Page 1 before the iowa industrial commissioner ____________________________________________________________ : DAVID MORET, : : File No. 845182 Claimant, : 837989 : vs. : : R E V I E W - WILSON FOODS CORPORATION, : : R E O P E N I N G Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by claimant, David Moret, against his employer, Wilson Foods Corporation, as defendant. The matter came on for hearing before the undersigned deputy on March 3, 1992, at Storm Lake, Iowa. The record in this case consists of the live testimony of the claimant; and, joint exhibits 1 through 40. issues In accordance with the prehearing report, the parties submit the following issues for resolution: . Whether claimant is entitled to additional permanent partial disability benefits; and, . Whether claimant is entitled to medical benefits, pursuant to Iowa Code section 85.39, including whether charges for medical services rendered for claimant's independent medical examination are fair and reasonable. findings of fact The undersigned deputy, having heard the testimony and having reviewed all the evidence received, finds the following facts: Claimant was born on November 1, 1951, and has worked for Wilson Foods for approximately 22 years. Claimant testified that in 1985 he was working on the cut floor which required him to box ribs and pack loins. He stated that he used both hands in performing his job duties, and that the job required repetitive motions using a knife to remove various bones from the meat. Specifically, claimant stated that he used his right hand to cut out the various bones, and he would use his left hand to either put the product in the box or throw the product on the ground. Page 2 Claimant left the cut floor in May of 1986, and began to work in the loin room and recipe ready room. In this position, he was required to run a knife with his right hand to cut around bones, and he would use his left hand to take the bones out of the product and throw the bones on the floor. Again, claimant stated that this job required repetitive use of both the right and left hand. Claimant testified that two years prior to 1986, he experienced various physical problems with both hands. Specifically, claimant stated that his hands would fall asleep and he experienced some pain while working at the plant. In November of 1986, claimant stated that he lost the feeling in his right hand through his right wrist and requested to see a physician. The company sent claimant to Keith O. Garner, M.D., who noted that claimant complained of right wrist pain. Dr. Garner recommended physical therapy, Motrin, a wrist wrap and encouraged claimant to continue work. There is no notation regarding the left wrist (Joint Exhibit 17, page 4). Claimant eventually underwent a nerve conduction study, the results of which showed right carpal tunnel syndrome. Claimant underwent a carpal tunnel release for the right wrist on November 24, 1986 (Jt. Ex. 17, p. 4; Jt. Ex. 20, p. 1). Follow-up care ensued with Dr. Garner, and claimant received a partial release to return to work on December 15, 1986. During the next month, claimant continued to receive follow-up care with Dr. Garner and John Connolly, M.D., the physician who performed the surgery. On January 21, 1987, claimant was diagnosed as having carpal tunnel of the left hand and was scheduled for surgery which was to be performed on February 9, 1987 (Jt. Ex. 17, p. 5l; Jt. Ex. 21, p. 1). From February through July of 1987, claimant continued to complain of right hand weakness and numbness, and continued to receive care from Dr. Connolly. In August of 1987, claimant was to return to work, and in November of 1987, Dr. Connolly formed the following opinion: He is able to grip only with a 28 pound force on the right and a 62 pound force on the left. He has essentially still some atrophy of the thenar muscles of the right hand and weakness of the right thumb.....I think he will have a permanent functional impairment of 10% loss in the right hand and 5% in the left and overall bodily impairment of 10%. We had suggested that he might change jobs so that he doesn't have to run a heavy saw and is going to try to work this out. (Jt. Ex. 30, p. 1) On December 1, 1987, claimant entered into an agreement for settlement with the employer based on a 10 percent functional impairment rating to the right hand. He was paid workers' compensation benefits for 19 weeks at the rate of Page 3 $227.74 per week for a total of $4,327.06 (Jt. Ex. 11, p. 1). On December 1, 1987, claimant also entered into an agreement for settlement with respect to the left hand, and agreed to be paid workers' compensation benefits for 9.5 weeks at the rate of $227.74 per week for a total of $2,163.53 (Jt. Ex. 15, p. 1). On December 27, 1991, claimant underwent an independent evaluation, wherein Frederick Entwistle, M.D., "would agree with Dr. Connolly's assessment, at the present time, that the patient has a 10% impairment rating of the right hand and 5% impairment rating of the left hand." (Jt. Ex. 36, p. 2-3) analysis and conclusions of law The first issue to be addressed is whether claimant is entitled to additional permanent partial disability benefits. Claimant has previously signed two separate agreements for settlement which compensated him for functional losses on the two scheduled members. The agreements indicate that claimant sustained injuries on separate dates, November 4, 1986 and January 8, 1987. Claimant filed two petitions in arbitration alleging two separate injury dates, November 4, 1986 and January 8, 1987. On both petitions, claimant also names as a defendant the Second Injury Fund of Iowa. The Fund settled with the claimant prior to the beginning of the hearing. At the hearing, claimant argued that he sustained simultaneous injuries, and as a result, should have been compensated under Iowa Code section 85.34(s), which provides: The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such, however, if said employee is permanently and totally disabled the employee may be entitled to benefits under subsection 3. Defendant contends that claimant is bound by the agreements for settlement, and that the petitions are not in arbitration, but proceedings in review-reopenings. Additionally, defendant argues that claimant is bound by the two injury dates as delineated in both the settlement agreements and the petitions. They argue that they are subjected to undue prejudice and surprise if claimant is allowed to argue that he sustained simultaneous injuries. Claimant argues that a 1985 appeal decision from the agency allows him to argue simultaneous injuries even though he previously settled the cases on the basis of two separate injury dates. In Shoemaker vs. Adams Door Company (Appeal Page 4 Decision, File No. 653861), the claimant sustained an injury to his shoulder, although he settled the case and received compensation for a 25 percent loss to his arm. In holding that a claimant was not required to show material change of circumstances since the filing of the memorandum of agreement, the agency held: We now hold, cause for allowance of additional compensation exists on proper showing that facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of a reasonable diligence, sometimes referred to as a substantive omission due to mistake, at the time of any prior settlement or award. 158 N.W.2d 731, 735 In the instant case, it appears that claimant was not represented by counsel when he settled the claims with the employer (Jt. Ex. 11 and 15). Claimant testified at the hearing that at the time he signed the agreements, he was not fully informed of his rights under Iowa's workers' compensation laws. In order to find that claimant is entitled to compensation based on simultaneous injuries, it is necessary that claimant prove by a preponderance of the evidence that he sustained simultaneous injuries. Claimant has the burden of proving by a preponderance of the evidence that he received simultaneous injuries on November 4, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Iowa Code section 85.34(2)(2) provides, in part: "The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such." Workers' compensation benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under Iowa Code section 85.34(2)(s) and that the degree of impairment caused by a partial loss must be computed on the basis of functional, rather than industrial disability. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983). The medical evidence does not support claimant's contention that he sustained simultaneous injuries. Specifically, the initial notes dated November 5, 1986 Page 5 from Keith Garner, M.D., indicate that claimant was complaining of right wrist pain with no crepitation (Jt. Ex. 18, p. 1). There is no mention of left wrist pain until January of 1987. At that time, claimant was undergoing further tests of the right hand, and it appears that the left wrist was tested so that a comparison could be made between the two wrists. It appears from the evidence that claimant never did voice any complaints of pain, swelling or problems with his left wrist, and that the tests on the left wrist were done in a routine manner due to the condition of claimant's right wrist. In any event, claimant left work due to the right wrist pain. As a result, claimant has failed to sustain his burden of proof that he sustained simultaneous injuries in November of 1986. Additionally, it should be noted that claimant filed two separate petitions alleging two separate injury dates. Apparently, it was not until the time of hearing that claimant argues that he sustained simultaneous injuries and should be compensated on the basis of 500 weeks. To allow claimant to amend his petitions to allege one injury date would be prejudicial to the defendant. As a result, claimant's petitions in arbitration are actually review-reopening proceedings. The case law relating to review-reopening proceedings is rather extensive. The opinion of the Iowa Supreme Court in Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 (1940) stated "that the modification of...[an] award would depend upon a change in the condition of the employee since the award was made." The court cited the law applicable at that time which was "if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded" and stated at 1038: That the decision on review depends upon the condition of the employee, which is found to exist subsequent to the date of the award being reviewed. We can find no basis for interpreting this language as meaning that the commissioner is to re-determine the condition of the employee which was adjudicated by the former award. The court in Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957) cited prior decisions and added a new facet to the review-reopening law by stating at page 69: But it is also true that unless there is more than a scintilla of evidence of the increase, a mere difference of opinion of experts or competent observers as to the percentage of disability arising from the original injury would not be sufficient to justify a different determination by another commissioner on a petition for Page 6 review-reopening. Such is not the case before us, for here there was substantial evidence of a worsening of her condition not contemplated at the time of the first award. In a somewhat analogous vein, the Iowa Court of Appeals held in Meyers v. Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24, 25 (Iowa App. 1978) that a review-reopening petition may allow a change in compensation when a claimant has failed to improve to the extent initially anticipated. A major pronouncement came in the case of Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968). The opinion there, at 732, stated that "[o]n a review-reopening hearing claimant has the burden of showing by a preponderance of the evidence his right to compensation in addition to that accorded by a prior agreement or adjudication." The opinion went on to discuss the common understanding that "if a claimant sustained compensable injuries of which he was fully aware at time of prior settlement or award, but for some unexplainable reason failed to assert it, he cannot, for the first time on subsequent review proceedings, claim additional benefits." The opinion continued at 733 "[b]ut according to the apparent majority view, if a claimant does not know of other employment connected injuries or disability at time of any prior agreement or adjudication, he is not ordinarily barred from later asserting it as a basis for additional benefits." The court went on to hold at 735 that "cause for allowance of additional compensation exists on proper showing that facts relative to an employment connected injury existed but were unknown and could not have been discovered by the exercise of reasonable diligence, sometimes referred to as a substantive omission due to mistake, at time of any prior settlement or award." Each of these cases rest upon some disparity between claimant's actual or anticipated physical condition at the time of the previous assessment and the physical condition which exists at the time of the review-reopening proceeding. Thus, the question initially becomes has claimant established a change in his physical condition since the initial proceeding. Claimant has not sought any additional medical treatment since recuperating from the right and left carpal tunnel release surgeries performed in late 1986 and 1987. He did, however, undergo an evaluation performed by Frederick Entwistle, M.D., in December of 1991. Dr. Entwistle's report indicates: "I would agree with Dr. Connolly's assessment, at the present time, that the patient has a 10% impairment rating of the right hand and a 5% impairment rating of the left hand." (Jt. Ex. 36, pp. 2-3) As a result, claimant has failed to prove that he has had a change in condition since the original awards or agreements were made. order Page 7 THEREFORE, it is ordered: That claimant take nothing from these proceedings. That each party shall bear their costs of pursuing these actions. Signed and filed this ____ day of March, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr James M Cosgrove Attorney at Law 1109 Badgerow Bldg P O Box 1828 Sioux City IA 51102 Mr David L Sayre Attorney at Law 223 Pine St P O Box 535 Cherokee IA 51012 5-1302 Filed March 30, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : DAVID MORET, : : File No. 845182 Claimant, : 837989 : vs. : : R E V I E W - WILSON FOODS CORPORATION, : : R E O P E N I N G Employer, : Self-Insured, : D E C I S I O N Defendant. : : ___________________________________________________________ 5-1302 Claimant had previously settled two injuries via agreements for settlement. At hearing, he tried to argue that he should have been compensated for simultaneous injuries. The medical evidence did not support his arguments and the cases were deemed review-reopening proceedings. Claimant failed to show a change of condition, and took nothing from the proceedings. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT B. WIENER, Claimant, VS. File No. 845183 R & D MACHINE TOOL, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and FEDERATED INSURANCE, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Robert B.Wiener against R & D Machine Tool, Inc., his former employer and Federated Mutual Insurance Company, the employer's insurance carrier. The case was heard and fully submitted at Mason City, Iowa on May 27, 1988. The record in the proceeding consists of claimant's exhibits 1 through 6, defendants' exhibit A and testimony from Dale Nelson. The record also contains a stipulation regarding claimant's testimony. ISSUES It was stipulated in the prehearing report that claimant sustained an injury on February 3, 1987 which arose out of and in the course of his employment with the employer and that the injury was a cause of temporary disability during a period of recovery to the extent that temporary total disability compensation had been paid. The issues in the case are whether claimant is entitled to additional compensation for healing period or temporary total disability. The claimant also seeks permanent partial disability compensation for his left eye. The rate of compensation was established by stipulation to be $215.30 per week. Five weeks of healing period compensation had bee n paid prior to hearing. 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 showed are inevitable with any summarization. The conclusions in the following summary WIENER V. R & D MACHINE TOOL, INC. Page 2 should be considered to be preliminary findings of fact. Claimant did not appear and testify, but it was stipulated that the record should show that, if called, he would testify that he got a piece of metal in his eye while working, that he had no eye problems prior to that event and that he now wears glasses. Dale Nelson, a co-owner of R & D Machine Tool, Inc., testified that claimant was hired on approximately January 12, 1987, but was not proficient and that it was decided that claimant would be terminated on the first Friday in February. Claimant did not come to work on that Friday. Claimant reported that he had car trouble and made no mention of an eye injury. On the following Monday, claimant came to the business with a patch on his eye and a parts receipt for his car. Claimant also reported an eye injury to the office secretary and stated that he would be back to work on Wednesday, February 15. When February 15 arrived, claimant neither came to work nor phoned in. On that Friday, claimant was sent a letter terminating his employment, exhibit 6. Nelson stated that the termination date of February 5 was selected since it was the day that claimant first failed to come to work. Claimant's exhibit 3 is a report from D. A. Fry, D.O., dated May 26, 1987. The report relates that claimant was treated for a foreign body in his left eye, that a large rust ring had developed and that 90% of the rust was removed on February 7, 1987. Claimant's visual acuity was reportedly 20/20 on February 9, 1987 and on February 14, 1987. On February 16, 1987, claimant was seen at the Mercy Hospital Emergency Room by Addison W. Brown, Jr., M.D., an ophthalmologist. Claimant's visual acuity was 20/20 in each eye. A faint rust ring was observed. By February 18, 1987, the visual acuity of claimant's left eye was 20/400. After treatment, the visual acuity of claimant's left eye returned to 20/25 and he was fitted with eyeglasses to correct the hyperopia which Dr. Brown found. In a report dated April 22, 1988, Dr. Brown stated that the hyperopia is unrelated to the foreign body (exhibit 4). In an earlier report dated April 14, 1987, Dr. Brown had previously stated that: The rust ring was very superficial and not in the visual axis and the ' iritis has cleared completely, neither of which should have caused a change in refractive error. My guess would be that he has been hyperopic on the left side, even before this incident and that he needs to wear a +0.75 corrective lens for best acuity on the left eye. [H]owever, I have no prior record to confirm or suggest a previous hyperopia OS. WIENER V. R & D MACHINE TOOL, INC. Page 3 APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of February 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). Dr. Brown is an ophthalmologist while Dr. Fry is an optometrist. Accordingly, Dr. Brown has the higher degree of professional expertise and his assessment of this case is accepted as being correct. Accordingly, it is determined that the claimant has failed to prove, by a preponderance of the evidence, that the injury of February 3, 1987 was a proximate cause of the impaired vision in claimant's left eye. Code section 85.33 provides that compensation for temporary total disability continues until such time as the employee either returns to work or has recovered sufficiently to be able to return to work substantially similar to that in which he was engaged at the time of injury. The record contains no expert medical opinion specifying a recovery date. Page 2 of exhibit 1 indicates that claimant had been given a prescription for glasses and could work as soon as he was fitted with glasses. That report is dated March 27, 1987. The second page of exhibit 4 indicates that claimant was seen on March 24, 1987 at which time it was noted that he had no inflammation and that the iritis was completely cured (exhibit 4, page 2). Accordingly, March 24, 1987 is determined to be the last day of claimant's entitlement to compensation for temporary total disability. The stipulated date of injury is February 3, 1987. The last day claimant worked was February 4, 1987. The disability therefore commences on February 5, 1987 and runs through March 24, 1987. The temporary total disability entitlement under Code section 85.33 is six and six-sevenths weeks. Claimant is therefore entitled to recover an additional one and six-sevenths weeks of compensation for temporary total disability. FINDINGS OF FACT 1. The injury that Robert B. Wiener sustained on February 2, 1987 rendered him medically incapable of performing work in employment substantially similar to that he performed at the time of injury from February 5, 1987 through March 24, 1987. 2. The injury that Robert B. Wiener sustained to his left eye on February 3, 1987 is not shown by a preponderance WIENER V. R & D MACHINE TOOL, INC. Page 4 of the evidence to have been a substantial factor in producing any permanent hyperopia or loss of visual acuity in his left eye. 3. The assessment of the case made by Dr. Brown is accepted as being correct in spite of the fact that the earlier tests from Dr. Fry had shown 20/20 acuity in both of claimant's eyes as recently as February 14, 1987. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Robert B. Wiener is entitled to receive six and six-sevenths weeks of compensation for temporary total disability at the stipulated rate of $215.30 per week, payable commencing February 8, 1987. 3. Defendants are entitled to credit for the five weeks previously paid leaving one and six-sevenths weeks owing to claimant, together with interest. 4. Claimant has failed to prove, by a preponderance of the evidence, that the injury proximately caused any permanent disability in his left eye. ORDER IT IS THEREFORE ORDERED that defendants pay claimant one and six-sevenths (1 6/7) weeks of compensation for temporary total disability at the stipulated rate of two hundred fifteen and 30/100 dollars ($215.30) per week payable commencing March 15, 1987, together with interest pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 7th day of February,1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER WIENER V. R & D MACHINE TOOL, INC. Page 5 Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT B. WIENER, Claimant, VS. File No. 845183 R & D MACHINE TOOL, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and FEDERATED INSURANCE, Insurance Carrier, Defendants. 1402.40, 1801, 1803 Claimant was employed at a machine shop and got a piece of metal in his eye. He was awarded six and six-sevenths weeks of compensation for temporary total disability, He had sought compensation for permanent partial disability, but the evidence failed to show that the injury was a probable cause of hyperopia which was found to exist in his left eye. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DONALD E. EBERHARDT, : : Claimant, : : vs. : : File No. 845280 TAMA MEAT PACKING : CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AMERICAN MOTORIST INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a contested case proceeding upon the petition in arbitration of claimant Donald E. Eberhardt against his employer, Tama Meat Packing Corporation, and its insurance carrier, American Motorist Insurance Company. Mr. Eberhardt sustained a work injury on February 2, 1987, when a wooden splinter became lodged in and about his right thumb, later becoming infected. He now claims that this incident caused disability to the right hand, wrist, forearm, elbow, upper arm, shoulder, left arm, elbow and shoulder, neck and spine. Defendants concede the original injury, but deny that all these conditions are causally related. A hearing was accordingly held in Des Moines, Iowa on July 6, 1993. The record consists of the testimony of claimant, Sandra Eberhardt and Carl Wheeler, along with joint exhibits 1-5, claimant's exhibits 20-34 and defendants' exhibits A-F. A few words about the submitted evidence are in order. Much of the large pile of exhibits consists of duplicate copies and medical records of the most marginal materiality, if any. Even more disconcerting, some of the copies were apparently marked with a highlighting pen before photocopying, resulting in dark lines running through much of the text. The result is that much of this evidence is extremely difficult to read. Even worse, some of this text was apparently marked with a second highlighting pen, resulting in complete obliteration of some evidence, presumably evidence that both parties thought important. Attorneys William Springer and Joseph Cortese are hereby put on notice that such seriously defaced evidence may not be Page 2 accepted by the undersigned in future contested case litigation. Those attorneys are further advised that the undersigned anticipates enforcing strict compliance with paragraph nine of the standard hearing assignment order and Iowa Code section 17A.14(1) in future litigation. ISSUES The parties have entered into the following stipulations: 1. Claimant sustained injury arising out of and in the course of employment on February 2, 1987; 2. The injury caused both temporary and permanent disability; 3. At the time of the injury, claimant was married, entitled to two exemptions, and had gross average weekly earnings of $282.80; 4. Disputed medical treatment and the expenses thereof are reasonable; and, 5. Defendant American Motorists Insurance Company provided workers' compensation coverage to Tama Meat Packing from January 1, 1986 through December 31, 1987; thereafter, two other insurance carriers provided coverage (one of which, The Travelers, is currently paying benefits which apparently relate to some of the disability claimed compensable in this litigation). Based on claimant's stipulated gross earnings, marital status and number of exemptions, the parties calculated the weekly compensation rate at $219.79. However, reference to the rate tables published by the commissioner in effect at the time of injury show that an individual so situated is entitled to a rate of $182.87, which is hereby adopted as the proper compensation rate. With respect to medical benefits, defendants raised the defense of lack of authorization. The defense was ruled invalid at hearing because defendants have denied liability for the various complications associated with those expenses, thus waiving the right to control the course of treatment. FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Donald Eberhardt, 55 years of age, presented at hearing with a badly withered right hand and an inability to raise his right arm to be sworn in. His right upper extremity impairment is immediately obvious. Page 3 Claimant began working for Tama Meat Packing Corporation in 1984. On February 2, 1987, he was working a night cleanup job which involved cleaning a basement area with hoses, scoop shovels, pitchforks, and a Bobcat front-end loader. About eight hours into his twelve hour shift, claimant was attempting to loosen a jam in a large grinding machine with a pitchfork when the handle broke, driving a wooden sliver into the web-like structure between his right thumb and forefinger, and into the thenar eminence (the muscular bump at the base of the thumb). Claimant's foreman removed part of the sliver and ordered him to return to work. By the end of the shift, claimant's hand had practically doubled in size. On the following day, claimant was seen by Pradeep Sarswat, M.D., his regular primary physician. Dr. Sarswat, a board certified specialist in internal medicine, testified by deposition on May 18, 1993. He had been treating claimant for Type II (adult-onset) diabetes for several years. He treated the wound and, because the injury was work-related, referred claimant to the company physician, Dr. Mallory. Dr. Sarswat has seen claimant on many subsequent occasions, but generally not for right upper extremity complaints specifically. Claimant also worked the next day, February 3. However, due to a worsening infection in his hand, he was off work from February 4 through February 15. By the 16th, swelling had noticeably decreased, so Dr. Mallory returned claimant to work. He did so through February 23, after which Dr. Mallory made a referral to William W. Eversmann, Jr., M.D. Dr. Eversmann is identified on the letterhead of his medical group as a hand surgeon. Thus begins Mr. Eberhardt's long and difficult surgical history. Dr. Eversmann promptly performed an incision and drainage procedure, removing an overlooked piece of sliver from the wound and diagnosing a subcutaneous thenar space abscess. Two weeks later, on March 10, Dr. Eversmann charted complaints of lost grip and strength in the right hand and pain in the wrist. His impression was of "a carpal tunnel or an early sympathetic dystrophy complicating the abscess of his thumb, index web space." It is particularly noted that Dr. Eversmann did not refer to this problem as a complication of or secondary to the original infection, but, on the contrary, as a separate condition complicating recovery from the work injury. On March 24, Dr. Eversmann performed a right-sided carpal tunnel release. On April 28, claimant complained of clicking and catching in the right elbow. Radiographic studies showed degenerative arthritis in the elbow and, Dr. Eversmann thought, probably some loose body formation in the elbow joint. Claimant was recovering slowly from the previous Page 4 carpal tunnel surgery and continued to have some swelling and weakness in grip. By May 19, claimant had improved considerably and had full range of motion, but continued swelling. The ongoing physical therapy program was increased. Dr. Eversmann's chart notes of June 9 shows that claimant was progressing nicely with increasing activity and that the doctor anticipated a return to his normal work by May 29. However, on July 7, claimant was reported as having returned to work doing much more than Dr. Eversmann had anticipated and, during that time, developing pain radiating up the forearm which appeared to be trigger thum. This, Dr. Eversmann released in a third surgical procedure. Claimant, meanwhile, was off work from February 24 to June 28 and again, from July 19 through August 8. Except for vacations and plant closing, he continued working through November 9, 1990, at which time he was placed on medical layoff. By then, as shall be seen, Mr. Eberhardt had developed a wide range of additional problems, many of which he attributes to the original hand infection. In a letter dated September 27, 1988, Dr. Eversmann indicated that the three problems which he surgically addressed were separate injuries, with separate injury dates. He considered February 2 the date of injury for the hand infection, March 6 for the carpal tunnel syndrome ("This would be regarded as a separate injury but of course still related to his work place environment.") and July 7 for the right trigger thumb ("I would think the same would apply to that injury as well"). Dr. Eversmann has indicated that claimant's substantial later problems were related to overuse syndrome or, as he was a known diabetic, of neuropathy problems related to that condition. On October 10, 1988, in a letter to another physician, Dr. Eversmann writes that the purulent infection between the thumb and index finger of the right hand "resolved without difficulty" but that during the post-operative period claimant mentioned numbness and tingling of the fingers which eventually proved a carpal tunnel syndrome. Dr. Eversmann rated impairment in a letter dated December 6, 1988. He found a 40 percent loss of the thumb (extrapolated to 16 percent of the hand or 14 percent of the upper extremity) a three percent loss of the upper extremity for lost supination (the act of turning the palm forward or upward) wrist impairment of eight percent and loss of strength of five percent of the upper extremity, which he combined as a 27 percent impairment of the upper extremity, citing the American Medical Association Guides to the Evaluation of Permanent Impairment. There was no increase in impairment based on polyneuropathy, since claimant had no sensory or motor loss. In a letter dated May 1, 1989, Dr. Eversmann clarified that his entire impairment rating related to the carpal tunnel syndrome and to the limitation of motion in the hand and thumb, not to any limitation of the elbow. Page 5 Beginning in 1991, claimant undertook a lengthy course of treatment at the Mayo Clinic in Rochester, Minnesota. Mr. Eberhardt's right upper extremity symptoms had become so extreme that Mayo surgeons performed no fewer than five more operations, including repeat carpal tunnel and thumb procedures. A repeat carpal tunnel release surprisingly discovered an anomalous or "extra" muscle in the carpal canal, which was promptly removed. Now, claimant's right arm is essentially worthless and gives him constant burning pain. Mr. Eberhardt's condition is truly unfortunate. In addition, claimant has a substantial medical history of other problems, both before and after 1987. An evaluating physician, Dr. Paul From (a board certified internal medicine specialist) indicated the breadth of claimant's health problems following evaluation on October 19, 1992. Dr. From's report itemized the following impressions: 1. Injury to right hand with resulting cellulitis and abscess, drained, and without activity at this time. 2. Obesity, polyphagic; body now 67.3% fat. 3. Diabetes mellitus, non-insulin dependent adult onset type; poorly controlled by glycolated hemoglobin results. 4. Polyneuropathy, diabetic, first diagnosed 1984; penile erectile dysfunction. 5. Hypertension. 6. Caffeine abuse. 7. Angina pectoris; previous coronary angiography has been performed. 8. Anxiety. 9. Peptic ulcer disease by history. 10. Cephalgia, in part medication--induced. 11. Hyperlipidemia including hypercholesterolemia and hypertriglyceridemia. 12. Reflux esophagitis previously diagnosed. 13. Previous deep vein thrombosis (1985). 14. Restrictive pulmonary deficit. 15. Probable scars of herpes zoster. 16. X-ray suggestion of prior myelogram. 17. Previous fractures of right wrist and of right Page 6 navicular bones; wrist pinned. 18. Previous therapy for bursitis of right shoulder. 19. Motor vehicle accident in 1956, and arm surgery in 1956. 20. Previous adeno-tonsillectomy. 21. Past history of injury to right leg. 22. Arthritis of right knee and right elbow; arthroscopy of right elbow. 23. Tendonitis right wrist and surgery for DeQuervain's abnormality at wrist. 24. Bilateral carpal tunnel syndrome release surgery. (Exhibit 1). Dr. From testified by deposition on June 2, 1993. Dr. Sarswatt, the physician responsible for treating claimant's diabetes, disagrees with the conclusion that the condition is poorly controlled. He also questions whether claimant suffers diabetic polyneuropathy. With respect to caffeine Page 7 abuse, it is noted that Dr. From makes no distinction between caffeinated and decaffeinated coffees, of which claimant consumes primarily the latter. It will be seen that claimant had serious problems with his right upper extremity long before 1987. And, he underwent a left-sided carpal tunnel release one year prior to his splinter injury, demonstrating that the presence of carpal tunnel syndrome is not necessarily related to the infection. As might be expected, given the complexity of Mr. Eberhardt's extensive problems, there is a lack of unanimity in medical opinion as to which of claimant's numerous ailments are causally related to employment. In considering these opinions, it is appropriate to briefly define what is currently at issue. Claimant's petition alleged a traumatic injury on February 2, 1987. The petition does not address overuse or repetitive motion cumulative injury, nor does it address later injuries suffered through exposure to work. All the various symptoms later complained of are theoretically compensable in this litigation if they are sequela of the original pitchfork injury. "Sequela" is defined in the American Heritage Dictionary (Third Edition) as a pathological condition resulting from a disease (or here, an injury). If, on the other hand, the cause of subsequent problems is more properly attributable to later events, especially continued work, then compensability should be addressed in other proceedings, especially where either of two different insurance carriers (neither named as parties here) may bear ultimate liability. It is noted that, since claimant was still receiving weekly benefits (from one of those carriers) at the time of trial, the statute of limitations has not yet begun to run with respect to at least some conditions. See Iowa Code section 85.26(1). As noted, Dr. Eversmann feels that the three conditions which he treated surgically are separate and has assigned separate injury dates to each. However, because those three conditions occurred