Page 1 before the iowa industrial commissioner ____________________________________________________________ : BRAD OLSON, : : Claimant, : : vs. : : File No. 858635 WILSON FOODS CORPORATION, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ On May 26, 1989, Brad Olson (claimant) filed a petition for arbitration as a result of injuries to claimant's right arm occurring July 2, 1986. The Second Injury Fund of Iowa (Fund) was identified as the sole remaining defendant. Claimant entered into an agreement for settlement with Wilson Foods shortly before the hearing in this matter. The settlement was subsequently approved on May 30, 1991. On May 2, 1991, these matters came on for hearing in Storm Lake, Iowa. The parties appeared as follows: the claimant in person and by his counsel Harry Smith of Sioux City, Iowa and the Fund by Assistant Attorney General Joanne Moeller of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant and his wife Peggy. 2. Claimant's exhibits 1-34. 3. Defendants' exhibits A and B. stipulations The parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The type of permanent disability, if the injury is found to be a cause of permanent disability, is a scheduled member disability to the right elbow. c. The rate of compensation, in the event of an award, is $228.30 per week based on a gross weekly wage of $358.00. Claimant is married and has one child. He is entitled to three exemptions. Issues The issues for resolution are as follows: 1. Whether claimant sustained an injury on July 2, 1986, which arose out of and in the course of his employment Page 2 with Wilson. 2. Whether there is Second Injury Fund liability. findings of fact After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing in this matter, claimant was 36 years old. He is right hand dominant. Claimant is a high school graduate from Washington High School in Cherokee. Claimant graduated in 1974. Claimant was not a good student and averaged C and D's during his tenure at Washington High School. Claimant has had no other formal training other than a high school education. While in high school, claimant did take some shop training as a welder and worked part-time at a gas station where he learned the mechanic trade. 2. After claimant graduated from high school, claimant worked for various employers performing work related to mechanic work and welding. During this time period, claimant was arrested for breaking and entering and was eventually convicted. Claimant was sentenced to ten years and spent 8-9 months in jail. After his incarceration, claimant was employed by Grumdaman-Hicks, a construction company. Claimant was hired as a laborer and worked there for three months. 3. In 1978, claimant obtained work as a tractor repair worker at Door Implement in Cleghorn. His job duties consisted of overhauling diesel engines. Thereafter, claimant was self-employed for a year. He determined that this was not profitable and sought employment with Wilson Foods. Claimant began his employment with Wilson on September 6, 1984. Prior to claimant's employment with Wilson, he had generally averaged wages that range from $1.00 per hour to $5.00 per hour in his various occupations. 4. Prior to being employed by Wilson, claimant had suffered some injuries due to non-work related accidents and work related accidents. In 1974, claimant was in an automobile accident where he injured his back and neck. No permanent disability resulted from those injuries however. Next, while claimant was working at Door Implement a clutch peddle hit him in the back. He was off work for four or five weeks and this injury was compensated by workers' compensation benefits. Finally, claimant injured his right knee when he banged his knee on a hitch while employed at Vollmer Motors . He was off work for a while, but does not recall receiving workers' compensation benefits for that injury. 5. Before starting his work at Wilson, claimant was given a complete physical by Keith Garner, M.D., Wilson's company physician. After the examination, claimant was judged capable of doing heavy physical labor. Claimant worked primarily as a boner. Claimant also had experience Page 3 working in the hotdog room. Claimant's work could be characterized as fast repetitious work. As a boner, claimant boned 800 hams an hour. Claimant was required to make several cuts to cut the ham into smaller pieces. Claimant used a 6 inch boning knife to remove arteries, fat and abscesses from the ham. Claimant would hold the ham in his left and hold the knife in his right hand. For this work, claimant earns a base wage of $9.42 per hour. 6. Claimant started experiencing problems with his hands in 1984. On November 30, 1984, claimant indicated that his right hand and thumb were sore but he could attribute no specific injury to his complaints. His thumb was swollen at the base. The diagnoses at that time was myositis and claimant was directed to continue work if possible. Claimant's right hand caused him further problems into 1985. In January of 1985, claimant had a cast put on his right hand to give his thumb an opportunity to rest. However, this treatment protocol was not successful and claimant was referred to John Connolly, M.D. who eventually referred claimant to Richard Murphy M.D. 7. In February of 1985, Richard Murphy, M.D., noted that claimant could recall no specific injury but that the claimant works vigorously as a meat boner and noticed that at the end of the day he had a large amount of swelling and pain in his thumb. Dr. Murphy could not determine from the history and his examination what the cause of the persistent swelling was. However, he suspected synovitis of the right thumb. The synovitis diagnosis was confirmed with a bone scan on February 21, 1985. Dr. Murphy felt that claimant could continue to work however and he returned him to work thereafter. 8. In April of 1985, claimant continued to complain of pain and periodic swelling of his right thumb. The diagnosis of synovitis remained the same and claimant was directed to have physical therapy and return to his work. 9. In April of 1985, claimant reported an injury to his left arm and hand when he was twisting his arm to shank hams. He was taken off work and given physical therapy treatment. In July of 1985, claimant was still experiencing swelling in his forearm. At the end of July, an EMG test showed a finding of left carpal tunnel syndrome. At that point, claimant was referred to Thomas P. Ferlic, M.D., for further care and management. 10. On July 29, 1985, Dr. Ferlic had an opportunity to examine claimant. Claimant told Dr. Ferlic that he felt something snap in his left proximal forearm and the hand went numb. Claimant has tenderness over the pronator muscle and he has a positive Tinel's and Phalen's signs at the wrist as well as a positive external compression type test. Dr. Ferlic concluded that claimant was suffering from carpal syndrome on the left side and recommended carpal tunnel release. Claimant had the carpal tunnel release surgery and was off work for approximately six weeks. Claimant returned to work on September 12, 1985. As a result of this surgery, Dr. Ferlic gave claimant a ten percent permanent impairment Page 4 rating for the carpal tunnel release. Claimant was subsequently paid workers' compensation benefits with an agreement for settlement approved on November 15, 1985. 11. In January of 1986, claimant began to complain of left thumb strain due to repetitive trauma. Claimant indicated to Wilson plant officials that the base of his thumb was sore and that his right thumb base was also bothering him some but less than the left. Claimant was again referred to Dr. Murphy for treatment. 12. In February of 1986, Dr. Murphy had an opportunity to examine claimant and found that claimant had synovitis in both thumb joints with the left being greater than the right at this time. Dr. Murphy, at that point, injected his thumb to relieve the symptoms. Claimant was returned to work at that time. Claimant's care regarding his thumbs continued from February of 1986 through April of 1986. Claimant was paid for this loss as reflected in the Form 2A that was filed with the agency on April 14, 1986. 13. In March and July of 1986, claimant complained of right elbow pain. He was eventually diagnosed as having epicondylitis resulting from repetitive trauma. Claimant indicated that at the time he reported that his elbow had been bothering him for several weeks. Claimant indicated that his elbow had started to hurt while he was shanking hams. There was no evidence that claimant was taken off work as a result of his elbow condition. Subsequently, claimant was examined by Dr. Garner, who noted that claimant had pain in his right thumb and his elbow. Dr. Garner diagnosed lateral epicondylitis but directed claimant to continue working. In the meantime, claimant continued to complain of pain in his left hand. However, there was no evidence of any further carpal tunnel problems in the left and claimant was simply given conservative treatment in order to treat the pain symptoms. 14. With regard to claimant's left hand, claimant was examined by Dr. Ferlic in February of 1987. Dr. Ferlic concluded that claimant was suffering from overuse syndrome on the left hand. He noted that claimant had scar tenderness with full range of motion in all digits. There was no evidence of continuing synovitis and claimant had a negative Phalen's and Tinel's sign. Claimant was instructed to continue to work with no restrictions. 15. In August of 1987, claimant renewed his complaints of right elbow pain. Dr. Garner examined claimant's elbow in September and the examination showed point tenderness over his lateral and medial epicondyle with medial epicondylitis. Claimant was again referred to Dr. Ferlic for management and care. 16. On September 8, 1987, Dr. Ferlic, in a letter, indicated that claimant had medial epicondylitis in his right elbow. He noted that any type of job which causes repetitive flexion of his wrist and elbow would probably bother the claimant. Claimant was capable of doing heavy work if it did not concern repetitive flexion of those Page 5 joints. In October, claimant was evaluated by Dennis Nitz, M.D., who found that there was no known nerve pattern that was producing the type of symptoms claimant was complaining of. Dr. Nitz concluded that the pain complaints were not work related. 17. However, claimant continued to complain that his right elbow pain was worse rather than better. He was again referred to Dr. Ferlic for examination. When Dr. Ferlic had an opportunity to examine the claimant on October 14, 1987, he noted that claimant had had pain in his elbow for approximately a year and a half. Claimant indicated to Dr. Ferlic that any activity at work makes his pain in his elbow worse with rest making the pain better. Dr. Ferlic did a series of studies which were all negative. Dr. Ferlic could not recommend any surgical remedy for claimant's particular problem. Dr. Ferlic could not offer claimant any treatment except to counsel him regarding light duty work or another line of work. 18. On October 28, 1987, Dr. Ferlic gave claimant a ten percent disability rating for his arm due to the chronic epicondylitis he was suffering in his elbow. Dr. Ferlic also concluded that claimant was suffering from a permanent disability and that he had reached maximum medical improvement. No restrictions were imposed by Dr. Ferlic. 19. Claimant was evaluated by Scott Neff, M.D., on December 10, 1987. Dr. Neff could find no permanent medical impairment with reference to the right elbow or the left hand. The rating, was based on an evaluation performed by Tom Bauer, a physical therapist. Mr. Bauer indicated that claimant had a full range of motion in the right elbow, right wrist and left wrist. He indicated that the grip strengths were essentially equal from side to side and the pinch grasps were also equal from side to side. He concluded along with Dr. Neff that claimant had no permanent impairment resulting from the injuries that he had suffered at Wilson. He did recommended that if the grip on claimant's knife was widened that he would probably not have a continuing problem with his hand. 20. Claimant was next evaluated by Anil Agrowal, M.D., who recited a history of problems with both hands, wrists and right shoulder dating back to 1984. Dr. Agrowal indicated that claimant had had various treatments with Drs. Murphy, Ferlic and Connolly and gave a short history of claimant's treatment for these conditions. Dr. Agrowal indicated that claimant had reached maximum medical improvement and had a 25 pound lifting restriction due to his back. Dr. Agrowal also noted that claimant had a ten percent permanent disability to his left wrist but could find no permanent impairment for claimant's right elbow. Dr. Agrowal did not impose any restrictions regarding claimant's elbow. 