Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY ORIGER, : : Claimant, : : vs. : : File No. 848639 LEY MOTOR COMPANY, : : Employer, : : and : : A P P E A L UNIVERSAL UNDERWRITERS : INSURANCE COMPANY, : : D E C I S I O N Insurance Carrier, : Defendants. : _______________________________ : LARRY ORIGER, : : Claimant, : : vs. : : File No. 848640 PIERSON FORD-LINCOLN-MERCURY, : : Employer, : : and : : GENERAL CASUALTY COMPANIES,: : 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. findings of fact The findings of fact contained in the proposed agency decision filed May 29, 1990 are adopted as final agency action. conclusions of law The issues to be decided are whether claimant's claims are barred by the statute of limitations and whether claimant has met his burden of proving a causal connection Page 2 between alleged injuries of April 24, 1984 and October 29, 1984 and the claimed disability. Claimant filed this action on August 3, 1987. Claimant's claim would be barred by the provisions of Iowa Code section 85.26(1) unless the discovery rule is applied. The discovery rule was discussed in Jones v. Continental Baking Company, Appeal Decision, September 24, 1991, File No. 908648. Under the discovery rule enunciated in Orr v. Lewis Central School District, 298 N.W.2d 256, 261 (Iowa 1980), and Robinson v. Department of Transportation, 296 N.W.2d 809, 812 (Iowa 1980), the statute of limitations would not start to run until claimant recognized the nature, seriousness and probable compensable character of his injury.... .... Defendants argue on appeal that claimant's injury is not subject to the discovery rule, because claimant's condition flows from an identifiable, traumatic event. Defendants argue that there should be a distinction between "latent injuries" and "traumatic injuries with latent manifestation." Defendants cite LeBeau v. Dimig, 446 N.W.2d 800 (Iowa 1989). LeBeau is a tort case, dealing with the discovery rule in an automobile accident case. The plaintiff received a head injury, which appeared minor at first but later turned out to be the cause of epilepsy. However, the statute of limitations had aware of his traumatic injury on April 22, 1986, and its compensable nature, he was not aware of its seriousness until late summer, 1987. It is noted that the Robinson decision holds that the determination of claimant's knowledge is a question of fact for the commissioner to decide. It is also noted that in Robinson, it was found that the claimant was aware of both the nature and seriousness of his offense at the time of his heart attack and benefits were denied. The Iowa Supreme Court has recently reviewed LeBeau, 446 N.W.2d 800, and stated: "Because we classified LeBeau's suit as a traumatic event/latent manifestation case, we refused to apply the discovery rule." Wilber v. Owens-Corning Fiberglass Corp., No. 333/90-882, Slip Op. at 6 (Iowa October 16, 1991). In this case claimant had traumatic injuries on April 24, 1984 and October 29, 1984 and the claim is barred by Iowa Code section 85.26(1). Even if the discovery rule were to be applied, claimant's case is one of inconsistency. While claimant may not have realized that he had a seizure disorder until the first seizure occurred in November 1986, it was claimant's testimony that he had loss of consciousness, blurred vision and headaches shortly after the work incidents. (Note this testimony had been rejected in the findings of fact.) If this testimony were accepted as true it could be found that claimant should have realized that his alleged injury was something more than a cut or a contusion shortly after the work incidents. Thus, even if the discovery rule were to be applicable, claimant's claim would be barred. If the discovery rule were applicable and claimant's testimony were to be accepted, claimant should have known shortly after the traumatic events that his alleged loss of consciousness, blurred vision and headaches were serious and that it may have been compensable. If claimant's claim were not barred by the statute of limitations, he would still have the burden of proving a causal connection between the alleged injuries and his claimed disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of April 24, 1984 or October 29, 1984, or both, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts Page 4 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). A cause is proximate if it is a substantial factor in bringing about the result. It need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). As discussed in the findings of fact the credentials of Drs. Davenport and Dora are superior to Dr. Wolfe. The medical opinions of both Dr. Davenport and Dr. Dora are based upon incorrect history. There is no reliable medical testimony that demonstrates that either or both of claimant's injuries was the probable cause of claimant's disability. WHEREFORE, the decision of the deputy is affirmed order THEREFORE, it is ordered: That claimant take nothing from these proceedings. That claimant pay the cost of this proceeding including the costs of transcription of the hearing. Signed and filed this ____ day of November, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. M. Gene Blackburn Attorney at Law 142 N. 9th St. P.O. Box 817 Fort Dodge, Iowa 50501 Mr. Daniel W. Willems Attorney at Law 104 Third Ave. SW P.O. Box 1749 Cedar Rapids, Iowa 52406 Ms. Jeane W. Pearson Attorney at Law 603 Snell Bldg. Fort Dodge, Iowa 50501 Page 5 Mr. Richard G. Blane, II Attorney at Law 803 Fleming Bldg. Des Moines, Iowa 50309 Mr. Marvin E. Duckworth Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY ORIGER, Claimant, VS. File No. 848639 LEY MOTOR COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Insurance Carrier, Defendants. _______________________________________ LARRY ORIGER, Claimant, VS. File No. 848640 PIERSON FORD-LINCOLN- MERCURY, Employer, and GENERAL CASUALTY COMPANIES, Insurance Carrier, Defendants. STATEMENT OF THE CASE This decision concerns two cases in arbitration brought by Larry Origer. File number 848639 deals with an injury of April 24, 1984 while he was employed by Ley Motor Company. File number 848640 deals with an injury of October 29, 1984. The cases were consolidated and heard at Fort Dodge, Iowa on November 16, 1989. The record consists of testimony from Larry Origer, Richard L. Cooke, Connie Origer, Thomas ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 2 Johnson, Gary Meyer, Stephen Blok and Stanley W. Thorpe. The record also contains claimant's exhibits 1 through 31, 33, 34, 35, 36, 38 and 39 as well as defendants' exhibits A, B, C, D, E, F, G, H, I, K, M, N and P. ISSUES Larry Origer sustained injuries on the dates alleged with each of the respective employers. He has since developed a seizure disorder. The controlling issue in these cases is whether the seizure disorder was proximately caused by either or both of those injuries and therefore arose out of the employment. Origer seeks compensation for permanent total disability and payment of expenses of medical treatment incurred in relation to the seizure disorder and its sequelae. FINDINGS OF FACT After hearing the testimony and considering all the exhibits in the record, the following findings of fact are made. Larry Origer is a 35-year-old divorced man who lives at Spencer, Iowa. He is a high school graduate who attended technical school, served in the United States Marine Corps, worked briefly as a telephone lineman and has held a part-time job at an oil station. Origer began work for Ley Motor Company as a mechanic in 1982 and eventually became assistant parts manager. On April 24, 1984, while preparing to change the rear main seal on an automobile, the vehicle fell off the jackstands and, in doing so, the front bumper struck claimant's head. According to Origer, he felt dazed, woozy and nauseated. He stated that he could hear co-employees Thomas Johnson and Gary Meyer speaking to him, but was unable to understand what they were saying. Origer stated that at lunch time he walked home, a distance of approximately two blocks, and observed a lump on the side of his head. He stated that he went to sleep and, when he awoke six hours later, his vision was still blurred and that he experienced double vision for a couple weeks thereafter. He stated that he had ringing in his ears through the following day. Origer stated that his head and neck hurt and that on the following day his wife drove him to see a doctor. Origer stated he was still experiencing dizziness and blurry and double vision at that time. He stated that he reported all those symptoms to the doctor, but that the doctor had a bad accent which was hard to understand. ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 3 Exhibit I, a record from K. T. Song, M.D., of Park Clinic, establishes that Origer was seen on April 25, 1984 with a complaint of discomfort in the right side of his neck which resulted from being hit by the bumper of a car which had slipped off a jack. The record reflects that Origer denied having loss of consciousness. A small abrasion was observed above his right ear, but no hematoma or bump was noted. Dr. Song authorized claimant to return to work and take aspirin for pain as needed. Origer did not return to work until May 1, 1984 at which time he got into an argument over shoveling snow and left. Connie Origer, claimant's former spouse, stated that he had come home early, around noon, on April 24, 1984 with a big bump the size of a golf ball on the side of his head. She stated that he was also pale and slow. Connie stated that claimant lay down and rested for the remainder of the day and was off work for at least a week. Thomas Johnson and Gary Meyer, former co-employees of the claimant at Ley Motor Company, testified that they heard the car which claimant was working under fall from the jackstands. They looked and went to him and found him sitting on a creeper, looking surprised and shook up, but conscious. They related that claimant reported bumping his arm and observed no sign of injury on him. Both agreed that after five or ten minutes, they all resumed work and that claimant finished the job of changing the rear seal on the vehicle. A signed statement which claimant made in June 1984 to the Department of Job Service indicates that his neck was bothering him, but contains no reference to headaches, blurry vision or any other symptom (exhibit K, page 2). Claimant's time card for the week ending April 28, 1984,shows that on April 24 he worked from 7:41 a.m. until 12:01 p.m. and again from 12:31 p.m. to 5:31 p.m., an amount which appears to be a normal work day. The time cards show no work subsequent to April 24, 1984 (exhibit K, page 16). The testimony from claimant and his spouse regarding a loss of consciousness, blurred vision and headaches is rejected. The testimony from Thomas Johnson and Gary Meyer is accepted as being correct, as are the records of Dr. Song and Job Service which show claimant"s only symptom to have been pain in his neck. The time card clearly establishes that claimant worked during the afternoon of April 24, 1984, rather than staying home and sleeping as both he and his former spouse had testified. After a period of unemployment and working briefly for Winnebago Industries, Origer obtained employment as a mechanic at Pierson Ford-Lincoln-Mercury in July 1984 and ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 4 remained employed there until November 1986. On October 29, 1984, while changing the engine in a pickup truck, a chain broke, the engine fell and the engine hoist came up hitting claimant on the left forehead. According to claimant's testimony at hearing, the next thing he knew was that he was out of the pickup and bleeding. He stated that he felt rubbery-legged, nauseated and was unable to hear the persons who were around him. Origer stated that he was taken to a doctor's office where he was treated by a nurse practitioner and that by the time he left the office, he could hear, but voices sounded hollow. He stated that he continued to have that symptom for a few days. He stated that he felt woozy throughout the next day and was off work for two or three days. Claimant stated that his symptoms lasted for approximately two weeks following the incident. The notes from Spencer Medical Associates, P.C., show that claimant was seen with a full thickness laceration below the left eyebrow and a small laceration in the eyebrow on October 29, 1984. A note dated November 2, 1984 shows that the sutures were removed, the wound was well healed and no infection was noted (exhibit F, page 9). No history or statement regarding other complaints appears in the record. The records show claimant to have been seen again on December 10, 1984, December 17, 1984, February 12, 1985, April 18, 1985, April 22, 1985, June 26, 1985, June 27, 1985, July 2, 1986, July 3, 1986, September 16, 1986 and September 19, 1986 prior to the November 7, 1986 note which makes reference to claimant's seizure. The only one of those notes which makes any reference to headache is the one of December 17, 1984. Exhibits H, and P, records from Estherville Medical Center, P.C., show that claimant was seen on May 1, 1984 with complaints of continuous headaches since dropping a car on his head the previous Tuesday. The assessment made was that he has muscle spasm, apparently of the trapezius muscle group (exhibits H and P). Connie Origer stated that on October 29, 1984, claimant came home early, spoke slowly, had to struggle for words and remained that way for approximately four days. She stated that he complained of headache and blurred vision occasionally. She was unsure how long those complaints continued. Steven Blok was acting as service manager at Pierson Ford on October 29, 1984. He heard the bang when the chain broke, looked and stated that he saw claimant standing, holding his head. Blok stated that claimant was responsive, ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 5 able to talk and was getting a lump on his head. He did not recall seeing any blood. He stated that claimant was taken to the hospital. Blok related that, following claimant's return to work, he complained of a headache from time to time, but seemed no different than he had been prior to the incident. Blok was best man at claimant's wedding. Richard Cooke was also employed as a mechanic at Pierson Ford on October 29, 1984. According to Cooke, he head a loud bang when the chain broke, went to assist claimant and found him lying over the engine and unresponsive. Cooke stated that claimant had a gash on his head, that his eyes were going in all directions and that in approximately 45 seconds, he came to. Cooke stated that, with assistance, he removed claimant from the engine compartment. He stated that claimant initially had trouble standing and was then taken to the hospital. Cooke also related that claimant's speech was initially slurred and difficult to understand when he first came to. Cooke stated that claimant did not return to work for approximately three days and that, when he did, he had a bruise on the upper part of his forehead, a black eye and stitches. Cooke related that, after returning to work, claimant was slower than he had been prior to the injury, but was still a good mechanic. He related that, on numerous occasions after the injury, claimant would not respond when spoken to, but often complained of headaches. Exhibit 6 shows that claimant continued to be employed at Pierson Ford until November 1986. Earnings for the week which includes October 29, 1984 are approximately half of claimant's typical weekly earnings and confirm that he missed several days of work (exhibit 6, page 29). In November 1986, Origer developed a seizure disorder. He eventually came under the treatment of John Davenport, M.D., a physician at the Veterans Administration Medical Center in Minneapolis, Minnesota. Dr. Davenport is board-certified in neurology and electroencephalography (exhibit 13, page 4; deposition exhibit 2). Dr. Davenport has concluded that claimant's seizure disorder is a result of the two traumas which he sustained in 1984. In making that assessment, Dr., Davenport has relied upon a history that claimant was.knocked unconscious on both occasions and was afflicted with double vision for several weeks following the October injury (exhibit 13, pages 8-9; deposition exhibits 1 and 3). Dr. Davenport agreed that if the history were incorrect, his opinion regarding causation would be weaker (exhibit 14, pages 6 and 12). Dr. Davenport affirmed that most post-traumatic ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 6 seizure disorders appear within 6-18 months following the causative trauma, but a later onset is not extremely unusual (exhibit 14, pages 19, 23, 34 and 35). He agreed that the lesser the severity of the trauma, the lesser is the likelihood of it causing a seizure disorder (exhibit 14, pages 19 and 23). Steven L. Wolfe, M.D., claimant's family physician at Spencer Medical Associates, P.C., reported on June 17, 1988 that claimant suffered from a probable idiopathic seizure disorder. He stated that the head injury at Pierson Ford was a mild injury, that there was no history of any loss of consciousness and that the injury was simply a laceration of the eyebrow (exhibit F, page 1). Joseph M. Doro, D.O., who is board-certified in neurology, evaluated claimant and assessed his case. Dr. Doro has studied epilepsy and seizures extensively and for that reason appears to have somewhat more expertise than Dr. Davenport. Dr. Doro agreed that claimant has a seizure disorder, but stated that the condition is idiopathic, rather than post-traumatic (exhibit A; exhibit E, pages 1825 and 46-48). Dr. Doro explained that most seizure disorders are idiopathic, but that they can result from trauma. He stated that the main criteria for a causative feature is the severity of the trauma and that, when seizures are traumatically induced, there is generally a prolonged loss of consciousness with amnesia or structural brain damage and that the individual is generally slow to wake up from the loss of consciousness (exhibit E, page 14). Dr. Doro agreed with Dr. Davenport that seizures which are traumatically induced generally occur within 6-18 months following the trauma (exhibit E, pages 14 and 51-54). Dr. Doro felt that the two 1984 head injuries were minor injuries which did not have the potential for producing damage sufficiently serious to produce a seizure disorder (exhibit E, pages 9-11, 36-38, 44 and 45). Upon close examination of the record, it appears as though even Dr. Davenport was unimpressed with the severity of the April 24, 1984 injury. Claimant's testimony regarding the incident and residual 'symptoms is simply not corroborated. It is found that the April 24, 1984 incident produced an abrasion on claimant's head, headache which lasted for a few days and spasms in his neck and trapezius muscle group. It did not produce a significant head injury and was not a substantial factor in producing the seizure disorder which presently afflicts him. ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 7 It is.found that the October 29, 1984 injury was more serious than the April injury. It is found that claimant did lose consciousness for approximately 45 seconds as related by Richard Cooke. Steven Blok's testimony regarding a lack of recall of bleeding is obviously incorrect since the medical records show two lacerations which were sutured. This impairs the reliability of his testimony. Such injuries quite commonly produce profuse bleeding. The medical records make no reference to any particular history of injury. They cannot be relied upon as negating claimant's claim and Cooke's testimony that there was a loss of consciousness. It would be expected that, following an injury of that type, there would be discomfort at the injury site for a few weeks consistent with the medical records. The record does not, however, corroborate the claim of several weeks of blurred or double vision. It does contain corroboration from Blok and Cooke of complaints of headaches. The blow sustained on October 29, 1984 is found to be much more severe than the blow of April 24, 1984. The professional credentials of Drs. Davenport and Doro are impressive. Both have credentials superior to Dr. Wolfe. Dr. Wolfe's history which negates a loss of consciousness is incorrect. The history relied upon by Dr. Doro is also incorrect to the extent that it completely excludes loss of consciousness having occurred with the October injury. The history relied upon by Dr. Davenport is also incorrect in that it assumes a loss of consciousness from both injuries and a long-term continuation of symptoms following both injuries. It is certain, however, that the seizure disorder did not develop until slightly more than two years following the October 1984 trauma and both Drs. Davenport and Doro have indicated that, after 18 months have passed, the likelihood of the seizure being trauma induced is greatly reduced. While the October injury was more serious than the April injury, it likewise does not appear to have been particularly serious. As indicated by Dr. Doro, head lacerations and brief periods of unconsciousness are generally not permanently injurious. The record of this case, other than claimant's complaints, contains no corroboration of claimant's testimony regarding continuing symptoms prior to the onset of the seizure disorder more than two years later. It is therefore determined that, while it is certainly possible that the October 29, 1984 injury was a substantial factor in bringing about Larry Origer's seizure disorder, the evidence in this case is not sufficiently strong to demonstrate that a causative relationship is probable or likely. ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 8 The record shows that this action was commenced by claimant filing a petition on August 24, 1987. The record of this case does not definitely establish the amount of time that claimant was disabled following each of the two injuries. He was off work without medical authorization from April 25, 1984 through April 30, 1984 following the first injury. With regard to the October injury, it is noted that October 29, 1984 was a Monday. It cannot be determined whether he returned to work during that same week or during the following week. The estimates of the time he was off work range from three days to a week. It is absolutely certain that Origer could not have realized that he had a seizure disorder until the first seizure occurred in November 1986. His petition was filed less than a year thereafter on August 3, 1987. He could not have had any reason to believe that the seizure disorder was work related until it manifested itself in November 1986. Origer did know, however, immediately following both traumas, that he experienced pain, obtained medical treatment and was off work. If his testimony regarding continuous symptoms following either injury, or in particular the October injury, is accepted as being true, he went for a period of two years without seeking any medical treatment for those symptoms. Such a course of conduct, if those are the facts that actually existed, would not constitute reasonable diligence. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of April 24, 1984 or October 29, 1984, or both, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 9 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). A cause is proximate if it is a substantial factor in bringing about the result. It need not be the only cause. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). The opinion of Dr. Doro rebuts the opinion of Dr. Davenport. Neither doctor relied upon a completely correct history in reaching an opinion. Claimant's burden of proof is probability rather than mere possibility. It is determined that he has failed to prove that either of the two 1984 head injuries, or the combination of them, was a proximate cause in producing the seizure disorder which currently afflicts him. Claimant's claim would be barred by the provisions of Iowa Code section 85.26(l) unless the discovery rule is applied. Orr v. McNair, 386 N.W.2d 145 (Iowa App. 1986); Robinson v. Dep't of Transp., 296 N.W.2d 809 (Iowa 1980). It is clear that, with regard to the April injury, he was off work for more than three days and no weekly compensation benefits were paid. It is clear that no weekly benefits were paid following the October injury, although it appears that he was off work for at least three days following that incident. An absence from work of four or more days is sufficient.to create an entitlement to temporary total disability compensation under the provisions of Code sections 85.32 and 85.33. If claimant's testimony is accepted as being correct, it is clear that he had a claim for temporary total disability compensation which could have been pursued well within the two-year limitation provided by the statute. He had a remedy, but did not pursue it. Stoller Fisheries, Inc. v. American Title Ins. Co., 258 N.W.2d 336, 341 (Iowa 1977). This case is somewhat in line with the recent case LeBeau v. Dimig, 446 N.W.2d 800 (Iowa 1989). In that case, it was held that, for a personal injury tort claim, there is but one statute of limitations and that it begins to run whenever the plaintiff has a claim which can be pursued, even if the full extent of the claim or damages is not known and could not be discovered through the.exercise of reasonable diligence. The decision.speaks of the need for finality, a situation which does not exist in workers' compensation proceedings in view of the right to lifetime medical treatment and the right to review-reopen. ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 10 The most recent pronouncements from the Supreme Court are that, in those cases where only medical benefits have been paid, the two-year limitation is applicable. Beier Glass Co. v. Brundige, 329 N.W.2d 280 (Iowa 1983); Huntzinger v. Moore Business Forms, Inc., 320 N.W.2d 545 (Iowa 1982); Powell v. Bestwall Gypsum Co., 255 Iowa 937, 124 N.W.2d 448 (1963). In this case, Larry Origer knew that he had been injured in the course of his employment and that he had injury which arose out of his employment. He knew each injury had been sufficiently serious to cause him to miss work. While statutes of limitations often produce harsh results, it is determined that Larry Origer knew, immediately following each of the two injuries, that it was sufficiently serious to cause him to miss work, that each injury had been a blow to the head and that it was related to his work. In each instance, he was certainly aware of whatever symptoms followed those traumas. He had a litigable claim following each of those injuries, but chose not to pursue it. It is concluded that, where an injured employee knows the nature and probable compensable character of his injury, it is not necessary that he know the full and complete seriousness of that injury in order for the statute of limitations provided by section 85.26(l) to commence to run. In this case, it is concluded that claimant's claims would be barred by section 85.26(l) if he had been successful in demonstrating the existence of a continuing course of substantial symptoms consistent with his testimony. ORDER IT IS THEREFORE ORDERED that Larry Origer take nothing from these proceedings. IT IS FURTHER ORDERED that the costs of these proceedings are assessed against Larry Origer pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 29th day of May, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 11 Copies To: Mr. M. Gene Blackburn Ms. Jeane W. Pearson Attorneys at Law 142 North 9th Street P.O. Box 817 Fort Dodge, Iowa 50501 Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Richard G. Blane, II Attorney at Law 8th Floor, Fleming Building Des Moines, Iowa 50309 1108, 1402.30, 2402 Filed May 29, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER LARRY ORIGER, Claimant, VS. File No. 848639 LEY MOTOR COMPANY, Employer, and UNIVERSAL UNDERWRITERS A R B I T R A T I 0 N INSURANCE COMPANY, D E C I S I 0 N Insurance Carrier, Defendants. ____________________________________ LARRY ORIGER, Claimant, VS. File No. 848640 PIERSON FORD-LINCOLN- MERCURY, Employer, and GENERAL CASUALTY COMPANIES, Insurance Carrier, Defendants. 1108, 1402.30 Claimant suffered two head injuries in 1984, neither of which at the time appeared particularly serious, though both were followed by four or more days of absence from work. Slightly more than two years following the second injury, ORIGER v. LEY MOTOR COMPANY/PIERSON FORD-LINCOLN-MERCURY Page 2 claimant developed a seizure disorder. Nine months later, he commenced these proceedings. Significant parts of claimant's testimony were contradicted by the medical records made at the time of the two incidents. The medical experts both supporting and controverting claimant's claim of causation had incorrect medical histories. It was held that claimant had failed to prove that causation was probable as opposed to merely possible. 2402 It was further held that, if claimant's testimony regarding continued symptomatology following each incident were true, section 85.26(l) defenses would have been valid citing LeBeau v. Dimig. 5-1402.30; 2402 Filed November 18, 1991 BYRON K. ORTON MGT before the iowa industrial commissioner _________________________________________________________________ : LARRY ORIGER, : : Claimant, : : vs. : : File No. 848639 LEY MOTOR COMPANY, : : Employer, : : and : : A P P E A L UNIVERSAL UNDERWRITERS : INSURANCE COMPANY, : : D E C I S I O N Insurance Carrier, : Defendants. : _____________________________________________________ : LARRY ORIGER, : : Claimant, : : vs. : : File No. 848640 PIERSON FORD-LINCOLN-MERCURY,: : Employer, : : and : : GENERAL CASUALTY COMPANIES: : Insurance Carrier, : Defendants. : _________________________________________________________________ 5-1402.30 Claimant suffered two head injuries in 1984, neither of which at the time appeared particularly serious, though both were followed by four or more days of absence from work. Slightly more than two years following the second injury, claimant developed a seizure disorder. Nine months later, he commenced these proceedings. Material parts of claimant's testimony were inconsistent with medical records made at the time of the two work injuries. The medical opinions from the doctors with the best credentials were based upon incorrect history. There was no reliable medical testimony that demonstrated that either or both of claimant's injuries were the probable cause of claimant's alleged disability (seizure disorder). 2402 Claimant's claim would be barred by two year statute of limitation unless the discovery rule were applied. The discovery rule is not applicable in this traumatic event case. Even if discovery rule were applied, claimant's claim would be barred. Claimant should have known shortly after the traumatic events that his condition was serious and injury may have been compensable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CARL C. PETERSON, Claimant, VS. JOHN MORRELL & CO./IOWA File No. 848648 MEATS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and CHUBB GROUP OF INSURANCE COMPANIES/NATIONAL UNION FIRE INSURANCE, Insurance Carriers, and SECOND INJURY FUND OF IOWA, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Carl C. Peterson, against his employer, John Morrell & Company, and its insurance carrier, National Union Fire Insurance, as well as against the Second Injury Fund of Iowa to recover benefits as the result of an alleged injury of October 1, 1986 to the right arm and an alleged injury of June 4, 1985 to the left arm. This matter came on for hearing before the undersigned deputy industrial commissioner at Sioux City, Iowa, on July 6, 1990. A first report was filed on August 25, 1987. The record consists of joint exhibits 1 through 28; defendants' exhibits A through R; Second Injury Fund exhibits A through J; and, the testimony of claimant as well as the testimony of Donna J. Henry. At the request of the claimant, administrative notice is taken of Division of Industrial Services file numbers 906408 and 933308 which allege repetitive use injuries to claimant's right hand and PETERSON v. JOHN MORRELL & CO./IOWA MEATS Page 2 to both hands, respectively, on December 12, 1988 and January 3, 1989, respectively. Objections were placed as to joint exhibits 36 through 38 and defendants' exhibits A through R on the ground that those exhibits relate to the alleged dates of injury of December 12, 1988 and January 3, 1989 and, therefore, are not relevant to this proceeding. The objections are overruled. Medical reports subsequent to the alleged injury date of October 1, 1986 are relevant and have probative value as to defendants' contention that claimant did not sustain a separate injury on October 1, 1986 for which he is entitled to compensation at this time. ISSUES Pursuant to the prehearing order and the oral stipulations of the parties at hearing, the parties stipulated that claimant's rate of weekly compensation is $229.38. The issues remaining to be decided are: 1. Whether claimant received an injury arising out of and in the course of his employment on October 1, 1986; 2. Whether a causal relationship exists between claimant's claimed injury and claimed industrial disability; 3. The nature and extent of any entitlement to benefits, either against the employer or against the Second Injury Fund of Iowa; and, 4. Whether claimant is entitled to Second Injury Fund benefits. FINDINGS OF FACTS The deputy, having heard the testimony and considered the evidence, finds: Claimant is 47-year-old male who has worked for both John Morrell & Company and its predecessor, Iowa Meats. Claimant marks snouts, a job requiring the use of a 4-inch boning knife. Approximately 400 snouts are run per person per hour. Claimant initially noted left hand problems on June 4, 1985 for which he saw the company doctor on June 7, 1985. Claimant received treatment for those problems, briefly did light duty, and then returned to his regular duties. He PETERSON v. JOHN MORRELL & CO./IOWA MEATS Page 3 continued to see physicians in the interim, however. Claimant then noted symptoms in his right hand for which he saw the company doctor who referred him to Robert Quichten, M.D., a neurosurgeon, and Bruce Butler, M.D., a neurologist. Claimant received conservative care only prior to the John Morrell strike which began on March 9, 1987. On August 10, 1987, Dr. Butler opined that claimant had a five percent impairment of the right upper extremity secondary to permanent median nerve symptoms without surgery. Claimant testified that Iowa Meats had paid him five percent permanent partial disability on account of his left hand condition. The John Morrell strike continued until subsequent to .Easter, 1988. Claimant worked for a furniture store during the strike. Claimant reported that his hands were sore at first, but improved as time went on. Claimant returned to marking snouts after the strike. Claimant's hands "gave out" on December 12, 1988. On company referral, he saw D. M. Youngblade, M.D., who referred him to Quentin J. Durward, M.D. Dr. Durward performed a right carpal tunnel release on March 8, 1969 and a left carpal tunnel release on March 22, 1989. Pre- and post-operative diagnoses were of bilateral carpal tunnel syndrome. Donna J. Henry is a nurse in the John Morrell dispensary. Pursuant to her testimony, it is found that a new first report of injury was filed relative to a claimed injury of December 12, 1988 because the company had changed insurers and the new insurer would not accept liability for an old injury without a new report. CONCLUSIONS OF LAW Our first concern is whether claimant has shown a cumulative injury arising out of and in the course of his employment for an injury date of October 1, 1986. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on October 1, 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(l). PETERSON v. JOHN MORRELL & CO./IOWA MEATS Page 4 The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985), the Iowa Supreme Court upheld this agency's adoption of the cumulative injury rule for application in factually appropriate cases. The McKeever Court cited 1B Larson Workmen's Compensation Law, section 39.50 at 11-350.23 for two general rules as to when the injury occurs for time limitation purposes in cumulative trauma cases. Under Larson, the injury may occur when pair prevents the employee from continuing to work or when pain occasions the need for medical treatment. The Court adopted the view that the injury occurs when pain prevents the employee from continuing work reasoning that "clearly the employee is disabled and injured when, because of pain or physical disability he can no longer work." McKeever at 374. The McKeever Court then adopted what is commonly called the "last injurious exposure rule" for successive trauma cases, thereby placing full liability upon the carrier covering the risk at the time of the most recent trauma bearing a causal relationship to any disability. McKeever at 376. Claimant has not shown any injury as of October 1, 1986 which developed as a result of cumulative trauma arising out of and in the course of his employment and which expressly relates to his right hand. The medical evidence presented clearly shows that claimant was able to continue working clear through the John Morrell strike and, while he may have had symptoms, had not been required to leave work on account of PETERSON v. JOHN MORRELL & CO./IOWA MEATS Page 5 any injury to his right hand prior to that strike and was able to return to work immediately upon call-back after that strike. While claimant continued to receive medical care, that care did not culminate in any requirement that he leave work until he was off work on account of his bilateral carpal tunnel surgeries subsequent to December 12, 1988. Furthermore, the factual evidence clearly shows that claimant's condition developed simultaneously and involved both the right and the left hands. That fact also undercuts any basis for a finding that claimant received a cumulative injury to his right hand on October 1, 1986. Therefore, it is concluded that claimant has not shown a cumulative injury to his right hand on October 1, 1986. As claimant has not shown any second injury of October 1, 1986, arguably, we need not address the question of any entitlement to Second injury Fund benefits as a threshold requirement for Second Injury Fund benefits is, that there have been a second injury. We believe it is in the interest of administrative economy that we address that issue at this time, however. Before the Second Injury Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. See Allen v. Second Injury Fund, Thirty-fourth Biennial Report of the Iowa Industrial Commissioner 15 (1980); Ross v. Servicemaster-Story Co., Thirty-fourth Biennial Report of the Iowa Industrial Commissioner 273 (1979). The Act exists to encourage the hiring of handicapped persons by making the current employer responsible only for the amount of disability related to an injury occurring under his employ as if there were no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789, 791 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation-Law and Practice, section 17-1. The Fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Section 85.64. Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). Bilateral carpal tunnel syndrome resulting from one gradual injury process constitutes the loss of two members from one accident and is evaluated on a functional basis PETERSON v. JOHN MORRELL & CO./IOWA MEATS Page 6 under Iowa Code section 85.34(2)(s). Himschoot v. Montezuma Mfg., file numbers 672778 and 738235 (App. Decn., April 15, 1988) (affirmed and appealed to Court of Appeals, Feb. 22, 1990). The manifestation of one injury on two occasions does not necessarily qualify an injury for Second Injury Fund benefits under section 85.64. McMurrin v. Quaker Oats Co., I Iowa Industrial Commissioner Report 222 (App. Decn., April 28, 1981). The Second Injury Fund correctly asserts in its brief that claimant has not shown an initial injury to his left arm on June 4, 1985 which resulted in permanent impairment to the left arm. While claimant did receive some medical treatment at that time, he was able to continue in his duties and no permanency rating was given at that time. Such is not indicative of any separate permanent injury. Additionally, as stated in the above findings of fact, the record clearly shows that claimant has undergone a single, simultaneous bilateral process which cannot be said to have culminated in any injury until at least on or after December 12, 1998 when claimant actually left work on account of that single, simultaneous process to undergo bilateral carpal tunnel surgeries, with right and left hand surgeries scheduled only two weeks apart. Given that claimant has not sustained a distinct first injury of June 4, 1985 and that claimant's injury, if such exists, resulted in one simultaneous injury to both extremities occurring on or after December 12, 1988, claimant has not shown any entitlement to Second Injury Fund benefits on this record. Therefore, it is concluded that claimant has not established any entitlement to Second Injury Fund benefits. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing from this proceeding. Claimant pay costs of this proceeding pursuant to Division of Industrial Services Rule 343-4.3. Signed and filed this 20th day of September, 1990. HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER PETERSON v. JOHN MORRELL & CO./IOWA MEATS Page 7 Copies To: Mr. Harry H. Smith Attorney at Law P.O. Box 1194 Sioux City, Iowa 51102 Mr. Bryan J. Arneson Attorney at Law 507 7th Street Suite 340,,Insurance Center Sioux City, Iowa 51101 Ms. Shirley Ann Steffe Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1108.50, 2209, 3202 Filed September 20, 1990 HELENJEAN WALLESER before the iowa industrial commissioner ____________________________________________________________ : CARL C. PETERSON, : : Claimant, : : vs. : : JOHN MORRELL & CO./IOWA : File No. 848648 MEATS, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CHUBB GROUP OF INSURANCE : COMPANIES/NATIONAL UNION : FIRE INSURANCE, : : Insurance Carriers, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ____________________________________________________________ 1108.50, 2209 Found claimant had not shown separate cumulative trauma to his right hand on alleged injury date where evidence showed simultaneously developing bilateral carpal tunnel syndrome for which claimant did not actually leave work until substantially subsequent to alleged injury date. Separate nonconsolidated claims were filed for claims involving actual date on which claimant left work. 3202 No Second Injury Fund entitlement where claimant had no permanent injury on account of alleged left hand condition and where evidence showed no second injury on alleged injury date and that claimant's condition involved simultaneously developing bilateral carpal tunnel syndrome. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID A. WOLLMAN, Claimant, VS. File No. 848661 SIOUXLAND QUALITY MEAT CO.INC.,: A R B I T R A T I 0 N Employer, D E C I S I 0 N and THE HARTFORD, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, David A. Wollman, against Siouxland Quality Meat Company, Inc., employer, and The Hartford Insurance Company, insurance carrier, defendants, to recover benefits as a result of an alleged injury sustained on June 30, 1987. This matter comes on for a hearing before the deputy industrial commissioner in Sioux City, Iowa on November 2, 1989' The record consists of the testimony of the claimant and joint exhibits 1 through 27. ISSUES The issues set out in the prehearing report for resolution are: the nature and extent of claimant's disability and whether claimant is entitled to medical benefits involving H. G. Blume, M.D., under 85.27 of the Iowa Code. REVIEW OF THE EVIDENCE Claimant testified he is a high school graduate and attended approximately two years total post high school education at two different colleges. Claimant described several manual labor jobs he had after he graduated from high school up to beginning work for defendant employer on December 16, 1986 at age 26. Claimant said these manual labor jobs were considered heavy duty work. Some of these jobs involved constructing buildings, custom meat cutting, landscaping and nursery work, working at a gravel company and operating a rock crusher, working at a steel pipe WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 2 company, and working at IBP. Claimant indicated that he worked at many jobs for only a few weeks or months. Claimant described himself as a He-man type person and liked hands-on manual type work. Claimant began working for the