. This young lady has lateral joint pain in the left knee and inability to bear weight over the past several days. This began last December and it has been gradually worse. She is unable to walk. She has tried anti-inflammatories and heat without much change. She denies any torsion injury and her health is otherwise quite excellent except for moderate overweight. (Emphasis added) Under cross-examination claimant admitted she could not remember whether she had told Dr. Poe how she had injured her knee. The progress notes for the Rehabilitation Services at Allen Memorial Hospital for March 17, 1986 indicate the following: My knee started hurting about 2 months ago for no apparent reason - Has grown worst [sic] & I went to Dr. last Tuesday... There are inconsistencies throughout claimant's testimony. During this proceeding, claimant declared she experienced continual discomfort from the date of her injury up until the MOSLEY V. JOHN DEERE COMPONENT WORKS PAGE 6 date she first saw Dr. Poe. Despite her discomfort, claimant did not seek medical attention until nearly three months after the alleged injury. Despite her complaints of continual discomfort, the claimant was able to participate in an exercise program on three occasions for an hour on each occasion. During these exercise sessions, claimant engaged in stretching and walking in place. Claimant also submitted certain medical bills under her health insurance rather than under any workers compensation claim forms. The health insurance forms expressly stated there was no injury at work. These forms were completed as late as May or June of 1986. her action was inconsistent with her testimony that she notified her superiors and other personnel at least by March 11, 1986 that the injury was work related. Claimant is less than candid and is not credible. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following facts are found: 1. Claimant is not credible. 2. Claimant did not sustain a knee injury on December 17, 1985 which arose out of and in the course of her employment. MOSLEY V. JOHN DEERE COMPONENT WORKS PAGE 7 CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusion of law is made: Claimant has failed to establish her knee injury arose out of and in the course of her employment. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing from this proceeding. Costs of this action are assessed against claimant. Pursuant to the Division of Industrial Services Rule 343-4.33. Signed and filed this 20th day of September, 1988. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Stephen D. Lombardi Attorney at Law Vision Park 8230 Hickman Rd., Suite G Des Moines, Iowa 50322 Mr. John W. Rathert Attorney at Law 620 Lafayette St. P.O. Box 178 Waterloo, Iowa 50704 1402.30 Filed September 20, 1988 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANNE MOSLEY, Claimant, File No. 840117 vs. A R B I T R A T I O N JOHN DEERE COMPONENT WORKS, D E C I S I O N Employer, Self-Insured, Defendant. 1402.30 Claimant failed to establish that he sustained an injury which arose out of and in the course of her employment. Claimant found not credible. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BLAINE KIRBY, File No. 840146 Claimant, A R B I T R A T I O N vs. D E C I S I O N J. I. CASE COMPANY, F I L E D Employer, FEB 16 1989 Self-Insured, Defendant. INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Blaine Kirby against self-insured defendant employer J. I. Case Company to recover benefits under the Iowa Workers' Compensation Act as the result of an injury allegedly sustained on November 3, 1986 (the date being disputed by defendant). This matter came on for hearing before the undersigned deputy industrial commissioner in Davenport, Iowa, on November 29, 1988, and was considered fully submitted on that date. Claimant appeared by his attorney, Thomas Preacher. Defendant appeared by attorney Larry Shepler. The evidence in this case consists of joint exhibits 1 through 26 and the testimony of claimant and Rebecca Kirby. ISSUES Pursuant to the prehearing report approved by the deputy at the time of hearing, the following issues remain for determination: Whether claimant sustained an injury on November 3, 1986, or any other date, arising out of and in the course of his stipulated employment with defendant; whether the alleged injury caused temporary or permanent disability; the extent of claimant's entitlement to compensation for temporary total or healing period disability benefits; whether claimant is entitled to weekly compensation for permanent disability and the commencement date thereof, although it was stipulated that, if the injury be found to be a cause of permanent disability, the disability is a scheduled member disability to the right and left arms; rate of compensation. The parties stipulated to: The existence of an employer-employee relationship; that the rate of compensation should be based upon a marital status of married with five exemptions and gross weekly earnings of $391.60 if the injury be found to have occurred in 1984, and $555.00 if the injury be found to have occurred in 1986; that affirmative defenses are waived; that medical benefits are no longer in dispute; that defendant is entitled to credit under Iowa Code section 85.38(2) for benefits paid under a nonoccupational group plan in the sum of $2,423.34. Neither party sought taxation of costs. REVIEW OF THE EVIDENCE Claimant testified that he began his employment with defendant on January 8, 1973 and was laid off from that employment when the plant closed on April 24, 1987. He saw his family physician, Richard B. Kasper, M.D., on October 27, 1986 for pain to the shoulder, back of neck and tingling in hands and was referred to William R. Irey, M.D. Dr. Irey diagnosed bilateral carpal tunnel syndrome and performed surgery on claimant's right hand on November 3, 1986 and, as shown by his records, on the left hand on November 25, 1986. Claimant indicated that he was off work from November 3, 1986 and returned to work on January 5, 1987. He remained in his employment free of symptoms until the plant closed. Claimant further testified that he began employment with his current employer, Red Jacket Pumps, on July 9, 1987, but that his symptoms began to resurface approximately six months later. Claimant testified to current symptoms including loss of grip strength in each hand and constant and often sharp pain to each palm and wrist which becomes more severe when he works at repetitive tasks with his hands. Claimant further testified that his symptoms began in approximately 1978 or 1979, but that he first lost work because of those symptoms at the time of his initial surgery. Medical records show that claimant had complaints of hand pain before seeing Dr. Kasper. The records of Dr. Irey reflect that claimant underwent surgery to his right hand on November 3, 1986 and to his left hand on November 25, 1986 for bilateral carpal tunnel syndrome. In a letter dated August 19, 1988 and addressed to claimant's attorney, Dr. Irey expressed the opinion that the carpal tunnel syndrome was work aggravated, but not solely work caused, and that it was then too early to assign a permanent partial impairment rating. Dr. Irey's office notes were introduced as joint exhibits 2 and 3. The note of August 25, 1988 shows that the doctor believed both hands to be somewhat decreased from normal, the right disproportionately so. Dr. Irey further stated on that date: I told him at this juncture I am not sure what the cause of his pain is. This may be some residual from his carpal tunnel syndrome but he does not have obvious carpal tunnel syndrome symptoms. A further review of Dr. Irey's notes shows that he expressed an opinion as to the degree of impairment of claimant's right upper extremity (seven percent), but not the left. Significantly, Dr. Irey did not express any opinion as to whether this impairment was a residual from or connected to the carpal tunnel syndrome for which claimant underwent surgery. APPLICABLE LAW AND ANALYSIS 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 (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 v. DeSoto Consol. Sch. Dist., 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 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The claimant has the burden of proving by a preponderance of the evidence that his alleged injury 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 v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Carpal tunnel syndrome is.a prime example of a "cumulative" injury. Cumulative injuries "occur" when the claimant can no longer work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). Therefore, claimant's injury in this case must be deemed to have occurred on November 3, 1986, when he discontinued working for the purpose of undergoing surgery. As has been seen, each of claimant's surgical procedures was for bilateral carpal tunnel syndrome which Dr. Irey has tied to the employment. Pursuant to Iowa Code sections 85.32 and 85.33(1), weekly benefits shall be paid in cases of temporary total disability commencing on the fourth day of disability and ending when the employee has returned to work, except that as here, compensation during the third week shall be increased by adding an amount equal to three days of compensation when the incapacity extends beyond the fourteenth day. As discussed hereafter, permanent partial disability has not been established. Therefore, claimant is entitled to temporary total disability from November 6, 1986 through January 4, 1987, with a three day addition during the third week (nine weeks). Under McKeever Custom Cabinets, supra, the date when claimant first loses work as the result of a cumulative injury determines the date to be used in determining the applicable compensation rate. It has been stipulated that claimant's gross weekly earnings were $555.00, that he was married and that he was entitled to five exemptions. The "Guide to Iowa Workers' Compensation