21. In July of 1988, claimant was again treated by Dr. Ferlic. Dr. Ferlic noted that claimant complained of pain in his right elbow. Claimant had been off work for 4 or 5 months and the pain had improved. There is no indication Page 6 that claimant was off work due to his elbow however. Claimant did report to Dr. Ferlic that he took himself off work once a week for a day or so to reduce the pain in his arm. There was still nothing to offer claimant by way of treatment for his pain. Dr. Ferlic indicated that claimant should continue his stretching program and have physical therapy to reduce the symptoms of the condition. 22. On April 19, 1989, Dr. Ferlic indicated that claimant's impairments were substantially caused by his work at Wilson. This conclusion was corroborated in a report on March 1, 1991, by Pat Luse, D.C., who found that claimant had a ten percent impairment of his hand and a ten percent impairment of his elbow. Dr. Luse restricted claimant to no repetitive work. Dr. Luse based his impairment rating on history given by the claimant and review of various medical records that had been generated by this case. 23. As a result of claimant's continuing hand and arm problems, he indicated that he has trouble on the job. He has left hand pain that is persistent and his right arm is swollen all the time. Claimant indicated at the time of the hearing that he had suffered an economic loss because he was unable perform mechanical work and remodeling work on the side. However, claimant had been paid for these services in cash and did not report the income to the Internal Revenue Service. He indicated that he cannot mow or paint and he cannot do various household tasks. Claimant is working in the same job that he had at the time of his injuries. Additionally, claimant has had no treatment for his right arm since 1988. Claimant is taking no medication for his right arm or left hand. 24. Claimant is earning a higher wage now than he did at the time of his injuries. He has not been compelled to change any of his duties as a result of the injuries he has suffered to his left hand and right arm. Apparently, claimant is taking two aspirins per day and some Tylox for his upper back, a condition that is not an issue in this case. 25. There is no evidence that claimant has made an independent job search to determine what he would be able to earn in the competitive labor market in the event that he chose to leave Wilson Food. CONCLUSIONS OF LAW 1. Whether claimant sustained an injury on July 2, 1986 which arose out of and in the course of his employment with Wilson. The Fund is arguing that claimant did not sustain an injury in the course of his employment on July 2, 1986. It contends that claimant is suffering from an occupational disease as a result of the epicondylitis diagnosed in his right elbow. Claimant contends he suffered a cumulative trauma to his right elbow and did not suffer an occupational disease. Page 7 Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 2, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. 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 the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. The Supreme Court has defined a personal injury for the purposes of workers' compensation cases. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case the Court found that a personal injury, is an injury to the body, the impairment of health, or a disease, not excluded by the Workers Compensation Act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. The injury to the human body must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The Almquist Court further observed that while a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. A personal injury includes a disease resulting from an injury. However, the result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This is true, even though natural change may come about because the life has been devoted to labor and hard work. Results of those natural changes do not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. The Supreme Court has also recognized that a cumulative injury may occur over a period of time. The injury in such cases occurs when, because of pain or physical disability, the claimant is compelled to leave work. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985). Moreover, claimant's last employer becomes liable for the cumulative injury, even if the incidents that lead to the ultimate injury do not occur while a claimant is employed with the last employer. McKeever, 379 N.W.2d at 376; See also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 434-35 (Iowa 1984). Page 8 The Fund has raised the issue of occupational disease as an affirmative defense in this matter and therefore has the burden of proof on the issue of whether epicondylitis is an occupational disease. Reddick v. Grand Union Tea Co., 296 N.W.2d 800, 803 (Iowa 1941) (Employer has burden of proof for affirmative defense in workers compensation case); McMasters v. Hutchins, 120 N.W.2d 509, 514 (Iowa 1963). One deputy has recently ruled that the Fund is not entitled to raise occupational disease as a defense since this would allow someone other than the claimant to prosecute a workers compensation claim in violation of Iowa Code section 85.26(4). Cosper v. The Second Injury Fund, File No. 855687 Slip op. (Iowa Ind. Comm'r Arb. December 24, 1991). The undersigned respectfully rejects this position and finds that the Fund can raise any affirmative defense it can muster to protect itself from paying benefits. Since the claimant must prove that the threshold requirements of Fund liability have been met in order to be compensated, the Fund has the corresponding opportunity to show that the threshold requirements of Iowa Code section 85.64 (1991) have not been met. If the Fund chooses to contend that claimant has an occupational disease and thereby avoid liability it can do so. The Fund is not seeking payments of benefits to itself on behalf of the claimant and thereby avoids the constraint of Iowa Code section 85.26(4). The Fund is simply defending itself in an adversarial setting by putting the claimant to his proof. More to the point, there is no evidence in this record that the Fund is attempting to maintain an action on behalf of the claimant. Consequently, if the Fund is successful in showing that claimant is suffering from an occupational disease, the Fund will have no liability on this claim. The definition of an occupational disease is set out in Iowa Code section 85A. 8.(1991)(1) To prove that claimant is suffering from an occupational disease, the Fund must show by a preponderance of evidence that the disease: 1. Arises out of and in the course of the employment; (1). Occupational diseases shall be only those diseases which arise out of and in the course of the employee's employment. Such diseases shall have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment. Such disease must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment. Such disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease. Iowa Code Section 85A.8 (1991). Page 9 2. Is causally related to exposure to harmful conditions in the field of employment; and 3. That harmful conditions must be more prevalent in employment concern than in everyday life or in other occupations. Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 433 (Iowa 1984); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980); Frit Industries v. Langenwalter, 443 N.W.2d 88, 90 (Iowa Ct. App. 1989). If the Fund is successful in establishing these elements of an occupational disease, then it must also prove that claimant has been disabled by the disease. Iowa Code section 85A.4 (1991) provides that the claimant must be actually incapacitated from performing claimant's work or earning equal wages in other suitable employment as a result of the occupational disease. Doerfer, 359 N.W.2d at 433-34; McSpadden, 288 N.W.2d at 192; Frit, 443 N.W.2d at 91. In order to determine whether this defense is valid, a brief review of pertinent agency decisions is helpful. The commissioner, has recently affirmed the agency's position that repetitive use injuries are not occupational diseases. Peters v. Lamoni Auto Assemblies, Inc., File No. 809203 Slip op. (Iowa Ind. Comm'r App. March 31, 1989). The Commissioner specifically rejected the argument that claimant was suffering from an occupational disease where claimant had been diagnosed and treated for carpal tunnel syndrome, a classic overuse syndrome. The Commissioner found that claimant was suffering from a cumulative trauma(2) and had not sustained her burden on the issue of occupational disease. Accord, Soukup V. D and S Sheet Metal, Inc., and Second Injury Fund Of Iowa, File Nos. 927412 & 946025, Slip op. (Iowa Ind. Comm'r App. December 19, 1991); Soukup V. Maresh Sheet Metal Works, and Second Injury Fund Of Iowa, File No. 858701 Slip op. (Iowa Ind. Comm'r App. December 19, 1991) (Found a repetitive injury to knee was an injury and not an occupational disease). See also, Himschoot v. Montezuma Manufacturing, File Nos. (2). The Commissioner's decisions in these cases is consistent with medical theories regarding repetitive use injuries or overuse syndromes. Repetitive use injuries or overuse syndromes may be defined as injuries caused by excessive use of body parts so that cumulative effects of repeated small trauma occur that exceed physiologic limits. Theories of the pathogenesis of overuse syndromes have concentrated on the effects of repeated trauma to tendon and muscle tissue. Tendon are subjected to tensile and compressive stresses and shearing fores due to muscle contracture plus stresses from adjacent bones and ligaments. Tendons respond mechanically to these stresses by becoming deformed. Repeated stress results in viscous deformation to the tendon or creep. This had been explained by some as cumulative microdamage of the molecular links between the tissue matrix and filler material. D. Dawson, M. Hallett, L. Millender, Entrapment Neuropathies, p. 358 (2d ed. 1990). Page 10 672778, 738235 Slip op. (Iowa Ind. Comm'r App. April 15, 1988, aff'd 89-341 Slip op. Iowa Ct. App. Feb. 22, 1990) (Commissioner found claimant suffered a simultaneous injury for the purposes of determining Second Injury Fund liability where claimant was suffering from work related carpal tunnel syndrome); Accord, Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 889 (Iowa 1983); Wilkins v. IBP and Second Injury Fund, File Nos. 895553, 890606, 940622, 910549, 910550, 910551, Slip op. (Iowa Ind. Comm'r Arb. August 15, 1991) (Final Agency Action) (Deputy determined that claimant left game-keeper's thumb was not an occupational disease relying on Peters); Noble v. Lamoni, Products, File Nos. 851309, 857575, Slip op. (Iowa Ind. Comm'r Sept. 29, 1989) (Appeal pending); Bannister V. Executive Concrete Construction, and Second Injury Fund Of Iowa, File No. 914298, Slip op. (Iowa Ind. Comm'r Arb. October 10, 1991) (Final Agency Action) (Carpal tunnel is not an occupational disease); However, some have distinguished this precedent and found, based on a case by case analysis of the evidence adduced at the time of the hearing it is conceivable to find that repetitive use or overuse syndromes are occupational diseases and must be compensated industrially. Finnneman v. Wilson Foods Corp., File Nos. 834479, 913590, Slip op. (Iowa Ind. Comm'r Arb. October 2, 1991)(Bilateral epicondylitis is an occupational disease) (Appeal pending); Wieland v. Jimmy Dean Meat Company, File No. 891393, Slip op. (Iowa Ind. Comm'r Arb. January 17, 1991) (Tenosynovitis that turned into carpal tunnel syndrome found to be an occupational disease) (Final agency action); Hoffman v. Second Injury Fund of Iowa, File Nos. 831136, 869798, Slip op. (Iowa Ind. Comm'r Arb. August 10, 1990) (Overuse syndrome is an occupational disease) (Final agency action); Atkins v. Monarch Manufacturing, File No. 816825, Slip op. (Iowa Ind. Comm'r Arb. March 27, 1990) (Carpal tunnel syndrome is an occupational disease) (Final agency action). Others have found that repetitive use injuries might be occupational diseases but the parties failed to meet the rather rigorous proof barriers for awarding benefits. Sifekas v. Furnas Electric Co. File No 944404, Slip op. (Iowa Ind. Comm'r Arb. November 12, 1991) (Appeal pending). Haleen v. Oscar Mayer Foods Corporation, File Nos. 936505, 936506, Slip op. (Iowa Ind. Comm'r Arb. November 7, 1991) (Appeal pending). Where a repetitive use injury results in an occupational disease, others have found that benefits should be awarded functionally or industrially as the facts of case dictate. Collins v. Department of Human Services, File Nos. 916241, 954364 Slip op.