defendant employer December 16, 1986. He said his job was lugging, which involved unloading and loading beef and sheep hinds weighing 150-250 pounds. Claimant stated if the equipment wasn't working properly, he would bearhug a hind quarter of beef and put it on his shoulder and carry it from a truck to the rail. Claimant said upper body strength is more important than leg strength in this type of job. Claimant described the number of loads and the weight he unloaded and loaded himself. Claimant testified that on June 30, 1987, he had finished one load of beef and lamb and was starting a second load when the equipment stopped working and a hind quarter of beef fell off the faulty hook. He said another fellow worker gave a big heave-ho with a piece of beef onto claimant and claimant felt a pop and burning sensation in his back. Claimant stated he reported the injury to the foreman who told him to shake it off. Claimant said he tried to continue more than once but had to stop. Claimant then received permission to see Frederick J. Lohr, M.D., the company doctor. Claimant testified he returned to work July 7, 1987 with no restrictions. He said he still had trouble working at this job and wasn't able to continue. Claimant stated he went to attorney Furlong to file bankruptcy and was told that he couldn't file as the workers' compensation proceeds would be used to pay his bills. Claimant stated he was unhappy with the company doctor, Dr. Lohr, and went to Horst G. Blume, M.D., around July 14, 1987. Claimant contends he then obtained some relief from his pain. Dr. Blume released claimant to go back to work beginning August 13, 1987. Claimant described his problems with defendant employer as to working within his restrictions upon his return to work. Claimant said he then went to Dr. Blume again on January 17, 1988 because he was not getting better. Claimant revealed Dr. Blume put more restrictions on him like lifting not over 30 pounds, no bending, and stooping at the waist. Claimant said he called defendant employer who indicated there were no jobs for the claimant with those restrictions. Claimant said he tried to get unemployment on January 20, 1988. Claimant said an appointment was arranged with the new company doctor, John N. Redwine, D.O., for March or April 1988. Claimant indicated the doctor saw no reason for claimant's pain. WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 3 Claimant was eventually referred to Robert A. Durnin, M.D. Claimant said Dr. Durnin left the state so claimant eventually was referred to Kevin J. Liudahl, M.D. Claimant contends Dr. Liudahl did not know if anything could be done, but did request the results of other tests previously performed on claimant including Dr. Blume's MRI which cost $2200.00. Claimant contends other doctors used Dr. Blume's medical information. Claimant eventually went to Brian W. Nelson, M.D., through a referral from Dr. Liudahl. Dr. Nelson recommended a Cybex Program. Claimant emphasized he felt Dr. Nelson gave him inadequate care. Claimant contends that Dr. Nelson felt the Cybex system can tell if claimant is faking. He thought Dr. Nelson treated him like an invalid. Claimant said he agrees with Dr. Nelson's notation in March 1989 that claimant reached maximum recovery on March 22, 1989. (Joint Exhibit 19) He also agreed with Dr. Nelson's restrictions. (Jt. Ex. 20) Claimant revealed he has never improved after March 22, 1989 and does not try to lift 50 pounds. Claimant says he presently has two jobs, one working the cash register at Moodys Liquor Store three days a week at $5.00 per hour and at the Marina Inn, booking and greeting guests at $4.00 per hour 34 hours a week. Claimant contends he is excluded from a large portion of the job market due to his injury and restrictions. Claimant acknowledged the truth of the reference in the vocational rehabilitation report that he was convicted of a felony drug possession in 1982 and pled guilty and served 69 days of 90 sentence plus 3 years probation. Claimant admitted he has not seen Dr. Nelson for services since claimant's March 22, 1989 discharge. Claimant emphasized he never had a problem with his back before June 30, 1987 compared to its current condition but acknowledged a back problem when working at IBP around 1983. Claimant said he didn't file a workers' compensation claim in 1983. Claimant said he was also off one to two weeks with a neck injury while at IBP. Claimant emphasized these prior problems are not the same as his current problem. Frederick J. Lohr, M.D., reported claimant was in his office on June 30, 1987 with a complaint of tightness in his paraspinal muscles in the lumbar area. He said that after claimant's approximate fourth visit to his office, the last being July 9, 1987, claimant indicated he had no relief from pain and no relief from the therapy. Claimant requested a second opinion that claimant had already arranged. John W. Redwine, D.O., saw claimant on March 1, 1988 and found no significant physical abnormalities. He indicated claimant continued to complain of pain in the midthoracic region and lower lumbar area of the back. He found no objective findings to account for claimant's persistent back pain. He WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 4 referred claimant to a Dr. Samuelson for another opinion. Dr. Redwine's notes of April 22, 1988 and July 20, 1988 respectively reflect claimant was to see a Dr. Durnin and a Dr. Liudahl on April 29, 1988 and July 22, 1988 respectively. Claimant saw Robert Durnin, M.D., two times. On May 12, 1988 Dr. Durnin wrote: "I would think that the most likely problem with this gentlemen is a disc degeneration." (Jt. Ex. 10) Kevin J. Liudahl, M.D., wrote on July 22, 1988: "I have the report of minimal degenerative disk disease at the lowest level according to Dr. Durnin. The other report shows that it was normal. Impression: Chronic Lumbar syndrome with some radiculitis." (Jt. Ex. 11) On September 15, 1988 Dr. Liudahl wrote: His diagnosis is chronic lumbar syndrome with radiculitis. No nerve root involvement. The patient requested a surgical consultation. I suggested to Dr. Redwine that he refer him to Dr. Durward to answer any of his neurosurgical type of questions. Also recommended he be sent to the Back Clinic of North America for testing on their Cybex machinery and their muscle rehabilitation program. I believe this is the. best way to handle chronic lumbar syndrome in workman compensation cases. I referred his continuing care back to Dr. Redwine and asked him to see him back on a prn basis. (Jt. Ex. 12) On October 24, 1988 Q. J. Durward, M.D., wrote: I think this patient has a chronic strain to his low back associated probably with some facet disease at L5/Sl. Clinically this has been on the basis of his injury at work. I think that there's a reasonable chance that isokinetic rehabilitation by building up the paraspinal muscles will lend the best chance of a long term symtomatic relief from this. I ' have made this referral, in fact he requested that I do this. My recommendation in the future would be for him not to be involved in an occupation where he has to lift more than 30 lbs. I think it probably would be appropriate for him to have job retraining in some other light duty. WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 5 As far as a permanent partial impairment goes, it's very difficult to relate right, but would say it's probably in the order of 5%. (Jt. Ex. 13 PP. 1-2 On November 3, 1988 Dr. B. W. Nelson of the Back Care, Inc. clinic wrote: Assessment: Chronic mild facial strain, apparently secondary to work accident on the 30th of June, 1987. Today patient was positive in most of the signs of nonorganic pathology. Recommendation: 1) I recommend this patient begin isokinetic rehabilitation. I would like him to be seen 3 times a week with the goal being to normalize the values of his trunk muscles. 2) Patient should be considered temporarily disabled from work. Patient already has been accepted into a vocational rehab program and appears to be eager about doing that. Hopefully in approximately 8 weeks we will have increased his functional ability such that he will be able to tolerate sitting at a desk and doing his vocational rehab. 3) I will follow this patient up again in 3 weeks for a recheck. 4) We will follow the Wadell signs closely. (Jt. Ex. 14, PP. 2-3) On November 30, 1988, Dr. Nelson wrote: Assessment: The patient appears to be tolerating the treatment well and has shown some positive responses to rehab. He is much less positive today in the signs of inorganic pathology. Plan: 1. Continue formal rehab. 