Page 1 before the iowa industrial commissioner ____________________________________________________________ : DELBERT THOMPSON, : : File No. 844676 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N J I CASE CO., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Delbert Thompson, against his employer, J I Case Co., self-insured employer, defendant. The case was heard on November 14, 1990, in Burlington, Iowa at the Des Moines County Courthouse. The record consists of the testimony of claimant and the testimonies of Delbert L. Thompson, III, Shanon L. Thompson and Carmeline Ann Thompson. Additionally, the record consists of claimant's exhibits 1-17 and defendant's exhibits A and C. The attorneys are advised to review their records more closely. Some of the same medical records appeared four times in the evidence presented to the undersigned. issues The sole issue to be determined is: 1) whether claimant is entitled to permanent total/partial disability benefits. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 35 years old. He is married with three children. He sustained a work related injury to his back on January 30, 1987. He saw the plant nurse immediately after the injury. That day claimant was taken to the emergency room at the Burlington Medical Center. Subsequent to his injury, claimant was treated by James J. Kivlahan, M.D., and S. C. Lindo, Jr., M.D., general practitioners. He was also treated by three orthopedic specialists, James Weinstein, M.D., Koert R. Smith, M.D., and William Roberts, M.D. In July of 1987, claimant attempted a return to work with defendant employer. After two evenings of light duty, claimant was unable to continue working. Since that time claimant has not worked. Claimant is currently receiving Page 2 social security disability benefits. conclusions of law In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 (1935) the court, addressing the issue of the meaning of disability stated: What is "permanent total disability"? Does this clause refer to "functional disability" or to "industrial disability"? For clearness we shall use the term "industrial disability" as referring to disability from carrying on a gainful occupation--inability to earn wages. By "functional disability" we shall refer to the disability to perform one or more of the physical movements which a normal human being can perform. .... It is obvious that "disability" here used cannot refer to mere "functional disability",... It is...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 terms of percentages of the total physical and mental ability of a normal man. .... ...[T]he Compensation law was passed for the purpose of compensating the working man when injured. The loss which this claimant suffered due to the injury which he received while in the employ of the company is the inability to carry on the work he was doing prior to the time of the injury, or any work which he could perform. This man at fifty-nine years of age, after thirty years as a street car motorman, with little education, cannot find or hold a position that would not require some manual labor, and, of course, due to the condition of his back, he cannot perform such work. To say that he might become a stenographer or a lawyer or a clerk or a bookkeeper is to suppose the impossible, for a fifty-nine-year old man, with no education, is not capable of securing or filling any such position. His disability may be only a twenty-five or thirty per cent disability compared with the one hundred per cent perfect man, but, from the standpoint of his ability to go back to work to earn a living for himself and his family, his disability is a total disability, for he is not able to again operate the street car and perform the work which the company demanded of him prior to the time of the accident. Page 3 Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). 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, 105 (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 Page 4 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 rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such cases it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co, 288 N.W.2d 181, 192 (Iowa 1980). Claimant alleges he is permanently and totally disabled or in the alternative he alleges he is an odd-lot employee. Defendant denies claimant is totally disabled but does admit claimant has sustained some industrial disability. Dr. Roberts has assessed a functional impairment rating of five percent to claimant's condition. He has also restricted claimant from lifting more than 30 pounds, from sitting or standing for more than one hour at a time, from driving for more than one to two hours a day in a vehicle, Page 5 or from repetitive bending, stooping or reaching. Dr. Weinstein, another orthopedic specialist, rated claimant as having a five percent permanent impairment. Dr. Smith ordered a CT scan and a myelogram. The test results were in the normal range although the CT scan did show: "Focal bulging disc at L5-Sl somewhat to the right of midline as described. Otherwise essentially normal lumbar CT." Dr. Kivlahan, a general practitioner, wrote in his report of August 24, 1988: Delbert continue [sic] to have severe pain in the low back, hip, thigh areas. He is limited in flexion at the lumbosacral area to 25o because of the pain. In addition, Delbert has had extensive evaluation by orthpedic [sic] surgeons in Burlington, Cedar Rapids, and Iowa City, Ia. He has been tried on numerous anti-inflammatory and analgesic medication, TENS Electrical Unit, and physical therapy without significant improvement. Impression: acute and chronic low back strain. I believe that Delbert is disabled for the present. He has considerable pain and tenderness low back with almost any type of activity. I suspect the symptoms and signs will persist for considerable length of time. As of July 10, 1988, Dr. Kivlahan had restricted claimant to no lifting greater than five pounds and to minimal bending and sitting. Finally, there is the opinion of Dr. Lindo. He concurred with the opinion of Dr. Kivlahan but admitted his care of claimant was only secondary. The restrictions imposed by Dr. Lindo included no lifting greater than five pounds or no bending or stooping. He also admitted he would defer to the opinions of claimant's treating orthopedic surgeons. Claimant is functionally impaired. He may lift 5 to 30 pounds. He is not to repetitively bend, stoop, or reach. He can drive for two hours. It is acknowledged Richard B. Erickson, vocational consultant, assessed claimant's employability. In his report of October 6, 1988, Mr. Erickson wrote: Dr.J.J.Kivlahan [sic] placed functional restrictions of no lifting over 5 pounds with minimal bending. Dr. Roberts cited functional limitations which included no lifting greater than 30 pounds, no repetitive bending, stooping, reaching, and no sitting for more than one hour at a time. The therapists who worked with Mr. Thompson in the Work Hardening Program reported a Page 6 minimal increase in his ability to tolerate activity of approximately 1 to 1Æ hours with frequent rest breaks. Due to his poor progress towards achieving greater work tolerance, they recommended termination of his involvement in the program. Based on the cited functional restrictions, individually and collectively, I am of the opinion that Mr. Thompson is unable to perform the work of a production welder. ... Dr. Roberts reports Mr. Thompson is able to lift/carry objects weighing up to 30 pounds. This weight restriction would suggest the ability to perform work of a light classification. However, Dr.Roberts [sic] places several additional restrictions. These include a sitting and standing tolerance of 1 hour respectively and no repetitive bending, stooping, or reaching. (These functional findings aren't consistent with the other two reports or Mr.Thompson's [sic] reported physical capacities.) Considering these factors, I am of the opinion that the restrictions in his standing and/or sitting tolerance coupled with an inability to do repetitive reaching would have a negative impact on the significant number of unskilled jobs which might be considered. Based on the facts which I have available regarding Mr. Thompson's physical capacities, education, and work history, I am of the opinion that employment isn't a realistic expectation at the present time. If he is able to increase his activity level and tolerance then vocational rehabilitation efforts are recommended for some form of sedentary or light occupation. If I can be of additional assitance [sic], please contact me. However, not much weight is given to Mr. Erickson's report by the undersigned. It is not known whether Mr. Erickson has ever visited claimant personally, conducted any vocational testing, or attempted job placement. It appears to the undersigned that Mr. Erickson has only reviewed claimant's medical reports and formulated an opinion of nonemployability. Claimant is a young man. He has many years of employability. Claimant has a high school education. He appears articulate and reasonably intelligent. Dr. Roberts believed claimant was gifted in many areas and could be put back to work. While claimant denies he is capable of engaging in shoe sales, it does not appear that he is precluded from engaging in all types of retail business, or from engaging in sales. Claimant is capable of route sales since he can drive for at least one to two hours without a break. Page 7 It is true claimant is incapable of returning to his former position as a welder. Both Dr. Roberts and Dr. Smith are in agreement that claimant is unable to continue in that position. Defendant has not provided retraining to claimant. Nor has defendant found a job within the plant for claimant. Once claimant left the plant in July of 1987, the channels of communication seemed to close. There has been very little effort on the part of either side to put this claimant back to work. Therefore, based upon the foregoing and based upon: 1) the personal observation of claimant; 2) agency expertise (Iowa Administrative Procedures Act 17A.141s); and 3) claimant's testimony, the undersigned determines claimant has a 50 percent permanent partial disability. order IT IS ORDERED: Defendant is to pay two hundred fifty (250) weeks of permanent partial disability benefits at the stipulated rate of four hundred forty-four and 24/l00 dollars ($444.24) per week commencing on October 29, 1987. Interest shall be paid pursuant to Iowa Code section 85.30. Defendant shall receive credit for all benefits previously paid and not credited. Costs of the action shall be assessed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file a claim activity report pursuant to rule 343 IAC 3.1 Signed and filed this ____ day of May, 1991. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. James P. Hoffman Attorney at Law Middle Rd Keokuk IA 52632-1087 Mr. William J. Cahill Attorney at Law 200 Jefferson St Page 8 P O Box 1105 Burlington IA 52601 1803 Filed May 21, 1991 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : DELBERT THOMPSON, : : File No. 844676 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N J I CASE CO., : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 1803 Claimant was awarded a 50 percent permanent partial disability. Claimant was functionally impaired in the amount of 5 percent but he was severely restricted. Claimant's restrictions included lifting 5 to 30 pounds. He was precluded from repetitively bending, stooping or reaching. He could drive for 2 hours without a break. Claimant was 35 years old with a high school diploma. He was unable to return to his position as a welder. Defendant provided no retraining to claimant. Nor did defendant find another job for claimant in the plant. Very little effort was made by claimant or defendant to return to work. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARSHA K. HURSEY, Claimant, File No. 844849 vs. A P P E A L GARY AND PAT McCLuRE d/b/a COUNTRY COTTAGE, D E C I S I 0 N Employer, F I L E D Defendant. NOV 22 1989 INDUSTRIAL SERVICES STATEMENT OF THE CASE Defendant appeals from an arbitration decision awarding permanent partial disability benefits, healing period benefits, and medical expenses. The record on appeal consists of the transcript of the arbitration hearing, joint exhibits 1 through 4 and defendant's exhibit 5. Both parties filed briefs on appeal. ISSUES The issue on appeal is whether the injury to claimant's left thumb on December 24, 1986 arose out of and in the course of her employment with defendant. REVIEW OF THE EVIDENCE The arbitration decision filed July 28, 1988 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that she received an injury on December 24, 1986 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The 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 legal test for determining the compensability of injuries for social activities is discussed in Linderman v. Cownie Furs, 234 Iowa 708, 13 N.W.2d 677, 680-81 (1944). A good statement of the test to be applied is contained in a case where compensation was denied. See Smith v. Steamless Rubber Company, 111 Conn. 365, 150 A. 110, 111, 69 A.L.R. 856, where the court stated: "Where an employer merely permits an employee to perform a particular act, without direction or compulsion of any kind, the purpose and nature of the act becomes of great, often controlling significance in determining whether an injury suffered while performing it is compensable. If the act is one for the benefit of the employer or for the mutual benefit of both, an injury arising out of it will usually be compensable; on the other hand, if the act being performed is for the exclusive benefit of the employee so that it is a personal privilege, or is one which the employer permits the employee to undertake for the benefit of some other person or for some cause apart from his own interests, an injury arising out of it will not be compensable." The test was further discussed in Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 174, 177 (Iowa 1979). When faced on prior occasions with the argument that an injured employee's presence at the scene of an accident was not "required," this court has adopted a liberal interpretation of the "course of employment" criterion. We have thus said that [a]n injury occurs in the course of the employment when it is within the period of employment at a place where the employee reasonably may be in performing his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. An injury in the course of employment embraces all injuries received while employed in furthering the employer's business and injuries received on the employer's premises, provided that the employee's presence must ordinarily be required at the place of the injury, or, if not so required, employee's departure from the usual place of employment must not amount to an abandonment of employment or be an act wholly foreign to his usual work. An employee does not cease to be in the course of his employment merely because he is not actually engaged in doing some specifically prescribed task, if, in the course of his employment, he does some act which he deems necessary for the benefit or interest of his employer. Bushing v. Iowa Railway & Light Co. 208 Iowa 1010, 1018, 226 N.W. 719, 723 (1929) (citations omitted, emphasis added [by the court]). .... The test is whether the act is "in any manner dictated by the course of employment to further the employer's business." Id. at 177. In Briar Cliff College v. Campolo, 360 N.W.2d 91, 94 (Iowa 1984), the court stated: The commissioner also relied upon Larson's business-related benefit test which states that recreational or social activities are in the course of employment when "[t]he employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life." 1A A. Larson, Workmen's Compensation Section 22.00, at 5-72 (8th ed. 1982). Stating that it was the "degree of employer benefit which heavily tips the scale in the claimant's favor" and "[a]nother factor weighing in claimant's favor is the special nature of a teacher's job," the deputy commissioner found claimant had established that the death had occurred in the course of decedent's employment. The commissioner affirmed on appeal. We conclude that the commissioner applied the correct principles of law. Whether decedent's acts benefited his employer is a question of fact. ANALYSIS The starting point in this case is whether claimant has met her burden of proof that her injury on December 24, 1986 arose out of and in the course of her employment. The test under Iowa case law is whether claimant was engaged in some activity necessary for the substantial direct benefit or interest of her employer. The claimant cut her left thumb while carrying cups at a Christmas party held on the employer's premises. It has been discussed that a general boost to morale is not enough to constitute benefit to an employer. "Employer benefit, as in the opportunity to work in a few remarks on salesmanship, argues for coverage, but a general boost to morale is not enough." 1A Larson, Workmen's Compensation Law Section 22.23(b) at 5-126 (1985) citing to Wooten v. Roden, 260 Ala. 606, 71 So.2d 802 (1954). The only evidence of employer benefit in this case was an attempt by claimant to show that the social activity, a Christmas party, improved the morale of the employees. There was testimony that the morale of the employees was good and did not need improvement. It will be assumed that this party, like any Christmas party, would at least maintain the otherwise good morale of the employees. But a general boost to morale is not enough. The only other evidence of possible employer benefit presented by the claimant was a fairly loosely organized gift exchange. Some employees participated in a grab bag. A group of employees, for the first time in the existence of the employers, gave the employers a gift. One employee individually gave the employers a gift. The employers gave some employees gifts at the party but gave others gifts at other times. When the party was planned it was not known whether Patricia McClure, one of the employers, would be at the party. She returned from a business trip to California the morning of the party. The party was not planned to present an opportunity for the employers to give employees gifts nor for the employers to make speeches, awards, etc. There was no indication that the employer gained any benefit from the party other than a general boost of morale. Claimant has not proved that the party at which she was participating was activity necessary for the benefit or interest of the employer. Claimant has not proved that the activity was a substantial direct benefit to the employer. Thus, claimant has not proved that she suffered an injury that arose out of and in the course of her employment. FINDINGS OF FACT 1. Claimant was an employee of defendant employer on December 24, 1986. 2. On December 24, 1986 a Christmas party was held on defendant-employer's premises. 3. On December 24, 1986 claimant injured her left thumb at the Christmas party while carrying cups. 4. The defendant employer benefited from the party by maintaining a good relationship with the employees. 5. The gift exchange at the party was not for the benefit of the employer. 6. The party was of no benefit nor interest to the employer other than maintaining good morale. 7. The party was not a substantial direct benefit to the employer. CONCLUSION OF LAW Claimant has not proved that she suffered an injury on December 24, 1986 that arose out of and in the course of her employment. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant take nothing from these proceedings. That defendant, Gary and Pat McClure, d/b/a Country Cottage, pay the costs of these proceeding including the costs of transcribing the arbitration hearing. Signed and filed this 22nd day of November, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Jeffrey L. Larson Attorney at Law 11005 7th St. Harlan, Iowa 51537 Mr. Bennett Cullison, Jr. Attorney at Law P.O. Box 68 Harlan, Iowa 51537 1109 Filed November 22, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARSHA K. HURSEY, Claimant, File No. 844849 vs. A P P E A L GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE, D E C I S I 0 N Employer, Defendant. 1109 Claimant was injured while participating in Christmas party activities on Christmas eve on the employers' premises. The employers permitted the party to be held. The law to be applied was whether the employer derived a substantial direct benefit or interest from the activity. Larson was cited for the proposition that merely fostering good morale of employees did not constitute sufficient benefit to the employers. Claimant did not prove that the activity was a substantial direct benefit or interest to the employers other than merely improving the morale of the employees. Thus, claimant did not prove an injury that arose out of and in the course of her employment. Deputy reversed on appeal. BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARSHA K. HURSEY, File No. 844849 Claimant, A R B I T R A T I O N vs. D E C I S I O N GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE, Employer, Defendant. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Marsha K. Hursey, claimant, against Gary and Pat McClure d/b/a Country Cottage, employer (hereinafter referred to as McCluresO), who are uninsured, for workers' compensation benefits as a result of an alleged injury on December 24, 1986. The caption in this case was amended at hearing to reflect the real parties in interest. On April 27, 1988 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 was received during the hearing from claimant and the following witnesses: Nancy Swenson, Pat McClure, Kathy Kienast, Daryl Nissen and Carol Doran. The exhibits received into the evidence at the hearing are listed in the prehearing report. According to the prehearing report the parties have stipulated to the following matters: 1. The injury to the left hand on December 24, 1986 was a cause of temporary and permanent disability; 2. In the event defendant is liable for the December 24, 1986 injury, claimant is entitled to healing period benefits from December 24, 1986 through February 19, 1987 and permanent disability benefits consisting of nine weeks from February 20, 1987 for a 15 percent loss of use of the thumb; 3. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $103.11 per week; and, 4. The medical bills submitted by claimant at the hearing, exhibit 1, were fair and reasonable and causally connected to the injury to claimant's hand on December 24, 1986. HURSEY V. GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE PAGE 2 ISSUE The only issue submitted by the parties for determination in this proceeding is whether the injury claimant received to her left hand on December 24, 1986 arose out of and in the course of her employment at McClures'. SUMMARY OF THE EVIDENCE The following is a summary of evidence presented in this case. For the sake of brevity, only the evidence most pertinent to this decision is discussed. Whether or not specifically referred to in this summary, all of the evidence received at the hearing was considered in arriving at this decision. As will be the case in any attempted summarization, conclusions about what the evidence offered may show are inevitable. Such.conclusions, if any, in the following summary should be considered as preliminary findings of fact. Gary and Pat McClure own and operate Country Cottage, a small business engaged in the manufacture of wooden wear items. The business had eight to nine full time employees at the time of the alleged injury. The McClures are currently engaged in publishing craft and related materials. Claimant testified that she began working for McClures' in July, 1986 and performed duties such as tracing patterns, sanding and drilling. Claimant testified that she injured her left hand while assisting in serving refreshments during a Christmas party on December 24, 1986 which was held upon the Country Cottage business premises and which began immediately after McClures' employees ended their work for the day at noon. In attendance at this party were most of the employees and some of their spouses and children. Also in attendance were the McClures and some of their friends. Claimant said that while stacking soup cups in a kitchen area in the shop, the cups fell and broke severely cutting her hand. According to the medical records submitted into the evidence, claimant suffered cuts to the tendons requiring surgical repair and several weeks of healing. Claimant now suffers from a 15 percent loss of use to the thumb as a result of the incident. All of the witnesses at hearing agree that McClures did not organize the Christmas party. Pat McClure testified that she announced in the weeks prior to Christmas that the company party would be held after Christmas, not before. However, after a request by one of the employees, Nancy Swenson, to conduct a party on the premises after work on Christmas Eve she consented. The party was apparently organized according to the testimony by an employee group effort. Kathy Kienast, placed a list on the break room refrigerator seeking persons to sign up for the donation of various foods and beverage items for the party. Although there was testimony that