(Iowa Ind. Comm'r Arb. December 1991) (Claimant's carpal tunnel found to be an occupational disease but compensated functionally); Hall v. Backman Sheet Metal, 1 Iowa Industrial Commissioner Decisions 595, 600 (Arb. 1985) (Whether the claimant suffered an injury or an occupational disease, this determination did not affect the outcome of the case because the claimant was compensated in Page 11 accordance with the schedule rather than industrially). Cahalan v. Oscar Mayer, IV Iowa Industrial Commissioner Report 53, 55 (App. 1983) (Tendonitis in the shoulder resulting from a rotator cuff tear was an occupational disease and compensated industrially); Johnson v. Franklin Manufacturing Co., 34 Iowa Industrial Commissioner Biennial Report 152, 154 (App. 1978) (Tenosynovitis was recognized as an occupational disease and claimant was entitled to have the disability evaluated industrially when the shoulder was involved in the disease process since the injury extended into the trapezius muscle and thereby the body as a whole). Other jurisdictions have expressed opinions on the question of whether overuse syndromes are occupational diseases or cumulative traumas or injury. Those that have found overuse syndromes to be cumulative injuries include Illinois, Kansas, Kentucky and Arkansas.(3) Those that have found overuse syndromes to be occupational diseases include Idaho, Missouri, and Virginia.(4) In determining whether a condition is an occupational disease or an injury, an analysis of the statutory history of the occupational disease provisions coupled with an examination of the cumulative trauma theory is also helpful. As observed by the author of the Peters decision, prior to 1973, occupational diseases were specifically enumerated in Iowa Code section 85A.9. These diseases included bursitis, (3). Lutrell v. Industrial Commission, 507 N.E.2d 533, 541-42 (Ill. App. 4 Dist. 1987)(Carpal tunnel found to be a repetitive trauma and not an occupational disease); Martin v. Cudhay Foods Co., 646 P.2d 468, 471 (Kan. 1982)(Tenosynovitis is a repetitive trauma and not an occupational disease); Bahr v. IBP, 663 P.2d 1144, 1148 (Kan. App. 1983)(Claimant urged that she was suffering from occupational disease of carpal tunnel syndrome and court found that claimant suffered a repetitive trauma injury. Affirmed on ground defendants did not need notice of agency's conclusion that claimant suffered from an injury rather than occupational disease); O.K. Precision Tool & Die Co. v. Wells, 678 S.W.2d 397, 399, (Ky, 1984) (Epicondilytis is not an occupational disease); Tyson Foods, Inc., v. Watkins, 792 S.W.2d 348, 351 (Ark. Ct. App. 1990) (Bilateral epicondilytis found to be an occupational injury and not an occupational disease). (4). Knot v. Blue Bell, Inc., 373 S.E.2d 481, 483 (Va. Ct. App. 1988) (Found bilateral carpal tunnel an occupational disease based on the evidence adduced. Issue to be determined by the finder of fact); Prater v. Thorngate, Ltd., 761 S.W.2d 226, 230 (Mo. Ct. App. 1988) (Carpal tunnel syndrome can be an occupational disease where a job produces exposure greater than or different from that which affects the public generally and there is a recognizable link between the disease and some distinctive feature of the claimant's job which is common to all jobs of that sort); Kinney v. Tupperware Co., 792 P.2d 330, 333 (Carpal tunnel syndrome is an occupational disease even if it is not listed in the schedule of occupational diseases listed in the Idaho Code). (Idaho 1990); Page 12 synovitis or tenosynovitis and were described as any process or occupation involving continued or repeated pressure on the parts affected. When the statute was amended, the intent was to provide full coverage of work related diseases. McSpadden, 288 N.W.2d at 190. However, the coverage was still incomplete for occupational diseases not contemplated in the repealed schedule. The Court did not defined what conditions constitute an occupational disease. The Court did conclude, however, that the concept of occupational disease and injury were mutually exclusive and could not be used interchangably. McSpadden, 288 N.W.2d at 190. The Supreme Court filled in the gap between cumulative trauma injuries and occupational diseases when it ruled that cumulative traumas are injuries under Iowa Code chapter 85 in McKeever, 379 N.W.2d at 374. In McKeever, the claimant had been using vibrating tools most of his working life. He experienced two traumatic injuries and thereafter, his right wrist became more painful as he used the tools of his trade. Finally he had to leave work because of he pain in his hands. On these facts, the Supreme Court found that claimant suffered from a cumulative injury that came on gradually. The Supreme Court went on to note that various jurisdictions around the country had adopted the gradual injury theory particularly where overuse syndromes or repetitive trauma injuries had occurred. McKeever, 379 N.W.2d at 373. The conditions the court identified included carpal trauma syndrome of the wrists, successive impacts on the knee, long hours standing on concrete floors, repeated bumping into a steam iron, and a preexisting back condition that becomes a total breakdown from a series of small injuries over a period of time. In reconciling the conclusions in McKeever with the statutory history of the occupational disease statute, the analysis used by the Arkansas Supreme Court is compelling. In Tyson Foods, Inc., v. Watkins, 792 S.W.2d 348, 351 (Ark. Ct. App. 1990), the Court observed that prior to 1976, the Arkansas Code had contained a schedule of occupational diseases. Included in this schedule were synovitis, tenosynovitis or bursitis due to an occupation involving continual or repeated pressure on the parts affected. The argument offered was that even though epicondylitis was not listed on the old schedule, it is so similar to synovitis, tenosynovitis and bursitis, that it should be considered an occupational disease. The court concluded that if a claimant is suffering from one of the listed diseases, it would clearly be covered. As for unscheduled diseases, the Court provided these guidelines to make a judgment as to whether a condition was an injury or a disease: 1. Where the ambiguity of the statutory language permits alternative interpretations, the Commission and Courts should generally resolve the ambiguity in favor claimant to affect the humanitarian intent of the provisions. Page 13 2. The Commission's categorization efforts should be based not simply on how the medical profession may characterize a given condition, but rather primarily on factors germane to the purpose of workers' compensation law. These factors include: a. the general remedial goals of the act, b. efficiency of future claim handling, c. the extent to which the classification being considered would encourage safer employment practices, and d. avoidance of unacceptably high costs to the system. 3. The initial presumption should be that conditions on the pre-1976 schedule of compensable occupational disease are still to be handled under the occupational disease provisions, although the Commission is not required to do so since the schedule has been repealed. In this case, the Fund has merely asserted the defense of occupational disease and has failed to show that claimant is suffering from and occupational disease. There is insufficient evidence in this record to demonstrate that claimant contracted an occupational disease while performing his job duties at Wilson. The record demonstrates that claimant is suffering from a cumulative trauma injury that caused him pain in March of 1986 and caused him to obtain further treatment in July of 1986 and throughout 1986, 1987 and 1988. Claimant's primary treating physician linked claimant's injury to his work. However, the Fund did not show that the conditions at Wilson constituted a harmful condition that was more prevalent in claimant's working environment. Moreover, even if the Fund was able to show these conditions in the record, there has been no showing of disablement. On the other hand, the evidence does show that claimant suffered from a gradual injury that developed over the course of time. Even though claimant did not leave work as a result of the pain from his elbow, he nonetheless suffered from a cumulative injury. Scheurermann v. Oscar Mayer Foods Corp., File Nos. 773553, 872702, 872708, Slip op. (Iowa Ind. Comm'r Appeal December 20, 1991) (Commissioner held that McKeever provides a method of determining a date of injury for cumulative injury cases. Leaving work due to the pain or discomfort from the cumulative injury is not necessarily part of the definition of a cumulative trauma or a prerequisite to finding a cumulative injury) Not only is this conclusion consistent with the evidence in this matter, it is also in harmony with recent agency precedent on the issue of occupational disease and repetitive use traumas. This result is consistent with the guidelines established by the Arkansas Supreme Court and a Page 14 careful reading of McSpadden and McKeever. Based on the analysis used by the court in McKeever, it is clear that the Court was recognizing gradual injuries under chapter 85 so that the remedial effects of the Workers Compensation Act would be felt. Classification of repetitive use syndromes as injuries rather than occupational diseases also makes the claimant's ability to prove a loss significantly easier since claimant does not have to prove disablement. This result leads to efficiencies in future claims handling because all parties to a dispute will know that only a few overuse syndromes will be treated as occupational diseases. Treating epicondylitis as a cumulative trauma will encourage safer employment practices in industries where this injury is common. Finally, this conclusion avoids unacceptably high costs to the workers' compensation system, since the loss attributable to overuse syndrome injuries is fairly predictable. 2. Whether there is Second Injury Fund liability. A. Industrial Disability Analysis Since claimant has suffered an injury, the next question to be resolved is whether the injury has caused a permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 2, 1986, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. In this instance, Dr. Ferlic, the treating physician concluded on October 28, 1987 that claimant had a 10 percent functional impairment to his right arm. Dr. Ferlic did not impose any restrictions. However, he did observe that claimant's condition will be more painful if he continues to work in the meat packing industry. The reports of the evaluating physicians are not sufficient to overcome the rating provided by Dr. Ferlic. Dr. Agarwal indicated that claimant had no functional impairment on the right. Dr. Page 15 Neff another evaluating physician agreed that claimant did not have any other functional impairment from the injury to his right arm. Dr. Pat Luse concluded in March of 1991, that claimant had a 10 percent functional loss for both arms. Dr. Ferlic's testimony, by report, is the most compelling in this instance. Dr. Ferlic had the most opportunity to observe claimant. Additionally, he had followed claimant's entire course of treatment for the elbow injury. Consequently, the claimant has satisfied his burden of proof in demonstrating that he has suffered a permanent injury. Because the question in this case is Fund liability, the next question to be resolved is the extent of claimant's industrial disability resulting from the effect of the first and second injuries. Second Injury Fund v. Braden, 459 N.W.2d 467, 470 (Iowa 1990). Industrial disability was defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as 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 person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within her restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christensen v. Hagen, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). There are no weighting guidelines that indicate how each of the factors are to be considered. There is no equation which can be applied and then calculated to determine the degree of industrial disability to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. See, Peterson, 1 Iowa Industrial Commissioner Decisions No. 3, at 658; Christening, 1 Iowa Industrial Commissioner Decisions No. 3, at 535. In this instance, claimant is relatively young and his the industrial disability is not as serious as it would be for an older employee. Mccoy v. Donaldson Company, Inc., 1 IWAC Decisions of the Iowa Industrial Commissioner 400, 405 (Appeal 1989); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426, 429 (Arb. 1981); Becke v. Turner-Busch, Inc., 34 Biennial Report Iowa Industrial Commissioner 34, 36 (Appeal 1979). Claimant has a 10 percent functional loss bilaterally, but these impairments have not resulted in any significant restrictions. Claimant is still working at Wilson and is earning more money than he was at the time of his injuries. Claimant has other injuries that have limited his ability to earn an income Page 16 other than the injuries to claimant's hand and elbow. Claimant's only income loss is attributable to the earnings he was making on the side as a mechanic and remodeler; income the claimant did not report to the Internal Revenue Service. Claimant has not sought other work even though Dr. Ferlic has recommended that he avoid jobs with wrist flexion suggesting that he has sustained a significant loss of earning capacity. Based upon the foregoing factors, all of the factors used to determine industrial disability, and employing agency expertise, it is determined that claimant sustained a 10% industrial disability. B. Second Injury Fund Liability Second Injury Fund liability is governed by Iowa Code section 85.64 (1991). This provision requires that before Fund liability is triggered three requirements must be met by the claimant. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain another loss or loss of use of another member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. Kirkland v. Omar E. Whitlow Excavating, File No. 768821 Slip op. (Iowa Ind. Comm'r Arb. September 26, 1989) (Final agency action after remand, December 5, 1990); Allen v. Second Injury Fund, 34 Iowa Industrial Commissioner Biennial Report 15, 16 (Arb. 1980); Ross v. Servicemaster-Story Co, 34 Industrial Commissioner Biennial Report 273, 275 (Arb. 1979).; Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, section 17-4, (1984) 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. Second Injury Fund v. Mich. Coal Company, 274 N.W.2d 300, (Iowa 1970). Where the second injury is limited to a scheduled member, then the employer's liability is limited to the schedule and the Fund is responsible for the cumulative effect of the scheduled injuries resulting in industrial disability to the body as a whole. Braden, 459 N.W.2d at 470; Second Injury Fund v. Neelans, 436 N.W.2d 355, 358 (Iowa 1989); Simbro, 332 N.W.2d, at 889. In this instance, there is sufficient evidence to show that claimant has sustained a first permanent injury to his left hand in 1984. Claimant sustained a second injury to his arm that arose out of and in the course of his employment in 1986. The medical evidence that is most persuasive indicated that claimant has a 10 percent functional impairment to claimant's right arm. Consequently the Fund must pay claimant's industrial loss resulting from these injuries. The Fund is entitled to a credit for the functional values assigned to the previous functional disability amounts. Braden, 459 N.W.2d at 471; Soukup, File Nos. 927412 & 946025, 858701 Slip op. at 11.. Thus the calculation of the Page 17 Fund's liability in this instance is as follows: 10% x 500 weeks = 50 weeks minus 19 weeks (1984 impairment to left hand 10% x 190 weeks) minus 25 weeks (10% x 250 weeks 1986 impairment to right arm) TOTAL 6 weeks liability for the Fund. order THEREFORE, it is ordered: 1. The Fund shall pay to claimant permanent partial disability benefits in the amount of ten percent (10%) for injuries sustained to claimant's left hand and right arm. 2. The Fund shall have a credit in the amount of nineteen (19) weeks for the first injury to claimant's left hand and a credit of twenty-five (25) weeks for the second injury to claimant's right arm against any amounts owed. 3. The costs of this action shall be assessed to The Fund pursuant to rule 343 IAC 4.33. 4. The Fund shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of December, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harry H Smith Attorney at Law PO Box 1194 Sioux City Iowa 51102 Mr David L Sayre Attorney at Law 223 Pine Street PO Box 535 Cherokee Iowa 51012 Ms Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines Iowa 50319 Page 1 2906;5-3203; 5-1108.50; 5-1803 Filed December 31, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : BRAD OLSON, : : Claimant, : : vs. : : File No. 858635 WILSON FOODS CORPORATION, : : A R B I T R A T I O N Employer, : Self-Insured, : D E C I S I O N : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : ___________________________________________________________ 2906 The Second Injury Fund may raise occupational disease as a defense to claims by those seeking payment from the Fund. The Fund in raising this defense is not seeking benefits on behalf of the claimant. It is merely asserting in an adversarial context a valid defense to payment of benefits. 5-3203 Claimant, a 36-year-old meat packer suffering from epicondylitis, was found to have a cumulative trauma and not an occupational disease. These conclusions were based on agency precedent, Peters v. Lamoni Auto Assemblies, Inc., File No. 809203 Slip op. (Iowa Ind. Comm'r App. March 31, 1989) and Soukup V. D and S Sheet Metal, Inc., and Second Injury Fund Of Iowa, File Nos. 927412 & 946025, Slip op. (Iowa Ind. Comm'r App. December 19, 1991); Soukup V. Maresh Sheet Metal Works, and Second Injury Fund Of Iowa, File No. 858701 Slip op. (Iowa Ind. Comm'r App. December 19, 1991). In both of these cases the Commissioner concluded that repetitive injuries were not occupational diseases. Moreover, the Second Injury Fund failed to prove that claimant was suffering from an occupational disease. Page 2 5-1108.50 Claimant, a 36-year-old meat packer with a high school education and work history of manual labor, was found to have a permanent injury resulting from a cumulative trauma even though he did not leave work as a result of the injury. Scheurermann v. Oscar Mayer Foods Corp., File Nos. 773553, 872702, 872708, Slip op. (Iowa Ind. Comm'r Appeal December 20, 1991) 5-1803 Claimant was awarded a 10 percent industrial disability. Claimant had no restrictions relating to his injuries. Claimant was doing the same job he had performed prior to the work injury. Claimant had a functional impairment of 10 percent to his right arm and 10 percent to his left hand. Claimant had made no job search to test the market place for his skills. Wilson has retained claimant as an employee and has made accomodation for his injuries. 5-3203 Second Injury Fund found liable for the excess industrial disability claimant has suffered. The Fund is entitled to 44 weeks of credit against the award. The Fund's liability is 6 weeks of benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RALPH E. PRIZLER, : File No. 858639 : Claimant, : : D E C I S I O N vs. : : O N PROCTOR & GAMBLE MFG. CO., : : A T T O R N E Y Employer, : Self-Insured, : F E E Defendant. : : D I S P U T E ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on January 11, 1994. A telephone hearing was held which was agreed to by all the parties rather than an in-person hearing. The parties waived the necessity of having a court reporter. Claimant is living in New Mexico. This is a decision concerning a dispute over attorney fees and involves claimant's arbitration case attorney, James Martinek, as a defendant, and also involves the two other attorneys who were involved in the case and worked with Mr. Martinek and participated in the total fees, namely, E.J. Kelly and Gregory T. Racette. The record in the proceeding consists of the testimony of claimant, James Martinek, Gregory Racette, and E.J. Kelly; and, defendant's exhibits 1 through 38. The undersigned also took judicial notice of the file and contents. ISSUE The issue for resolution is whether the attorneys for the claimant at the time of the arbitration action and settlement are entitled to the attorney fees deducted from the settlement and reimbursement for the court costs. FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant entered into an attorney fee contract with James Martinek which provided that the attorney is to get thirty-three and one-third percent of any recovery whether it settled before a law suit was filed or after a law suit was filed. It also provides that the attorney may employ another attorney or attorneys to assist in the case at the attorney's expense. The attorney fee contract is not dated but Mr. Martinek believes it was signed in January 1987 when claimant made first contact with him. Claimant believed but was not sure that he didn't sign it until December of 1987. For the purpose of this case, it is really immaterial which of those Page 2 dates is correct. Claimant testified that he did not believe that he owed the $1,751.37 that was listed as advanced costs of Hopkins & Huebner which was taken off the final lump sum settlement of $65,000 before the division of fees regarding that amount as reflected on defendant's exhibit 31. Defendant's exhibit 38 is the specific itemization of those costs. Claimant contends that those expenses should be Mr. Martinek's expenses and should not be deducted from any settlement since paragraph 3.2 of the attorney fee agreement refers to the fact that if the claimant's original attorney, Mr. Martinek, hired other attorneys it was to be at the attorney's expense. Mr. Martinek testified that had those expenses not been incurred directly by the firm of Hopkins & Huebner, he would have had similar expenses. Mr. Martinek also testified that had he not brought in Mr. Kelly and Mr. Racette from the firm of Hopkins & Huebner to assist in this case, claimant would not have received the settlement he received. Mr. Martinek testified that claimant was getting no benefits and that nothing was being paid under the workers' compensation claim until he got the assistance of the Hopkins & Huebner law firm. He indicated this was a very complicated case and had many issues and it was not until the involvement of the Hopkins & Huebner firm that the defendant employer finally began making weekly benefit payments of $370.26 to the claimant. There is also testimony that once those began around August 1988, back payments in a lump sum were also paid and brought up to date. Approximately $52,000 of those delinquent weekly payments and their weekly payments before final settlement were paid prior to the time there was the ultimate settlement in which an additional $65,000 was paid. The testimony reflects that when claimant was getting his weekly check, every third check was endorsed over by the claimant to the attorneys toward their fees in accordance with the attorney fee contract. Claimant contends there should be no fee for the attorneys regarding the $52,000 as the claimant contends that one-third should only be paid on the final settlement, namely, the $65,000 as he feels that that is what the attorneys recovered. Claimant had no argument with the fact that had the attorneys not been able to obtain the weekly benefits to begin in August of 1988 and the delinquent weekly payments prior to that time and had in fact received the $52,000 and $65,000 in one lump sum settlement of $117,000 at the time of the compromise settlement, they would have been entitled to one-third of that total. There is no dispute that claimant was getting nothing until the involvement of all the attorneys. Claimant testified that the $1,751.37 costs should not be payable by him nor deducted from the settlement as he did Page 3 not hire the Hopkins & Huebner firm and that any expenses they incurred would be out of Mr. Martinek's pocket and would not be reimbursable. Mr. Prizler did not contend that he did not sign the joint application for compromise settlement but contends that the result of that settlement knocked out or prevented him from getting certain other benefits from his employer. It appears those benefits are at least some disability and retirement pension benefits. Mr. Prizler testified as to the other litigation he has going, the current one being a civil case in U.S. Federal Court in Des Moines (file number 4-93-CV80540) in which he is suing Proctor & Gamble and may bring other defendants in. Mr. Prizler testified as to his contentions which involved other allegations