2. We will retest the patient before I see him again in 3 weeks for a recheck and we will update his disability status at that time. 3. The patient should still be considered temporarily totally disabled at this time, but I am confident he WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 6 will be able to proceed into his vocational rehab studies in electronics without much difficulty. (Jt. Ex. 15) On December 21, 1988 Dr. Nelson wrote: Assessment: Patient is responding very well to isokinetic rehab. .... Patient should still be considered temporarily disabled from work but I will follow him up again in 4 weeks and at that time it is anticipated that we will discontinue formal therapy and transition him to a full time home program. At that time it is my opinion that he will be able to begin engaging in his rehab vocation of electronics without any difficulty. I would not recommend that he return to working in a packing house. (Jt. Ex. 16) On January 24, 1989 Dr. Nelson wrote: Dave returns for a recheck. He appears to be gaining strength but is still having some pain. I would like him to continue on his once a week Medex treatment in order to get as much strength out of him as we can. The patient appears to be putting in a good effort and I still believe that we can squeeze some more improvement out of him and get him as good as he can be. (Jt. Ex. 17) On March 22, 1989 Dr. Nelson wrote: Dave comes in for his final recheck today. He has just finished his 12th session on Medex. He has shown some really remarkable improvement .... He is still below average and this reflects the permanency of his condition. Subjectively, the patient states he is much better and feels like the rehab program has helped him greatly. His ability to walk without pain has increased and his other function & abilities have also increased according to his interview today. Indeed, his whole attitude seems much better today. He is much more upbeat and looks much less depressed than when he WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 7 first started. Over the past several weeks he has worked very, very hard and shown a genuine effort to work and get well. .... Assessment - This patient has shown reasonable progress both subjectively and objectively to active rehab and now appears ready to move on with his life in the field of electronics in his vocational rehab. Plan - 1) Discontinue formal physical therapy and transition to home life line program. It was emphasized to the patient how critical it is to continue with this for the rest of his life on a daily basis. 2) Based on the patient's objective testing, physical exam, and diagnostic work-up I would rate him as having a 5% permanent partial disability of the body as a whole. (Jt. Ex. 18) On March 30, 1989 Dr. Nelson responded to defendant's attorney's letter and noted that claimant reached maximum healing on March 22, 1989 and claimant's impairment to the body as a whole would be 3 percent based on AMA guidelines. (Jt. Ex. 19, P. 1) On May 10, 1989 Dr. Nelson's notes reflect: Dave comes in today stating that his schooling in electronics has apparently been put on hold. He is in the process now of looking for another job. He wondered what restrictions might be applicable to him while looking for this job and asked me to give him some. Based on his previous strength testing and physical exam and response to treatment, I would give Dave a maximum 50# lifting restriction. I would also state that he should lift this maximum amount of weight no more than 3-4 times per hour. He should avoid a job that requires repetitive stooping and bending. He should be allowed to stand for a maximum of 4 hours. After standing for 4 hours he should be allowed to sit for at least an hour before he is required to stand again. Within those restriction, it is my opinion that he is employable. WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 8 (Jt. Ex. 20) On October 15, 1987 the Marian Health Center x-ray report reflects: MRI/thoracic and lumbar spine: Tl and T2 weighted techniques were used in the sagittal plane. Axial views were obtained at the levels of L4-5 and L5-Sl, D8-D9 and D9-DlO. There is no evidence of a disc herniation. All discs identified have a normal appearing signal brightness. No evidence of a bony destructive process. No evidence of an epidural mass effect. (Jt. Ex. 21) Dr. Quenton John Durwood, a neurosurgeon, testified through his deposition on December 9, 1988 that he saw claimant on October 24, 1988 through a referral from Dr. John Redwine. Dr. Durwood said he reviewed reports of Drs. Lohr, Blume, Redwine, Durnin, and Liudahl, some x-ray reports (MRI), and an EMG report. Dr. Durwood was asked and answered the following questions: Q. Based on what you saw and reviewed, did you come to some conclusions about his condition? A. Yes. After I had reviewed his case and examined him and seen the MRI scan, I felt that he had caused or the injury had caused a type of strain or injury to the ligaments and muscles of the lower back and possibly also the smaller joints of the lower back called facets. And I thought that this was the cause of the back pain and that there was no specific disk problem. The best form of future treatment was going to be rehabilitative treatment and I felt the best form of rehabilitative treatment was the rehabilitation treatment known as isokinetics and modification of his job so that he was not involved in lifting heavy objects. Q. Would you describe this isokinetic treatment? A. It's a way to build up the strength and bulk of the muscles surrounding the spine so that the spine is internally splinted and so it doesn't move excessively. And by splinting it, that way it reduces the amount of inflammation in the joints and ligaments. (Jt. Ex. 27, PP. 9-10) WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 9 Dr. Durwood opined a 5 percent permanent impairment to claimant's body as a whole and indicated claimant does not have a neurological deficit in the way of paralysis or the loss of a limb. Dr. Durwood stated: "I don't think any surgery or any further blocks are going to help him." (Jt. Ex. 27, P. 14) Dr. Durwood estimated that claimant would get as good as he can become after 8 weeks of isokinetic rehabilitation. Dr. Durwood said that he believed the claimant's degree of limitation in movement was restricted by pain. Sharon Koeppe of the Nebraska Vocational Rehabilitation Services Career Development Center, wrote in the vocational evaluation report on July 26, 1988 the following: Based upon the assessment results, Dave does appear to be a very good candidate for post-secondary training. He received excellent GATB scores with the exception of a below-average score in manual dexterities because the reaching caused back discomfort for him. His academic results, as well, seemed to support his desire to pursue training in electronics, as he received mostly above-average scores. He definitely seems to possess the numerical aptitude as well as the spatial aptitude that is important for doing well in the electronics area. Dave seems to take a very serious and mature approach to the career exploration process and his need for selecting an appropriate vocational goal. He seems to realize that he now needs to receive training for a lighter job. However, it is critical that before he becomes involved with a training program he needs to reach further medical improvement in regard to his physical condition. He is unable to tolerate sitting for any longer than thirty minutes. He definitely appears to need to work closely with his doctors and needs to participate fully in his treatment plan. (Jt. Ex. 24, PP. 7-8) APPLICABLE LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of June 30, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 10 expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag V. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co. , 261 Iowa 352, 154 N.W.2d 128 (1967). 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 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. * * * * Iowa Code section 85.34(l) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselman v. Carroll Health Center, 3 Iowa Industrial Commissioner Reports 209 (Appeal Decision 1982). WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 11 Iowa Code section 85.27, in part, states: The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. ANALYSIS Claimant is a 29 year old high school graduate with two years post high school education. Claimant's work history indicates he never stuck to any job very long. At least one job lasted two weeks. Claimant has basically had manual labor jobs. Claimant described himself as a He-man type person who likes hands-on work. Claimant has seen many doctors. Claimant was injured on June 30, 1987 while lifting a hind quarter of beef that had fallen off a faulty hook. Although claimant attempted to return to work on July 7, 1987 he wasn't able to continue. Claimant was off work July 1, 1987 through August 12, 1987. Claimant was released by Dr. Blume to return to work beginning August 13, 1987. In January 1988 claimant saw Dr. Blume again because he wasn't getting any better. Dr. Blume restricted claimant's lifting to not over 30 pounds, no bending and no stooping at the waist. Claimant indicated defendant employer told him there was no job available for the