Kienast was at times placed in charge in the absence of McClures, there was no testimony that she at any time was directed to place a list on the refrigerator by McClures or was acting as a supervisor in the posting of the list. Also, plans for the party were discussed during coffee breaks in the days before the party. At all times, McClures were aware of the plans due to the fact that they regularly work side by side with their employees. None of the employees were HURSEY V. GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE PAGE 3 required to attend. None of the employees were paid for time expended in attending the party. Gifts were exchanged at this party including a gift by employees to Pat McClure. Although McClures furnished no food at the party, Mr. McClure did furnish some beer after the party began. Claimant and several of the witnesses testified that the party was of some benefit to both the employees of Country Cottage and to the McClures. They indicated that such parties improve moral and general feeling of goodwill among management and employees. In her testimony, Pat McClure denied that she derived any benefit from the party although she admitted that shed did not wish to be considered a "jerk" and it would not be nice to refuse the employees the opportunity to have a party on the premises. Claimant's appearance and demeanor at the hearing indicated that she was testifying truthfully. APPLICABLE LAW AND ANALYSIS I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active of dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited herein. The legal test for determining the compensability of injuries for social activities is set forth in Linderman v. Cownie Furs, 234 Iowa 708, 13 N.W.2d 677 (1944). "Where an employer merely permits an employee to perform a particular act, without direction or compulsion of any kind, the purpose and nature of the act becomes of great, often controlling significance in determining whether an injury suffered while performing it is compensable. If the act is one for the benefit of the employer or for the mutual benefit of both, an injury arising out of it will usually be compensable; on the other hand, if the act being performed is for the exclusive benefit of the employee so that it is a personal privilege, or is one which the employer permits the employee to undertake for the benefit of some other person or some cause apart from his own interest, an injury arising out of it will not be compensable.O In the case sub judice, although it is clear that McClures did not initially organize or plan the party, they clearly took an active part in the festivities and furnished some of the beverages. Pat McClure's testimony that she derived no benefit from the party is not credible. She herself admitted that any HURSEY V. GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE PAGE 4 denial of the party would cause hard feelings between herself and her employees. Obviously she allowed and participated in the party to maintain the goodwill of her employees. Therefore, both employees and employer alike derived a benefit from the activity and claimantOs injury while participating in this activity arose out of and in the course of her employment at Country Cottage. This case is not comparable to Inghram v. Winegard Company, II Iowa Industrial Commissioner Report 209 (Appeal Decision 1981) cited in defendant's brief. In Inghram, the claimant was not on the premises and was not actively engaged in the party activities at the time of the injury. Inghram was on her way home when the injury occurred. The stipulations of the parties as to the extent of disability benefits in the event of a finding of liability will be honored and ordered herein. Pursuant to Iowa Code section 85.27, claimant is entitled to reasonable medical expenses for treatment of a work injury. However, claimant is entitled to an order of reimbursement only for those expenses which she has previously paid. Krohn v. State, 420 N.W.2d 463 (Iowa 1988). FINDINGS OF FACT 1. Claimant was a credible witness. 2. Claimant was in the employ of Country Cottage at all times material herein. 3. On December 24, 1986, claimant suffered an injury to the left thumb which arose out of and in the course of her employment with Country Cottage. While participating in a Christmas party on the McClures' premises, claimant cut her left hand severely cutting the tendons and requiring extensive medical treatment. Although the party was organized by employees, the party was allowed by McClures who benefited from the party by maintaining a good relationship with their employees. 4. The work injury of December 24, 1986 was a cause of the medical expenses listed in exhibit 1. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to permanent partial disability benefits and healing period benefits along with medical benefits as ordered below. ORDER 1. Defendants, Gary and Pat McClure d/b/a Country Cottage, shall pay to claimant nine (9) weeks of permanent partial disability benefits at the rate of one hundred three and 11/100 dollars ($103.11) per week from February 20, 1987. 2. Defendants, Gary and Pat McClure, shall pay to claimant healing period benefits from December 24, 1986 through February 19, 1987 at the rate of one hundred three and 11/100 dollars ($103.11) per week. HURSEY V. GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE PAGE 5 3. Defendants, Gary and Pat McClure, shall pay the medical expenses listed in exhibit 1 totaling one thousand two hundred twenty-six and 78/100 dollars ($1,226.78) plus mileage expense at the rate of twenty-one cents ($.21) per mile for a total of two hundred fifty-five (255) miles. 4. Defendants, Gary and Pat McClure, shall either pay the medical provider listed in exhibit 1 if the bill is unpaid or pay claimant directly if the bill has been paid by her. 5. Defendants, Gary and Pat McClure, shall pay accrued weekly benefits in a lump sum. 6. Defendants, Gary and Pat McClure, shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. Defendants, Gary and Pat McClure, shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 8. Defendants, Gary and Pat McClure, 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 28th day of July, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Jeffrey L. Larson Attorney at Law 1005 Seventh St. Box 726 Harlan, Iowa 51537 Mr. Bennett Cullison, Jr. Attorney at Law P. 0. Box 68 Harlan, Iowa 51537 1109 Filed July 28, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER MARSHA K. HURSEY, File No. 844849 Claimant, A R B I T R A T I O N vs. D E C I S I O N GARY AND PAT McCLURE d/b/a COUNTRY COTTAGE, Employer, Defendant. 1109 Claimant was injured while participating in Christmas party activities on Christmas Eve in 1986. Although the party was organized by employees, employer permitted the party to be held on business premises and participated in its activities. It was held that employer derived a benefit from the party in maintaining goodwill with its employees. Consequently, it was held that the injury arose out of and in the course of employment. BEFORE THE IOWA INDUSTRIAL COMMISSIONER BARBARA C. O'BRINK, Claimant, File No. 844851 vs. A R B I T R A T I O N UNIVERSITY OF NORTHERN IOWA, D E C I S I O N Employer, F I L E D and NOV 13 1989 STATE OF IOWA, INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Barbara C. O'Brink against the University of Northern Iowa, her former employer, and the state of Iowa. Claimant seeks benefits as the result of an alleged injury of May 21, 1986. She claims that she is totally disabled and asserts the odd-lot doctrine. The case was heard and fully submitted on February 15, 1989 at Manchester, Iowa. The record in the proceeding consists of testimony from Barbara C. O'Brink, Minnie Eel and Delores Boger. The record also contains jointly offered exhibits 1 through 50 and defendants' exhibit A. ISSUES The issues presented by the parties at the time of hearing are whether claimant sustained an injury which arose out of and in the course of her employment on or about May 21, 1986; determination of claimant's entitlement, if any, to compensation for temporary total disability, healing period, permanent partial disability and/or permanent total disability; determination of claimant's entitlement, if any, to payment of medical expenses under the provisions of Iowa Code section 85.27; determination of the appropriate rate of compensation in the event of an award; and, determination of the employer's claim for credits under Iowa Code section 85.38(2). Additional issues identified are whether claimant's hip and leg injury are a result of the fall at work on May 21, 1986 and whether claimant is an odd-lot employee. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence show are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Barbara C. O'Brink is a 58-year-old lady who lives at Washburn, Iowa. She has six children, all of whom are now adults, and has been a widow since 1980. O'Brink attended country school through the eighth grade, but then dropped out during the second week of the ninth grade. She has no further formal education of any type. Claimant's primary employment has been as a cook or waitress in a restaurant, but she has also held other jobs as a bottle capper and as a nurse's aide. She stated that she has never performed office work of any type. Claimant testified that she was never fired from any of the several jobs which she has held and that she had no problem performing the jobs until the incident which is the subject of this case. Claimant stated that prior to May of 1986 she did all of her own housekeeping, mowed and raked her lawn, and had painted the inside and outside of her home, all without problems. Claimant related that her medical history included an ulcer, varicose veins, a hysterectomy, and bronchitis. Claimant related that records show she had a low back strain in 1973, but she did not recall the incident, and surmised that it must not have lasted.very long. She recalled having left hip pain in 1981, but was unsure if she was hospitalized for it. Claimant stated that her family physician has been James H. Jeffries, M.D., since 1961. She denied missing any work for hip or back pain prior to the events which are the subject of this case. Claimant commenced her employment with the University of Northern Iowa on February 17, 1986. She stated that she was administered a physical examination which she passed and that her health was then excellent. Claimant related that she has diabetes, but that she controls it. Claimant was hired to work as a cook in a dormitory dining hall. She stated that she prepared large amounts of food such as 60-90 pounds of hamburger at one time. She stated that the cooking was done in vats and that the food was stirred with a utensil which was like an oar. Claimant stated that she had to perform reaching and stooping, including lifting cases of food products from a cart as she prepared to cook the articles. Claimant stated that she also had to clean ovens and fryers, activities which required stooping and bending. Claimant stated that she had always been able to perform her job. She stated that sometimes she was tired at the end of her work day, but that she would still do her wash, visit friends and engage in other activities following work. Claimant stated that in mid-May when the school term ended, there was no need for cooks in the dining hall and she elected to perform housekeeping duties rather than be laid off. Claimant stated that the work involved deep cleaning in the dormitories of ceilings, windows and floors. Claimant stated that at times she worked alone and at times worked with another employee. Claimant stated that she was being paid $5.41 per hour on May 21, 1986, but that she received a raise in July or August to $5.62 per hour. Claimant stated that on May 21, 1986 she was cleaning a lounge with fellow-employee Minnie Eel. Claimant stated that she was coming down a 5-foot stepladder after cleaning a light fixture. Claimant stated that when coming down, she missed the bottom step of the ladder, struggled to keep from falling, but fell on the floor, onto her buttocks and felt a pain in her back. Claimant stated that she fell hard and that she was hurt and embarrassed. Claimant stated that Minnie Eel assisted her in getting up from the floor, that the incident was reported to her supervisor, and that on the following day a higher supervisor took her statement involving the incident. Claimant stated that she had been tired and achy since beginning the housekeeping work, but had performed all normal activities prior to May 21, 1986. Claimant stated that commencing on May 21, 1986, she felt a different