BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ THOMAS J. NUGENT, Claimant, vs. File Nos. 881054, 862826, DUDS N' SUDS, 959391 Employer, A R B I T R A T I O N and D E C I S I O N AETNA CASUALTY AND SURETY CO., Insurance Carrier, Defendants. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Thomas J. Nugent, claimant, against Duds N' Suds, employer and Aetna Casualty and Surety Company, insurance carrier, defendants for benefits as the result of three alleged injuries. Industrial commissioner's file number 881054 alleges that claimant injured his right hand and arm on August 14, 1986, when equipment fell on his arm. Industrial commissioner's file number 862826 alleges that claimant injured his back on August 7, 1987, lifting washers and dryers. Industrial commissioner's file number 959391 alleges that claimant injured his hips, knees and legs on November 2, 1989, as a result of a motor vehicle accident. All three cases were consolidated and a hearing was held on June 14, 1993, in Des Moines, Iowa and the case was fully submitted at the close of the hearing. Claimant was represented by Gregory T. Racette. Defendants were represented by Lorraine J. May. Lynn Pelisek, claim representative for the insurance carrier was also present in the courtroom at the time of the hearing (Transcript pp. 14 & 15). The record consists of the testimony of Thomas J. Nugent, claimant, and joint exhibits 1 through 35. Both attorneys made excellent preparations for the hearing and submitted outstanding trial briefs at the time of the hearing. The exhibits were carefully selected and well organized for easy reference which facilitated the decision of this case. The deputy ordered a transcript of the hearing. SYNOPSIS A synopsis of this case will be helpful. Claimant injured his back at work on August 7, 1987. Objective tests demonstrated that claimant had a number of preexisting back anomalies (1) spina bifida occulta, (2) Page 2 scoliosis, (3) spondylolisthesis and (4) degenerative disc disease. None of these conditions had been symptomatic prior to this injury. After a conservative course of treatment and release by one firm of orthopedic surgeons, a subsequent surgeon determined that surgery was indicated and performed surgery. This generated a causal connection and entitlement to benefits question with respect to this injury. While recuperating from the surgery claimant was en route to give a deposition at the request of defendants' counsel when he was involved in a devastating head-on motor vehicle collision with a semi-tractor and tractor which presents a second and third set of legal issues to include (1) whether the motor vehicle accident injuries were sequela of the back injury and (2) considering the motor vehicle injury as a separate and distinct injury, whether (a) an employer-employee relationship existed and (b) whether the motor vehicle injury was an injury arising out of and in the course of employment. STIPULATIONS The parties stipulated that claimant did in fact sustain an injury to his back on August 7, 1989. The parties further stipulated that if it is determined that the back injury was the cause of the temporary disability which is being claimed by claimant, then claimant is entitled to temporary disability benefits for the period from August 8, 1987 through March 13, 1989 and again from June 13, 1989 through February 2, 1990 (Tran. p. 6). During the first period of time objective tests did not show an operative lesion and claimant was treated conservatively by John H. Kelley, M.D. and Joe F. Fellows, M.D., and released. Subsequent to their treatment William R. Boulden, M.D., performed back surgery and he treated claimant during this second period of time. The parties stipulated that if certain employer witnesses were called that they would testify that (1) employer took bankruptcy in April of 1988 and (2) that claimant was told that he was terminated from his employment in May of 1988 and (3) that claimant never returned to work after that date and (4) received no wages from employer after that date and (5) that there was no one in the maintenance position previously held by claimant after May of 1988 (Tran. pp. 11-14, 20, & 22). The actual bankruptcy date was stipulated to be April 26, 1988 (Tran. p. 36). PRELIMINARY MATTER At the time of the hearing claimant's counsel moved to dismiss file number 881054, which alleged that claimant injured his right hand and arm on August 14, 1986, when equipment fell on his arm. Claimant's counsel stated on the record (1) that claimant did not miss any time from work and (2) that there were no long-term problems from this injury. Therefore he requested to dismiss this case without prejudice. Claimant's motion was granted and the case with respect to this particular injury was dismissed without Page 3 prejudice (Tran. pp. 4 & 5). ISSUES industrial commissioner's file no. 862826 BACK INJURY OF AUGUST 7, 1987 With respect to the injury to claimant's back which occurred on August 7, 1987, while lifting washers and dryers the parties submitted the following issues for determination at the time of the hearing. Whether the back injury was the cause of temporary or permanent disability to include whether the alleged motor vehicle injury of November 2, 1989 (file number 959391) was sequela of the back injury of August 7, 1987 (file number 862826). Whether claimant is entitled to permanent disability benefits as a result of the back injury of August 7, 1987 and if so, the extent of benefits to which he is entitled. Whether claimant is entitled to permanent disability benefits for the reason that the alleged motor vehicle injury of November 2, 1989 was sequela of the back injury of August 7, 1987. Whether claimant is an odd-lot employee either because of the back injury of August 7, 1987 or because the alleged motor vehicle injury of November 2, 1989 was sequela of the back injury of August 7, 1987. Whether claimant is entitled to the payment of a certain medical bill for the reason that the alleged injury of November 2, 1989 was sequela of the back injury of August 7, 1987. industrial commissioner's file no. 959391 MOTOR VEHICLE INJURY OF NOVEMBER 2, 1989 With respect to the alleged motor vehicle injury to claimant's hips, knees and legs which occurred on November 2, 1989 from the motor vehicle accident, when considered as a separate and distinct injury and not as sequela of the injury that occurred on August 7, 1987, the parties submitted the following issues for determination. Whether an employer-employee relationship existed between claimant and employer at the time of the alleged injury. Whether claimant sustained an injury on November 2, 1989, which arose out of and in the course of employment with employer. Whether this injury was the cause of either temporary or permanent disability. Whether claimant is an odd-lot employee. Page 4 What is the proper rate of compensation for this injury. Whether claimant is entitled to medical benefits for this injury. FINDINGS OF FACT industrial commissioner's file no. 862826 BACK INJURY OF AUGUST 7, 1987 causal connection-entitlement-temporary and permanent disability It is determined that the back injury of August 7, 1987, was the cause of the temporary disability claimed by claimant and that claimant is entitled to healing period benefits from August 8, 1987 through March 13, 1989 and again from June 13, 1989 through February 2, 1990. It is further determined that the injury of August 7, 1987 to claimant's back was the cause of a 50 percent industrial disability to the body as a whole and that claimant is entitled to 250 weeks of permanent partial disability benefits. It is further determined that the motor vehicle injury of November 2, 1989, was not sequela of the back injury which occurred on August 7, 1987 and that claimant is not entitled to any temporary or permanent disability benefits for the injuries caused in the motor vehicle accident of November 2, 1989. It is further determined that claimant is not an odd-lot employee due to the injury of August 7, 1987. It is further determined that claimant is not entitled to the medical bill presented for payment at the time of the hearing (on the ground that the injury of November 2, 1989, was sequela of the injury which occurred on August 7, 1987) because it is determined that the motor vehicle injury was not the sequela of the previous back injury. Defendants dispute their liability for the temporary and permanent disability claimed by claimant for two basic reasons. First, at the time of the back injury on August 7, 1987 x-rays taken by John H. Kelley, M.D., on August 20, 1987, disclosed that claimant had certain preexisting congenital conditions of his back or conditions that were developed prior to this injury, to wit: (1) spina bifida occulta L5, (2) right lumbar scoliosis, (3) spondylolisthesis L5-S1 (Ex. 2, p. 8) and (4) degenerative disc disease (Ex. 5, p. 26). Second, claimant showed a pattern of improvement after a series of objective tests and conservative treatment and was actually released by his treating physician from further follow-up on March 14, 1989 (Ex. 2, pp. 8-20). Subsequently another orthopedic surgeon performed surgery on claimant's lower back on August 2, 1989. Page 5 The objective testing is summarized as follows. A MRI performed on November 5, 1987 showed degenerative disc disease at L4-L5 level. There was posterior bulging of this disc but no definite evidence of compression or displacement of the exiting nerve roots (Ex. 5, p. 26). A CT scan performed on the same day by the same radiologist concluded as follows: Impression: 1) Bilateral spondylolysis at the L5 level. This causes mild narrowing of both neural foramina but does not appear to significantly compress the exiting nerve roots. 2) Mild diffuse bulging of the L4-L5 disc without evidence of significant compression of the exiting nerve roots. 3) Spina bifida occulta of the posterior arch of L5. (Ex. 5, p. 27) A second MRI performed on February 15, 1988 showed no change. "Impression: Minimal degenerative disc disease at L 4-L 5 without evidence of compression of the thecal sac or nerve roots. There appears to have been no change from a previous exam of 11-5-87." (Ex. 6, p. 28). The third MRI performed on August 15, 1988, a period of one year after the injury, showed some disc herniation for the first time. "Impression: Disc herniation at the L4-5 level on the left side with displacement of the L5 nerve root as described above. This is more prominent than seen on the studies of 2/15/88." (Ex. 6, p. 29). A lumbar myelogram was carried out on December 6, 1988 and revealed no abnormalities in the lower back as far as the discs were concerned except for some very slight blunting of the nerve root at L4-L5 on the left but no disc protrusion. Joe F. Fellows, M.D., an associate in the same medical firm as Dr. Kelley and who succeeded Dr. Kelley and took over the care of claimant stated, "This certainly is a definite improvement from his MRI results." (Ex. 2, p. 17). Laymen, lawyers, deputies, and others could all draw different conclusions based on claimant's preexisting conditions and the fact that claimant's conservative treatment demonstrated improvement until he was discharged on March 14, 1989. Therefore, it has been the rule of law for quite some time that 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). Consequently, looking at the medical evidence of Dr. Kelley, he diagnosed "Spondylolisthesis with acute low back strain." (Ex. 2, p. 8). He said claimant had no history of previous back problems (Ex. 2, p. 9). Claimant testified that he had no prior injuries to his back (Tran. p. 50). Dr. Kelley ordered work hardening and back strengthening (Ex. 2, p. 10). Dr. Kelley concluded in his last office Page 6 note that if claimant was no better after the work hardening program then "... we should consider him as a possible candidate for spinal fusion." (Ex. 2, p. 11). Looking to the opinion of Dr. Fellows, who took over claimant's care on November 3, 1987, he mentioned frequently the possibility of surgery even though he treated claimant conservatively. He mentioned a possible lumbar fusion on his first office visit of November 3, 1987 (Ex. 2, p. 12). He mentioned lumbar fusion on his second office visit on December 4, 1987 (Ex. 2, p. 13). On