claimant with those restrictions. claimant filed for unemployment on January 20, 1988. Claimant then saw a series of doctors. It appears from the record that the restrictions of Dr. Brian W. Nelson set out in the doctor's May 10, 1989 report are the current restrictions still existing for the claimant. Those restrictions are a maximum of 50 pounds lifting with,this maximum amount of weight to be lifted no more than 3-4 times per hour. Claimant is to avoid a job that requires repetitive stooping and bending. Claimant is allowed to stand for a maximum of 4 hours but after standing for four hours, he should be allowed to sit for at least one hour before he is required to stand again. Dr. Durward and Dr. Nelson opined a five percent permanent partial impairment to claimant's body as a whole. WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 12 The undersigned finds claimant has a five percent permanent partial impairment to the body as a whole which arose out of and in the course of claimant's employment and is causally connected to claimant's work related injury on June 30, 1987. The undersigned finds from the record that it is basically undisputed that claimant was off July 1, 1987 through August 12, 1987 and July 20, 1988 through March 22, 1989 which totals 41 weeks and 2 days. The parties are in dispute as to whether, in fact, claimant is entitled to temporary total disability or healing period from and including March 23, 1989 to July 20, 1989. Dr. Nelson concluded claimant roached maximum improvement on March 22, 1989. There is no other contrary medical evidence as to this date. The second healing period arose from the attempt to help claimant in a back clinic program. Claimant finished his twelfth session of Medex and showed real improvement (Jt. Ex. 18, P. 1). It was on this same date that Dr. Nelson opined a five percent permanent partial impairment to claimant's body as a whole. The doctor used the word disability which is only within the prerogative of this deputy. The undersigned believes without question the doctor meant impairment. There is no indication that claimant was to expect anymore significant improvement from his June 30, 1987 injury. The undersigned finds claimant incurred two healing periods namely July 1, 1987 through August 12, 1987 (6 weeks 1 day) and July 20, 1988 through March 22, 1989 (35 weeks 1 day). Claimant testified as to his intent to return to school at one time. claimant showed an aptitude and ability on various tests he took in relation to his rehabilitation evaluation in 1988 (Jt. Ex. 24). Claimant testified he interviewed and tested and appeared acceptable to get into an electronics technology school. It seemed like claimant was qualified to begin the fall of 1988. A delay was caused because claimant needed $2500 for his delinquent student loan. Claimant acknowledged that the insurance carrier was going to advance the delinquent student loan amount which would possibly allow claimant to get a Federal grant. Claimant never pursued this any further. Claimant's history of work, his general attitude towards various things as exhibited by his demeanor and testimony, his comments, and his self serving prepared document read at the end of his testimony show claimant may have some personality problem that could affect his ability to get a job and keep it. His past history obviously shows a prior inability to stay at a job. Claimant appears to have a big He-man ego which may not sit well with employers when one does not have other credentials and skills to support his ego. Claimant acknowledges a felony conviction. This alone could have a substantial impact upon one WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 13 getting a job, particularly for a drug conviction in which time was served. Claimant contends he has no drug or alcohol problem today. Claimant's employability will be affected by his personal record which is not the result of his injury. There are many criteria to consider in trying to determine industrial disability. There is no question claimant relied on his back and physical ability in most of his prior jobs. He is young and used to building up his body in weight lifting. Claimant is stymied, in part, by his personal criminal conviction and credit record. Taking in consideration the all the criteria arriving at a determination of industrial disability, the undersigned finds claimant has a twenty percent industrial disability. The only remaining issue involves 85.27. It is undisputed claimant did not seek authority from the defendants to have Dr. Blume as claimant's treating physician. The defendants have provided and paid for the services of several doctors including specialists. Claimant knew or should have known Dr. Blume was unauthorized. It is immaterial if his former lawyer made the arrangements. Claimant is stuck with his lawyer's action, if in fact, his former lawyer made the determination. Defendants paid for all the medical service bills except for Dr. Blume. Claimant contends the other doctors used the test results of Dr. Blume, therefore, the defendants should pay his costs. If the defendants' doctors didn't refer to Dr. Blume's reports and tests, the claimant would have attacked the doctors on their credibility plus performing malpractice or at least misfeasance in their examination and evaluation of the claimant. The undersigned finds claimant is solely responsible for Dr. Blume's bills and any mileage connected therewith. FINDINGS OF FACT 1. Claimant received a lumbar back injury while lifting a hind quarter of beef on June 30, 1987. 2. Claimant has a five percent permanent partial impairment to his body as a whole. 3. Claimant's five percent permanent partial impairment to his body as a whole is a result of claimant's work related injury on June 30, 1987. 4. Claimant is entitled to healing period of July 1, 1987 through August 12, 1987 (6 weeks 1 day) and July 20, 1988 through March 22, 1989 (35 weeks 1 day) at the rate of $170.85 per week. WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 14 5. Claimant has restrictions of: maximum 50 pound lifting with this maximum to be lifted no more than 3-4 times per hour, avoid repetitive stooping and bending, standing for maximum of 4 hours after which time sitting for at least 1 hour before standing again. 6. Claimant has a loss of earning capacity as a result of his June 30, 1987 injury, but this loss is contributed to by claimant's drug conviction and his non injury related credit record. 7. Dr. H. G. Blume was not a defendant authorized physician and claimant is responsible for all of Dr. Blume's.bills and any mileage expense connected therewith. CONCLUSIONS Claimant's June 30, 1987 injury arose out of and in the course of claimant's employment. Claimant's five percent permanent partial impairment to his body as a whole is causally connected to his lumbar back injury on June 30, 1987. Claimant is entitled to healing period of July 1, 1987 through August 12, 1987 (6 weeks 1 day) and July 20, 1988 through March 22, 1989 (35 weeks 1 day) at the rate of.$170.85 per week. Claimant has a twenty percent industrial disability. Defendants are not responsible for Dr. H. G. Blume's medical bills or mileage expense connected therewith as he was not a defendant authorized physician. ORDER THEREFORE, it is ordered: That the defendants shall pay unto claimant healing period benefits of July 20, 1987 through August 12, 1987 and July 20, 1988 through March 22,, 1989 totaling forty one point two eight six weeks (41.286) at the rate of one hundred seventy and 85/100 dollars ($170.85) per week. That defendants shall pay unto claimant one hundred weeks (100) of permanent partial disability benefits at the rate of one hundred seventy and 85/100 dollars ($170.85) beginning March 23, 1989. That defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the awards for weekly WOLLMAN V. SIOUXLAND QUALITY MEAT CO., INC. Page 15 benefits previously paid. Defendants have previously paid forty two weeks (42) of healing period benefits and fifty weeks (50) of permanent partial disability benefits. That defendants shall pay interest on the 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 27th day of December, 1989. BERNARD O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Stanley E. Munger Attorney at Law Terra Centre, Suite 303 600 4th Street Sioux City, Iowa 51101 Mr. James M. Cosgrove Attorney at Law 1109 Badgerow Building P.0. Box 1828 Sioux City, Iowa 51102 51803 - 52505 Filed December 27, 1989 BERNARD J. O'MALLEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID A. WOLLMAN, Claimant, VS. File No. 848661 SIOUXLAND QUALITY MEAT CO.INC,: A R B I T R A T I 0 N Employer, D E C I S I 0 N and THE HARTFORD, Insurance Carrier, Defendants. 51803 Claimant awarded twenty percent industrial disability. 52505 Claimant was denied 85.27 medical benefits for an unauthorized doctor. Claimant had seen several doctors already but wasn't personally satisfied with the care being given to him.