concerning other state or federal departments and that the joint application and compromise settlement took away other rights he thought he should still have. The undersigned has taken judicial notice of the file and it is obvious from the file that the claimant has been in a very litigious status as to various other government departments contending that this compromise settlement compromised other rights that he didn't believe were being compromised or settled. The attorneys related the complicated nature of this case and the approximate number of hours they had involved in this case. Mr. Martinek indicated he had about 245 hours and he thought Mr. Kelly and Mr. Racette had combined equal amounts and that if in fact they were paid on an hourly rate at $90.00 per hour, they would probably have not been paid that rate taking into consideration what they got paid on a contingency basis. Mr. Martinek testified as to not only informing the claimant but that he had numerous calls often daily at considerable length with the claimant and that claimant came to his office and would review the file page by page and was very aware of what was going on. The exhibits in evidence reflect considerable correspondence back and forth among the attorneys, parties to the action, claimant, and reflect the negotiations that were going on. Claimant okayed the breakdown in payment and distribution and deduction of attorney fees and court costs as reflected on defendant's exhibit 31, which is an August 28, 1990 letter. Claimant signed it on September 5, 1990. Evidence shows claimant was also aware of this breakdown on August 10, 1990, as reflected by defendant's exhibit 18. The undersigned finds that claimant signed an attorney fee contract around January 1987 which provided his attorney(s) were to get thirty-three and one-third percent of any weekly benefits or recovery they would obtain for claimant. The undersigned finds that said agreement does provide that his original attorney, James Martinek, could also bring in other attorneys which he did and that those other attorneys contributed substantially to the ultimate resolution of this matter. The undersigned finds that if it Page 4 were not for the involvement of the attorneys, claimant would not have had his weekly benefits begin around August of 1988 nor would he have received a lump sum of the back due weekly payments nor would he have received the ultimate $65,000 lump sum gross proceeds minus expenses and attorney fees. The undersigned finds that the $1,751.37 in expenses are reasonable and that they are properly deducted from the gross proceeds before distribution of claimant's portion. The undersigned finds that the joint application for compromise settlement speaks for itself and was in fact signed by the claimant. If the claimant feels that it was not his understanding and that his signature was obtained involuntarily, then he must proceed in some other court or jurisdiction and not in the workers' compensation arena. The undersigned finds there is no evidence that claimant didn't know what he was doing and that it appears he was fully informed and that he voluntarily signed said joint application for compromise settlement and that if in fact he had some questions he should not have signed it and had time to further determine the advisability of signing the same. The undersigned therefore finds that the attorney fees deducted by the attorneys and the court costs deducted are proper as set out in the exhibits that are a part of this record and that claimant fails in this attorney fee action. Claimant should pay the costs of this action. ORDER THEREFORE, it is ordered: That claimant failed in his action in this attorney fee dispute and gets no relief and takes nothing further. That claimant shall pay the costs of this action. Signed and filed this ____ day of January, 1994. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Ralph Prizler 3736 Mosswood Ave Amagordo NM 88310 CERTIFIED & REGULAR MAIL Mr Gregory T Racette Mr E J Kelly Attorneys at Law Terrace Ctr Ste 111 2700 Grand Ave Des Moines IA 50312 Page 5 Mr James H Martinek Attorney at Law 510 Iowa State Bank Bldg Iowa City IA 52240 5-1001 Filed January 13, 1994 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : RALPH E. PRIZLER, : File No. 858639 : Claimant, : : D E C I S I O N vs. : : O N PROCTOR & GAMBLE MFG. CO., : : A T T O R N E Y Employer, : Self-Insured, : F E E Defendant. : : D I S P U T E ___________________________________________________________ 5-1001 Claimant lost his attorney fee dispute. before the iowa industrial commissioner ____________________________________________________________ : JAMES LAFFOON, : : Claimant, : : vs. : : File Nos. 858643/858644 AUTOMATIQUE VENDING, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : 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 January 30, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of August, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 Mr. Richard G. Book Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309-2421 9998 Filed August 26, 1991 Byron K. Orton WRM before the iowa industrial commissioner ____________________________________________________________ : JAMES LAFFOON, : : Claimant, : : vs. : : File Nos. 858643/858644 AUTOMATIQUE VENDING, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed January 30, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JAMES LAFFOON, : : Claimant, : : vs. : : File Nos. 858643 & 858644 AUTOMATIQUE VENDING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by James Laffoon, claimant, against Automatique Vending, employer and Liberty Mutual Insurance Company, insurance carrier, defendants for benefits as the result of an alleged injury on January 5, 1986 (file number 858643) and another alleged injury on May 23, 1986, (file number 858644). At the beginning of the hearing, claimant moved to amend the petition on file number 858644 to show an injury date of May 23, 1986, rather than May 26, 1986, as shown on the originally filed petition. Defendants had no objection to the motion and the injury date on file number 858644 was amended to be May 23, 1986 (transcript pages 3 & 4). A hearing was held in Des Moines, Iowa, on January 25, 1989, and the case was fully submitted at the close of the hearing. Claimant was represented by Dennis L. Hanssen. Defendants were represented by Richard G. Book. The record consists of the testimony of James Laffoon, claimant; Opal L. Laffoon, claimant's wife; Leonard E. Weaver, III, claims adjuster; Dores R. Middleton, general manager; and joint exhibits A through H. Defendants were charged with the custordy of a video, joint exhibit E, until the expiration of all appellate periods. The deputy ordered a transcript of the hearing. Defendants presented a defendants' description of disputes at the time the hearing began. Both attorneys submitted outstanding posthearing briefs. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained injuries on January 5, 1986 and on May 23, 1986, which arose out of and in the course of employment with employer. Page 2 Whether either injury was the cause of temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits, to include whether claimant is an odd-lot employee. Whether claimant is entitled to medical benefits. Whether claimant gave timely notice pursuant to Iowa Code section 85.23 has been asserted as an affirmative defense by defendants. findings of fact notice It is determined that claimant failed to give timely notice of the occurrence of an injury with respect to the alleged injury of January 5, 1986, and the alleged injury of May 23, 1986, within 90 days from the date of the occurrence; and therefore, no compensation shall be allowed. 85.23 Notice of injury - failure to give. Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. Failure to give timely notice is an affirmative defense which defendants must prove by a preponderance of the evidence. DeLong v. Highway Commissioner, 229 Iowa 700, 295 N.W. 91 (1940); Reddick v. Grand Union Tea Co., 230 Iowa 108, 296 N.W. 800 (1941); Mefferd v. Ed Miller & Sons, Inc., Thirty-third Biennial Report of the Industrial Commissioner 191 (Appeal Decision 1977). The purpose of the 90-day notice requirement or the actual knowledge requirement is to give the employer an opportunity to timely investigate the circumstances of the alleged injury. Knipe v. Skelgas Company, 229 Iowa 740, 748, 294 N.W. 880, 884 (1941); Hobbs v. Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942); Robinson v. Department of Transportation, 296 N.W.2d 809 (Iowa 1980); Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985). Statutes of limitation are not favored. When two possible interpretations can possibly be applied, the one giving the longer period to a litigant is to be preferred. Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970). A statute generally does not begin to run until circumstances have evolved to the point that the injured party is entitled Page 3 to a remedy. Stoller Fisheries, Inc. v. American Title Insurance, 258 N.W.2d 336 (1977). At the same time, unless a statute that imposes a period of limitations expressly authorizes exceptions for extenuating circumstances, then it must be applied uniformly even though the result may be harsh. Burgess v. Great Plains Bag Corp., 409 N.W.2d 676, 679 (Iowa 1987). Iowa has adopted a "discovery rule" with respect to triggering the 90-day notice. The 90-day limit for notice does not commence running until the employee, acting reasonably, should know his injury is "both serious and work connected." Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 548, 552, 47 N.W.2d 236, 239-40 (1951); Robinson, 296 N.W.2d 809, 812 (Iowa 1980). The reasonableness of claimant's conduct is to be judged in the light of his own education and intelligence. Id. The discovery rule is most often stated in the terms which the Robinson court cited from Larson. "The time period for noti ery disease and angina pain to be work connected. Middleton misunderstood defense counsel's statement about when he realized that claimant was blaming his cardiovascular vascular problems on his work by giving an answer in which he stated that it was one time that claimant was released to go to work after his first hospitalization (tr. p. 153). Defense counsel rehabilitated the witness a few questions later with these words: Q. When Mr. Laffoon came in to bring you that release, did he tell you at that time that he blamed his heart problems on the job? A. No. transcript page 154 This additional dialogue then transpired: Q. Did he ever personally tell you that he blamed his heart problems on his job? A. Not personally, no. Q. Did you ever receive any sort of written notice from anybody concerning an allegation that Mr. Laffoon's heart problems were related to his job? A. No. transcript page 154 Page 5 This discussion about return to work took place on February 24, 1986 (tr. p. 161). Middleton testified that he did not learn that claimant had chest pains while working for employer until claimant went back into the hospital in March of 1986 (tr. p. 162). This dialogue then ensued between claimant's counsel and Middleton Q. The next time he went to the hospital was approximately the first week of March of 1986? A. He had the first balloon test, and that's when he--when we found out that he was having the heart troubles. Q. Did you also find out at that time that he had associated some of this pain in his heart with the work that he had performed for you? A. No. He never referred to work being the blame for his problem. Q. Did he ever tell you that he had problems while at work? A. No. He never told me. transcript pages 162 & 163 This colloquy then transpired between claimant's counsel and Middleton: Q. (BY MR. HANSSEN) Is it your testimony that you had no knowledge that Mr. Laffoon was having any physical problems at work? A. The first I knew about his heart problem was like I stated, when he went in for that first balloon test. Q. And you had no knowledge that the work was aggravating these or bringing about his symptoms, or any relationship at all with work? A. No, I did not. transcript page 164 The dialogue continued as follows: Q. And are you also testifying that when you had the conversation with Mr. Laffoon in February of 1986, when you said that you didn't think that he should come back to work, that he did not mention to you that he had some problems previously while doing the work for you? A. There was nothing discussed about that, and I did not tell him not to come back to work. I asked him if he wanted to take another week off, we