the fourth office visit on February 12, 1988, Dr. Fellows said that claimant continued to be a candidate for disc removal but not until he has significant nerve root impingement (Ex. 2, p. 14). On the sixth office visit on April 8, 1988, Dr. Fellows recommended against rushing into a fusion and stabilization. On August 2, 1988, Dr. Fellows considered but recommended against an arthrodesis or fusion at that time because of the improvement in claimant's condition (Ex. 2, p. 15). On October 18, 1988, after the herniation was seen on the MRI he indicated that this might eventually require surgical correction but he wanted to continue conservative care. On November 1, 1988, Dr. Fellows stated that he felt that the disc herniation at L4-5 was directly related to the injury of August 7, 1987 (Ex. 2, p. 17). In a letter to claimant's counsel on November 2, 1988, Dr. Fellows stated, "I think the problem of the disc protrusion at the L4-5 level did begin on August 7, 1987, while he was lifting a tool box from a truck. ... As you know, Tom has a spondylolisthesis at L5-S1 which pre-existed his acute back strain and disc protrusion, and I think is unrelated to the back injury." (Ex. 4, p. 23). Thus, Dr. Fellows concluded that the bulging disc at L4-L5 was caused by this injury, but that the instability of the spondylolisthesis was not caused by this injury. Also, at all times Dr. Fellows considered this diskectomy and fusion but decided that claimant's condition did not in his opinion indicate surgery during his period of treatment. Claimant's first period of healing would end when he was discharged by Dr. Fellows on March 14, 1989. After claimant was discharged by Dr. Fellows, he saw William R. Boulden, M.D., on June 13, 1989, who said at this point in time the patient continues to be symptomatic. He found no history of significant previous back problems. Dr. Boulden recorded that as long as claimant does absolutely nothing he is able to get by but if he gets more active and tries to do anything he has increasing pain concurrently in his lower back and going down his left leg (Ex. 7, p. 31). Dr. Boulden attributed the need for a decompression of the herniation at L4-L5, and also a two level fusion for the spondylolisthesis, to the injury of August 7, 1987. With respect to temporary disability Dr. Boulden stated on June 13, 1989, "At this point in time it is our feeling the patient is still temporarily disabled because of the injury of August 7, 1987, ..." (Ex. 7, p. 32) Thus, claimant is entitled to the beginning of a second period of healing. Page 7 With respect to the injury of August 7, 1987, being the cause of both surgeries Dr. Boulden stated as follows, "We reviewed the myelogram, CT scan and MRI and confirmed that he has a spondylolisthesis secondary to spondyloysis and that he has a protruding disc at L4/5 that is probably causing L5 neural impingement as well as the spondylolisthesis lesion." (Ex. 7, p. 32). Dr. Boulden stated that surgical intervention can have a good effect in reversing claimant's temporary disability to the point where he can be a productive individual again. Dr. Boulden concluded by stating, "Therefore, I think that all the questions have been answered and we feel that the accident of August 7, 1987 is the contributing factor of the present symptom complex." (Ex. 7, p. 32). Wherefore, it is determined that the injury of August 7, 1987 was a substantial factor in causing the surgery that took place on August 2, 1989. Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). In the opinion of this deputy Dr. Boulden's decision is correct as well as claimant's decision to have the surgery. At the time of the surgery on August 2, 1989, Dr. Boulden commented in the surgical notes as follows, "Therefore, because of failure to yet improve with over two years of conservative management, he has elected to have surgery." (Ex. 12, p. 39). The surgery was successful. On August 21, 1989, Dr. Boulden stated, "The patient's left leg pain is gone. The only pain that he has is some buttock pain and some low back discomfort." (Ex. 8, p. 33; Ex. 9. p. 34; Ex. 10, p. 35). During his recuperation from the surgery, claimant was driving en route from his parents' home in Churdan, Iowa to Des Moines at the request of defendants' counsel for a deposition when he was involved in a head-on collision with a semi-tractor and trailer which totally demolished his car and caused numerous, massive injuries to claimant's body, in particular his lower extremities. The emergency room at the Green County Medical Center recorded: 1. Mental confusion, probable cerebral contusion. 2. Fracture, left femur, pelvis and acetabulum. 3. Deep laceration, right leg, involving patella. 4. Laceration, left forehead and right shoulder. 5. Possible internal injuries. 6. Meatal stenosis (Ex. 13, p. 42). Claimant was air flighted to Iowa Methodist Medical Center in Des Moines where he was treated by another team of physicians and received a number of surgeries (Ex. 14, pp. 46-54, Ex. 15, 55-69). Claimant was then transferred to The University of Iowa Hospitals and Clinics on December 4, 1989, where a number of other surgical operations were Page 8 performed (Ex. 16, pp. 71, 73, Ex. 17, pp. 74 & 74, Ex. 18, pp. 76-81, Ex. 22, pp. 86-88). Since claimant's healing period from the back surgery caused by the August 7, 1987 injury was interrupted by the automobile accident, Dr. Boulden opined that on the average, most people, after six months are healed and rehabilitated from this type of fusion technique (Ex. 11, p. 36). Both parties have agreed that Dr. Boulden's estimate as to the termination of healing period is reasonable and have agreed that the healing period from the August 7, 1987 back injury should end on February 2, 1990. With respect to the amount of permanent partial disability attributable to the back injury of August 7, 1987, Dr. J. Marsh, M.D., Associate Professor, Department of Orthopedics, at The University of Iowa, stated that he did not expect any additional permanent damage to the back based upon this new motor vehicle injury of November 2, 1989 (Ex. 21, p. 85). Claimant was evaluated for permanent impairment by Thomas W. Bower, LPT, on August 21, 1991. Mr. Bower rated the impairment from the injury of August 7, 1987 at 13 percent impairment to the body as a whole. He noted that even though the spondylolisthesis was preexisting, that it became symptomatic following the lifting incident of August 7, 1987 (Ex. 23, p. 90). Mr. Bower conducted a physical capacity examination on September 13, 1991 (Ex. 24, pp. 92-105). On September 19, 1991, Mr. Bower reported that approximately 50 percent of claimant's reduction in overall functional capacity was attributable to the injury that occurred on August 7, 1987 (Ex. 25, p. 106). Roger F. Marquardt, CRC, CIRS, vocational specialist, evaluated claimant and reported on January 27, 1992. Marquardt summarized the functional capacity examination as follows. The functional capacity assessment of Mr. Nugent as measured September 13, 1991 by physical therapist Tom Bower projected physical restrictions including: Sit - 1.5 to 2 hours Stand - 15 to 20 minutes Walk - 300 to 400 yards (cane assist) Squat - substantially limited Maximum lift - 40 lbs. floor to waist - 30 lbs. chest height Maximum carry - 22 lbs. Frequent lift - 0 lbs. floor to waist - 20 lbs. chest height Frequent carry - 0 lbs. floor to waist Push/pull - 60/70 lbs. (Ex. 34, p. 125) Marquardt noted that Iowa Division of Vocational Rehabilitation recommended a two year college program for claimant which might be followed by completion of a four Page 9 year program. Marquardt found that claimant was limited to sedentary activities which meant a loss of access of 88.4 percent of all jobs regardless of skill level and 90.9 percent of the unskilled market. He said this makes claimant eligible for social security disability. He added that if claimant were allowed to perform light work this would increase his access to 50 percent and 55.5 percent of the market (Ex. 34, p. 127). He said that the light work jobs were rare but that if claimant could find one, an inspector job might pay $7.25 per hour and a parts clerk job might pay $7.17 per hour. This is more than claimant was earning for employer. Claimant testified that he earned $250 per week and worked approximately 60 hours which by computation results in an hourly wage of approximately $4.16 per hour. It should be noted, however, that industrial disability does not measure loss of actual earnings but rather loss of earnings capacity. If claimant is foreclosed from heavy and medium work to light and sedentary work, which is the case here, and requires further education in order to find that kind of work, then claimant's industrial disability is substantial. Education involves loss of earnings while in school, living expenses with no income, plus the expenses of tuition, books, fees and transportation. At the time Marquart interviewed claimant on November 20, 1991, he said that claimant was a full-time business major carrying 12 hours at Iowa Central Community College in Fort Dodge, Iowa. After that he hoped to obtain a bachelors degree in business and obtain work with computers (Ex. 34, pp. 125 & 126). Claimant has demonstrated that he is a good student and has received good grades. Marquardt testified that as the result of both the back injury and motor vehicle injury that claimant was restricted to sedentary work. He estimated that if the motor vehicle accident would not have occurred then claimant would only be restricted to light work (Ex. 34, p. 128). Marquardt concluded his report by summarizing. From this research it is my opinion that, if Tom Nugent were restricted to only light jobs with minimal stress to his back, he would experience both a loss of access to his pre-injury job market and a loss of potential earnings, each calculated to be approximately 50 %. (Ex. 34, p. 128). Claimant, born September 25, 1964, was 22 years old at the time of the injury and 28 years old at the time of the hearing. His young age provides him an opportunity to train for new employments and tends to reduce his industrial disability. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989). Claimant has demonstrated that he is intelligent, hard working and is re-trainable. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Page 10 Report 74, 89 (1984). After graduation from high school in 1983 he obtained a diploma in refrigeration and air-conditioning from Des Moines Area Community College. He also attended several manufacturer schools to learn how to repair their products (Tran. p. 47 & 51). Claimant's only other employment prior to this employer was a construction job immediately after high school (Tran. p. 48). Claimant sustained an extremely incapaciting injury as verified by his own testimony and the medical evidence (Tran. pp. 55061). Claimant's job required him to lift shipping boxes weighing 40 to 50 pounds and to move machines which weighed from 200 to 300 pounds (Tran. pp. 49 & 50). At the time of the injury claimant had unloaded two tool boxes off of the truck. One of them weighed 50 to 60 pounds (Tran. p. 53). The other weighed 40 to 50 pounds (Tran. p. 54). It should be noted that as early as April 8, 1988, Dr. Fellows stated that if a fusion was carried out claimant would be foreclosed from any extremely heavy work or lifting (Ex. 2, p. 15). On September 23, 1988, Dr. Fellows stated that even if claimant would not have had the surgery he would have been restricted to light work (Ex. 12, p. 22). Although the Social Security Administration follows different criteria than the industrial commissioner, consideration is given to the fact that claimant is receiving social security disability benefits from the Social Security Administration which at the very least implies a significant amount of permanent disability, even though all of it may not be attributable to this injury of August 7, 1987. Wherefore, based upon the foregoing evidence it is determined that the injury of August 7, 1987, was the cause of temporary disability and that claimant is entitled to healing period benefits for the period from August 8, 1987 through March 13, 1989 and again from June 13, 1989 through February 2, 1990. Dr. Kelley and Dr. Fellows kept claimant off work