pain which was more dominant. Claimant stated that she talked about the fall with her sister, but did not seek medical care and continued to work. Claimant stated that for the rest of the summer Mrs. Eel performed the bulk of the work which required use of a ladder or extensive bending. Claimant stated that over the summer she gradually worsened and that the pain and achiness increased. She stated that it was mainly in her lower back and groin area and also went into her left hip and leg. She stated that during the summer she was beat by the end of the day and began taking hot baths in the evening after work. Claimant stated that she had been seeing her family doctor for a urinary problem and while doing so had mentioned her backache. Dr. Jeffries' office notes of July 23, 1986 contain a reference to claimant having low back pain (exhibit 1-T). Claimant stated that on August 22, 1986 she resumed duties of cooking. She stated that the lifting and bending were more difficult than they had been previously. She stated that she had pain in her left hip and had trouble moving the leg. She stated that she had to use her hand to lift her leg when getting into a car. Claimant explained that she thought the cleaning work was aggravating her and that she had expected to get better when she resumed cooking, but that she did not improve. Claimant stated that on September 26, 1986 she consulted Dr. Jeffries for her back. She stated that she told him her back and legs hurt and that she could hardly get around. She stated that she probably told the doctor that it had been bothering her for two weeks because it had really gotten bad during the preceding two weeks, although she also told him that it had been hurting all summer. She stated that she did not recall the incident of falling when she first saw Dr. Jeffries, but that while she was hospitalized a few days later her sister reminded her of falling and she asked Dr. Jeffries if the fall could have caused her problems. Dr. Jeffries immediately took her off work. On September 29, 1986, three days after initially seeing Dr. Jeffries for her back, claimant was hospitalized at Allen Memorial Hospital. She was treated with bed rest and physical therapy and made a slow, but incomplete recovery. She was discharged from the hospital on October 10, 1986 with restrictions (exhibit 24-EEEE). Claimant stated that she felt better after the hospitalization, but that when she increased her activity level, her symptoms increased. The discharge summary demonstrates that claimant discussed the May 21, 1986 fall incident while she was hospitalized. Claimant stated that when she was released from the hospital, she was not released to return to work. Claimant was referred to orthopaedic surgeon Dale Phelps, M.D., who first saw her on October 22, 1986. Claimant stated that she was given a shot in the back that relieved her symptoms for a time, but that they returned. Claimant was again admitted to Allen Memorial Hospital on December 2, 1986. Diagnostic tests demonstrated that she had a lumbar disc problem at the L4-5 level of her spine. On December 4, 1986, Dr. Phelps performed a bilateral laminectomy. Claimant was eventually discharged from the hospital on December 15, 1986 (exhibit 26- TTTTT). Claimant testified that following the surgery, she was sent home and performed the exercises which her doctor had recommended. She stated that her back did improve, but that her hip was giving more trouble. Claimant continued to treat with Dr. Phelps and Dr. Jeffries. During the summer of 1987, they discussed performing a total hip replacement as a means of relieving her left hip pain. Claimant was admitted again to Allen Memorial Hospital on October 5, 1987. She underwent a total left hip replacement and was finally discharged on October 13, 1987 (exhibit 30B, KK and LL). (It should be noted that the operative report refers at one portion to the right hip, but that the surgery was in fact performed upon claimant's left hip as is shown in the text of the report.) Claimant stated that after recovering from the surgery, a lot of the pain in her left hip was relieved, but that she still has some achiness in it. Claimant testified that in general her physical condition has never returned to being as good as it was immediately before she fell on May 21, 1986. She stated that her doctors have not released her to return to work, although at one point, it was indicated that she might be able to return to work. Claimant stated that she had planned to continue working until age 65 in order to obtain maximum Social Security benefits. She stated that the job at UNI was the best paying job she had ever held. Claimant testified that she has applied for and received Social Security disability benefits commencing in October of 1987 and that she has applied for and received a handicap sticker for her car. Claimant related that her understanding of the restrictions imposed by Dr. Jeffries is that she not vacuum, make her bed, or drive too far in a car. She stated that she is not allowed to lift and will not carry a full grocery bag. Claimant stated that her ability to stand is limited to 15 minutes to one-half hour. She stated that her legs get shaky and her back hurts so that she needs to sit down to rest. Claimant stated that extended sitting is also uncomfortable and that she is limited to approximately one-half hour of continuous sitting. Claimant stated that she has no formal schooling background and has no funds with which to go to school. She stated that in view of her current age, she would be retired by the time she finished any extensive educational program. Claimant stated that she would be unable to stand long enough to be a cashier or work at a McDonalds restaurant. Claimant stated that she has not applied for any work since October of 1986 because she has not been released by her doctors. She does not know of any job that she is physically capable of performing that she knows how to do. Claimant related that she does some, but not all, of her housework. She stated that she is unable to do any yard work. She stated that she has trouble bending and stooping. Claimant related that prior to the time she fell, she could bend over far enough to place her palms on the floor. Claimant denied experiencing any trauma subsequent to May 21, 1986. Claimant related that during the summer of 1988, she accompanied her sister on a vacation to Minnesota, as she had been accustomed to doing prior to the time that she fell. Claimant stated that it was necessary to stop so that she could get out of the vehicle and ambulate. She stated that it was necessary for her to use a chair for support in order to walk to the riverbank in order to fish. Claimant stated that prior to falling, she had engaged in fishing and bowling as her primary hobbies, but is now unable to engage in those activities. Minnie Eel testified that claimant fell from a ladder on May 21, 1986 and landed on her bottom. Eel confirmed that claimant's facial expression indicated pain, that she moved slowly following the incident and that the incident was reported to their supervisor. Eel stated that following the fall, claimant was unable to work on a ladder or stoop as she was in pain. Eel stated that claimant also worked slower following the fall. Delores Boger, claimant's sister, stated that she has been in close contact with claimant for several years and that prior to May 21, 1986, she was unaware of claimant having any complaints about her work or being unable to work. Boger stated that she talked with claimant on the evening of May 21, 1986 and that claimant related falling and being in discomfort. Boger stated that following May 21, 1986, she could observe that claimant seemed to be strained and to be having discomfort. Boger stated that the symptoms had begun on approximately May 21, 1986 and had not existed previously. Boger denied having any knowledge of claimant sustaining any trauma subsequent to May 21, 1986. Boger stated that during the summer after the fall, she had encouraged claimant to go to the doctor for her complaints and that she finally did. Boger confirmed claimant's testimony regarding her preinjury activities which she no longer performs and the events concerning the Minnesota trip. James H. Jeffries, M.D., claimant's family physician for over 25 years, related that claimant had sustained a back strain in November of 1973 from which she recovered completely, an automobile accident in April of 1975 which he did not treat and that she had experienced left flank and hip pain in December of 1981 from which she recovered completely. He was not aware of claimant having any other problems affecting her back or hip prior to 1986 (exhibit 38, pages 8-10). Dr. Jeffries stated that when he saw claimant on September 26, 1986, he did not take an extensive history from her, but did examine her for low back and left hip pain. He stated that it was during her subsequent hospitalization that a more detailed history showed she had fallen from a ladder at work, as he reported on the discharge summary (exhibit 38, pages 7, 14, and 32-35). Dr. Jeffries stated that claimant's complaints were consistent with a fall from a ladder, that the earlier hip and back incidents for which he had treated claimant were not related to her current problems, that it was possible that both her back and hip problems resulted from the ladder incident, and that in his opinion claimant's back problem was certainly a result of the fall and that with regard to the hip, the fall was a terminal contributing event which required the surgery that was ultimately performed (exhibit 38, pages 15, 21, 22 and 37). Dr. Jeffries stated that he has restricted claimant from lifting, from household activities such as vacuuming, mopping, or bending over to clean floors and that he has advised her to avoid traveling for any distance in the car. Dr. Jeffries related that claimant could not perform jobs which required extended standing or extended sitting due to her back and hip problems and that her condition is unlikely to get any better (exhibit 38, pages 24-26). Dale Phelps, M.D., was claimant's treating orthopaedic surgeon. When deposed, Dr. Phelps expressed the opinion that claimant's complaints and the results of his examination were consistent with a fall from a ladder. Dr. Phelps expressed the opinion that claimant's symptoms which he observed were connected with the injuries she sustained in the fall, that the pain in claimant's hip was caused by the fall, and that the pain in claimant's hip had been coming from the hip, rather than from her back (exhibit 37, pages 6, 8, 13-15, and 20-22). Dr. Phelps explained that degenerative arthritis is not an unusual condition in a person of claimant's age and that trauma can aggravate a preexisting degenerative condition. He stated that claimant's hip did not initially show a great deal of degeneration, but then developed rapid degeneration during the time that he treated her. Dr. Phelps stated that the arthritis in her hip was posttraumatic rather than idiopathic (exhibit 37, pages 14, 27, 41 and 42). Dr. Phelps stated that claimant reached maximum healing six months following her second surgery (exhibit 37, pages 30 and 31). He stated that she has a permanent 15 percent impairment of the body as a whole due to the condition of her back and a permanent 15 percent permanent impairment of the body as a whole due to the condition of her hip (exhibit 37, page 32-35). Dr. Phelps stated that claimant has permanent restrictions against squatting, climbing, heavy lifting, repeated bending or stooping, jumping or running. He felt that her condition was permanent (exhibit 37, page 31). Claimant was evaluated by Ernest M. Found, M.D., a spinal surgeon at the University of Iowa Hospitals and Clinics. Dr. Found expressed the opinion that claimant's back condition was caused by the fall that she experienced at her employment and that she had a residual 10 percent permanent impairment of the body as a whole due to the condition of her back. Dr. Found also stated, however, that claimant's hip condition was not caused by the original injury. Dr. Found felt that claimant's recuperation and healing had ended, that she was deconditioned and needed to be placed in a reconditioning program (exhibit 49 A and B). Dr. Found indicated that with proper conditioning and exercise, claimant could get back to doing the type of activities which she enjoys. While at the University of Iowa Hospitals and Clinics for evaluation, claimant was seen by Ted Wernimont, MSW, the clinical coordinator at the treatment center. Wernimont stated, "It is my impression that Ms. O'Brink would have a very difficult