Claim Handling" publication of the Division of Industrial Services published July 1, 1986 shows, at page 55, that claimant's proper weekly rate of compensation under these circumstances is $341.51. Agency expertise and experience has evolved to generally indicate that a five percent impairment of the hand is appropriate after successful carpal tunnel surgery; ten percent or greater for surgery not completely successful. Rienhardt v. John Morrell & Co., file number 769079, (August 17, 1988). However, this is general experience and is not dispositive of the issue of causation. As has been seen, causal connection of the asserted permanent impairment to the work injury is essentially within the domain of expert medical testimony. Bradshaw, supra. The same case held that expert testimony of a mere possibility may be sufficient if coupled with nonexpert testimony of no preexisting condition. However, in this case, the expert evidence does not rise even to the level of showing a mere possibility. The most recent opinion expressed by any physician, as shown of record, is that of Dr. Irey on August 25, 1988. The doctor indicated that he was not sure of the cause of claimant's pain. Further, he noted that claimant did not have obvious carpal tunnel symptoms. Dr. Irey later noted that claimant did have some persisting denervation and bilateral ulnar neuropathy, probably at the wrist, following EMG and nerve conduction velocities done by one Dr. Rasmus on September 29, 1988. Nonetheless, it would be speculative and far beyond the medical expertise of this deputy to conclude that these comments supply the necessary causal connection between claimant's current symptoms and the bilateral carpal tunnel syndrome which has been found to be work-related. That is to say, claimant has failed to meet his burden of proof in establishing any causal connection between his current symptoms and the work injury. Therefore, no award for permanent partial disability can be made. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Claimant suffers from bilateral carpal tunnel syndrome, a cumulative trauma injury. 2. Claimant first lost work by reason of his injury on November 3, 1986. 3. Claimant returned to work following surgery on both hands on January 5, 1987. 4. Claimant's injury was caused by his work with this defendant, the most recent defendant at the time he first missed work time. 5. After claimant returned to work, he suffered no further symptoms until approximately December, 1987, when he was then working for a subsequent employer. 6. That no expert evidence establishes that claimant's current symptoms are related to his work injury. CONCLUSIONS OF LAW WHEREFORE, based upon the principles of law previously cited, the following conclusion are made: 1. Claimant suffered an injury arising out of and in the course of his employment, bilateral carpal tunnel syndrome, on November 3, 1986. 2. Claimant's injury caused temporary total disability of nine weeks, six days, from November 6, 1986 through January 4, 1987, with a three-day addition during the third week of disability. 3. Claimant's rate of weekly compensation is $341.51. 4. Claimant has failed to meet his burden of proof in establishing any permanent impairment resulting from his work injury. 5. As stipulated, defendant is entitled to credit in the sum of $2,423.34 for previous payment of benefits under a nonoccupational group insurance plan. ORDER THEREFORE, IT IS ORDERED: Defendant is to pay unto claimant nine (9) weeks of temporary total disability at the stipulated rate of three hundred forty one and 51/100 dollars ($341.51) per week, totalling three thousand seventy-three and 59/100 dollars ($3,073.59). Defendant shall be entitled to credit for benefits under a nonoccupational group insurance plan, Iowa Code section 85.38(2), in the sum of two thousand four hundred twenty-three and 34/100 dollars ($2,423.34). The compensation awarded shall be paid to claimant as a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. That any costs of this action shall be assessed to defendant pursuant to Division of Industrial Services Rule 343-4.33. That defendant shall file a,Claim Activity Report upon payment of this award pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 16th day of February, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas H. Preacher Attorney at Law 2535 Tech Drive, Suite 200 Bettendorf, Iowa 52722 Mr. Larry L. Shepler Attorney at Law Suite 102, Executive Square 400 Main Street Davenport, Iowa 52801 1108.50, 1802 Filed February 16, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER BLAINE KIRBY, Claimant, File No. 840146 vs. A R B I T R A T I 0 N J. I. CASE COMPANY, D E C I S I 0 N Employer, Self-Insured, Defendant. 1108.50 Claimant established temporary disability from bilateral carpal tunnel syndrome, but failed to establish causal connection to claimed permanent impairment. 1802 Date of injury in cumulative trauma case was when the claimant first lost work.