on account of this injury during the first period of time. Dr. Kelley implied and Dr. Fellows found that the injury was the cause of the protruded disc at L4-5. Dr. Boulden took claimant off work again on June 13, 1989 and opined that a reasonable recovery period would be until six months after the surgery which would be February 2, 1990. The parties have agreed that these are the proper dates for healing period benefits if the injury is found to be a cause of temporary disability and it has been so found. Therefore, claimant is entitled to 83.429 weeks of healing period benefits for the first period of time and 33.571 weeks of healing period benefits for the second period of time which is a total of 117 weeks of healing period benefits. The same evidence, in particular the evidence of Dr. Boulden, establishes that this injury was the cause of the Page 11 diskectomy and decompression at L4/5 and also the two level fusion of L5/S1. He said the protruding disc at L4-5 which was caused by this injury also caused the L5 neural impingement as well as the spondylolisthesis lesion which was the cause of the spondylolisthesis problem (Ex. 7, p. 32). Dr. Boulden's testimony is not controverted, contradicted, rebutted or refuted. Wherefore, based upon the foregoing considerations of claimant's age in the mid-20s, his high school education, his mechanical skills and a diploma in refrigeration and air-conditioning; the fact that he has completed two years of college training since the injury and the fact that he is re-trainable; the fact that he is foreclosed from very heavy, heavy, and medium work and is restricted to light or sedentary work in the future; that claimant has a 13 percent permanent impairment to the body as a whole because of this injury and surgery to his lumbar spine; and that claimant has lost 50 percent access to the employment market, it is determined that claimant has sustained an industrial disability of 50 percent to the body as a whole and is entitled to 250 weeks of permanent partial disability benefits. It is determined that the motor vehicle injury of November 2, 1989, was not the sequela of the back injury of August 7, 1987. The sequela of injuries is discussed at length in Lawyer and Higgs, Iowa Workers' Compensation--Law and Practice, (2d ed.) section 4.4. This concept has been applied when claimants have had continuing health problems from the original injury, but none of the cases extend to the situation where claimant was injured in a second, new, separate and distinct motor vehicle accident en route to a deposition pursuant to a litigated workers' compensation claim. Claimant cites three recent supreme court cases concerning the issue of in course of employment. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981); Tuttle v. Mickow Corp., 418 N.W.2d 364, 366 (Iowa Appeals 1987); McMullin v. Dept. of Revenue, 437 N.W.2d 597 (Iowa Appeals 1989). These are course of employment decisions based upon the facts of those individual cases but they have no application to the current case. Those cases decided that the claimant at the time of the injury was in the course of his employment. They did not decide that the claimant was in the course of his employment as sequela of a prior injury at the time of a subsequent separate and distinct motor vehicle accident. Sequela is addressed by Larson at 1 Larson Workers Compensation Law 13.00 pages 3-502 to 3-574. At 13.10 page 3-503, Larson states that the simplest application of this principle is the rule that all medical consequences that flow from the primary injury are sequela and are compensable. The medical consequences in this case flow from a totally different occurrence - an intervening cause. On the first injury claimant injured his back. On the subsequent injury claimant injured his pelvis and lower extremities as well as several other parts of his body but Page 12 none of the medical authorities found that his back was specifically affected in any way by the second injury. The injuries flowing from the second accident are all specifically identifiable and they are clearly distinct from claimant's back injury. The typical cases where the sequela doctrine has been followed are found at 1 Larson, 13.13 page 3-564, concerning accidents en route to a doctor's office for treatment for injuries sustained in the work-caused initial injury. At the time of the motor vehicle accident on November 2, 1989, claimant was not en route to obtain medical treatment for his back injury of August 7, 1987. Claimant was still under the care of Dr. Boulden but was not going to seek any medical care at the time of the accident. Claimant cites the special errand rule found in 1 Larson, 16.10 pages 4-204 to 4-208.19 and more particularly the case of Abshire v. City of Rockland, 388 A. 2d 512 (ME. 1978). Abshire is not a sequela case. A policeman was injured on his way to testify in court. This was part of his job. As in McMullin, Shook and Tuttle there was no prior injury for which the second injury could be sequela. Claimant cites the "quasi-course of employment" concept which is now found at 1 Larson 13.11(d) pages 3-541 to 3-546. Again these cases are based upon the worsening of a health condition after an initial injury and none pertain to traveling in route to give a deposition at the request of defendants' counsel. Traveling to receive medical care is distinguishable from traveling to give a deposition. Under the workers' compensation law employers are required to provide medical care and injured employees are expected to pursue reasonable medical care. Likewise, travel expenses to and from medical care are provided for the injured employee in the statute. In the case of traveling to give a deposition the employer is not required by law to pay for claimant's litigation costs nor is the employer required to pay for claimant's traveling expenses going to and from giving a deposition. Iowa Rule of Civil Procedure 147(c) and (d). Defendants' cite the case of Hendrickson v. George Madsen Constr. Co., 281 N.W. 2d 672 (Minn. 1979) for the proposition that the employer was not liable when a claimant suffered a heart attack shortly after testifying at a workers' compensation hearing. The court stated this did not fit either the special errand doctrine or the quasi course of employment approach. This case is found in 1 Larson 13.13 Accident during trip to doctor's office at page 3-571. On that same page an employee who was injured in a bus collision en route to a medical examination requested by the industrial commissioner's medical staff was denied benefits for the reason there was no proximate causal relationship between the employment and the injury. Carlson v. Young, 84 Ohio App. 403, 171 N.E.2d 737 (1959). On the same page a claimant who was injured in his own car en route to a Page 13 hearing on his workers' compensation claim was also denied benefits. Douglas v. Sparten Mills, Startex Division, 245SC 265, 140 S.E.2d 173 (1965). The Carlson case and the Douglas case would be sequela cases but the court in Ohio and the court in South Carolina refused to extend the doctrine of accidents during a trip to a "doctor's office." A case not cited by either party also found in 1 Larson 13.13 page 3-571 supports claimant's proposition of sequela in this case. In Freeman v. Texas Comp. Ins. Co., 603 S.W.2d 186 (Tex. 1980), a claimant who was killed in a single car accident after leaving a polygraph test that the employer requested him to take was found to be entitled to benefits under an exception to the general rule of non-compensability of travel injuries because the employer had requested the decedent to make the trip. The Freeman case is the most analogous case or similar case to the instant case. The Freeman case, however, appears to be an isolated case and is contrary to the weight of the authority found in all of foregoing cited sections of Larson as well as all the foregoing cited cases by both parties. It is the determination of the deputy not to adopt the law of the Freeman case as the law of this case. Wherefore, it is determined, as a matter of fact, that the motor vehicle injury which occurred on November 2, 1989 is not sequela of the injury that occurred to claimant's back on August 7, 1987. All of the true sequela cases involve the health condition of the claimant, that is, where claimants were traveling to pursue medical care. In this case the deputy does not wish to adopt the one isolated case of Freeman for the reason that it is contrary to the weight of authority in other jurisdictions. Furthermore, there is no precedential support for it in the state of Iowa. It is common knowledge that the workers' compensation law is to be interpreted for the benefit of the injured worker but as with most laws there is a point beyond which a law cannot be stretched if it is to remain a viable and workable law. industrial commissioner's file number 959391 MOTOR VEHICLE INJURY OF NOVEMBER 2, 1989 employer-employee relationship With respect to the injury of November 2, 1989, as a separate and distinct injury in its own right rather than as sequela of the injury of August 7, 1987, it is determined that there was no employer-employee relationship between claimant and employer at the time of the injury. The parties stipulated at the beginning of the hearing that defendants' witnesses would testify (1) that employer took bankruptcy in April of 1988 and (2) that claimant's employment was terminated in May of 1988, and (3) that claimant never returned to work after that date and (4) that claimant never received any wages from employer after that date and (5) that no individual replaced claimant in the maintenance position that he previously held at the time of Page 14 his injury (Tran. pp. 10-14). The parties stipulated the actual date of the bankruptcy as April 26, 1988 (Tran. p. 36). This is a valid and acceptable stipulation because it is supported by the evidence of record and not contradicted by the evidence of record. In answer to interrogatory no. 8 defendants asserted that claimant never returned to work after the injury of August 7, 1987 and that his last paycheck was issued on September 1, 1987. Defendants further stated that bankruptcy was filed on April 26, 1988 and that employer is no longer in existence and had no employees after that date. These interrogatories were served on April 21, 1989. Claimant testified at the hearing that he was released by Dr. Fellows for light duty work in the Summer of 1988 but his employer told him that if he was not able to perform his regular job that he was going to be terminated. Claimant testified that he believed that he was terminated at that point. He was never called to go back to work and he never went back and asked if he could be employed (Tran. pp. 70 & 71). Claimant testified that he did not consider himself to be an employee of the employer at the time of the automobile accident on November 2, 1989 (Tran. p. 94). Wherefore, it is determined (1) that claimant did not establish that an employer-employee relationship existed on November 2, 1989, (2) that the evidence demonstrates that claimant was not an employee of employer at the time of the automobile accident on November 2, 1989 and (3) furthermore the evidence tends to indicate that employer was no longer in business because employer was in bankruptcy. This being the case it was not possible for an employer-employee relationship to exist between claimant and employer on November 2, 1989. INJURY It is determined that the injuries from the automobile accident that occurred on November 2, 1989, were not injuries that arose out of and in the course of employment with employer. As noted above it has been established that claimant was not an employee of employer on the date of the accident. Furthermore, the evidence tends to indicate that since employer was in bankruptcy that employer was not a viable and operating business at the time of the injury either. Claimant testified that he was not an employee on November 2, 1989. There is evidence the employer was not in business on November 2, 1989. Under these circumstances it is not possible for claimant to sustain an injury arising out of and caused by employment for this employer MEDICAL It is determined that since (1) an employer-employee relationship did not exist at the time of the automobile accident and (2) that claimant did not sustain an injury arising out of and in the course of employment at that time, that claimant is not entitled to the payment of the medical Page 15 bill in the amount of $3,003 from Associated Anesthesiologists for services between November 2, 1989 and November 7, 1989, which is attached to the prehearing report. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made: That claimant did sustain the burden of proof by a preponderance of the evidence that the back injury of August 7, 1987, was the cause of temporary disability for the period from August 8, 1987 through March 13, 1989 and again from June 13, 1989 through February 2, 1990. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to healing period benefits of 83.429 weeks for the first period of time and 33.571 weeks for the second period of time for a total amount of healing period benefits of 117 weeks. Iowa Code section 85.34(1). That claimant sustained the burden of proof by a preponderance of the evidence that the injury of August 7, 1987, was the cause of permanent disability. Bodish v. Page 16 Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant sustained a 50 percent industrial disability to the body as a whole and is entitled to 250 weeks of permanent partial disability benefits. Iowa Code section 85.34(2)(u). That claimant did not sustain the burden of proof by a preponderance of the evidence that he is an odd-lot employee for the reason that the record establishes that claimant is capable of performing either sedentary or light work. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985). That claimant did not sustain the burden of proof by a preponderance of the evidence that the motor vehicle injury of November 2, 1989, while en route to give a deposition at the request of defendants' counsel, was the sequela of the injury to his back injury which occurred on August 7, 1987. See the previous cites to Larson in the body of this decision. That claimant did not sustain the burden of proof by a preponderance of the evidence that he is entitled to payment of the medical bill for anesthesiology which grew out of the November 2, 1989 motor vehicle accident for the reason that he did not prove that it was a sequela of the previous injury. That claimant did not sustain the burden of proof by a preponderance of the evidence that an employer-employee relationship existed or that he was an employee of employer on the date of the November 2, 1989 motor vehicle injury when it is considered as a separate distinct claim from the back injury. That claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained a separate and distinct injury which arose out of and in the course of the automobile accident which occurred on November 2, 1989, for the reason that he was not an employee of employer on that date and the employer was no longer in business. That claimant did not sustain the burden of proof by a preponderance of the evidence that he is entitled to the medical bill that grew out of the second accident. In view of the foregoing findings of fact and law all other issues with respect to the automobile accident of November 2, 1989 are moot. ORDER THEREFORE, IT IS ORDERED: That defendants pay to claimant one hundred seventeen (117) weeks of healing period benefits for the period from August 8, 1987 through March 13, 1989 and again from June 13, 1989 through February 2, 1990, with the commencement of benefits for the first period to begin on August 8, 1987 and Page 17 the commencement of benefits for the second period to begin on June 13, 1989 and that these benefits are to be paid at the stipulated rate of one hundred thirty-six and 06/100 dollars ($136.06) per week in the total amount of fifteen thousand nine hundred nineteen and 02/100 dollars ($15,919.02). That defendants pay to claimant two hundred fifty (250) weeks of permanent partial disability benefits at the stipulated rate of one hundred thirty-six and 06/100 dollars ($136.06) based upon an industrial disability of fifty percent (50%) to the body as a whole and that these benefits are to commence on March 14, 1989 and again on February 3, 1990, as stipulated to by the parties in the total amount of thirty-four thousand fifteen dollars ($34,015). That defendants are entitled to a credit in the amount of two hundred seventeen (217) weeks of workers compensation benefits paid to claimant at the rate of one hundred fifty-six and 26/100 dollars ($156.26) per week in the total amount of thirty-three thousand nine hundred eight and 43/100 dollars ($33,908.43) as stipulated to by the parties. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the cost of the transcript, are charged to defendants pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. That respect to the statement of costs filed by claimant that claimant is entitled to recover the filing fee with the industrial commissioner in the amount of sixty-five dollars ($65). Claimant is not entitled to recover the fifty dollar ($50) fee charged by Des Moines orthopedic surgeons for medical records or the fifty dollar ($50) fee charged by The University of Iowa Hospital for medical records for the reason that medical records are not allowable costs pursuant to rule 343 IAC 4.33, but rather they are considered trial preparation expenses which must be borne by claimant. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1994. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Gregory T. Racette Page 18 Attorney at Law 2700 Grand - Suite 111 Des Moines, IA 50312 Ms. Lorraine J. May Attorney at Law Fourth Floor, Equitable Bldg. Des Moines, 50309 1108, 1401, 1402.10, 1402.20, 1402.30, 1402.40, 2001, 51802, 51803, 52501, 52700, 4100 Filed February 24, 1994 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ THOMAS J. NUGENT, Claimant, vs. File Nos. 881054, 862826, DUDS N' SUDS, 959391 Employer, A R B I T R A T I O N and D E C I S I O N AETNA CASUALTY AND SURETY CO., Insurance Carrier, Defendants. ___________________________________________________________ 1108, 1401, 1402.10, 1402.20, 1402.30, 1402.40, 2001 It was determined that the back injury of August 7, 1987 was the cause of both temporary and permanent disability. Even though claimant had preexisting (1) spina bifida occulta, (2) scoliosis, (3) spondylolisthesis and (4) degenerative disc disease he produced medical evidence to support the fact that his back problems were made symptomatic by the injury of August 7, 1987 and that this injury was the cause of his back surgery. The next issue was a novel issue and probably an issue of first impression in Iowa as well as other jurisdictions. It was determined that the head-on motor vehicle collision with a semi-tractor and trailer which occurred on November 2, 1989, while claimant was en route to give a deposition at the request of defendants' attorney, which demolished claimant's car and inflicted massive injuries to his hips, legs and knees was not sequela of the back injury of August 7, 1987. It was determined that the motor vehicle injuries did not arise out of and in the course of employment with employer. It was determined that when the motor vehicle accident of November 2, 1989 was considered as a separate and distinct accident, and not as sequela of the August 7, 1989 back injury, that (1) no employer-employee relationship existed between claimant and employer at that time and (2) that claimant did not sustain an injury that arose out of Page 2 and in the course of employment with employer. 51802 Claimant was awarded healing period for two periods of time that were stipulated to by the parties. 51803 It was determined that claimant sustained a 50 percent industrial disability from the back injury of August 7, 1987 and was awarded 250 weeks of permanent partial disability benefits. 52501, 52700 Claimant was denied a medical bill that was caused by the November 2, 1989 motor vehicle injury. 4100 It was determined that claimant was not an odd-lot employee because he could perform light work. Page 1 before the iowa industrial commissioner ____________________________________________________________ : HELEN BOODRY, : : Claimant, : : File No. 862914 vs. : : DALLAS SERVICE CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration wherein the claimant seeks compensation for additional healing period and greater permanent partial disability benefits as a result of an injury that occurred on August 31, 1987. The record in this proceeding consists of the testimony of claimant, Donna Nord, and Michael Raymond; and joint exhibits I through VIII. issues The issues for resolution are: 1. The nature and extent of claimant's disability and entitlement to benefits; and, 2. Claimant's entitlement to 85.27 medical benefits, based basically on causal connection and authorization. findings of fact The undersigned deputy industrial commissioner having heard the evidence and considered all the evidence, finds that: Claimant is 47 years old and has completed the eighth grade. Her only other formal education was in a truck driving school which she completed in eight days rather than the thirty days it would normally take. Claimant related her work history which began when she finished the eighth grade. Claimant worked as a waitress, laundry sorter, and making electrical auto parts until she left the employment field in 1961 for approximately ten years while she reared her children. After this interruption, claimant worked again at such jobs as making bags, being a waitress, and a cashier at Dahls. Page 2 Around 1982-1983, claimant began driving a truck with her husband. Claimant had a permit to drive but was not actually employed. Claimant's husband was an employee of the particular trucking company and claimant's help in driving the truck with her husband increased her husband's income by increasing the miles driven. Claimant went to truck driving school in 1983 and thereafter drove for a couple of trucking companies until she was hired by defendant employer on March 28, 1986, and drove with her husband as a team. They were each paid 13.5 cents per mile. Claimant was considered a long haul over-the-road driver and was driving 18-wheel trucks. Claimant described four instances in which she sustained an injury, sprain or a spasm in her back prior to August 31, 1987. It is obvious from the record that these were minor or short-term sprains or injuries and left claimant with no impairments of any kind. These conditions occurred approximately ten years or more prior to claimant's August 31, 1987 injury and in no way contributed to her present condition. The record is clear that claimant was not suffering at the time of her 1987 injury from any effects of these prior injuries or sprain. It does appear that claimant has a degeneration of the L-5 and S1 vertebra in her back which has slowly progressed over the years. The record is clear that she was having no physical or functional problems from any calcification or arthritis in the spine, at least that was in anyway interfering with her truck driving. Claimant injured her low back on August 31, 1987, when the trailer shifted on the fifth wheel of the tractor cab resulting in a combination of jerks and pulling, causing the trailer to hit the tractor cab leaving the trailer in a precarious position on the tractor cab's fifth wheel. Claimant was a passenger in the tractor cab and her husband was driving. Claimant's body was jerked around and jolted when the loaded trailer hit the fifth wheel of the tractor cab. Claimant related that she and her husband had told the terminal manager of the faulty fifth wheel before they left for their scheduled trip, but defendant employer told claimant and her husband that the load had to go. After this incident, claimant and her husband wrote up the accident report and claimant went home. Claimant described her stiffness and inability to get up at home. Claimant sought medical attention and the employer okayed claimant to see her family doctor as the company doctor was unavailable at that time. Claimant eventually saw several doctors, including specialists. Claimant's moving from the state of Iowa contributed to claimant's changing doctors. Claimant testified to the medical treatment she obtained and her complaints. On February 18, 1988, C.A. Sarantopoulos, M.D., an