weren't that busy right now, because he told me Page 6 that he still wasn't feeling very good. transcript pages 164 & 165 The exchange ended as follows: Q. And were you concerned about whether the work that would be required of him might cause him additional problems? A. No. Q. You weren't concerned about that? A. The work was nothing out of the ordinary. transcript page 165 Claimant was called to testify in rebuttal, but did not controvert or contradict Middleton's testimony. On the contrary, claimant testified that he first realized that he had a workers' compensation claim when he contacted an attorney about filing for bankruptcy and the attorney informed him that he might have a workers' compensation claim (tr. pp. 166 & 167). From the foregoing evidence, it is determined that employer did not have actual knowledge that claimant either sustained or was claiming that he sustained a work-connected injury which was manifested by his coronary artery disease and angina pain. Claimant or his representative did not give notice to the employer within 90 days of the date of either alleged occurrence of injury. Claimant testified that when he had chest pains, shortness of breath and sweating on January 5, 1986, he tried to call a coworker, Jamie Lamb, to ask him to finish the route, but he was unable to contact Lamb (tr. p. 38). A short time later, when these same symptoms continued and claimant felt nauseated, he tried to call Middleton, but again, was unable to contact Middleton (tr. p. 41). Claimant testified that he told his wife to call the employer on January 6th and tell them he could not come to work; but claimant did not testify either at hearing or in his deposition that he told her to tell the employer that he could not come to work because the work caused him to be ill (tr. pp. 51 & 52; joint exhibit C, p. 43). With respect to the injury of May 23, 1986, claimant told Dean Simmons, "one of the maintenance guys," who was a, "maintenance man for Automatique," that he did not feel good, that he had chest pains, and that he was going to go home (tr. p. 73). The knowledge or notice to a coemployee who is not a representative of employer does not constitute actual knowledge or notice to the employer. Typical representatives of the employer would be managers, superintendents, foremen, company nurses and company doctors. A maintenance man would be considered a coemployee rather than a representative of employer. Franks v. Carpenter, 192 Iowa 1398, 186 N.W. 647 (1922); Hobbs, 231 Iowa 860 2 N.W.2d 275 (1942). Page 7 Claimant testified that after the May 23, 1986, episode he had his wife call a cardiologist, but he did not testify that he had his wife call employer to report a work-connected injury (tr. p. 73). Clbo diminish the effect of section 85.23 in her case." Koopmans, file number 694831 (Appeal Decision 1987). It is clear that claimant did know about his alleged injuries and he realized that they were both serious and possibly work connected, therefore, claimant is not entitled to the discovery rule. Defendants have sustained the burden of proof by a preponderance of the evidence that claimant did, in fact, fail to give timely notice of the occurrence of the injury within 90 days as required by Iowa Code section 85.23. The evidence in the record established that claimant should have recognized the compensable character of the first injury on January 5, 1986 and of the second injury on May 23, 1986. conclusion of law Wherefore, based on the evidence presented and the foregoing and following principles of law, this conclusion of law is made: That claimant failed to give timely notice of the occurrence of an injury on January 5, 1986 and again on May 23, 1986, as required by Iowa Code section 85.23; and therefore, no compensation shall be allowed. Croft v. John Morrell and Co., file number 792717 (Appeal Decision 1988); Engelhart v. Mid-America Tanning Co., Inc., file 803205 (Appeal Decision 1988). order THEREFORE, IT IS ORDERED: That no amounts are due from defendants to claimant. That each party is charged with their own individual costs, except that defendants are ordered to pay for the attendance of the court reporter at the hearing and the transcript of the hearing. Rule 343 IAC 4.33. Signed and filed this ____ day of January, 1991. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Dennis Hanssen Attorney at Law 2700 Grand Ave, STE 11 Des Moines, Iowa 50312 Mr. Richard G. Book Page 9 Attorney at Law 416 6th Ave STE 500 Des Moines, Iowa 50309-2521 Page 1 2401; 2801; 2802; 2803 Filed January 30, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : JAMES LAFFOON, : : Claimant, : : vs. : : File Nos. 858643 & 858644 AUTOMATIQUE VENDING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2401 2801 2802 2803 Claimant experienced pain in his chest and down his left arm while servicing vending machines at work on January 5, 1986, and again on May 23, 1986. He was forced to quit work on each occasion. He was hospitalized and these pains were diagnosed as angina pain from coronary artery disease. Claimant had several treadmill tests, angiograms and angioplasties after each of these two episodes. Neither claimant nor his wife reported a work connected injury to employer even though claimant directed his wife to call in after each episode that he was sick and was going to the doctor. Employer denied he had any actual knowledge that claimant's work caused the pain or that claimant was claiming that his work caused the pain. Claimant did not controvert, contradict or rebut employers' testimony. Claimant fell on hard financial times after employer stopped his medical insurance coverage and saw a bankruptcy attorney who told him that he had a potential workers' compensation claim. This attorney prepared a written notice that was served on employer on August 22, 1986. The notice was served 229 days after the first alleged injury and 91 days after the second alleged injury. Held (1) claimant failed to give timely notice of injury as required by Iowa Code section 85.23; (2) knowledge of a coemployee is not knowledge to the employer; and (3) a mistake of law is no excuse for violation of a notice statute. Several cites from Larson and Iowa cases. before the iowa industrial commissioner ____________________________________________________________ : JAMES LAFFOON, : : Claimant, : : vs. : : File Nos. 858643/858644 AUTOMATIQUE VENDING, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : 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 January 30, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of August, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 Mr. Richard G. Book Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309-2421 9998 Filed August 26, 1991 Byron K. Orton WRM before the iowa industrial commissioner ____________________________________________________________ : JAMES LAFFOON, : : Claimant, : : vs. : : File Nos. 858643/858644 AUTOMATIQUE VENDING, : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed January 30, 1991. BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANCIS C. DUNLAVEY, Claimant, File No. 858652 vs. A R B I T R A T I O N ECONOMY FIRE AND CASUALTY Co., D E C I S I O N Employer, F I L E D and FEB 28 1990 LUMBERMENS MUTUAL CASUALTY CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Francis C. Dunlavey against Economy Fire and Casualty Company and its insurance carrier Lumbermens Mutual Casualty Company. The case was heard and fully submitted at Mason City, Iowa on July 31, 1989. The record in this proceeding consists of claimant's exhibits 1 through 35, defendants, exhibits 3, 4, 5, 6, 7, 9a, 9b and 10. The record also contains testimony from Howard Anderson, Lila Dunlavey, Kathryn Schrott, Francis C. Dunlavey, Denise Bollesen, Mary Joan Ward and Patrick Walters. ISSUES Claimant alleges that he sustained a psychological injury as a result of stress to which he was exposed through his employment. He seeks compensation for permanent total disability and asserts the odd-lot doctrine. The issues identified for determination are whether claimant sustained an injury which arose out of and in the course of employment; whether a causal connection exists between claimant's employment and the alleged psychological injury; determination of claimant's entitlement to compensation for temporary total disability, healing period, permanent partial disability or permanent total disability; determination of claimant's entitlement to payment of medical expenses and transportation expenses under Iowa Code section 85.27; court costs; a penalty claim under Iowa Code section 86.13(4); and, determination of defendants' entitlement to credit under Iowa Code section 85.38(2). SUMMARY OF EVIDENCE All the evidence referred to in the Introduction, as well as the demeanor of those who testified at hearing, was considered when deciding this case. The lack of a reference to any particular part of the record does not indicate that it was overlooked. Francis C. Dunlavey is a 57-year-old married man who lives at Mason City, Iowa. He has a bachelors degree in business administration from Loras College. Claimant stated that he had been employed in the insurance industry for approximately 30 years and had been employed by Iowa Kemper from 1977 until 1986 when it merged with Economy Fire and Casualty Company. Claimant stated that he had enjoyed his work prior to the time of the merger. He stated that prior to the merger he had always received good employment evaluations, periodic increases in responsibility and periodic increases in pay. He denied having any mental health problems prior to the merger. No contrary evidence appears in the record. In late 1985, it became known to claimant and other employees of Iowa Kemper that a merger was to occur with Economy Fire and Casualty Company. Claimant and the other employees were uncertain and apprehensive regarding their job security until early 1986 when they were told that their employment would be continued. The actual merger occurred in April, 1986. According to claimant and Howard Anderson, the change in ownership of the company brought with it changes in claims handling procedures and managerial personnel. Claimant, as a claims examiner, was required to exercise more supervision over adjusters. He was required to convert all pending Iowa Kemper files into Economy files. The Iowa Kemper employees developed a fear that the new Economy management intended to get rid of them in one way or another. At the time of hearing, only one claims examiner, Darrell Overturf, remained employed by Economy out of five who had been employed by Iowa Kemper at the time of the merger. Economy brought in four claims examiners at the time of the merger. According to Howard Anderson and claimant, many left because they felt they would be systematically eliminated. Anderson and claimant testified that they were given unrealistic demands and were constantly downgraded by unfavorable evaluations. Claimant worked a great deal of hours of overtime in order to comply with the new requirements, but, at best, his level of performance was never evaluated as being better than marginally acceptable according to claims manager Patrick Walters. Anderson and claimant testified that those who were original Iowa Kemper employees had to perform more work than the personnel who were brought in by Economy and, by and large, worked more hours than the Economy employees. Anderson and claimant both testified that it was not feasible for them to perform all the work which the Economy managers placed upon them without working many extra hours. Anderson and claimant stated that the stress which was placed on the Iowa Kemper claims examiners was greater than that placed on other employees in the Economy work place. Anderson described a change in claimant's personality to one in which claimant appeared to be distraught and intimidated as a result of the workload. Anderson testified that it became apparent to him that the downgrading and unfavorable performance appraisals were part of a process of intimidation and that he was not wanted by Economy. Anderson stated that his termination occurred in February of 1987, just after he had completed converting the Iowa Kemper files to the Economy system. Claimant testified that he had completed converting his files to the Economy system shortly before he ceased work. According to claimant, he was overwhelmed by the workload and became frustrated because he was never able to satisfy his new supervisors. According to Lila Dunlavey, claimant had never been a particularly outgoing person, but he appeared to be happy