time returning to full-time employment as a cook or in any other position which she has had significant experience." While being evaluated, claimant was found to be well motivated. APPLICABLE LAW AND ANALYSIS Defendants deny that claimant sustained any injury which arose out of and in the course of her employment on or about May 21, 1986. Claimant has the burden of proving by a preponderance of the evidence that she received an injury on May 21, 1986 which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The 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 testimony from claimant and Minnie Eel was to the effect that claimant had fallen from a ladder at work and landed on her buttocks. Delores Boger confirmed that claimant had reported the incident to her on the day that it happened. The employer's own records confirm that claimant reported the injury at the time when it occurred (exhibits 44 and 47A). Claimant's testimony regarding the incident that occurred on May 21, 1986 is corroborated by the evidence from other witnesses and by written evidence from the employer. The appearance and demeanor of claimant and the other two witnesses was observed and considered in light of the other evidence in the case.. All three who testified are found to be credible witnesses. It is therefore determined that claimant did fall from a ladder and land on her buttocks as she described on May 21, 1986. Claimant testified that she did not recall the incident and did not relate it to Dr. Jeffries when she initially saw him on September 26, 1986, but that after being reminded by her sister, she did report it to him a few days later when she was hospitalized. Claimant also related that she had mentioned back pain to Dr. Jeffries when she had seen him during the summer of 1986 for other medical problems. Claimant's testimony regarding making those complaints to Dr. Jeffries is substantiated by the office note of July 23, 1986 found at exhibit 1-T. Claimant's explanation for the lack of reporting the fall when she initially saw Dr. Jeffries on September 26, 1986 is accepted as being credible and correct. Dr. Jeffries confirmed that he did not take an extensive history at the time of the September 26, 1986 office call. Claimant's testimony of experiencing continuing complaints following May 21, 1986 is corroborated by Eel, Boger and the July 23 office note. In short, claimant's testimony regarding the sequence of events beginning on May 21, 1986 is well corroborated by testimony from other witnesses and the other documents in the record. There is, in fact, no directly conflicting evidence from any source in the record. Claimant's explanation of her reasons for delaying treatment and for failing to relate the fall to Dr. Jeffries when she initially consulted him regarding her back on September 26, 1986 are quite plausible and are accepted as being credible and correct. Based upon claimant's formal education and apparent lack of medical expertise, it is not remarkable that she might not have understood the possible relationship between the fall and her back and hip pain. In fact, in her testimony, she stated that she had felt it was possibly related to the change in activities from working as a cook to working as a housekeeper. It is noted that she had been on the housekeeping job only a few days at the time of the fall and had been sore from performing housekeeping duties. The claimant has the burden of proving by a preponderance of the evidence that the injury of May 21, 1986 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Drs. Jeffries, Phelps and Found have all related claimant's back condition, surgery and disability to the May 21, 1986 fall. There is.not a scintilla of evidence in the record to the contrary. Their collective assessment of the case in that regard is therefore accepted as being correct. Dr. Found assigned a 10 percent permanent impairment rating due to the back while Dr. Phelps assigned a 15 percent rating. The difference in their ratings is not irreconcilable. The point of irreconcilable difference deals with whether or not claimant's hip problems resulted from the fall. Drs. Jeffries and Phelps relate them to the fall, while Dr. Found does not. The law is clear that aggravation of a preexisting condition is one form of compensable injury. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. The fact that the normal aging process may produce the ailment from which a claimant suffers as an actual result from the employment experience does not bar a finding of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 191 (Iowa 1980). 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.2nd 756 (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 (1962). In view of claimant's long-term history of being greatly overweight, it is quite likely that her hips had been subjected to substantial trauma by her day-to-day activities. It is quite likely that a degenerative process was already underway long prior to May 21, 1986. Claimant had, however, been capable of working without apparent problem prior to May 21, 1986. When she was initially seen by Dr. Phelps, her hips showed little in the way of degenerative change, but a rapidly degenerating condition was subsequently found. Dr. Phelps related the rapid degeneration to the fall. This is precisely the type of aggravation, lighting up or acceleration of a preexisting condition which the law holds to be compensable. Dr. Found apparently felt that there had been insufficient time between the fall and the hip replacement surgery for substantial degeneration to have occurred. His opinion in that regard is in conflict with Dr. Phelps' interpretation of the hip x-rays which were taken. The assessment of the case made by Drs. Jeffries and Phelps with regard to claimant's hip is accepted as being correct. They are the treating physicians and are more familiar with claimant's total course than Dr. Found. Their assessment which finds a causal connection is supported by the radiographic evidence of rapid degeneration following the fall. Defendants are therefore liable for the disability affecting not only claimant's back but also her hip. The rate of compensation is based upon claimant's normal weekly earnings as defined in Iowa Code section 85.36. The record shows that she was working a normal 40-hour week and was paid $5.41 per hour at the time she fell. She had a raise and was paid $5.62 per hour at the time she ceased employment on September 25, 1986. Claimant seeks application of the cumulative trauma rule in order to have the rate be based upon the higher hourly wage in accordance with McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). In this case, all the physicians have related claimant's medical problems to the May 21, 1986 fall. None of them have stated that continuing to work in any manner subjected the claimant to cumulative trauma which worsened the result which would have otherwise eventually occurred from the fall itself. In view of such, the cumulative trauma rule is not available for determining the rate of compensation. The rate is therefore to be based upon claimant's earnings of $5.41 per hour. This provides gross weekly earnings of $216.40. The prehearing report stipulates that claimant is single and is entitled to one exemption. Based upon the July 1, 1985 benefit schedule, the rate of compensation is therefore $136.54 per week. The back and hip surgeries have clearly left claimant with physical impairments of the body as a whole. As claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Functional,impairment ratings in this case range from 10-15 percent of claimant's back. The only rating of her hip is 15 percent. Dr. Found noted that claimant's lower extremities were extremely deconditioned. The lifting restrictions which he placed on her were an eight-pound maximum and a four-pound repetitive limit. Claimant is restricted from performing many of the activities of normal day-to-day life by Drs. Phelps and Jeffries. None of the physicians have indicated that claimant is physically capable of returning to any of the types of employment which she has previously held, in particular that of a cook or waitress. Since she is restricted from performing parts of what would be considered normal housework, it stands to reason that she would not be capable of working as a hired housekeeper. The problems which claimant has with standing or sitting for extended times restrict her from counter sales type of work or work as a cashier in most establishments. She has a complete lack of office or clerical experience. Her education is limited to the eighth grade. Claimant has no demonstrated aptitude for academic pursuits. Under the precedents established by the industrial commissioner, claimant cannot avail herself of the odd-lot doctrine and the shifting of the burden of proof since she has not actually sought employment. Collins v. Friendship Village, Inc., file number 679258 (App. Decn. 1988); Emshoff v. Petroleum Transp. Servs., file number 753723 (App. Decn. 1987). In this case, however, it is not necessary to rely upon the shifting of the burden of proof in order for the claimant to establish her entitlement to compensation for permanent total disability. Permanent total disability results when a person, as the result of a work-related injury, is precluded from obtaining regular employment in which he or she can earn a living for himself or herself. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); Diederich v. Tri-City R. Co., 219 Iowa 587, 594, 258 N.W. 899, 902 (1935); 2 Larson Workmen's Compensation Law, section 52.21(d). The record of this case contains not so much as a hint that Barbara O'Brink is capable of reentering the general employment market and earning sufficient wages with which she could be self-supporting. She is therefore permanently and totally disabled and is entitled to recover weekly compensation under the provisions of Iowa Code section 85.34(3). The record of this case contains many references to claimant's state of being overweight. That fact may have affected her agility and caused her to fall when a younger, more nimble person may not have fallen from the ladder. The excessive weight may very well have impaired her recovery. As Dr. Phelps indicated, it aggravates her disability. It is, nevertheless, the way she was when she was hired. It is the way she has been throughout her adult life. The fact that she is overweight does not mean that she is not disabled. Exhibit 36 contains a summarization of other exhibits found in the record regarding the expenses of medical treatment. After having reviewed the entire record, it is determined that all the expenses shown on exhibit 36 were incurred in obtaining reasonable treatment for claimant's back and hip conditions which resulted from the May 21, 1986 fall except that $36.00 of the charges from Dr. Jeffries for the period of August 24, 1987 through December 18, 1987 were for treating claimant's diabetes and for a flu vaccination. Accordingly, the charge of $286.00 is reduced to $250.00 and the appropriate total figures contained in exhibit 36 are likewise reduced by $36.00. The total allowable charges from Dr. Jeffries are therefore $1,065.50 and the allowable total medical is therefore $24,498.16. Defendants are therefore responsible for payment of all the medical expenses listed by the claimant in exhibit 36. Defendants are also entitled to credit for amounts paid by Blue Cross/Blue Shield of Iowa pursuant to Iowa Code section 85.38(2) and defendants' exhibit A. An examination of all the charges shown on the fourth and fifth pages of exhibit 5 shows the payments made by Blue Cross/Blue Shield to have been made upon the bills found in exhibit 36 with only four exceptions. The charges of 10-5-87 in the amount of $62.00 with Dr. Collins are not contained in exhibit 36 and therefore no credit is allowed for the $55.80 paid by Blue Cross/Blue Shield for that claim. The charges of 9-16-87 in the amount of $95.50 from Radiological Associates are likewise not included in the totals found in exhibit 36 and no credit is allowed for the $85.95 paid by Blue Cross/Blue Shield. The charges of 9-9-87 in the amount of $65.00 from Dr. Kothari are not contained in exhibit 36 and therefore no credit is granted for the $58.50 paid by Blue Cross/Blue Shield on that claim. Finally, the charges from 9-26-86 in the amount of $85.00 from Covenant Medical Center are not contained in exhibit 36 and therefore no credit is allowed for the $76.50 paid by Blue Cross/Blue Shield. The total amount of credit to which the employer is entitled is therefore $23,891.59. The difference between the amount for which the employer is liable as shown in exhibit 36 and the credit for amounts paid by Blue Cross/Blue Shield is $606.57. There is no evidence in the record from which any award can be made for transportation expenses incurred by claimant when seeking medical treatment. Defendants shall pay to the provider any portion of the medical expenses shown in exhibit 36 which remain unpaid, reimburse Blue Cross/Blue Shield for the amounts which it paid for which credit has been given, and reimburse claimant for any amounts which she herself paid directly on the medical bills and expenses contained in exhibit 36. FINDINGS OF FACT 1. On May 21, 1986, Barbara O'Brink was a resident of the state of Iowa employed by the University of Northern Iowa at Cedar Falls, Iowa. 2. O'Brink was injured on May 21, 1986 when she fell from a ladder, landing on her buttocks, while working as a housekeeper for the employer, University of Northern Iowa. 3. Following the injury, claimant continued to work until September 26, 1986 when she sought medical treatment, although her symptoms had continued and had increased. 