orthopedic surgeon, wrote that claimant's problems, including cardiac complaints, were due exclusively to claimant's August 31, 1987 injury. He said claimant had not yet reach maximum healing. He also questioned whether claimant would be able to work in her prior truck driving Page 3 capacity, but should be able to resume in the very near future some of the activities, (Joint Exhibit I(G), page 23). Claimant said she was frustrated by what she thought was a slowness in her recovery and indicated she wanted to see another doctor besides Dr. Sarantopoulos. Claimant was having numbness in her legs and a Cortisone injection treatment she was receiving from this doctor gave her temporary relief from pain but claimant felt it was not a cure for her problems. It is not clear whether defendants sent claimant to Anthony N. Pannozzo, M.D., because of claimant's feeling above or because they wanted an opinion from their own doctor. The undersigned believes it is the latter situation. Claimant indicated she was not upset with Dr. Sarantopoulos but did not feel she was progressing as well as she wanted. Dr. Pannozzo examined claimant on April 27, 1988. Claimant described the rude and threatening attitude of this doctor toward her. She indicated she thought this was the doctor's manner of operating and his attitude was not because of anything claimant did. Dr. Pannozzo concluded that claimant probably has reached maximum recovery and incurred a 4 percent impairment from intervertebral joint trauma on the left side L5-S1. He also concluded claimant's condition would not inhibit the performance of her duties as a truck driver. (Jt. Ex. I(E), p. 16) It would appear in Dr. Pannozzo's report that he had some doubt at that time as to whether claimant had reached maximum recovery but used the word probably. It also appears from his statement concerning claimant's ability to drive a truck that he may not be familiar with the rigors to the body that results from driving a truck. It seems he is convinced that claimant's problems she had could basically be solved at least in part by localization-type exercises or local injections. He does not suggest any exercise program so apparently feels that she needs some type of program and yet she is able to drive a truck. Whether he feels truck driving would be a form of exercise that would help her recovery is not clear. It appears to the undersigned that something should have been done in helping claimant to recover prior to her attempt to actively participate in her long haul over-the-road truck driving. The undersigned believes claimant is credible and believes her experience with this particular doctor, in fact, occurred and that it had an effect on the ultimate medical report. After claimant's experience with Dr. Pannozzo, claimant then saw John P. Scullin, M.D., on April 4, 1988. Claimant said she went to Dr. Scullin upon recommendation of a friend who had low back surgery. Claimant did not get defendants' authorization to see this doctor. Claimant contends she thought she was on her own after Dr. Pannozzo had given her an impairment rating and said she reached maximum recovery. Although claimant felt otherwise regarding the doctor's conclusions, she said she did not think defendant insurance carrier would okay anyone else. Dr. Scullin's examination revealed a disc problem at Page 4 claimant's L4-5. On May 21, 1988, Dr. Scullin performed a left L4-5 automated percutaneous lumbar discectomy which relieved claimant's radiculopathy (Jt. Ex. VIII, p. 195). The doctor opined on April 19, 1989 that: It is my opinion that the patient's herniated disc problem resulted from the accident of September 1987. Ideally the patient would be encouraged to find work other than truck driving that would not be as stressful to the back. It is my opinion that the patient has a ten per cent whole body physical impairment and loss of physical function to the whole body because of the herniated disc problem. (Jt. Ex. I(G), p. 24) The undersigned believes, without question, the doctor meant the October 31, 1987 injury when he referred to the September 1987 injury. There was considerable testimony concerning an evaluation report by CRS Care Corporation (Jt. Ex. II(A). Claimant denied she wasn't looking for jobs because of other medical problems unrelated to her August 31, 1987 injury. Claimant contends she had no other problems that prevented her from work. The report refers to "apparent transferable skills." There is no question that claimant's earning capacity lies in the trucking industry. The report referred to claimant's vocational liabilities which were basically the fact that claimant "participated in no educational program since the eighth grade. Her employment history has not provided her with a great deal of technical skills which can be used in an employment search." (Jt. Ex. II(A), p. 30) This same report mentions claimant's vocational strengths as being extensive knowledge of the truck driving industry. The evaluation report mentioned above was dated September 14, 1989. On July 20, 1990, Fortis Restoring Futures did a report concerning claimant (Jt. Ex. II(A), p. 34-35). There seems to be considerable disagreement in the testimony as to some of the actual circumstances and the contents of this report. The report is given little weight as to this decision. Of particular note is the fact that defendants have gone to the expense of having these reports or evaluations but have not found or provided anything concrete as to what the undersigned is interested in and what the undersigned believes the claimant would like; namely, a job using her skills which would basically be in the truck driving or trucking industry itself and an attempt at rehabilitation to reach that goal. It is one thing to have an evaluation and make a report and another thing to produce a job or see if, in fact, there is a job available for this claimant to do. Likewise, subjecting an effort towards rehabilitation and finding claimant a job to decrease the extent of industrial disability is much more valuable than a report as such. The undersigned finds it all to common that defendants procure Page 5 the services of a consultant and come up with various reports but completely fail in helping search and finding through their resources a suitable job for claimant, thereby reducing the loss of income which would have an effect on the extent of industrial disability. Defendants seem to contend that there is a considerable amount of claimant's medical expense that is for medical care unrelated to her August 31, 1987 injury and, particularly, some relating to her cardiac evaluation by Atef Labib, M.D. It appears clear to the undersigned that the findings are negative and that the complaints are exclusively related to the back and stem from her injury of August 31, 1987, as reflected by Joint Exhibit I(G), page 23, a February 18, 1988 report of Dr. Sarantopoulos. It would appear that claimant was on a considerable amount of drugs due to her August 31, 1987 injury and that this was another example of a side effect or reaction to medicine. The parties set out as an issue the nature and extent of claimant's disability and entitlement to benefits but, basically, the main arguments here is whether claimant's healing period was only from August 31, 1987 to and including April 19, 1988 as contended by defendants or whether it extended up to and including Agusut 24, 1988, as contended by claimant, and the extent of claimant's permanent disability. There is really no denial that claimant had a permanent partial disability. Dr. Pannozzo opined a 4 percent impairment to claimant's body as a whole and Dr. Scullin, who performed claimant's low back surgery on May 21, 1988, opined a 10 percent whole body physical impairment and loss of physical function to the whole body because of the herniated disc problem. The undersigned finds that Dr. Scullin's report is more credible under all the evidence herein. Dr. Scullin actually performed the surgery and actually saw the extent of claimant's low back injury and was better able to determine the impairment of claimant. The undersigned finds that claimant has a 10 percent whole body physical impairment and loss of physical function to her body as a result of the August 31, 1987 injury, and further finds that the surgery on May 21, 1988 was necessary, reasonable, and was caused by claimant's August 31, 1987 injury which arose out of and in the course of her employment. The parties have stipulated that claimant was off work from August 31, 1987, the date of injury, to and including August 24, 1988. Defendants contend that the healing period actually ended through and including April 19, 1988. They apparently are basing, in part, their conclusion on Dr. Pannozzo's letter (Jt. Ex. I(E), p. 16). What is confusing is that his May 2, 1988 letter indicated maximum medical recovery ended at that time and he had not examined claimant until April 27, 1988. It appears that defendants would more credibly contend claimant's healing period ended through April 27, 1988. As indicated earlier, the undersigned is not accepting Dr. Pannozzo's conclusion and believes that Page 6 claimant's healing did not end until a period of time after her May 21, 1988 surgery. The parties stipulated that claimant was off through and including August 24, 1988. The undersigned finds that claimant's healing period began August 31, 1987 through and including August 24, 1988. In October 1987, claimant moved back to Ohio and indicated that she did not intend to go back to work for defendant employer in Des Moines as she thought she would be laid off. It appeared from other testimony that there was talk that this particular team route of claimant and her husband would be discontinued because of lack of business. It is a fact that it had not been discontinued at the time of claimant's injury. Claimant indicated that she could drive for defendant employer in Ohio if her health was better and that there would be no problems with her doing that and working from that area. It would be just a matter of making her contacts, picking up and dropping her truck off in that area rather than the Des Moines area. It is obvious from the testimony that claimant enjoyed being with her family, including her husband. It appears claimant worked well with her husband and that things were going well until her August 31, 1987 injury. It seems as though claimant had an ideal situation which satisfied her desire to work, her desire to be a truck driver and her desire to be with her husband as much as possible. Claimant made over $16,000 in 1985 and 1986 and in 1987 had made $13,086. The medical evidence seems clear that claimant's return to the trucking industry and driving a truck with her current condition would not be advisable and that the doctors (other than Dr. Pannozzo) had questions as to whether she would be able to enter the truck driving industry again and drive a truck as she was doing on August 31, 1987. The undersigned finds that claimant's condition is such that she is unable to drive a truck over the road on long hauls and has thus lost substantial income which has affected her earning capacity. The undersigned further finds that claimant's August 31, 1987 injury has additionally prevented her from being a team driver with her husband, which was a unique situation, and that on the present status of the record appears not to be obtainable under the current circumstances. Mr. Nord, the district manager for Ruan Transport Company's Des Moines Park Avenue terminal, (of which defendant employer is a subsidiary) testified that he found claimant to be fair and honest. There was testimony concerning claimant having initially reported some prior back problems years earlier and stated the same on a report and was requested to tear that report up and leave it off on an amended report so as to prevent her from being rejected from her original employment with defendant employer. Although Mr. Nord denied that he requested claimant to tear up the application, this fact is immaterial. It is a well-known fact that the trucking industry does not like to Page 7 hire people with prior back injuries. It is obvious that claimant had no back injury that was causing her any problems and any rejection of employment because