when he was working for Iowa Kemper. Lila stated that claimant began to appear depressed in the summer of 1987. She stated that he came home from work really tired and often spoke of problems he had at work. She stated that he would come home drained of any emotion and would not want to eat or do anything. Lila stated that claimant's routine was to go to work at 6:00 a.m. and come home late at night. She stated that he also worked weekends. Lila testified that she had medical problems in the nature of a cardiac arrythmia in the spring of 1987. She stated that she sought medical attention and that the problem has been under control since April of 1987. Lila stated that claimant had indicated in 1986 that he wanted to resume going to church and that they did. She stated that he seemed satisfied by the change. Lila testified that in approximately 1980, claimant discovered that he had been adopted, a fact which his parents had never told him. She indicated that initially he was somewhat upset by the finding, but that after approximately 18 months it did not seem to bother him anymore. Lila testified that their older son has a learning disability which was discovered when he was of pre-school age. The son now is employed as a dishwasher at a Perkins Restaurant. She stated that she and claimant have dealt with that problem ever since it was discovered. Lila testified that their younger son had an alcoholism problem for which he obtained treatment. She stated that the rehabilitation ended in February, 1985 and was successful. She stated that the son now lives in Denver, Colorado and that the substance abuse problem no longer exists. Lila Dunlavey testified that claimant developed asthma in the spring of 1987 and had some teeth extracted in late 1986 or early 1987. She stated that he has had leg pain and back pain which he feels are symptoms of his depression. He underwent hernia surgery in early 1988. She considers claimant's complaints of mucous in his throat to be a symptom of his depression. Claimant testified that after the merger occurred he looked for other employment but was unable to find any. He stated that he decided to remain with the company until retirement. In the summer of 1987, claimant was diagnosed as having depression. He was taken off work and has not since returned to work, except for a brief period of approximately one week in the fall of 1987. Claimant has been hospitalized, evaluated and treated extensively for his depressive condition. His family physician is James K. Coddington, M.D. Psychiatrists who have treated him include Ed Loon J. Chua, M.D., Ron M. Larsen, M.D., Bruce Pfohl, M.D., and Mary M. Hennessy, M.D. They uniformly agree that claimant is afflicted with major depression. Drs. Coddington, Chua and Larsen have all expressed the opinions that claimant's employment stress was a causative or aggravating factor in the development of his depression (claimant's exhibit 24, pages 23, 24, 39, 40, 50, 53 and 54; claimant's exhibit 17; claimant's exhibit 6; claimant's exhibit 11, pages 8-14; claimant's exhibit 18, pages 13, 20, 21, 27, 29, 47, 48, 62 and 63; claimant's exhibit 25, pages 20, 21, 30, 31 and 32). Dr. Pfohl stated that the work stress is probably a substantial factor in causing claimant's depression, but he declined to compare its significance to the other known stresses in claimant's life (claimant's exhibit 36, pages 23, 28, 65-70, 74 and 75). Dr. Hennessy declined to express an opinion regarding causation (claimant's exhibit 27, pages 31, 37, 56 and 57). With regard to claimant's ability to resume employment, the doctors vacillated in their opinions ranging from that he was not capable of returning to any type of regular employment to that he could possibly try a low stress job or that, with rehabilitation services, he could possibly resume employment. The doctors who addressed the issue agreed that claimant's feelings of religious guilt were a symptom of his depression, not a cause. They also agreed that his other physiological complaints were symptoms of the depression rather than causes. The doctors generally agreed that certain people have a genetic or other predisposition to develop depression and that depression is caused by a chemical imbalance in the brain, but that stress is a causative factor (claimant's exhibit 24, pages 15, 22 and 23; claimant's exhibit 25, pages 40-42). The doctors generally agreed that depression is usually a temporary condition and that most individuals who suffer it recover and are able to return to work. They also, however, generally declined to express a specific prognosis for claimant's case since his depression has existed for an unusually long amount of time (claimant's exhibit 25, pages 24, 37 and 43; claimant's exhibit 26, pages 39-41 and 60-62; claimant's exhibit 27, pages 25, 52 and 53). Clinical psychologist George Shears, who assessed claimant, felt that claimant's condition was not likely to change without treatment and that any change which occurred would likely be slow (defendants' exhibit 9a, pages 22 and 23). Licensed social worker Pamela Carlson Little was not optimistic about claimant's chances for rehabilitation (defendants' exhibit 9b, page 79). Vocational consultant Kathryn Schrott expressed the opinion that claimant was incapable of obtaining employment in any capacity in competitive employment due to the symptoms of his ongoing depression which continued to affect him. She stated that employers discriminate on the basis of age, and medical condition, particularly mental illness. The physicians and other professionals generally agreed that if claimant were to recover from his depression, he would then be employable. Denise Bollesen, an Economy claims examiner, Mary Joan Ward, the assistant claims manager, and Patrick Walters, the claims manager, all testified that claimant's workload was not unusual or out of the ordinary from that routinely carried by other claims examiners. Defendants' exhibits 4 and 5, the only documentary evidence of claimant's actual workload, appeared to show that the number of files which claimant was handling during 1985, prior to the merger, was approximately 50 percent more than the number which he handled after the merger. There was a great diversity in the estimates of the time required to convert files and perform the other duties required due to the merger. APPLICABLE LAW AND ANALYSIS The primary issue in this case, the one upon which all the other issues are dependent, is a determination of whether or not Francis Dunlavey's depression is an injury which arose out of his employment. There is no evidence to support a good faith dispute regarding his present state of total disability. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 16, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). Aggravation of a preexisting condition is one form of compensable injury. 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 claimant has the burden of proving by a preponderance of the evidence that the injury of June 16, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claim in this case is a claim for psychological injury which is based upon psychological stress. This agency has adopted the so-called "Wisconsin rule." Desgranges v. Dept of Human Servs., file number 760747 (App. Decn. August 19, 1988). The rule requires proof of both medical or factual causation as well as legal causation. The issue of medical or factual causation is essentially a subject of expert medical opinion. In this case, the evidence from the physicians is overwhelming that, based upon the medical history which they had been provided, they agreed that claimant's employment stress was a substantial factor in producing his depression. The issue of legal causation, and the accuracy of the medical history which was provided to the physicians, are closely related. The standard for legal causation is that non-traumatically caused mental injury is compensable only when the injury resulted from a situation of greater dimensions that the day-to-day mental stress and tensions which all employees must experience. Swiss Colony v. Dept of Indus., L. & H. R., 240 N.W.2d 128 (Wis. 1976); School Dist. No. 1 v. Dept of Indus., L. & H. R., 215 N.W.2d 373 (Wis. 1974). As was held by the Iowa Supreme Court, the employment must provide causation. Simply providing a setting in which an emotional condition arises does not provide a basis for liability. Newman v. John Deere Ottumwa Works, 372 N.W.2d 199 (Iowa 1985). The result in this case depends upon whether or not the stresses to which Francis Dunlavey was subjected as a result of the merger subjected him to emotional strains which were of greater dimensions than the day-to-day emotional strain and tension which all employees must experience. To meet the standard, it must be established that the strains were out of the ordinary from the countless emotional strains and differences that employees encounter daily without serious mental injury. Claimant had treated with Dr. Coddington since 1984. The depression was not diagnosed until June of 1987, but it should be noted that on May 28, 1986 claimant reported being under a lot of stress at work (claimant's exhibit 1, page 2). In 1986, he expressed complaints of tightness in his throat, tiring more easily and of respiratory problems. The first note regarding his concern over the condition of his mouth is dated December 29, 1986 (claimant's exhibit 1, pages 3 and 4). These are all indicators of depression. While Dr. Coddington had indicated that he did not diagnose the depression until June, it appears that early signs of the depression were manifest. They are first noted, in May of 1986, after the merger had occurred. When claimant was seen in 1984, it was noted that his job was minimally stressful (claimant's exhibit 1, page 1). In view of the nature of depression, as described by the physicians, it appears as though the symptoms were present and the depressive episode was building in late 1986, even though the condition was not actually diagnosed until June of 1987. Employers hire employees in order to accomplish work which must be accomplished in order for the employer's business to succeed. Employees must perform at a commercially productive level. If they are unable to do so, the employment relationship ceases. Francis Dunlavey had apparently performed adequately for approximately 30 years. After the merger, however, he was unable to satisfy his new supervisors. The supervisors attribute this to a bad attitude while claimant attributes it to an excessive workload. The record of this case is conflicting with regard to whether or not the workload was in fact excessive. The record does not contain any evidence of claimant being publicly belittled in front of other employees. The record is also clear that he did not satisfy his new supervisors and his new supervisors made it abundantly clear to him that they were unsatisfied with his performance. As indicated by Dr. Pfohl, the onset of depression would quite likely lead to substandard work performance (claimant's exhibit 26, pages 23 and 24). It is quite likely that the depression was mounting and having an effect upon claimant's work prior to the time it was first diagnosed in June of 1987. Individuals who develop depression, like individuals who have heart attacks, normally have some preexisting predisposition. People who do not have coronary artery disease generally do not have heart attacks. People who are not predisposed, either genetically or by environment, to develop coronary artery disease, generally do not have heart attacks. People who are not predisposed, either genetically or by environment, to develop depression as a response to stress, generally do not develop depression. It is only a small fraction of the population who develop depression, regardless of the stress to which they are subjected. The fact that predisposition plays an integral part in the development of the condition does not provide any basis for denial of liability. It is merely a latent preexisting condition. Howard Anderson and claimant both indicated that all of the claims examiners at Iowa Kemper became anxious when the merger was announced. It appears as though they all genuinely felt that they were being treated less favorably than those who had originally been Economy employees. They had been told that a new "lean and mean" attitude would be replacing the "country club atmosphere" which had prevailed at Iowa Kemper. There is ample reason in the record of this case for them to have felt uncertain about their jobs. The claims manager and assistant claims