4. Claimant has not since returned to work since September 26, 1986. She is not now and is not likely to ever become medically capable of returning to employment substantially similar to that in which she was engaged at the time of injury. 5. Claimant reached the point that it was medically indicated that further significant improvement from the injury was not anticipated as of April 5, 1988, a date six months following the date of claimant's hip replacement surgery. 6. The injuries which claimant sustained in the fall on May 21, 1986 include an injury to her spine which was diagnosed as a herniated lumbar disc between the fourth and fifth lumbar vertebrae and an injury to claimant's hip which substantially accelerated what had previously been a relatively latent, asymptomatic degenerative process. The injury necessitated the laminectomy and total hip replacement surgeries which were performed by Dr. Phelps and the resulting functional impairments and physical limitations which currently afflict claimant. 7. Claimant, Minnie Eel, and Delores Boger are all fully credible witnesses. 8. The assessment of claimant's case, as provided by Dr. Phelps, is accepted as being correct wherever his assessment differs from that made by Dr. Found. 9. Claimant's entire prior work history is limited to work which involved bending, lifting, and other physical activities which she is no longer capable of performing. Claimant has no experience in office work of any type and has no demonstrated aptitude for academic achievement or retraining. Her formal education is limited to the eighth grade. 10. Substantial retraining for claimant at her current age is not a realistic option. 11. Claimant does not have sufficient residual earning capacity at the present time in order to enable herself to earn sufficient funds with which to be self-supporting. 12. The evidence in this case does not identify a single source of substantial gainful employment for this claimant and the undersigned, when relying upon agency experience and expertise, is likewise unaware of any substantial gainful employment which would be available to this claimant in the general labor market in view of her physical condition and other general qualifications. 13. Claimant's injuries are the result of a single traumatic event and are not a result of cumulative trauma. 14. All the medical expenses itemized in exhibit 36 were incurred in obtaining reasonable treatment for the injuries that claimant sustained on May 21, 1986, except for $36.00 of charges with Dr. Jeffries. The total charges incurred in obtaining treatment for the May 21, 1986 are $24,498.16. 15. Blue Cross/Blue Shield made payments toward those charges in the amount of $23,891.59. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant sustained an injury to her back and left hip on May 21, 1986 which arose out of and in the course of her employment with the University of Northern Iowa. 3. Since claimant's injuries are the result of a single traumatic incident, the cumulative trauma rule does not apply in determining the rate of compensation. The rate is therefore $136.54 per week. 4. Claimant is permanently and totally disabled within the meaning of Iowa Code section 85.34(3). She is entitled to receive weekly compensation at the rate of $136.54 commencing September 26, 1986 and continuing for so long as her current state of disability persists. 5. Claimant's recuperation ended on April 5, 1988, a date which is six months following the date of her hip replacement surgery. 6. The fall which claimant sustained on May 21, 1986 was a proximate cause for the herniated lumbar disc and for the degenerated left hip which Dr. Phelps treated and of the resultant surgery expenses and disability. 7. The injury to the hip was an aggravation of a preexisting condition which accelerated and made symptomatic what had formerly been relatively latent and asymptomatic. 8. Defendants are responsible for payment of all of claimant's medical expenses shown in exhibit 36, except for $36.00 of charges with Dr. Jeffries, under the provisions of Iowa Code section 85.27. Defendants are also entitled to credit under Iowa Code section 85.38(2) in the amount of $23,891.59. ORDER IT IS THEREFORE ORDERED that defendants pay claimant weekly compensation for permanent total disability at the rate of one hundred thirty-six and 54/100 dollars ($136.54) payable commencing September 26, 1986 and continuing thereafter, through the date of this decision, for so long as claimant's present state of total disability persists. IT IS FURTHER ORDERED that all amounts which are accrued as of the date of this decision shall be paid to claimant in a lump sum together with interest at the rate of ten percent, (10%) per annum computed from the date each weekly payment came due until the date of actual payment in accordance with Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants pay claimant's medical expenses in the total amount of twenty-four thousand four hundred ninety-eight and 16/100 dollars ($24,498.16). Defendants are entitled to credit for amounts paid by Blue Cross/Blue Shield in the amount of twenty-three thousand eight hundred ninety-one and 59/100 dollars ($23,891.59) and shall reimburse Blue Cross/Blue Shield for such amount. Defendants shall pay any unpaid remaining charges directly to the provider of the medical services and shall reimburse claimant for any amounts that claimant has paid for the services which were provided. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33, including one hundred thirty-five and 00/100 dollars ($135.00) as an expert witness fee for Dr. Jeffries, one hundred fifty and 00/100 dollars ($150.00) as an expert witness fee for Dr. Phelps, and three hundred fourteen and 88/100 dollars ($314.88) for deposition costs. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 34 Signed and filed this 13th day of November, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Edward J. Gallagher, Jr. Ms. Cynthia Scherrman Attorneys at Law. 405 East Fifth Street P.O. Box 2615 Waterloo, Iowa 50704 Mr. Greg Knoploh Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1402.30, 1804, 2206, 2209 3002, 4100 Filed November 13, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER BARBARA C. O'BRINK, Claimant, vs. File No. 844851 UNIVERSITY OF NORTHERN IOWA, A R B I T R A T I 0 N Employer, D E C I S I 0 N and STATE OF IOWA, Insurance Carrier, Defendants. 1402.30 Although liability was completely denied, the evidence clearly established, without any conflict, that the claimant fell from a ladder and injured her back for which surgery was performed. Claimant also had a hip problem which her treating physicians felt was caused or aggravated by the fall which the employer's examining physician felt was not related to the fall. The treating physicians' assessments were adopted over the examining physician. The hip injury was also held to be work related. 2209, 3002 Where the fall was a single traumatic event, the fact that claimant continued working for approximately three months did not require application of the cumulative trauma rule in order to have the rate be determined based upon claimant's earnings at the time she ceased working, rather than those at the time of the actual injury. 1804, 4100 Where claimant did not seek employment, it was held that she could not avail herself of the odd-lot doctrine, but she was nevertheless found to be permanently totally disabled. 2206 Where it was likely that claimant had some preexisting degeneration in her hip, such was held to not bar a recovery where a rapid degeneration was found to have its onset subsequent to the injury and brought about a need for hip replacement surgery. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROY ESSING, Claimant, File No. 844890 vs. A R B I T R A T I O N OSCAR MAYER FOODS CORP., D E C I S I O N Employer, F I L E D Self-Insured, Defendant. FEB 14 1989 INDUSTRIAL SERVICES INTRODUCTION This is a proceeding in arbitration brought by Roy Essing, claimant, against Oscar Mayer Foods Corporation, employer and self-insured defendant, for.benefits as a result of an alleged injury that occurred on March 3, 1987. A hearing was held in Des Moines, Iowa on February 3, 1989 and the case was fully submitted at the close of the hearing. The record consists of the testimony of Roy Essing, claimant, claimant's exhibits 1, 2 and 3, and joint exhibits 1 through 10. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the alleged injury. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. That the time off work for which claimant now seeks either temporary total disability or healing period benefits is from March 19, 1987 to April 20, 1987. That the rate of compensation in the event of an award is $299.50 per week. That the fees charged for medical services or supplies rendered are fair and reasonable. That the expenses were incurred for reasonable and necessary medical treatment. That the causal connection of the expenses to treatment for a medical condition upon which claimant is now basing his claim is admitted but that the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. That in the event that claimant is awarded medical benefits that the amount of entitlement is $594.11. This amount is the amount that remains unpaid after the application of claimant's employee non-occupational group health plan benefit payments. It is the amount which claimant was required to pay himself. That defendant claims no credit then for benefits paid prior to hearing under an employee non-occupational group health plan. That defendant makes no claim for workers' compensation benefits paid prior to hearing. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on or about March 3, 1987 which arose out of and in the course of employment with employer. Whether the injury was the cause of temporary disability. Whether the injury was the cause of permanent disability. Whether claimant is entitled to temporary disability benefits. Whether claimant is entitled to permanent disability benefits. Whether claimant is entitled to medical benefits. Whether claimant is entitled to be reimbursed for an independent medical examination pursuant to Iowa Code section 85.39. SUMMARY OF THE EVIDENCE Of all of the evidence that was introduced, the following is a summary of the evidence most pertinent to this decision. Claimant was 53 years old at the time of the injury and 55 years old at the time of the hearing. He graduated from high school in 1952, passed a two year college equivalency test and then attended pilot training in the United States Air Force. Claimant has also studied for and obtained a commercial pilot's license (Exhibit 8, page 3). Claimant's prior employments are mostly laboring types of work, farm work and packinghouse work (Ex. 6, pp. 10-12). He denies any prior employment injuries but was seriously injured in an automobile accident in 1958 in which he injured his neck and wrist and did not work for approximately two years. Claimant began work for employer in 1965 trimming hams and picnics and he did various other jobs over the years. He became a janitor in 1984 and performed that job until May of 1988. Since then he has been trimming bellies until the date of this hearing on February 3, 1989, at which time he was terminated because the plant is closing. His employment for employer spans approximately 24 years (Ex. 8, p. 5). For about two weeks prior to March 3, 1987, claimant felt like something was happening in his groin area which he could only describe as pressure (Ex. 8, pp. 8 & 9). On March 3, 1987, while claimant was performing the