of that would have been most unfair under the circumstances. The undersigned finds claimant credible, as previously stated, and will not alter his opinion at this time. Mr. Nord indicated that had claimant presented herself to the company on April 18, 1988 with a work release, she would have been put back to work. Mr. Nord acknowledged that claimant would not get hired if she put her current restrictions on an employment application or if she indicated that she had received some workers' compensation for an injury. Mr. Nord indicated that this was a Federal DOT form and not the company's special form. Of course, it is immaterial whose form the employer uses. The reality of the fact is that it is obvious claimant is unemployable in the trucking industry, particularly as a truck driver. Claimant is 47 years of age with an eighth grade education. There is no evidence she was suffering from any prior problems until she was injured on August 31, 1987, which injury has prevented her from working and particularly working as a team truck driver with her husband. Claimant has not made an effort to search for a job. It is obvious that defendant employer has not made an effort to hire her back or to rehabilitate her so that she would be able to return. It is obvious that with claimant's condition, claimant is not suitable for over-the-road long haul truck driving as indicated by Mr. Nord. It is understandable that claimant has not made a significant effort to find a job as she is still suffering from her impairment and that her real transferable skill is driving a truck. The undersigned believes that claimant should make some effort in attempting to find some work so that she may become gainfully employed in some respect. Claimant testified she has applied for social security benefits and this may have affected her efforts. The undersigned also realizes that the search may be fruitless under the circumstances. Taking into consideration claimant's work experience, the very good job she lost and the necessity of having a nonimpaired back in order to satisfactorily drive an over-the-road 18-wheel truck let alone obtaining a job, claimant has a substantial disability. Richard L. Catterlin, D.O., treated claimant for a period of time after Dr. Scullin. On June 6, 1990, Dr. Catterlin wrote: In my opinion the patients present problems resulted from a work related accident of Aug. 31, 1987. She is still having much pain and spasm. I believe with a resonable [sic] degree of medical certainty that this patient has a permanent partial disability in this area to approximately 50%. This is a chronic long standing permanent problem that we are not going Page 8 to be able to resolve with just a shot of penicillin. She has chronic instability, inflammation in this area and will indeed have this for the rest of her life. As she gets older I feel that the osteoarthritis the degenerative condition will just progress and get worse, she is always going to have to be a back conscious individual where she does things to avoid stress to this area.... In conclusion, I feel that this is going to be a permanent injury that is going to be with her for the rest of her life. She will be working with it, living with it, learning how to controll [sic] it, taking medication for it. (Jt. Ex. I(B), p. 6) In considering all the medical testimony, the undersigned finds that claimant had a latent preexisting osteoarthritic and degenerative condition from which she was suffering no impairment or problems prior to August 31, 1987 and which preexisting condition was materially and substantially aggravated, worsened and lighted up as a result of claimant's August 31, 1987 injury. Taking into consideration claimant's medical history prior and subsequent to her accident, her work experience, education, vocation, severity of her injury, healing period, her age, motivation, functional impairment and loss of income, the undersigned finds claimant to have a 60 percent industrial disability. Initially, at the beginning of the hearing, the parties were not able to agree on the rate but at the end of the hearing they stipulated that the rate for any benefits that may be payable to this claimant would be $266.18 per week. The final issue involves 85.27 benefits. Without any further discussion or further elaboration on the causal connection previously found as to claimant's injury and condition, the undersigned finds that all medical in dispute is causally connected to claimant's injury. There is still the issue of authorization. It is understandable that claimant thought that after her evaluation and experience with Dr. Pannozzo, there was no need to further attempt to get authorization from defendant employer for any future medical even though she was determined that she needed further medical treatment. Dr. Scullin was not an authorized physician. He did perform surgery which appeared obviously necessary and which was not performed or suggested by any prior authorized physician. It appears the previous physicians were taking a more conservative approach and yet obviously their treatment was not helping claimant. It appears Dr. Scullin's surgery at least helped for a period of time. There were certain fragments removed through the surgery. The undersigned finds that Dr. Scullin's surgery was necessary and provided relief and benefits to claimant even though it did not put her in full health or a truck Page 9 driving condition. The undersigned finds that defendants are responsible for and shall pay Dr. Scullin's medical bill. Claimant saw another doctor after seeing Dr. Scullin, namely, Dr. Catterlin, for additional treatment. Dr. Catterlin was not authorized. It does not appear that Dr. Catterlin's treatment improved or lowered claimant's impairment. The undersigned finds that Dr. Catterlin was not an authorized doctor and that any expense connected with his evaluation or treatment is solely at the expense of the claimant and not the obligation of defendants. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of August 31, 1987 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material Page 10 if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299; Ziegler, 252 Iowa 613, 106 N.W.2d 591. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591, and cases cited. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Iowa Code section 85.34(1) provides that if an employee has suffered 31, 1987 injury materially and substantially accelerated, worsened and lighted up. That claimant incurred a healing period beginning August 31, 1987 up to and including August 24, 1988, amounting to 51.429 weeks at the rate of $266.18. That claimant incurred an automated percutaneous lumbar discectomy at left L4, L5 on May 21, 1988 which was causally connected to claimant's August 31, 1987 injury. The surgery and cost thereof was necessary and reasonable, helped claimant's medical and physical situation at least temporarily and further resulted in removing certain fragments from her spine. That claimant has not worked since her August 31, 1987 injury. That claimant has not made a diligent search after her healing period but claimant's incentive to search was substantially affected by her medical condition and treatment, education, and transferable skills, all which affected the reality of obtaining a job. That claimant has a 30 percent permanent partial physical impairment to her whole body and loss of physical function to the whole body because of her August 31, 1987 injury. That Dr. Scullin was not an original authorized doctor but because claimant's surgery was necessary and had not previously been prescribed by any prior authorized doctor, defendants are responsible for the cost of surgery and all of Dr. Scullin's bills. That claimant's treatment with Dr. Catterlin was not authorized and that said treatment was basically for evaluation. Claimant is responsible for all Dr. Catterlin's bills. That claimant has a 60 percent industrial disability. That claimant is a credible witness. order Page 12 THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of two hundred sixty-six and 18/100 dollars ($266.18) for the period beginning August 31, 1987 to and including August 24, 1988, totaling fifty-one point four two nine (51.429) weeks. That defendants shall pay unto claimant three hundred (300) weeks of permanent partial disability benefits at the rate of two hundred sixty-six and 18/100 dollars ($266.18) beginning August 25, 1988. That defendants shall pay all of claimant's medical bills incurred except for the medical bills of Dr. Catterlin. If claimant has already paid the bills covered herein, then defendants shall reimburse claimant. (See list of medical bills attached to the parties' prehearing report) That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. Defendants have previously paid thirty-one point eight five six (31.856) weeks of healing period at the rate of two hundred sixty-two and 27/100 dollars ($262.27) and twenty-two point two eight six (22.286) weeks of permanent partial disability benefits, totaling fifty-four point one four two (54.142) weeks all paid at the two hundred sixty-two and 27/100 dollars ($262.27) weekly rate. The rate has now been established by the parties as two hundred sixty-six and 18/100 dollars ($266.18). That defendants shall pay interest on the benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to Division of Industrial Services Rule 343-3.1 Signed and filed this _____ day of August, 1990. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Robert W Pratt Attorney at Law 1913 Ingersoll Ave Des Moines IA 50309 Mr W C Hoffmann Mr Joseph A Happe Page 13 Attorneys at Law 500 Liberty Bldg Des Moines IA 50309 5-1803; 5-2503 Filed August 27, 1990 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : HELEN BOODRY, : : Claimant, : : File No. 862914 vs. : : DALLAS SERVICE CORPORATION, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Found claimant had a 60% industrial disability. 5-2503 Found part of claimant's medical causally connected but unauthorized and some causally connected and medically necessary (surgery) which led to some improvement in claimant's condition, at least temporarily. Defendants ordered to pay the latter bill. Claimant to pay the others. Page 1 2906;2209;2402;2201;2602;2901; 1803.1;3001;3800;4000.2;2908 Filed May 24, 1991 CLAIR R. CRAMER before the iowa industrial commissioner ____________________________________________________________ : PATRICIA TERWILLIGER, : : Claimant, : : vs. : File Nos. 777628/791749 : 862946/877065 SNAP-ON TOOLS CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 2906 Held on appeal that deputy could properly limit posthearing brief to four pages. Claimant's attempt to circumvent this limitation by incorporating by reference a 164 page brief in another case was thwarted, and the incorporated brief was not considered. 2209, 2402 Claimant filed three petitions, each alleging a different injury date and cumulative injury to the upper extremities, shoulder, and neck. Two of the petitions were filed beyond three years from the last date of payment, and were dismissed under 85.26(1). Claimant urged on appeal that since the injuries were cumulative, the actual date of injury spanned several years and was still ongoing at the time of the hearing, thus resulting in a "running" injury date. Claimant argued that the stated injury dates on the petitions were merely manifestations. Held on appeal that McKeever establishes the injury date for cumulative injury cases. A cumulative injury date was determined for claimant's third petition, and the other two petitions, alleging injury dates beyond the statute of limitations, were properly dismissed by the deputy. 2201, 2602, 2901 Claimant urged error by the deputy in not analyzing her three petitions, which had been consolidated for hearing, as Page 2 a single "unitary" injury to the arms, shoulders and neck. Held that the nature of claimant's injury is determined by the medical evidence in the record, and is not controlled by claimant's pleadings. 