manager who had supervised them for Iowa Kemper both were replaced with long-term Economy personnel. The office which had consisted of five Iowa Kemper claims examiners was supplemented with four examiners from Economy. By the time of hearing, only one of the original five Iowa Kemper claims examiners remained employed by Economy. The Iowa Kemper employees were not given any assurance regarding their job status until approximately the actual time of the merger. Mary Joan Ward, who was made assistant claims manager in November in 1986, had risen to that level of responsibility after being hired in August of 1977 as a records clerk. Prior to commencing employment with Economy in 1977, she had worked at a photo studio. She had studied speech in college, but dropped out without obtaining a degree. According to Howard Anderson, the Iowa Kemper claims examiners were replaced by persons who were generally lower paid and less experienced. His assessment appears correct if Denise Bollesen is a typical example of the level of formal training and claims handling experience of Economy claims examiners. What has been referred to as a merger appears more like a takeover in which Iowa Kemper was assumed into Economy Fire and Casualty. Regardless of whether the plan was to eliminate the Iowa Kemper employees, or simply an inept exercise in employee relations, the result was, in any event, a great deal of stress for the Iowa Kemper employees. From the record which has been presented in this case, it appears as though there was either a plan to eliminate the Iowa Kemper claims examiners or else the merger was handled in an almost unimaginably inept manner from an employee relations standpoint. Despite the high level of stress which would have been experienced by all the Iowa Kemper claims examiners, claimant is the only one known to have developed a medically diagnosed depression. The closing of a plant or work place is an event which is not all that uncommon. Having unrealistic workloads placed upon an employee is likewise not all that uncommon. Being unappreciated by a supervisor is not uncommon. It is not uncommon for managers to treat those who they have individually hired and worked with for an extended period of time better than employees who are placed with them from some other source. The stereotype of a boss is not a kind, understanding, nurturing individual. They are usually thought of as being somewhat disagreeable. The undersigned finds that Francis Dunlavey's depression had its onset in late 1986, that the stress associated with the merger of Iowa Kemper and Economy Fire and Casualty was a substantial factor in producing the depression, and that the stresses to which claimant was subjected as a result of the merger were greater than the stresses which all employees must and commonly do endure on a day-to-day basis. There is sufficient evidence in the record of this case that, when the combination of facts which resulted from the merger are viewed as a whole, it is determined that the stress which claimant experienced as a result of those changes was a level of stress greater than the day-to-day stresses which all employees must and commonly do experience by virtue of their employment on a day-to-day basis. The particular facts which provided a basis for the stress experienced by Francis Dunlavey include the long period of uncertainty with regard to whether or not jobs would be available for the Iowa Kemper employees; being told that a new "lean and mean" attitude was forthcoming; replacement of the Iowa Kemper claims manager and assistant claims manager; replacement of Iowa Kemper claims examiners with individuals who appeared to have less formal training and experience; appointment of an assistant claims manager who appeared to have less formal training and experience in claims handling than the Iowa Kemper claims examiners; assigning Iowa Kemper claims examiners the additional duty of converting Iowa Kemper files into Economy files; and, failing to contradict the perception which the Iowa Kemper employees had developed that Economy intended to eliminate them. While any one or two of the foregoing would not necessarily constitute the extraordinary level of stress which would support a finding of legal causation, the combination of all the foregoing does meet the requisite standard for legal causation. It is therefore determined that Francis C. Dunlavey was, as a result of the merger, exposed to a level of stress which exceeded the level which was normal for the duties of his position as a claims examiner and that it exceeded the level of stress which is commonly endured, without injury, by all employees on a day-to-day basis. It is therefore concluded that the depression which Francis Dunlavey developed was proximately caused by the unusual stress which resulted from the merger. It constitutes an injury which arose out of and in the course of his employment. Claimant has been continually disabled ever since June 16, 1987, except for the brief unsuccessful attempt to return to work in the fall of 1987. The physicians have expressed the general consensus that most individuals recover from an episode of depression. All seemed to express optimism for further improvement of claimant's condition. Claimant had shown notable improvement under the treatment of Dr. Hennessy. At the time of hearing, he had resumed part-time employment in a sheltered setting. Claimant's work efforts through the rehabilitation program do not constitute the type of bona fide return to employment which terminates healing period or temporary total disability compensation. He appears to still be in a recuperative stage. The physicians have not clearly demonstrated any consensus of opinion that further significant improvement is not anticipated. It is therefore determined that Francis Dunlavey is entitled to a running award of temporary total disability compensation, interrupted by his return to work at Economy Fire and Casualty Company, but not by his attempts to perform work through the vocational rehabilitation program. If an assessment of permanent disability were to be made at this time, the undersigned would readily conclude that claimant is totally disabled since there is no evidence to suggest that he is capable of obtaining employment in the competitive labor market. Use of the term "temporary total disability" is not intended to constitute an adjudication that the condition has not, or will not, produce any degree of permanent disability. The medical expenses contained in claimant's exhibits 28 and 35 were reviewed. The dates of services were compared with the description of service contained on the bills and the identity of the providers. The same are found to be consistent with the treatment which claimant received for his depressive condition. Defendants are therefore responsible for full payment of those expenses. An issue was identified on the prehearing report and hearing assignment order regarding credit under Iowa Code section 85.38(2) for the monthly payments of $1,649.05 per month paid during 1987 and $815.05 per month paid during 1988 up to the date of hearing and also for medical expenses which the prehearing report indicates all but $10,310.59 had been paid by the group carrier. Claimant's exhibit 31 establishes that the defendants are entitled to the credit. Claimant's transportation expenses are adequately identified in claimant's exhibit 29. Claimant is therefore entitled to recover $487.20 in transportation expenses representing 2,320 miles at the rate of $.21 per mile. In view of the close nature of this decision on the issue of legal causation, it is determined that claimant is not entitled to recover any penalty under the fourth unnumbered paragraph of Iowa Code section 86.13. It is determined that the defense of the claim was in good faith and that the claim was fairly debatable. Dodd. v. Oscar Mayer Foods Corp., file number 724378 (section 86.13 decision, April 27, 1989); Dolan v. Aid Ins. Co., 431 N.W.2d 790 (Iowa 1988); Kimberly-Clark Corp. v. Labor & Indus. Review Comm., 405 N.W.2d 685 (Wis. 1987); Coleman v. American Universal Ins. Co., 273 N.W.2d 220 (Wis. 1979). FINDINGS OF FACT 1. Francis C. Dunlavey developed depression as a result of stresses to which he was subjected in his employment with Economy Fire and Casualty Company. 2. The stresses which Dunlavey experienced exceeded the magnitude of the day-to-day stresses which must be endured by all employees. 3. Francis Dunlavey has remained totally disabled from performing work substantially similar to that he performed at the time of injury from June 17, 1987 up to the present time, except for a period in 1987 when he made an unsuccessful attempt to resume employment with Economy Fire and Casualty. 4. Claimant is still recuperating and it is statistically probable that he will eventually recover from the depression sufficiently to be able to resume some type of gainful employment, although it is too early to make an accurate finding on permanency. 5. All expenses contained in exhibits 28 and 35 were incurred in obtaining reasonable treatment for claimant's injury. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The depression which Francis Dunlavey developed is an injury which arose out of and in the course of his employment with Economy Fire and Casualty Company. 3. Francis Dunlavey is entitled to recover a running award of temporary total disability compensation commencing June 17, 1987 and running through the date of this decision, except for an interruption for the days claimant actually worked in late 1987. 4. Claimant is entitled to recover his full medical expenses as set forth in claimant's exhibits 28 and 35. 5. Defendants are entitled to credit under the provisions of Iowa Code section 85.38(2) for the disability benefit which has been provided to claimant in accordance with claimant's exhibit 31 and also for all medical expenses which have been paid under the employer's group plan. The unpaid balance which exceeds the amount of the credit is $10,310.59 as stipulated in the prehearing report, $5,706.05 from claimant's exhibit 35, and $487.20 transportation expenses from claimant's exhibit 29. 6. Claimant is not entitled to any recover under the fourth unnumbered paragraph of Iowa Code section 86.13. ORDER IT IS THEREFORE ORDERED that defendants pay claimant weekly compensation for temporary total disability at the stipulated rate of three hundred sixty-eight and 93/100 dollars ($368.93) per week payable commencing June 17, 1987 and running through the date of this decision, except for the few days claimant actually worked in late 1987. IT IS FURTHER ORDERED that defendants pay all of the unpaid balance of claimant's medical expenses in full as shown in claimant's exhibits 28 and 35. Defendants are entitled to credit for the amounts paid by their group medical insurance provider and shall refund to claimant the amount of twelve thousand one hundred eighty-one and 05/100 dollars ($12,181.05) which he has paid from his own funds. IT IS FURTHER ORDERED that defendants pay claimant four hundred eighty-seven and 20/100 dollars ($487.20) for transportation expenses. IT IS FURTHER ORDERED that defendants receive credit against the award of temporary total disability for the net amount received by claimant under the group plan and that all past due amounts be paid to claimant together with interest at the rate of ten percent (10%) per annum computed from the date each payment came due until the date of actual payment pursuant to Iowa Code section 85.30. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants 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 28th day of February, 1990. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Michael A. McEnroe Mr. J. Scott Bayne Attorneys at Law 3151 Brockway Road P.O. Box 810 Waterloo, Iowa 50704 1108.20, 1402.30, 1801 2204, 2206, 4000 Filed February 28, 1990 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER FRANCIS C. DUNLAVEY, Claimant, vs. File No. 858652 ECONOMY FIRE AND CASUALTY CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LUMBERMENS MUTUAL CASUALTY CO., Insurance Carrier, Defendants. 1108.20, 1402.30, 1801, 2204, 2206, 4000 Claimant found to have developed depression as a result of stress resulting from the merger/takeover of this long-term employer. Wisconsin rule approved. Held: medical/factual causation established overwhelmingly by physicians. Legal causation found based on the totality of the circumstances. Awarded running temporary total disability since claimant still in vocational rehabilitation and continuing to improve.