janitor job, he dumped a barrel of sawdust (actually bone dust) and felt pressure in his left side. He found a lump in his groin area and pushed it back in. He reported this to one of the nurses (Ex. 5, p. 2). She told him not to lift so much and to avoid heavy lifting. Two weeks later he reported his condition again to the other company nurse and she sent him to see Steven Sohn, M.D., the plant physician, on March 16, 1987 (Ex. 8, pp. 10-12). Dr. Sohn referred claimant to Mansour Jadali, M.D., a general surgeon. Claimant saw Dr. Jadali on March 17, 1987. Dr. Jadali performed a herniorrhaphy and left inguinal hernia repair on March 20, 1987 (.Claimant's Ex. 1; Ex. 4, pp. 1-4). Claimant gave a very factual, complete and succinct statement of facts at his interrogatory number 6 in these words: The nature of my job is picking up barrels of scrap (bone and meat scraps) and then dump them into a tub, also dumping miscellaneous objects into tub; each barrel [sic] weighs between 20 lbs. and up to 100 lbs.; I always feel like I had to do this in a hurry; then on March 3, 1987, in the evening I picked up a barrel of saw dust [sic] weighing about 90 lbs.; I had to pick up the barrel chest high and dump it into the tub; when I picked up that barrel I felt pressure and pain and noted swelling in my groin area. The next day on March 4, 1987, I notified the company nurse of this problem - Pat Massengale. Then on or about March 13, 1987, I informed Kay Stokely that it was giving me more problems and I informed her how it happened back on March 3, 1987. Pat Massengale, who works in the nurses station, on March 4, 1987 told me that I had to watch what I was lifting and not to lift such a heavy load. Kay Stokely, on March 13, 1987, then set up an appointment with Dr. Sohn. (Ex. 6, p. 15) The janitor job which claimant performed involved picking up meat scraps off of the floor, putting them in barrels and carts, and dumping the barrels at various times during the day. The barrels weigh any where from 20 pounds to 100 pounds. Normally a barrel would weigh about 65 pounds. Claimant always dumped the barrels by hand until this incident occurred. Since then he has waited till the boners are done and used their barrel dumper. Claimant estimated that he dumped four to five heavy barrels a day and probably 40 to 50 or 50 to 60 of the lesser weight barrels per day. He said that most of his time was spent picking up meat and filling the barrels. His heaviest work was, however, dumping the barrels (Ex. 8, pp. 6 & 7). Claimant said he was hospitalized for three days and that he was off work for approximately five weeks after that pursuant to doctor's orders (Ex. 8, p. 14). Dr. Sohn saw him for the follow up care after the surgery which was performed by Dr. Jadali. Claimant testified that he returned to work in April of 1987. He worked with restrictions for approximately a month. After that he continued to perform his old job as a janitor until may of 1988. At that time he voluntarily transferred to get away from handling heavy loads. His new job of trimming bellies paid $.20 per hour more, but he worked fewer hours. Claimant testified that doing the janitor job after the surgery caused him to feel what he described as pressure in his groin. He felt this especially when straining to pick up stuff. He has not had any problem of any kind trimming bellies. He said that he never did have very much pain either before or after the surgery. Claimant stated that after the surgery he no longer lifted the heavy barrels but instead used the barrel dumper. He testified that he tries not to lift over 50 pounds as his own personally selected weight lifting restriction. He said that the injury did not interfere with the performance of his job as a janitor after he returned to work from the surgery and before he transferred to trimming bellies (Ex. 8, pp. 18-21). Claimant admitted that none of the doctors imposed any permanent work restrictions on him. He himself simply decided to be careful and not to lift heavy amounts in order to avoid a recurrence of this trouble again. Claimant described his disability in his own words as follows in his interrogatories: "...unable to lift any object more than 50 lbs.; currently I feel uncomfortable sensations in that area; I can not lift any objects heavier than 50 lbs. when I pick up something about that weight, I feel pressure in that area." (Ex. 6, p. 18). The medical evidence shows that claimant saw Dr. Sohn on March 16, 1987 for pain in the left groin which he diagnosed as left inguinal hernia and possible mass of the left epididymis. He continued to be responsible for claimant's care after the surgery until he released him to return to work on April 20, 1987. Claimant was to be restricted from lifting more than 25 pounds for the next four weeks after returning to work (Ex. 1, pp. 1 & 2). In his deposition given on January 13, 1989, Dr. Sohn described a hernia as a preexisting condition and weakness from birth in the abdominal wall in the groin that can be exacerbated by heavy physical labor or lifting (Ex. 9, p. 7). He further testified that claimant did not have a permanent partial impairment (Ex. 9, pp. 7, 14 & 15). He stated that he disagreed with the opinion of Paul From, M.D., that claimant sustained a 10 percent impairment of the whole man (Ex. 9, p. 9). Dr. Sohn said he examined claimant on April 17, 1987 following the surgery. The wound was completely healed. He has seen claimant several times since then and claimant did not mention any recurrence (Ex. 9, p. 11). The following colloquy transpired between claimant's counsel and Dr. Sohn: Q. Doctor, would you have an opinion as to whether or not Mr. Essing.'s job, that is to say repetitive lifting of heavy barrels for a substantial period of time, would that more probable than not cause the aggravation that he experienced by way of the hernia? A. I would feel that it is certainly a factor as far as an exacerbation of the hernia. People who do heavy lifting have more problems with inguinal hernias than people who are involve (sic) in sedentary activities. Q. Would you say that would be more probable than not the cause of his hernia? A. Well, the cause of a hernia is a congenital weakness. The development of this into a medical problem certainly is related to the type of work that he does. (Ex. 9, pp. 12 & 13) Dr. Sohn further testified that Dr. From's description of a healed left inguinal hernia repair scar without recurrence would indicate that there is no permanent partial impairment (Ex. 9, p. 14). Dr. Jadali saw claimant on March 17, 1987 at which time he diagnosed left indirect inguinal hernia (Ex. 2, p. 2). He performed a herniorrhaphy on March 20, 1987 (Ex. 2, p. 3). Dr. Jadali very succinctly summarized his position in a letter dated January 21, 1988 as follows: Mr. Roy Essing was referred to me by Drs. Sohn and Klise of Perry, Iowa and I examined him on 3/17/87 and he was found to have a left inguinal hernia. He was scheduled for surgery on 3/30/87 and the left inguinal hernia was repaired and a lipoma of the cord was excised. In answer to your questions any strenuous exercise or heavy lifting could aggravate or cause a hernia. Mr. Essing has been told not to do any heavy lifting postoperatively because of the chance of recurrence. I do not think that he had any permanent damage from the surgery but he is prohibited to do any heavy-duty job. (Ex. 2, p. 1) Dr. Jadali also testified by deposition on January 20, 1989 that he is a board certified general surgeon and that he has been in practice for 16 years. The witness was referred to the last sentence in the letter above and was then asked if claimant had any permanent partial impairment to which the doctor replied "No, I don't think so." (Ex. 10, p. 6). Dr. Jadali said that a hernia is something congenital. Heavy lifting could aggravate the hernia or,it could be a predisposing factor (Ex. 10, pp. 10 & 11). Dr. Paul From thoroughly examined claimant on December 4, 1987 and noted a well healed left inguinal hernia repair scar without recurrence and absence of any right inguinal hernia. From his history as given me and from medical data I did review, it would appear that there is a causal relationship between his work and the development of his inguinal hernia. He gives no history to suggest other significant trauma in lifting or straining to produce a hernia. His work at Oscar Mayer certainly is of the magnitude in which a hernia could develop. He has now healed fairly well and I would find no significant impairment at this time. It would be my opinion, from a review of all data and my own examination, and with a reasonable degree of medical certainty, that there is a relationship between the development of the left inguinal hernia in this case, and his employment at Oscar Mayer. (Ex. 3, p. 5) Dr. From wrote a follow up letter on December 22, 1987 in which he stated: I did write you on December 7, 1987, regarding my evaluation of Mr. Essing. In that letter I did state that I could find no significant impairment at this time, and that was based upon his returning to the same work he had done prior to his hernia repair. However, from a standpoint of whole man impairment as a residual of that hernia, I do believe that he has a 10% impairment of the whole man. (Ex. 3, p. 1) Dr. From charged $225 for his examination (Ex. 3, p. 2). 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). Claimant has the burden of proving by a preponderance of the evidence that he received an injury on March 3, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The 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 supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of March 3, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). Claimant did sustain the burden of proof by a preponderance of the evidence that he sustained an injury arising out of and in the course of employment with employer on or about March 3, 1987 when his congenital hernia condition was aggravated by the heavy lifting of his work as a janitor dumping barrels and aggravated the condition to the point that claimant required a herniorrhaphy and repair of a left inguinal hernia. Claimant's description of lifting heavy barrels weighing up to 90 or 100 pounds approximately four to five times each day and smaller barrels weighing from 20 pounds up to 65 pounds 40 to 60 times a day, every day, for up to 12 hours a day on some days and up to five and one-half days a week during some weeks, for approximately three years from 1984 to 1987, coupled with the medical testimony of all three doctors makes a clear case for an injury arising out of and in the course of employment with employer. Claimant was interrogated by all three doctors as well as both counsel and no other cause for the injury was seriously suggested or even advanced. Dr. From unequivocally stated that there was a causal connection between claimant's work and the development of his inguinal hernia (Ex. 3, p. 5). Dr. Sohn, claimant's treating physician, selected by employer, did not responsively answer the question, but it would appear that he believed that there was a causal connection. He said it was a factor as far as an exacerbation of a hernia, people who do heavy lifting have more problems than those who have sedentary work and the development of his congenital weakness into a medical problem certainly is related to the type of work that he did (Ex. 9, pp. 12 & 13). Further evidence that Dr. Sohn thought that heavy lifting at work was a cause of claimant's hernia condition is found in Dr. Sohn's office note of March 16, 1987 at the time he first saw claimant and diagnosed the hernia. At that time he said that patient is not to do any heavy lifting at the plant greater than 25 pounds (Ex. 1, P. 1). Evidentially, Dr. Sohn felt that heavy lifting was aggravating the hernia condition or he would not have prohibited it. Dr. Jadali said that strenuous exercise or heavy lifting could aggravate or cause a hernia (Ex. 2, p. 1) or be a predisposing factor (Ex. 10, pp. 10 & 11). Therefore, not only the greater weight of the evidence, but practically all of the evidence, supports the conclusion that claimant did sustain an injury which arose out of and in the course of his employment with employer. The next issue is causal connection of temporary disability. Dr. Sohn said that claimant was under his care from March 16, 1987 to April 20, 1987 in a return to work certificate. However, the parties stipulated that claimant was actually off work from March 19, 1987 to April 20, 1987 (paragraph 4, prehearing report and order approving same). Therefore, it is determined that claimant is entitled to four weeks and four