so closely in time and act together to produce disability, and because some medical opinion causally relates the carpal tunnel and trigger finger conditions to the original splinter wound, it seems fair to find defendants are not prejudiced by a holding that all three conditions are fairly encompassed by this litigation. Each also occurred within the period of insurance coverage by American Motorists (also referred to as Kemper Group). Other conditions, including arthritis, tendonitis of the wrist, bursitis and spinal problems are properly compensable here only if they are more reasonably viewed as sequela of the original puncture wound, as opposed to being causally related to subsequent overuse. Dr. Eversmann relates the three conditions he treated to the original wound or to overuse. His notation on April 28, 1987, that radiographic studies showed degenerative arthritis in the elbow along with possible loose body Page 8 formation tends to indicate that it was not caused by the original puncture wound, because the findings are so nearly immediate in point of time. Although none of the other doctors are seen to have discussed this specifically, physicians have testified before this deputy on a number of occasions that radiographic evidence or arthritic changes is not usually seen so soon after a traumatic event; and, it is noted that the elbow is located at some distance from the thumb. Under Iowa Code section 17A.14(5), the agency's experience, technical competence and specialized knowledge may be utilized in the evaluation of evidence. With respect to other symptoms, Dr. Eversmann has pointed to continuing overuse, degenerative arthritis, possible rotator cuff tendonitis, impingement syndrome and diabetic neuropathy as possibly causative. Dr. Sarswat offered the following opinions on causation: Q. Prior to February 2nd, 1987,, did you ever observe any arthritic condition in Mr. Eberhardt's right upper extremity, hands, shoulder, spine? A. No, not to my knowledge. Q. Then would it be fair to say that from your records that those conditions resulted after the date of his injury? A. Something made them happen, and I would attribute it to the injury, yes. And, as to the left upper extremity and other parts of the body: A. I think that's a good possibility. Once you injure your right upper extremity and are not able to use it to the best of your capabilities and if you continue to work requiring or overcompensating the use of the left upper extremity, there is a good chance of developing degenerative changes in the compensated arm. Q. Would that also be what you might expect as far as injuries or as far as disabilities in the neck, back, hips, legs, and other parts of the body as is found in Mr. Eberhardt's condition? A. It's possible. And: Q. Okay. Now, Doctor, do you have an opinion based on a reasonable degree of medical certainty as to whether the injury sustained by Mr. Eberhardt and the subsequent complications are the primary cause of his present disability, being to his right upper extremity, his left upper extremity, his neck, back, hips, and legs? Page 9 A. The right upper extremity for sure. I can tell that with certainty. The others are speculative. But: Q. Now this was a point in time, it's approximately three and a half years after the sliver injury of February 2nd of 1987. Do you have an opinion based upon a reasonable degree of medical certainty as to whether once the injury occurs, Mr. Eberhardt has treatment, goes back to work, continues to work at Tama Pack, the continuing to work at Tama Pack is aggravating his right arm? Do you have an opinion based upon a degree of medical certainty as to whether that would be the case? A. I would presume so, yeah. (Sarswat Deposition, Pages 19, 23, 25-26, 43-44) From this, it seems fair to say that Dr. Sarswat attributes claimant's right upper extremity problems to his sliver injury (or, perhaps only the cumulative trauma carpal tunnel and trigger thumb problems) and other symptomatology to subsequent overcompensation and overuse. Dr. Sarswat's opinion as to the right upper extremity is weakened by the fact that he was unaware as late as 1989 that claimant had developed arthritis, whereas Dr. Eversmann, the treating surgeon, found radiographic evidence of right elbow arthritis only a few weeks after the initial puncture wound. Ann H. Schutt, M.D., participated in treating claimant at the Mayo Clinic and testified on behalf of that institution by deposition on April 28, 1993. Dr. Schutt is a board certified specialist in physical medicine and rehabilitation. Dr. Schutt noted that claimant had degenerative arthritis of the right elbow, cervical spine and right wrist. Considered together with motor and sensory loss at the median nerve above the forearm, severe limitation of motion over the right wrist and radicular pain in the right arm, she rated impairment at 53 percent of the "upper extremity" in accordance with Minnesota workers' compensation guidelines. Dr. Schutt also considered claimant to be permanently disabled, but that due also to his numerous other conditions, including obesity and a heart defect. At one point, Dr. Schutt testified: The things that would be related to his injury, I would say, are probably his severe deconditioning, and not working he became obese, his weight handling capacities, his decreased strength in the right upper, and below average fine motor coordination, and ability to work over his head, and the pain in the upper -- in both Page 10 extremities, right greater than left. Those I would say would be related to his injury. But, then stated: A. My opinion is that he is disabled as far as his right upper and right lower -- right and left upper extremity is related to his work. His deconditioning and his other cardiac factors and his obesity, I cannot relate it to his work injury. But I feel that I can relate the right upper and left upper extremity to his work injuries. Dr. Schutt related claimant's degenerative arthritis to the "work related injury of February 2, 1987." But, she also stated: Q. Dr. Schutt, are all the injuries to the upper extremity, both right and left, which you referred to consistent with a work related injury? A. I could say that all of the right wrist, hand, and probably the left wrist problems are related to the injuries. The elbow problems, I can't exactly say for certain that it wasn't related to the old automobile accidents -- I mean old automobile accident fracture of the forearm. So I can't say that his elbow problems were absolutely related to his injury. Q. Would they have been aggravated by the injury? A. Yes. Dr. Schutt further opined the infection caused by the original work injury had an "effect on Mr. Eberhardt's carpal tunnel." However, on cross-examination, Dr. Schutt testified: Q. So if what we are talking about is an initial injury and then an aggravation of a cumulative trauma type, to the point where he finds himself off work in 1990, by the time you see him can you tell us what portion of his condition would result from the initial injury in '87 and what portion of it results from the cumulative trauma that occurred after he returned to work after the carpal tunnel surgery? A. I cannot. I mean, it's a cumulative thing. He went back to work. He was overworked. he worked overtime, six days a week, or whatever. It's a cumulative trauma. I would never send anybody back to work on that kind of overtime and work schedule after a carpal tunnel. Ever. And I think that that certainly contributed greatly to his problems. Page 11 Q. In light of Dr. Sarswat's note, July 24th being the time where Mr. Eberhardt stated that he was working at Tama Packing 12 hours a day, six some days a week, and getting along good, does that indicate to you that the disabling nature of his condition that was in place by the time you saw him would have manifested itself after that point in time? A. Yes. And: Q. Okay. Would you agree with me that any pain that he had in the left arm, left hand, left fingers would not be the result of the injury of February 2nd, 1987, where he had the sliver in the right hand? A. I would disagree with you because he could not use his right hand. So he has to overuse his left hand and overwork it. So that that can often cause worsening of a carpal tunnel or carpal tunnel problem that he has in it, in the opposite extremity, because he has to overuse it. He is right-handed. He couldn't use his right hand. So he overused his left hand. And I feel that is related. Q. If in fact the medical records from the other providers indicate that he was doing well as of 1988, 1989, into that area of time, and was in fact working six days a week, 12 hours a day at Tama Meat Packing Corporation, and that he in fact, as we discussed earlier, suffered a cumulative trauma injury from going back to work and basically reinjuring himself by overdoing it, would you agree with me that the problems that he was having on the left side could then be a result of that? A. Might be. I can't absolutely say that it wasn't. Because if he was overworking his left hand still because he had pain in the right. Even though he was working full time. Overtime. Slave labor. It's too much work for anybody. (Schutt Deposition, Pages 18-19, 24, 30-31, 34-35) As we see, there are some internal inconsistencies in Dr. Schutt's testimony. In general, though, it seems fair to say that she attributes many of claimant's condition to overuse during the several years claimant worked long and hard hours following this injury. Dr. From, an evaluating physician, saw claimant on one occasion only: October 19, 1992. He concluded: A. Well, I though that the area of the sliver Page 12 in his thenar eminence, the base of his thumb, the infection around his wrist and elbow and so forth, all would have been related to that original injury; but that following the surgery to his elbow for the last drainage of infection, that the problems arising from that original injury in February of 1987, whatever it was, were then healed. Dr. From denied that a causal relationship existed between the right trigger finger release surgery and the original infection, but mistakenly believed that four or five years had intervened, rather than only a few months. Accordingly, his opinion on that issue must be discounted. He specified that problems with the left arm were attributable to a "later occurring cumulative trauma injury," noting that there may be an indirect relationship between right arm problems and overcompensation with the left upper extremity. He believes that claimant has osteoarthritis, which is naturally occurring "wear and tear" arthritis, not due directly to a traumatic incident. Nor did he think that arthritis throughout the body was causally linked to the original infection. Dr. From rated impairment at 27 percent of the right upper extremity, to which he attributed five percent to the puncture injury and the remainder to the "unrelated" carpal tunnel syndrome and limitation of motion in the hand and thumb. On September 27, 1990, Dr. Seldon Spencer wrote that claimant's right arm symptoms and signs appeared to arise from musculoskeletal problems which, in his opinion, "were initiated by the accident and subsequent infection of the hand as well as the continuing demands on that limb arising from the nature of his work." Claimant was also seen for evaluation on January 15, 1991, by Gregory S. Peterson, M.D. On March 4 of that year, Dr. Peterson writes that claimant's evaluation was incomplete, but that he "appears to have several causes for his right upper extremity pain." Based on this welter of opinion, it is found that the February 2, 1987 injury is limited to infection in the area of the thumb. The chronologically-associated right carpal tunnel and right thumb "trigger finger" releases are caused by cumulative trauma, not infection. However, as noted, those problems are still appropriately addressed in this litigation; defendants are not thereby prejudiced. Some of claimant's other numerous health problems, especially including development of neurological pain in the right arm, may be related to subsequent overuse syndromes or impingement syndromes, but are not directly associated with the injury under consideration. This, of course, is not intended to suggest any particular result with respect to potential future litigation. Page 13 ANALYSIS AND CONCLUSIONS OF LAW As seen above, this decision takes a liberal and expansive view of claimant's original petition, addressing and compensating not only residuals of the puncture injury on February 2, 1987, but the right carpal tunnel and right thumb releases performed soon afterwards. The reasoning set forth in the findings of fact is hereby adopted as a procedural conclusion of law. The parties have stipulated that the work injury caused both temporary and permanent disability. Claimant believes he is entitled to healing period benefits through May 19, 1992, when Dr. Schutt concluded he had reached maximum medical improvement. Mr. Eberhardt advances this contention even though he worked on a full-time basis for literally years following the injury. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and continuing until the employee has returned to work, it is medically indicated that significant improvement from the injury is not anticipated, or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. The record shows that claimant was off work from February 4 through February 15, February 24 through June 28 and July 19 through August 18, 1987, with respect to the three separate conditions compensated in this decision. Healing period, of course, can be intermittent in nature. Willis v. Lehigh Portland Cement Co., II-I Iowa Industrial Commissioner Decisions, 485 (1984). Claimant returned to work on September 19, and missed no additional time due to these injuries. Accordingly, it is held that he is entitled to intermittent healing period benefits as set forth above, totaling 23 weeks. Both Dr. Eversmann, the treating surgeon, and Dr. From, one of several highly qualified specialists, have rated impairment due to the three subject conditions at 27 percent of the "upper extremity." Actually, all of the disability compensated here is limited to the hand. Carpal tunnel surgery is performed in the wrist, but the wrist is part of the hand. Elam v. Midland Mfg., II Iowa Industrial Comm'r Report 141 (1981). Under table two of the AMA Guides to the Evaluation of Permanent Impairment (4th Edition, 1993), a 27 percent impairment of the upper extremity is equivalent to a 30 percent impairment of the hand. Under Iowa Code section 85.34(2)(l), loss of a hand is compensated during 190 weeks. Thirty percent is 57 weeks. Accordingly, claimant shall be awarded 57 weeks of permanent partial disability commencing August 9, 1987. The medical benefits sought by claimant were accrued in 1988 and thereafter. Claimant has not established a causal nexus between those expenses and the three conditions compensated here, although, once again, this decision does not address whether those expenses are properly compensable under any other claimed injury involving this employer and one or more insurance carriers not parties to this litigation. Page 14 Claimant's entitlement to healing period and permanent partial disability benefits totals 110 weeks. At the compensation rate found here of $182.87, claimant's entitlement is $20,115.70. The parties have stipulated that defendants paid 76.285 weeks of compensation at the rate of $219.79, or $16,766.68. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay claimant twenty-three (23) weeks of intermittent healing period benefits at the rate of one hundred eighty-two and 87/100 dollars ($182.87), as set forth above. Defendants shall pay fifty-seven (57) weeks of permanent partial disability benefits commencing August 9, 1987. Defendants shall have credit for all benefits paid prior to hearing. All accrued benefits shall be paid in alump sum together with statutory interest. Costs of this action are assessed to defendants. Signed and filed this ____ day of January, 1994. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr William L Springer Attorney at Law Lin-Mar Building 204-208 E Linn Street Marshalltown Iowa 50158 Mr Joseph S Cortese II Attorney at Law 500 Liberty Building 418 6th Avenue Des Moines Iowa 50309-2421 5-1803 Filed January 31, 1994 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DONALD E. EBERHARDT, : : Claimant, : : vs. : : File No. 845280 TAMA MEAT PACKING : CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : AMERICAN MOTORIST INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Scheduled member disability was awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DONALD E. EBERHARDT, : : Claimant, : : File No. 845280 vs. : : O R D E R TAMA MEAT PACKING : CORPORATION, : N U N C P R O : T U N C Employer, : : and : : AMERICAN MOTORIST INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The undersigned filed an arbitration decision on January 31, 1994. Defendants have filed an unresisted motion for order nunc pro tunc, seeking two changes. At hearing, the parties stipulated to certain foundational facts necessary to calculate the proper rate of weekly compensation. Claimant's gross weekly earnings were stipulated to be $282.80, marital status was married and claimant was entitled to two exemptions. Based on those foundational facts, the parties calculated the compensation rate to be $219.79. However, the rate tables published by the commissioner show that an individual so situated is entitled to a rate of $182.87. Defendants set forth that a typographical error was made in the hearing report, and that gross weekly earnings should have been at $348.00 per week. Since this allegation is against the pecuniary interest of defendants and unresisted, the allegation is accepted. The rate tables show that the proper weekly rate based on those weekly earnings and the same marital status and exemptions is $219.74. Defendants are to be commended for their honesty. Defendants also point out an inconsistency in the arbitration decision as to the extent of healing period and permanent disability benefits awarded. On page 13, the decision sets forth three separate periods of intermittent healing period benefits (February 4 through February 15, February 24 through June 28, and July 19 through August 18, 1987) and calculates the total at 23 weeks. After awarding 57 weeks of scheduled member impairment, the decision incorrectly totaled the entire compensation at 110 weeks. However, a review of the arbitration decision discloses that Page 2 this is not the only embarrassing arithmetical error. Actually, the three periods of intermittent healing period benefits total 24 weeks, not 23 weeks. Accordingly, claimant's entitlement to healing period and permanent partial disability benefits totals 81 weeks, not 110 weeks. THEREFORE, IT IS ORDERED: The arbitration decision filed January 31, 1994 is amended to award claimant twenty-four (24) weeks of intermittent healing period benefits, not twenty-three (23) weeks (total healing period and permanent partial benefits total 81 weeks); All benefits shall be paid at the compensation rate of two hundred nineteen and 74/100 dollars ($219.74) rather than one hundred eighty-two and 87/100 dollars ($182.87). Signed and filed this ____ day of February, 1994. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr William L Springer Attorney at Law Linn-Mar Building 204-208 E Linn Street Marshalltown Iowa 50158 Mr Joseph S Cortese II Attorney at Law 500 Liberty Building 418 6th Avenue Des Moines Iowa 50309-2421 BEFORE THE IOWA INDSUSTRIAL COMMISSIONER _________________________________________________________________ CHARLES W. SCHERTZ, Claimant, vs. File No. 845391 J & J STEEL, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed September 5, 1990 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of June, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. J. W. McGrath Attorney at Law P.O. Box 453 Keosauqua, Iowa 52565-0453 Mr. Walter F. Johnson Attorney at Law P.O. Box 716 Ottumwa, Iowa 52501 9998 Filed June 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ CHARLES W. SCHERTZ, Claimant, vs. File No. 845391 J & J STEEL, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed September 5, 1990. Page 1 before the iowa industrial commissioner ____________________________________________________________ : CHARLES W. SCHERTZ, : : Claimant, : : File No. 845391 vs. : : J & J STEEL, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration wherein claimant seeks compensation for additional permanent partial disability benefits as a result of an alleged injury occurring February 3, 1987. There was no oral testimony at this hearing. The record consists solely of joint exhibits 1 through 14, which included the July 16, 1990 deposition of claimant, a deposition of Peter D. Wirtz, M.D., and Marc E. Hines, M.D. issues The issues for resolution are: 1. The extent of claimant's permanent partial disability over and above the 22 weeks defendants have already paid, which defendants paid based on their contention claimant has a scheduled injury; 2. Whether there is any causal connection to any increase in permanent partial disability benefits over and above the 22 weeks defendants have already paid and to which 22 weeks the defendants stipulated there was a causal connection; and, 3. Whether claimant is an odd-lot candidate. Page 2 findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant was present but did not orally testify at his hearing. Claimant testified through a July 16, 1990 deposition. Claimant is 55 years old and is a high school graduate. Claimant obtained a certificate indicating he completed a basic adult welding course in 1965 at Indian Hills Community College. Claimant related his work history which involved farming, working for a gas company, service in the United States Marines as a demolition worker and combat engineer, construction work as a laborer, material handler, placer, truck driver, and off and on over the last approximate 16 years before his February 3, 1987 injury worked as a welder and ironworker for various companies in a three-state area working out of the union hall. Claimant also obtained an over-the-road long-haul semi truck driving certificate in 1988. As of claimant's February 3, 1987 fall, he was considered a journeyman ironworker. Claimant has worked for defendant employer off and on since 1971. Claimant described the nature of an ironworker's job. Claimant related his past accidents and injuries. He described his fall in 1978 while working for defendant employer which resulted in claimant breaking an L-1 vertebra. He received workers' compensation for this, and the record indicates he received a 10 percent permanent partial disability for that work-related accident. Claimant indicated there might be some residue from that injury but it was hard to tell. He emphasized construction workers always have pains from their work. The record is clear that claimant was not suffering from any results of a prior injury as of February 3, 1987 and was performing without any apparent problems in his work as an ironworker. There is no evidence that there were any restrictions or any effects of a prior impairment in connection with claimant's ability to work until his work injury of February 3, 1987. Claimant is not currently working and is receiving a $272 per month ironworker pension since January 1990 and $636 per month in social security benefits since August of 1989. Claimant fell on February 3, 1987 while on a construction project for defendant employer. Claimant was standing on a beam while putting on a roof and fell 20 feet backwards on his rear, breaking his hip and pelvic in two places and receiving other bruises, wounds and jolts to his back and body, generally. Claimant has pain in his right hip, tailbone, low back area and up down the back of his right leg. Claimant indicated his ulcers have developed since his fall and the record is clear that although claimant may have had episodes of stomach or ulcer problems in the past, he was not having any appreciable problems or treatment for them until after his fall. The record shows that claimant took several types of medicine after his Page 3 injury, some of which are known to have an effect on people resulting in ulcer problems, stomach problems or other side effects. Claimant went to vocational rehabilitation. Upon graduating from a truck driving school in August 1988, he went out on the road and worked for CRST Trucking during a five week period as a semi driver until September 16, 1988, when he had to leave this job after the company further reviewed his medical record. Claimant said that he had gone through three or four training programs but that he could not get a job anywhere through these programs. Claimant then worked