1803.1 Claimant sought industrial disability, based on pain extending to her shoulders and neck. However, both doctors that rated claimant's bilateral hand conditions confined their ratings to the upper extremities. The only evidence of involvement of the shoulders and neck was claimant's subjective complaints of pain, which were not substantiated. In addition, even if such pain existed, it was not shown to be disabling. Finally, there were non-work incidents in the record that could as likely have caused any shoulder or neck pain, and claimant was diagnosed as suffering significant functional overlay. Held that claimant had failed to carry her burden to show that her injury extended to the body as a whole. 2602 Testimony of evaluating physician given greater weight, where evaluating physician nevertheless had greater contact with claimant, and observed her later in time. 3001 Claimant argued that her rate should be calculated using the highest wage she was paid during the period of the cumulative injury. Held that McKeever establishes the date of injury, and that date determines the wages to be used in the rate calculation. 3800 Claimant sought an order specifying the calculation of interest due on unpaid benefits, with interest accruing on a weekly basis as each payment came due. This issue was not raised before the deputy. The decision pointed out Farmer's Elevator Co., Kingsley v. Manning, 286 N.W. 2d 174 (Iowa 1979), to the parties and ordered them to calculate interest and if a dispute existed, to bring the matter before the agency for determination. 4000.2 Claimant also sought 86.13 penalty benefits. However, the delays in payment were minimal, in most cases three to four weeks. Where no benefits were previously paid, it was found that a reasonable dispute existed between the parties. Penalty benefits were not appropriate. 2908 Claimant waited until the day of hearing to dismiss a fourth petition, dealing with an injury to her leg. The deputy found that claimant was not diligent and should have dismissed the petition sooner, but since defendants would Page 3 have conducted the same discovery with or without the fourth petition, sanctions were not ordered. Claimant, on appeal, sought a reversal of the finding of fact that she had not been diligent. Held that since sanctions were not imposed, the matter was moot. Claimant's cross-motion for sanctions against defendants also found to be without merit. Page 1 before the iowa industrial commissioner ____________________________________________________________ : PATRICK PINNEY, : : Claimant, : : vs. : : File No. 863234 BROWER CONSTRUCTIONS CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA LIFE AND CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding in arbitration brought by Patrick Pinney as a result of injuries to his head, neck and right shoulder which occurred on September 9, 1987. Defendants accepted compensability for the injury and paid weekly benefits and medical expenses. The case was heard and fully submitted at Sioux City, Iowa, on December 28, 1990. The record in the proceeding consists of claimant's exhibits 1 through 13, defendants' exhibits A through N, and testimony from claimant, Lynne Easterday, Karen Stricklett and Dennis Moore ISSUES The issues for determination are as follows: l. The extent of entitlement to weekly compensation for temporary total disability or healing period; 2. The nature of permanent partial disability; 3. The extent of entitlement to weekly compensation for permanent partial disability; and 4. The commencement date for permanent partial disability. FINDINGS OF FACT Having considered all the evidence received the following findings of fact are made: Patrick Pinney injured his head, neck and right shoulder when he was working on a truck at his employer's place of business on September 9, 1987. On that date claimant was working under the box of a dump truck when the driver unhooked some hoses causing the box to suddenly fall and strike claimant. Claimant was rendered unconscious for about five minutes after the injury. He immediately noted that he had a weak and numb right arm. He also had severe pain in the jaw and face and over the right side of the neck. Claimant was taken to the hospital for treatment and a long period of Page 2 convalescence followed. Claimant was off work starting on the date of injury, September 9, 1987. He was released to work by Mark Wheeler, M.D., on May 17, 1988, with a 20 pound work restriction, exhibit 6a. Claimant testified that he returned to work for Brower Construction on June 7, 1988. Brower Construction had eliminated claimant's old job due to the sale of a part of the company. Claimant was offered another position which consisted of unloading train cars and running loaders. Claimant testified that some of the work he performed when unloading train cars violated his work restriction. However, he was able to perform the duties assigned to him during that period. Claimant left work again on September 10, 1988, so as to have shoulder surgery performed by Dr. Wheeler. The date of the shoulder surgery is not precisely revealed in the medical records offered. The records do show that as of October 24, 1988, his wounds were healing, exhibit 6e. Therefore, the shoulder surgery performed by Dr. Wheeler must have occurred between September 10, 1988 and October 24, 1988. Claimant was off work for the shoulder surgery between October 1988 and June 1989. During that time, claimant was participating in a no contact hockey league. Claimant testified that Dr. Wheeler was concerned with the hockey league at first. After receiving more information, Dr. Wheeler endorsed the program as it was good for claimant's shoulder mobility. Claimant also worked at his father's business during that period of time. He performed duties such as answering the telephones, running loaders and driving trucks. This work was part-time and without compensation. Claimant returned to Brower Construction Company after the shoulder surgery so as to discuss his employment situation. Jim Reganschied, of Brower Construction, told claimant to come back to see him with a doctor's work release. Claimant did not obtain a release and never returned to Brower Construction. Vocational rehabilitation records revealed that claimant received a job offer from Brower. Claimant rejected the job due to the travel involved. Claimant went to work for Berkley Construction Company in June of 1989. He worked as a paver operator and drove dump trucks until August 1989. His rate of pay was $7 per hour and he worked about 50 to 60 hours per week. Claimant, in August 1989, went to work at Jack Pinney Construction Company. This business is owned by claimant's father. His duties were to feed a crusher and perform crusher maintenance. The starting salary was $500 per week. Claimant, at the time of hearing was still employed with his father's company doing the same job at the same rate of pay. Claimant still complains of soreness in his shoulder and teeth. He stated that his present job allows him to work within his medical restrictions. He still takes aspirin and Motrin for infrequent pain. Page 3 Claimant testified that while at Brower Construction he worked 80 to 100 hours per week. This was refuted by Dennis Moore who was a foreman at Brower Construction during the period in question. Moore stated that claimant would have worked six days per week for 12 hours per day. Both claimant and Moore are found to be credible witnesses. Exhibit 13, page 11 reveals claimant's 13 week wage history. With claimants rate being $9.10 per hour, he would have worked between 25 and 88 hours per week. His average week would have consisted of about 68 hours per week assuming that all weeks were paid at $9.10 per hour. It is not unusual for the hours worked to vary. Therefore, the statements of claimant and Moore are not inconsistent. Exhibit 13, page 11 does reveal that claimant's average weekly wage was improperly calculated. The week of May 30, 1987, indicates $35.03 as one week of wages. This would not account for one full day of wages based upon an hourly rate of $9.10. Short weeks should be disregarded when calculating the average weekly wage. The week of May 30, 1987, should have been excluded with the remaining 12 weeks used to determine the average weekly wage. The 12-week average is $619.86. Using the July 1, 1987, benefit schedule, a claimant who is married with four exemptions is entitled to a weekly rate of $384.82. The deputy is free to find that the average weekly wage is different from the stipulation if such is supported by the record. In this proceeding the record supporting the contrary finding is in the form of defendants' answers to interrogatories. The stipulation as to average weekly wage is rejected. It is found that claimant's average weekly wage is $619.86 and his rate is $384.82. Dennis Moore also testified that claimant did not complain of shoulder problems after the return to work in June of 1988. Moore stated that claimant was a good worker. Lynne Easterday testified on behalf of claimant as a vocational rehabilitation expert. She stated that claimant was not a candidate for further schooling, that he had a loss of access to the labor market in the range of 5l to 72 percent and that he had a wage loss of 21 to 40 percent. Karen Stricklett testified on behalf of defendants as a vocational rehabilitation expert. She stated that claimant was employable as a heavy equipment operator at a rate of $9 per hour or higher. She was also of the opinion that claimant was employable as a heavy equipment salesman or as a packing house quality control inspector. Stricklett stated that claimant has many desirable characteristics which make him a valuable employee. She described claimant as articulate, pleasant, straight forward, knowledgeable, hard working, skilled and presents with a good appearance. Stricklett also testified that most construction work is seasonal in nature and claimant was subject to seasonal lay offs. She stated that claimant's wages reported on tax returns ranged from $8,800 to $13,700 per year for the tax Page 4 years 1983 through 1987. Neither vocational rehabilitation expert attempted to locate other employment for claimant. Their testimony and reports appeared to be motivated by the litigation as opposed to job placement. The first issue concerns claimant's entitlement to healing period benefits. Claimant was injured on September 9, 1987 and was off work until June 11, 1988. However, Dr. Wheeler released claimant to return to work on May 17, 1988, exhibit 6a. Claimant was not authorized off work by the treating doctor between May 17, 1988 and June 11, 1988. Entitlement to benefits has been proven during that period. It is found that claimant's first healing period starts on September 9, 1987 and continued through May 16, 1988. Claimant again left work with Brower Construction on September 10, 1988, for the purpose of having surgery on his shoulder. Contrary evidence was not presented by defendants. The medical records did not reveal the date of surgery on the shoulder. Since claimant has been found to be credible his testimony will be accepted to the extent it coincides with the stipulation shown in paragraph four of the prehearing report and order approving the same. The start of the second healing period is October 14, 1988. The end of the second healing period is a more difficult question. The exhibits and testimony reveal that claimant was involved in exercise hockey, house moving and some construction work during the period in question. Claimant testified that he went to work in June 1989 because that was the date he felt that he had healed sufficiently. Claimant did not provide a specific date in June for his return to work. Dr. Wheeler stated on June 27, 1989, that the maximum medical improvement had not yet been achieved, exhibit 6d. However, on June 13, 1989, Dr. Wheeler stated that claimant had been released and was actually working, exhibit F. Having reviewed and considered all of the evidence, it is found that claimant's healing period ended on June 1, 1989. This date coincides with his return to full-time employment. June 1, 1989 was used as claimant did not specify the precise day he started work in that month. No other evidence specifically identified the actual return to work date. It is found that claimant incurred a second healing period starting on October 14, 1988 and continuing through June 1, 1989. The next issue concerns the type of permanent partial disability. It may be argued that claimant's permanent