days of temporary total disability benefits pursuant to Iowa Code section 85.33(1). The next issue is medical benefits. The parties stipulated that if defendants were found liable for an injury, then claimant was entitled to an award of $594.11 (Cl. Ex. 1, 2 & 3) which is the portion of claimant's medical expenses not covered by the employee non-occupational group health plan medical benefits (Ex. 6, p. 10). Therefore, claimant is entitled to the payment of $594.11 in medical expenses. The next issue is causal connection of permanent disability. Claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent impairment or disability. First of all, claimant himself could not testify to either a loss of actual earnings or a loss of earning capacity as of the date of the hearing. Claimant was off four weeks and four days until April 20, 1987. When he returned to work he did not lift more than 25 pounds for four weeks. After that restriction expired, in May of 1987, claimant testified that he returned to his job as a janitor and performed it until May of 1988 when he decided to get away from hauling heavy loads and dumping barrels. This was claimant's own personal precautionary decision. It was not imposed by any physician in the case -- the treating physician, the surgeon or claimant's own evaluating physician. Claimant testified at the hearing and stated in his answers to interrogatories that he avoided lifting over 50 pounds because it strains him and he feels pressure when he attempts to lift this much weight or more. This may be a wise decision but it is based on claimant's own subjective, self-imposed restriction. It was not medically imposed or advised. Not even Dr. From, claimant's own examining and evaluating physician, ever recommended any lifting restriction at any time (Ex. 3, pp. 1-3). The fact that claimant subjectively feels uncomfortable, feels a strain or feels pressure may be the result of the operation of claimant's first fundamental instinct of self preservation in view of the occurrence of the left inguinal hernia. It may also be a wise choice on claimant's part in view of his left inguinal hernia. Nevertheless, apprehension or fear of a possible injury, unsupported by objective medical evidence, cannot be the basis for impairment or actual disability. Waller v. Chamberlain Manufacturing, II Iowa Industrial Commissioner Report 419, 425 (1981). Dr. Sohn testified that claimant did not have any permanent partial impairment (Ex. 9, pp. 7, 14 & 15). Dr. Jadali said that claimant had no permanent damage (Ex. 2, p. 1). Dr. Jadali testified again in his deposition that in his opinion claimant did not have any permanent impairment, but at the same time he did not encourage him to do any heavy lifting (Ex. 10, pp. 6 & 9). Initially, Dr. From stated on February 7, 1987, that claimant was fairly healed and that he found no significant impairment at that time (Ex. 3, p. 5). Then in a reply to a letter from claimant's counsel, Dr. From said on December 22, 1987 that claimant did have a 10 percent impairment of the whole man (Ex. 3, p. 1). From the foregoing evidence it is determined that the weight of the evidence is that claimant does not have a compensable permanent impairment or disability. Claimant's personal weight restriction of 50 pounds is self imposed and not medically imposed. There is no evidence it is permanent. Claimant's feeling of being uncomfortable, strained or feeling pressure is some evidence of possible impairment but it is not supported by objective medical evidence. Dr. Sohn and Dr. Jadali said that claimant did not have a permanent impairment. Dr. From initially stated that claimant had no significant impairment and initially he did not give claimant an impairment rating. The fact that claimant subjectively feels that he should not lift over 50 pounds and that Dr. Jadali does not encourage him to do heavy lifting does not sustain the burden of proof by a preponderance of the evidence that claimant has sustained a permanent impairment or disability. The greater weight of the evidence shows that claimant is not impaired or disabled. Iowa Code section 85.39 provides as follows: If an evaluation of permanent disability has been made by a physician retained by the employer and the employee believes this evaluation to be too low, the employee shall, upon application to the commissioner and upon delivery of a copy of the application to the employer and its insurance carrier, be reimbursed by the employer the reasonable fee for a subsequent examination by a physician of the employee's own choice, and reasonably necessary.transportation expenses incurred for the examination. The physician chosen by the employee has the right to confer with and obtain from the employer-retained physician sufficient history of the injury to make a proper examination. Claimant is entitled to an Iowa Code section 85.39 independent evaluation. Defendant has been found liable for this injury. Therefore, liability is established. McSpadden V. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Bjorklund v. Pittsburgh-Des Moines Steel Company, Thirty-three Biennial Report of the Industrial Commissioner 101 (Appeal Decision 1977). Dr. Sohn and Dr. Jadali were employer retained physicians. Both of them determined that claimant was not permanently impaired and did not give an impairment rating. Failure of employer's physicians to find impairment or to give an impairment rating is construed as a rating which the employee may consider as too low. Kilness v. Ebasco Services, Inc., Thirty-four Biennial Report of the Industrial Commissioner 161 (1979) and Coble v. Metromedia, Inc., Thirty-four Biennial Report of the Industrial Commissioner 70 (1979). Lawyer & Higgs, Iowa Workers' Compensation -- Law and Practice, section 21-12, page 175. It is not necessary for claimant to apply for reimbursement for an independent examination by a physician of his own choice prior to the examination or prior to hearing. Pirozek v. Swift Independent Packing & National Union Fire Insurance Company, File Number 803955 dated December 22, 1986. The only condition precedent is a medical evaluation by an employer retained physician. Industrial Commissioner Robert C. Landess made the following determination in the case of Pirozek v. Swift Independent Packing & National Union Fire Insurance Company and Second Injury Fund of Iowa, File Numbers 753643, 753642, and 724893 (Appeal Decision February 18, 1987). Claimant sought an independent medical examination by a physician of his own choice. Although application was not made prior to the examination, the condition precedent of an evaluation made by an employer retained physician was present. The application is now made for reimbursement of the reasonable fee of, the examination. The provision for reimbursement does not come into play until, as here, the defendants' liability is established. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 194 (Iowa 1980). The allowance of the reasonable fee for such examination is correct. Dr. From's fee in the amount of $225 (Ex. 3, P. 2) is reasonable. It is therefore determined that claimant is entitled to the payment of $225 for the independent medical examination of Dr. From pursuant to Iowa Code section 85.39. Claimant did not submit a claim for reasonable,transportation expense to see Dr. From and therefore none is allowed. FINDINGS OF FACT THEREFORE, based upon the evidence presented, the following findings of fact are made: That claimant was employed by employer for approximately 24 years from 1965 to the date of the hearing on February 3, 1989. That claimant performed the job of a janitor beginning in 1965 and that this job required picking up meat scraps off of the floor, putting them in barrels and then dumping the barrels. That claimant dumped four or five barrels a day which weighed approximately 90 or 100 pounds and claimant dumped between 40 and 60 barrels a day which weighed any where from 20 pounds to 65 pounds. That on or about March 3, 1987, claimant experienced pressure in his left groin and a lump appeared after he dumped a barrel of bone dust which weighed approximately 90 pounds. That claimant was diagnosed as having a left inguinal hernia and that.he received a herniorrhaphy and hernia repair on March 20, 1987. That claimant was off work from March 19, 1987 to April 20, 1987. That claimant has unpaid medical expenses in the amount of $594.11 which were caused by this injury. That Dr. From and Dr. Sohn testified that heavy lifting at work was the cause of claimant's left inguinal hernia. Dr. Jadali testified that claimant's work could be the cause of the inguinal hernia. That no other cause for the inguinal hernia was suggested or advanced by the evidence. That claimant did sustain an injury arising out of and in the course of his employment on March 3, 1987 when he lifted a heavy barrel, felt pressure in his left side and a lump appeared in his groin. That Dr. Sohn and Dr. Jadali said that claimant did not sustain a permanent impairment. That Dr. From initially testified that claimant did not sustain a significant impairment but later assessed an impairment rating of 10 percent of the body as a whole. That claimant testified that he returned to work and performed his job as a janitor for approximately one year at the same rate of pay and received a pay increase before he voluntarily chose to transfer to another job of trimming bellies in order to avoid heavy lifting as a matter of his own personal decision. That none of the three medical doctors imposed any permanent medical restrictions of any kind on claimant's activities either at work or away from work including Dr. From, claimant's own evaluating physician. That the cost of claimant's independent medical examination was $225 with Dr. From. CONCLUSIONS OF LAW WHEREFORE, based upon the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant sustained an injury on or about March 3, 1987 which resulted in a left inguinal hernia. That the injury caused claimant to be off work during a period of recovery from March 19, 1987 to April 20, 1987. That claimant is entitled to temporary total disability benefits for this period of time. That claimant is entitled to $594.11 in medical expenses pursuant to Iowa Code section 85.27. That claimant is entitled to $225.00 for the cost of an independent medical examination pursuant to Iowa Code section 85.39. That claimant did not sustain the burden of proof by a preponderance of the evidence that the injury was the cause of permanent impairment or disability. That claimant is not entitled to permanent disability benefits. ORDER THEREFORE, IT IS ORDERED: That defendant pay to claimant four point five-seven-one (4.571) weeks of temporary total disability benefits at the rate of two hundred ninety-nine and 50/100 dollars ($299.50) per week in the total amount of one thousand three hundred sixty-nine and 01/100 dollars ($1,369.01) commencing on March 19, 1987. That defendant pay this amount to claimant in a lump sum. That interest will accrue on this award pursuant to Iowa Code section 85.30. That defendant pay to claimant five hundred ninety-four and 11/100 dollars ($594.11) in medical expenses. That defendant pay to claimant two hundred twenty-five and no/100 dollars ($225.00) for an independent medical evaluation pursuant to Iowa Code section 85.39. That defendant pay the cost of this proceeding pursuant to Division of Industrial Services Rule 343-4.33. That defendant file claim activity reports as requested by this agency pursuant to Division of Industrial Services Signed and filed this 14th day of February, 1989 WALTER R. McMANUS, DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Mr. Wayne H. McKinney, Jr. Attorneys at Law 480 6th St. P. 0. Box 209 Waukee, Iowa 50263 Mr. Barry Moranville Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 1106, 1108.50, 1401, 1402.20 1402.30, 1402.40, 1402.60, 2206, 1801, 1803, 2501, 2502 Filed February 14, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROY ESSING, Claimant, File No. 844890 vs. A R B I T R A T I 0 N OSCAR MAYER FOODS, D E C I S I 0 N Employer, Self-Insured, Defendant. 1106, 1108.50, 1401, 1402.20, 1402.30, 1402.40, 1402.60, 2206 Claimant did prove that he sustained an injury arising out of and in the course of employment of an inguinal hernia that required surgical repair which was aggravated by lifting and dumping heavy barrels at work. 1801 Claimant proved he was entitled to temporary total disability for his time off work after surgery. 1803 Claimant did not prove any permanent disability. 2501 Claimant proved he was entitled to medical benefits. 2502 Claimant was entitled to an independent medical examination.