from November 30, 1988 to May 5, 1989 at the Ottumwa Community Schools but had to leave this job because the work involved too much twisting, turning and bending. It appears claimant's last job was in April or May 1989 doing light farm work, but it became too hard for claimant to do and he had to quit. Claimant indicated he has 70 or 80 resumes around the country and can't get a job. Claimant relates his inability to obtain work to his medical condition as a result of his February 3, 1987 fall. Claimant then sought disability benefits because of his status and this eventually resulted in him receiving the disability pension from the union and social security disability benefits. M. W. Crane, M.D., performed right hip surgery which involved an open reduction internal fixation right hip - femoral neck on February 4, 1987. Claimant had basically a pelvic fracture, also. Marc E. Hines, M.D., testified through his deposition of June 29, 1990. Dr. Hines first saw claimant on January 19, 1989 after having been referred to him by the vocational rehabilitation to rule out a seizure disorder. Dr. Hines' associate, a Dr. Sires, had seen claimant on May 12, 1988. The doctor described claimant's limitation. The doctor saw claimant again in March 1989, October 1989 and June 26, 1990. It seems undisputed that claimant has currently an arthritic condition and some degeneration of the spine. Defendants contend that this was from either a preexisting injury or condition and that claimant's current arthritis and degeneration in his vertebra is the result of his aging process and would have occurred regardless of the injury. Dr. Hines addressed this issue through various questions asked of him in his deposition. Dr. Hines said: ...that the final common pathway for pain production in the back is often arthritis, but it has a number of different manifestations. In other words, the arthritis can pinch the nerves and the nerves become irritated and then they cause pain. The arthritis is both a spontaneously occurring problem but also something that's due sometimes to trauma. So as long as you understand that there may be a number of mechanisms whereby arthritis can cause pain and a number of mechanisms where arthritis itself can be Page 4 caused.... .... ...[I]t's evident from the records that he probably did have some arthritis before the fall, but that he also had very significant injury with the fall. There is even some question about the L-1 fracture as to whether it was old or not. But putting that aside, here's a gentleman who had a clear cut femoral neck fracture, shortening of the femoral bone, which will cause one leg to be shorter than another. Additionally, he had pelvic fractures and who has ever since the fall and because of the fall and around the time of the fall had pain in his hips and his back and his leg, pain that radiates down into his legs. Around that time, ever since that time he has continued to have pain of a similar character, although he clearly has had some improvement in terms of the fractures healing....The right leg is shorter and the areas of fractures often hurt for prolonged periods and he continues to have pain in these areas with muscle spasm, limitation in motion that he shouldn't have and so I think that he does have some residual injury due to the fall. I emphasize the leg being shorter because when one leg is shorter, that now will cause him to have a tilt in his pelvis and that has to be reflected in a change in position in the vertebrae; that's where the tilt will be compensated for in order to keep his head straight on top of it all. So with that curvature in his back that will be induced by that pelvic tilt, even if it's slight, will produce a more rapid progression of arthritis in the back as will the previous injury so it's not surprising now for him to have some further progression of his arthritis. So I think that there is clearly a relationship between his current problems and his fall as I've just described. (Joint Exhibit 1, pp. 14-16) Dr. Hines also indicated that claimant is not going to be able to do the kind of manual labor that requires bending, lifting, climbing and stooping. He further indicated: [H]e's probably not going to be able to even stand for long periods or sit for long periods. It's going to be if he can work at all, he's going to have to look for a job in which he can change position frequently and that doesn't require much in the way of operation of foot Page 5 controls or -- and certainly none of those previously discussed activities. (Jt. Ex. 1, p. 17) The doctor described claimant's fracture of each side of the pubic rami where he indicated these two bones meet in the middle and cause the pubic bone to be made. He also indicated there was another fracture of the sacrum (Jt. Ex. 1, p. 18). He described the sacrum as a triangular bone in the back just below the vertebra that makes up your backbone. The doctor indicated that if you do not have a functioning pelvis and sacroiliac structure, you would be unable to walk and you would have profound difficulties with any kind of movement. The doctor said that the pelvic area is contained within the trunk of the body and that the sacrum is also in the trunk of the body (Jt. Ex. 1, p. 20). Dr. Hines opined that claimant has an 18 percent impairment to his whole person (Deposition Exhibit 1 attached to Joint Exhibit 1). Marshall Flapan, M.D., opined on March 18, 1988, that claimant had a 10 percent permanent partial impairment to the functioning of his lower right extremity. He further indicated that it was too early to tell whether he could attempt to return to his occupation as an ironworker. Dr. Flapan said that complications of this injury can occur as late as two years following the date of the injury. He recommended at the time of his report that claimant should seek a more sedentary occupation. (Dep. Ex. B attached to Jt. Ex. 1) It is upon Dr. Flapan's impairment rating that defendants paid 10 percent or 22 weeks of permanent partial disability benefits based on a lower right extremity impairment. Defendants sent claimant to Peter D. Wirtz, M.D., an orthopedic surgeon, on June 18, 1990. Dr. Wirtz opined a 20 percent impairment to claimant's right lower extremity and further opined in his report: "The pelvic fracture and compression fracture of L1 as well as the degenerative disc disease is not functionally limiting and was not materially changed with the injury 2/3/87." (Dep. Ex. 2 attached to Jt. Ex. 3) This case is another example of having some specialists substantially disagreeing as to the medical condition and extent of impairment and the nature of the impairment of a patient. There is no dispute as to the causal connection of at least a 10 percent impairment to claimant's right lower extremity in relation to his February 3, 1987 injury. Before we can determine whether there is greater permanent partial disability than the 10 percent, which was obviously paid based on a scheduled member injury, the undersigned must determine whether claimant's injury is a scheduled member injury or an injury to the body as a whole. The undersigned believes that Dr. Hines' opinion is supported by the greater weight of the evidence taking into consideration all the medical and the nature of the fall and Page 6 the injury itself. Dr. Hines had more contact with the claimant than did Dr. Wirtz or Dr. Flapan. The undersigned finds Dr. Hines is more realistic and forthright in his diagnosis and is more exact. It is undisputed that claimant broke his pelvic in two places as a result of the February 3, 1987 fall. There is no question that the pelvic is part of the body as a whole and part of the skeletal system upon which substantial weight rests. It is clear from the medical evidence that claimant has arthritis. It is also clear that there was no evidence of claimant having any effect of arthritis prior to his February 3, 1987 injury, at least to any extent where it was impairing claimant's ability to work and keep his employment. It is a well-known fact that, taking into consideration this agency's expertise and the medical records, arthritis in a latent arthritic condition, can be activated, accelerated or worsened spontaneously by many causes. One common cause is a traumatic event. The nature of this traumatic event whereby the claimant fell at least 20 feet to the ground is of such a nature that it could, and the undersigned finds did, materially and substantially accelerated, lighten up and worsened up any latent or inactive arthritic condition that the claimant had as of February 3, 1987. The undersigned finds untenable defendants' position that claimant's arthritic condition would have accelerated to its current condition considering claimant's current age. There is no evidence that claimant would be suffering from the current effects of arthritis along with his other complaints and injuries if it were not for the February 3, 1987 injury. Dr. Falpan, in his June 8, 1987 medical records, indicated: "What develops with his hip remains to be seen. He has been made well aware by Dr. Crane of the possible ensuing complications such as avascular necrosis, arthritis, etc. from this type of injury. What develops with his hip remains to be seen." (Jt. Ex. 7, p. 2.1) Although Dr. Wirtz allegedly measured and found no shortness or length difference between claimant's two legs, Dr. Hines found one leg shorter than the other. This results in the tilting of the spine which can also acerbate an arthritic condition. Without question, the spine is a part of the body as a whole. The undersigned finds that claimant has an 18 percent impairment to his body as a whole. The undersigned further finds that any prior impairment that claimant may have had as a result of a 1978 accident was not, in fact, impairing claimant as of the date of his February 3, 1987 accident, at least not to any extent to be included in the 18 percent found herein as a result of claimant's February 3, 1987 injury. The next question is the extent of claimant's industrial disability. Claimant will soon be 56 years old. His working history has been in manual labor and in work that would basically be considered heavy labor for the most part. Claimant has shown motivation. He has been a hard Page 7 worker all of his life and has attempted to progress in various jobs to earn greater pay. His ironworker job was his best paying job. Claimant is limited in his education, and his transferable skills are limited. Claimant has been an ironworker off and on since 1971. It is obvious from all the medical evidence that he is unable to return to his job as an ironworker. It is obvious that he would be a menace to himself and other workers walking on a beam above the ground. Claimant attempted to drive a truck after his injury and found he was unable to do this. It is obvious he is unable to drive a truck for a living. It appears the most that claimant could do, if anything, would be a sedentary type job. It appears claimant is unable to sit or stand for very long periods. Claimant did seek rehabilitation and that has not resulted in finding a job for which he can work or stay employed. After claimant made an attempt to work around his injuries, he concluded that he was unable to find a job. Defendants have been unable to find a job for him. It is obvious defendant employer has no job for which claimant could perform. Claimant then sought disability benefits. It seems unreal for the claimant to continue to find work under the present circumstances. Claimant was working and making a good living prior to February 3, 1987. He is no longer working and has lost his entire earning capacity. Claimant's current impairment is such that the undersigned finds under the current status of the record. Claimant is incapable of any meaningful employment. Taking into consideration claimant's transferable skills, work experience, rehabilitation attempt, education, age, prior injuries, current impairment, location of the injury, motivation, functional impairment, and those other items that are considered in determining one's industrial disability, the undersigned finds that claimant is permanently totally disabled. The parties set out as an additional issue whether claimant is an odd-lot candidate. In light of the above findings, the undersigned finds it is moot to further determine whether claimant would be an odd-lot candidate since the undersigned has already found claimant to be totally disabled. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of February 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). Expert medical evidence must be considered with all Page 8 other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251 (1963), cited with approval a decision of the industrial Page 9 commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered....In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. * * * * 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). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden v. Big Ben Coal Co., 388 N.W.2d 181 (Iowa 1980). preexisting arthritic condition and L-1 vertebra injury, resulting in claimant becoming permanently totally disabled. That claimant has been unable to find a job which he was able to perform due to his February 3, 1987 injury and having failed in his attempts is on union disability pension and social security disability. That claimant has a 100 percent loss of earning capacity. That claimant's permanent total disability is causally connected to his February 3, 1987 work injury. That claimant has a 100 percent industrial disability. order THEREFORE, it is ordered: That defendants pay claimant compensation for permanent total disability at the stipulated rate of two hundred ninety-two and 28/100 dollars ($292.28) per week during the period of claimant's disability, commencing August 19, 1988. That defendants shall pay accrued weekly benefits in a lump sum. Since all payments to which the claimant, even under this decision, would be entitled to prior to August 19, 1988 was stipulated to and paid in full by the defendants and since the parties agreed that any additional permanent partial disability benefits over and above the twenty-two (22) weeks previously paid to claimant would begin on August 19, 1988, there is no additional credit to the defendants under this decision. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this _____ day of September, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr J W McGrath Attorney at Law Fourth & Dodge St P O Box 453 Keosauqua IA 52565 Page 11 Mr Walter F Johnson Attorney at Law 111 W Second St P O Box 716 Ottumwa IA 52501 1803.1; 1804; 52206 Filed September 5, 1990 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : CHARLES W. SCHERTZ, : : Claimant, : : File No. 845391 vs. : : J & J STEEL, INC., : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1804 Found claimant permanently, totally disabled. 1803.1 Found claimant's injury was to his body as a whole and not to a scheduled member. Claimant's injury broke his hip and pelvis when he fell 20 feet from an iron beam on his rear. 52206 Claimant's injury substantially and materially aggravated and lightened up an inactive arthritic condition and prior vertebral injury which prior condition and injury were not affecting or improving claimant's work as an ironworker prior to his February 3, 1987 injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERRY R. ARRICK, Claimant, FILE NO. 845438 vs. A R B I T R A T I 0 N PERKINS RESTAURANTS, INC., D E C I S I 0 N Employer, and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Jerry R. Arrick, claimant, against Perkins Restaurants, Inc., employer (hereinafter referred to as Perkins), and Wausau Insurance Companies, insurance carrier, for workers' compensation benefits as a result of an alleged injury on May 7, 1986. 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: Nanette Arrick and Terry Garvey. 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. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $109.99 per week; and, 2. Claimant is not seeking temporary total disability or healing period benefits in this proceeding. ISSUES The parties submitted the following issues for determination in this proceeding: Whether claimant received an injury arising out of and in the course of employment; II. Whether there is a causal relationship between the work injury and the claimed disability; ARRICK V. PERKINS RESTAURANTS, INC. PAGE 2 III. The extent of claimant's entitlement to weekly benefits for permanent disability; and, IV. The extent of claimant's entitlement to medical benefits under Iowa Code section 85.27. 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. Claimant testified that he worked for Perkins from September, 1985 until January, 1987 as a waiter and later as an associate assistant manager. Claimant stated that his duties consisted of waiting on and cleaning tables and managerial duties as an assistant manager. Claimant's supervisor testified that claimant was a good employee and was commended in writing on one occasion for the quality of his work. Claimant stated at hearing that he left his employment after the work injury to accept an assistant manager position at Hardee's Restaurants for career reasons and not due to his claimed work injuries in this case. Claimant testified that on May 7, 1986, while taking down a very large American flag in front of the Perkins' restaurant in which he was working, the wind caught the flag and threw him into an adjacent parked car. Claimant said that he struck his lower abdomen and his right elbow. Claimant was taken to the hospital where he received treatment for a contusion to the right elbow. Tests at time indicated the absence of a fracture and claimant was allowed to return immediately to regular duty by the emergency room physician, Lynn Leibel, M.D. Dr. Leibel did not report any complaints at that time of back or abdominal pain. On May 20, 1986 claimant returned to the emergency room with complaints of abdominal pain and nausea. This nausea and pain increased in intensity and claimant was admitted to the hospital for testing in June, 1986. After extensive testing the cause of the abdominal pain was not found. Claimant's physician at the time, D. P. Moffett, M.D., felt that claimant's pain and nausea were secondary to duodenitis and ulcerations of the duodenal bulb, an intestinal problem. On October 29, 1986 claimant reported to his superiors at Perkins that he could not continue working due to left lower quadrant pain for the last two days. Claimant was again hospitalized on October 31, 1986 for this pain and lateral flank pain along with vomiting. Again, claimant underwent another round of testing. As the pain tended to radiate into the back, claimant's care was transferred to Maurice Margules, M.D., a neurosurgeon. Dr. Margules concluded that claimant had suffered back strain and treated claimant until November, 1987. On May 4, 1987 Dr. Margules states as follows: ARRICK V. PERKINS RESTAURANTS, INC. PAGE 3 It is our opinion at this time that this patient has made a satisfactory recovery except for residual pain at the level of the mid-dorsal region which will continue for an undetermined period of time. No specific treatment is recommended at this time. On December 18, 1987 Dr. Margules further states as follows: You have our previous letter of May 4th, 1987; since then there has been no improvement of the patients condition. He continues to complain of pain similar to the one he had following the accident of May 7, 1986. I have no specific treatment to recommend [sic] to Mr. Arrick at this time. I only recommend that the patient try to obtain a sedentary type of employment. As a result of the injuries sustained on May 7, 1986 it is our opinion that the patient has a partial permanent physical disability that is rated at 5% of the body as a whole. On June 23, 1987 claimant was examined by an orthopedic surgeon, Michael Morrison, M.D. It was the opinion of Dr. Morrison that claimant did not suffer permanent impairment from the alleged work injury. Prior to May 7, 1986, claimant was admitted to Mercy Hospital on several occasions. In July, 1984, claimant voluntarily admitted himself to the chemical dependency unit. At that time claimant had related a history of stomach problems. In January, 1985, claimant was admitted for an intentional overdose of Contact cold pills and other medication. In November, 1985, claimant received treatment for "leg numbness, vomiting and headache." Claimant testified that his back continues to bother him most of the time. He described a throbbing lower back pain while sitting or riding. He described no real pattern to the pain episodes. Claimant stated that he was an avid bowler before the work injury but has not bowled since. Claimant states that he must restrict the amount of standing and walking he does. Claimant testified that he believes that all of his back problems are attributable to the May 7, 1986 fall at Perkins. Claimant's wife testified that from her observations of claimant, he gave the appearance of having back problems after the fall incident in May, 1986. She stated that claimant has been "down" or bed ridden on three occasions since the incident in October, 1986, May, 1987, and again in October, 1987. Claimant testified that Hardee's terminated him for failure to perform his duties which he attributes to his back problems. Claimant currently is employed as a data entry operator and complains that his back continues to bother him in his current job. Claimant testified that his past employment primarily consists of work as a restaurant waiter. His earnings from such employment at the time of the work injury was between $6,000 and $7,000 annually. ARRICK V. PERKINS RESTAURANTS, INC. PAGE 4 Claimant stated at the hearing that he is 22 years of age and has a high school education. Claimant appeared to possess above average intelligence while testifying at hearing. Claimant's appearance and demeanor at the hearing and that of his wife's indicated that they were 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 therein. There is little dispute in this case that claimant suffered some sort of work injury on May 7, 1986. The fighting issue in this case is whether the injury was limited to the elbow or also involved the back. II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). 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 v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show ARRICK V. PERKINS RESTAURANTS, INC. PAGE 5 causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, 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). Only two physicians have rendered causal connection opinions in this case. Dr. Margules opines that claimant suffered a back injury on May 7, 1986 and believes that the abdominal pain claimant suffered 14 days after the incident was referred back pain. It is not specifically known whether Dr. Margules was aware of claimant's history of stomach problems and vomiting prior to May, 1986, although it can be safely assumed that Dr. Margules had access to all of the hospital records for his review at the time of the initial consultation during the hospitalization in November, 1986. Claimant has only been admitted to one hospital over the last several years and these records would include his complete history. Only Dr. Morrison disputes the permanency opinions of Dr. Margules. Given a more extensive involvement in claimant's medical care, Dr. MargulesO opinions are given the greater weight. Therefore, claimant has established by a preponderance of the evidence that he suffered a five percent permanent partial impairment as a result of the injury on May 7, 1986. III. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employeeOs 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. ARRICK V. PERKINS RESTAURANTS, INC. PAGE 6 Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Claimant's condition before the work injury was certainly not excellent but he appeared to have no functional impairments or ascertainable disabilities. There is no evidence of drug or alcohol abuse after the 1984 hospitalization. Claimant was able to fully perform physical tasks involving repetitive lifting, bending, twisting and stooping along with prolonged standing and sitting before the work injury. Claimant's treating physician, Dr. Margules, has given claimant a significant permanent impairment rating to the body as a whole and has restricted his work activities by prohibiting tasks such as heavy physical work and prolonged sitting and standing. Claimant's medical condition prevents him from returning to his former work as a waiter which requires prolonged standing. Claimant testified that he was fired for an inability to perform work at HardeeOs. However, claimant was not very specific about this incident and little can be concluded from his testimony dealing with his loss of employment at HardeeOs. Claimant has demonstrated by his own testimony that he has the ability to perform sedentary work. Claimant has not shown a substantial loss of earnings as a result of his inability to return to work as a waiter. His past waiter employment did not pay appreciably more than his current sedentary clerical work. However, an industrial disability award can still be awarded for a loss of earning capacity despite a failure to show actual loss of earnings. Michael v. Harrison County, Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 218, 220 (Appeal Decision 1979). Claimant is 22 years old and at the beginning of his working career. His age and intelligence is favorable for retraining. See Walton v. B & H Tank Corporation, II Iowa Industrial Commissioner Report 426 (Appeal Decision 1981). After examination of all the factors it is found as a matter of fact that claimant has suffered a 15 percent loss of his earning capacity from his work injury. Based upon such a finding, claimant is entitled as a matter of law to 75 weeks of permanent partial disability benefits which is 15 percent of the 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole. IV. Pursuant to Iowa Code section 85.27 claimant is entitled to reasonable medical expenses for treatment of the work injury. Claimant is entitled to an order of reimbursement only for those expenses which he has previously paid. Krohn v.State, 420 N.W.2d 463 (Iowa 1988). All the requested medical benefits in the prehearing report, exhibits 8 through 15 appear reasonable and causally connected to the work injury from the evidence submitted. These expenses total $7,307.17 and defendant will be awarded to pay them either to claimant if he has paid the bills or directly to the provider ARRICK V. PERKINS RESTAURANTS, INC. PAGE 7 it they are unpaid. FINDINGS OF FACT 1. Claimant and his wife were credible witnesses. 2. On May 7, 1986 claimant suffered an injury to his right elbow and low back which arose out of and in the course of employment with Perkins. The elbow injury consisted only of a contusion but the back injury developed an onset of pain beginning on May 20, 1986 and which continues to the present time. 3. The work injury of May 7, 1986 was a cause of a five percent permanent partial impairment to the body as a whole and of permanent restrictions upon claimant's physical activity consisting of no heavy physical work and restricted activity to sedentary occupations. 4. The work injury of May 7, 1986 and the resulting permanent partial impairment was a cause of a 15 percent loss of earning capacity. Claimant is unable to return to work as a waiter due to his standing requirements of his job. Claimant's only work experience has been as a waiter and as a helper in a food service establishment. However, claimant is 22 years of age and has a high school education with above average intelligence. He has not suffered a substantial loss of actual earnings Claimant is currently employed in suitable sedentary work. Claimant has a high degree of potential for vocational rehabilitation. 5. The medical expenses listed in the preheating report, exhibits 8 through 15, are fair and reasonable and were incurred for claimant for reasonable and necessary treatment of his back condition as a result of the work injury on May 7, 1986. CONCLUSIONS OF LAW Claimant has established by a preponderance of the evidence entitlement to permanent partial disability and medical benefits as awarded below. ORDER 1. Defendants shall pay to claimant one hundred (75) weeks of permanent partial disability benefits at the rate of one hundred nine and 99/100 dollars ($109.99) per week from May 7, 1986. 2. Defendants shall pay the medical expenses listed in exhibits 8 through 15 either directed to claimant if paid or to the medical provider it unpaid. Claimant's attorney shall have a lien for his fees upon any of these medical benefits obtained by him in this proceeding prior to any direct payment of those expenses to a provider. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. ARRICK V. PERKINS RESTAURANTS, INC. PAGE 8 5. Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 7. Defendants shall file activity reports upon payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 29th day of July, 1988. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas L. Root Attorney at Law 306 First Federal Savings & Loan Bldg. P. 0. Box 1502 Council Bluffs, Iowa 51502 ARRICK V. PERKINS RESTAURANTS, INC. PAGE 9 Mr. Philip Willson Attorney at Law 370 Midlands Mall P. 0. Box 249 Council Bluffs, Iowa 51502 1803 Filed July 29, 1988 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERRY R. ARRICK, Claimant, FILE NO. 845438 vs. A R B I T R A T I 0 N PERKINS RESTAURANTS, INC., D E C I S I 0 N Employer, and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. 1803 Claimant awarded a 15 percent permanent partial disability benefits as a result of a work injury which prohibited his return to his occupation as a waiter in a restaurant setting. However, claimant will experience only a small loss of earning capacity because ms income as a waiter is not appreciably more than sedentary clerical work. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JERRY R. ARRICK, Claimant, File No. 845438 VS. N U N C PERKINS RESTAURANTS, INC., P R 0 Employer, T U N C and WAUSAU INSURANCE COMPANIES Insurance Carrier, Defendants. In order to correct a typographical error, paragraph number one of the order portion of the decision is arended by striking the words "one hundred" following the word claimant and inserting in lieu thereof the words "seventy-five." Signed and filed this 29th day of July, 1988 LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas L. Root Attorney at Law 306 First Federal Savings & Loan Bldg. P. 0. Box 1502 Council Blufts, Iowa 51502 Mr. Philip Willson Attorney at Law 370 Midlands Mall P. 0. Box 249 Council Bluffs, Iowa 51502 Page 1 before the iowa industrial commissioner ____________________________________________________________ : RUDOLPH K. BAKER, : : Claimant, : File No. 845576 : vs. : A R B I T R A T I O N : SIVYER STEEL CORP., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Rudolph K. Baker against his former employer, Sivyer Steel Corporation, based upon an alleged injury of December 8, 1986. The claimed injury is varicose veins affecting the claimant's left leg. The disputed issues are whether the condition is an injury which arose out of and in the course of his employment; whether the alleged injury is a proximate cause of any permanent disability affecting Baker's left leg; and, if so, the extent of permanent disability attributable to the alleged injury. The claimant stipulated that he had been paid compensation benefits for all time he had missed work on account of his leg condition and is not seeking any additional temporary total disability, temporary partial disability or healing period compensation. The case was heard at Davenport, Iowa, on October 28, 1991. The record consists of joint exhibits 1 through 7 and the testimony of claimant. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. Rudolph K. Baker is a gentleman who was employed at Sivyer Steel Corporation in Bettendorf, Iowa, from September 1965 until his employment ended as a result of a strike in September 1988. Sivyer Steel Corporation operates a foundry and approximately 90 percent of Baker's time with the employer was spent working as a core maker. On December 8, 1986, he was assigned to make large cores. Part of the work involved carrying the cores and placing them on the rack upon which they were baked. Previously, carrying the cores had been performed by two individuals and December 8, 1986, was the first day that claimant had ever Page 2 been required to perform that function alone. Baker felt nothing unusual while at work, but when he returned home that evening, he noticed an unusual sensation in his left leg and observed redness around the ankle. Baker has a history of varicose vein problems dating back prior to 1971 when he underwent surgical stripping of veins in his left leg (exhibit 1). Following the surgery, Baker's symptoms resolved and he was essentially, though not completely, asymptomatic prior to December 8, 1986 (exhibit 2, page 5). Baker sought medical treatment and was restricted against prolonged standing or heavy lifting. He was provided support stockings and medication (exhibit 2, pages 4 and 5). Claimant's complaints did not resolve and he was referred for an orthopaedic evaluation which failed to disclose any spinal causative factor for his leg discomfort (exhibit 2, page 2). The last treatment note is dated April 29, 1987. It notes that claimant had continuing slight swelling of both the left lower extremity and right lower extremity, but that it was not clinically severe. The note indicates that claimant was advised to continue wearing the support stocking (exhibit 2, page 3). Part of claimant's treatment and care was provided by general surgeon C. R. Fesenmeyer, M.D. Dr. Fesenmeyer expressed the opinion that claimant had a temporary aggravation of his preexisting varicose vein condition as a result of his work activities, but that the aggravation was only temporary and produced no permanent impairment. Dr. Fesenmeyer related the need for support stockings and activity restrictions to the preexisting varicosities and not to any incident in November or December of 1986 (exhibit 3, pages 2-5). While Dr. Fesenmeyer has assigned a 15 percent permanent impairment rating of claimant's left lower extremity due to the varicose vein condition, he has not attributed any part of that impairment to any work injury (exhibit 3, page 1). While there is evidence in the record which seems to indicate some possible worsening of the claimant's varicose vein condition, that evidence is outweighed by the opinion of Dr. Fesenmeyer which characterizes the 1986 injury as a temporary aggravation. There is no expert medical opinion evidence which conflicts with the opinion expressed by Dr. Fesenmeyer. The assessment of Dr. Fesenmeyer is therefore found to be correct. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 8, 1986, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d Page 3 128 (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. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 8, 1986, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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 Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). The fact that Rudolph K. Baker had preexisting varicose veins does not make him immune from injury. He has proven, by a preponderance of the evidence, that he sustained an injury in the nature of an aggravation of that preexisting condition on December 8, 1986. Since the claimant expressly denied any claim for additional temporary total disability or healing period compensation, the only issue is the claim for permanent partial disability compensation. Baker has failed to prove, by a preponderance Page 4 of the evidence, that the injury produced any permanent disability. The evidence from Dr. Fesenmeyer clearly establishes that the injury is limited to a temporary aggravation of the preexisting condition. It is therefore determined that Rudolph Baker is not entitled to recover any permanent partial disability compensation on account of the December 8, 1986 injury. Since claimant has prevailed in establishing the occurrence of injury arising out of and in the course of employment, he will be awarded costs, despite the fact that he is not awarded any additional recovery. order IT IS FURTHER ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that the costs of this action are assessed against the employer pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 5 Copies To: Mr. Allan Hartsock Attorney at Law 4th Floor, Rock Island Bank Bldg. P.O. Box 4298 Rock Island, Illinois 61204-4298 Mr. Jeffrey M. Margolin Mr. E. J. Kelly Attorneys at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 5-1803.1; 5-2206 Filed November 5, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : RUDOLPH K. BAKER, : : Claimant, : File No. 845576 : vs. : A R B I T R A T I O N : SIVYER STEEL CORP., : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 5-1803.1; 5-2206 Claimant proved a temporary aggravation of a preexisting condition, but failed to prove any permanency resulting from the injury.