partial disability is limited to the scheduled member. This argument is rejected. The medical records clearly reveal that claimant sustained injuries to his head, jaw and right shoulder on September 9, 1987. The medical exhibits reveal a right shoulder surgery that invaded the trunk of the body. Furthermore, claimant's symptoms caused by the shoulder joint separation also extend beyond the head of the humerus Page 5 as shown by the medical records. It is found that claimant incurred an injury to the body as a whole on September 9, 1987. The next issue concerns the extent of entitlement to industrial disability. Claimant's age, education, experience and work restrictions must first be considered. Claimant, age 27, is a high school graduate. The majority of his productive work life has been devoted to heavy equipment operation in the construction industry. Claimant is a hard worker and very motivated to work. He stated that he often worked 80 hours per week or more. This was substantiated by defendants' answers to interrogatories. Claimant has no formal education beyond high school. It is found that claimant is not a suitable candidate for further schooling. Claimant's wage on September 9, 1987 was $9.10 per hour with a resulting average weekly wage of $619.86. The construction work was seasonal in nature. Claimant's highest yearly income reported on tax returns was $13,700. Claimant is currently employed at his father's construction company earning $500 per week feeding a crusher. He is able to perform that work with appropriate rest periods. Leonel H. Herrera, M.D., stated that claimant had shown a good recovery from the serious injury with no restrictions needed, exhibit K. Dr. Herrera appears to be a practicing neurologist as shown by his letterhead. Dr. Herrera also recommended that claimant see an orthopedist for his shoulder pain, exhibits J and K. Claimant saw Dr. Herrera on one occasion. Paul Kirkegaard is a physical therapist who administered a functional capacity evaluation with respect to claimant's right shoulder and right upper extremity. Kirkegaard opined that claimant should work no more than eight hours per day with the right arm limited to below shoulder height and close to the body, exhibit 10a. Dr. Wheeler was the treating orthopedic surgeon with respect to claimant's shoulder injury. After reviewing Kirkegaard's assessment, he assigned the following permanent work restrictions. "I would allow him work below shoulder level and lifting no greater than 20-30 lbs. with the arm. Repetitive use of the arm such as shoveling would also aggravate his symptoms and should be avoided." exhibit 6c. Bernard L. Kratochvil, M.D., is an orthopedic surgeon who performed an independent evaluation at the request of claimant. He opined that claimant's activities be restricted to the capabilities set forth in the functional capacity assessment. Dr. Kratochvil also stated that claimant sustained a 15 percent permanent partial impairment to the right upper extremity as a result of his injuries. Dr. Wheeler's work restrictions are found to be the most credible as he is the treating orthopedic surgeon most familiar with claimant's treatment. Furthermore, his work restrictions are based upon objective testing performed by Paul Kirkegaard. It is also noted that Dr. Herrera Page 6 recommended a referral to an orthopedist. Permanent partial impairment is also a consideration when assessing industrial disability. In this case, Dr. Kratochvil assigned a 15 percent impairment rating to claimant's right upper extremity, exhibit 8a. Dr. Herrera stated that claimant had incurred no impairment. It appears that Dr. Wheeler assigned a 10 percent impairment rating, exhibit 12. However, no such medical report was offered. It would be speculative to find that a 10 percent rating was assigned by Dr. Wheeler based upon the evidence presented. It is found that claimant sustained a 15 percent permanent partial impairment to his right upper extremity as a result of his shoulder injury. This rating is consistent with claimant's work restrictions and medical history involving a shoulder surgery. Claimant's motivation to work is also a consideration. In this proceeding claimant has proven himself to be a hard working and highly motivated individual. Claimant's work history proves that he is willing to work very long hours at heavy labor. Claimant did return to Brower Construction Company in June of 1989 to request work. He was told to get a doctor's release and come back. Claimant was offered a job in a remote location outside of Sioux City, Iowa. Claimant did not return to Brower Construction. Instead he went to work for another construction company. It is found that claimant was not motivated to return to work at Brower Construction. It is found that claimant is motivated to work. The loss of claimant's ability to earn income must be considered. Claimant is presently earning $500 per week as compared to his average weekly wage of $619.86. This would appear to result in a 20 percent loss of earnings. However, the wage loss is tempered by the fact that claimant's construction work is seasonal. Therefore, claimant's yearly earnings at Brower is much lower when a full year is considered. This reduces his loss of earnings. It should be noted that claimant is now employed in a family business. If claimant worked for a nonfamily enterprise, he may be more susceptible to seasonal lay offs. Claimant testified that on the date of injury he earned $9.10 per hour. He now receives a $500 weekly salary and works 50 to 65 hours per week. Based upon an average 55 hour work week, claimant now earns $9.10 per hour. Factors which tend to increase industrial disability are as follows: Claimant's work experience consists primarily of manual labor. He has lost access to a significant segment of the manual labor job market due to the work injury and the resulting work restrictions. Claimant is not a candidate for further schooling. At age 27 he is highly motivated and in the prime of his working life. Page 7 Factors which tend to decrease industrial disability are as follows: Claimant is presently earning an hourly wage equal to that earned at the time of injury. Claimant is a skilled equipment operator and can maintain his present earning capacity outside of the family business. The construction performed at Brower Construction Company is seasonal in nature which tends to lower yearly income. Claimant is capable of working 50 to 60 hours per week which is in excess of the 8-hour per day work restriction. Claimant's injury was to his nondominant upper extremity. Having considered all of the evidence, it is found that claimant sustained a 20 percent industrial disability as a result of the September 9, 1987 injury. The commencement date for permanent partial disability is May 17, 1988. This is the first day following the end of the first healing period. The permanent partial disability benefits are to be paid intermittently before and after the second healing period. conclusions of law The hearing deputy is free to make findings different from a stipulation if supported by the record. DeHoer v. Clarklift of Des Moines, file number 804375 (Appeal Decision May 12, 1989). The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar: 6. In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. Iowa Code section 85.36 Short weeks are not included in the 13 weeks for determining the rate under Iowa Code section 85.36(6); Lewis v. Aalf 's Mfg. Co., I Iowa Industrial Commissioner Report 206, 207 (Appeal Decision 1980). The work week of May 30, 1987, was not representative of claimant's weekly earnings as it contained less than one full day of compensation. Having excluded the week dated May 30, 1987, it is found that claimant's average weekly wage is $619.86 and his weekly rate is $384.82. Section 85.34(l), Code of Iowa, provides that healing period Page 8 benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Page 1 51802 51803.1 51803 53000 Filed February 4, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : PATRICK PINNEY, : : Claimant, : : vs. : : File No. 863234 BROWER CONSTRUCTIONS CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA LIFE AND CASUALTY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51802 Claimant established entitlement to intermittent healing period 51803.1 Claimant's injury to the face, neck and shoulder found to be body as a whole. 51803 Claimant at age 27 with a work restriction of no repetitive use of shoulder, lifting 30 pounds or less and now earning same wage as prior to injury found entitled to 20 percent partial disability. 53000 Short week excluded from 13 week calculation of average weekly wage. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CLIFFORD DE MOSS, Claimant, File No. 863341 vs. A R B I T R A T I O N ACCURATE MECHANICAL CO., INC., D E C I S I O N Employer, and F I L E D MARYLAND CASUALTY COMPANY, OCT 12 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Clifford De Moss, claimant, against Accurate Mechanical Company, Inc., employer (hereinafter referred to as Accurate), and Maryland Casualty Company, insurance carrier, for workers' compensation benefits as a result of an alleged injury on July 8, 1987. On April 18, 1989, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Accurate at the time of the alleged injury. 2. If defendants are liable for the alleged work injury, claimant is entitled to temporary total disability benefits from August 17, 1987 through October 12, 1987. 3. The alleged work injury is not a cause of permanent disability. 4. Claimant's rate of weekly compensation shall be $414.78. 5. The medical bills submitted by claimant at hearing were fair and reasonable and causally connected to the hernia condition upon which the claim is based, but that the issue of the causal connection of this hernia condition to a work injury remained at issue. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether the claimant received an injury arising out of and in the course of employment; II. Whether there is a causal relationship between the work injury and the claimed disability; III. The extent of claimant's entitlement to weekly benefits for temporary disability; and, IV. The extent of claimant's entitlement to medical benefits. The parties also submitted at the time of hearing an issue as to the appropriateness of defendants taking a credit against this award under Iowa Code section 85.38(2) for benefits paid under a Union Health and Welfare Fund. This issue was not listed as a hearing issue in the hearing assignment order. Although this assignment order was amended upon application subsequent to the prehearing conference to include other issues, the applicability of 85.38(2) was not one of these new issues. As stated to the parties in the instructions to complete the prehearing report, issues not raised at the last prehearing conference cannot be raised for the first time in the prehearing report which is submitted at hearing. The undersigned deputy commissioner has authority to hear only those issues listed in the hearing assignment order and cannot modify the orders of another deputy commissioner. Therefore, the issue concerning Iowa Code section 85.38(2) cannot be dealt with in this decision. STATEMENT OF FACTS The following is a brief statement highlighting some of the more pertinent evidence presented. Whether or not specifically referred to in this statement, all of the evidence received at the hearing was reviewed and considered in arriving at this decision. Any conclusions about the evidence received contained in the following statement should be viewed as preliminary findings of fact. Claimant is a union pipe fitter working out of Local 33, Plumbers and Steamfitters Union. At the time of the alleged injury claimant was employed by Accurate and assigned to duty at various locations including the Millard Warehouse located in Iowa City, Iowa. Claimant testified that on approximately July 8, 1987, "or within a week" of that date he suffered groin pain and swelling after unloading pipe and welding equipment from his truck onto the loading dock at the Millard Warehouse in Iowa City, Iowa. There was little dispute in the record that the equipment and materials were heavy and bulky. After the lifting incident, claimant said that his groin area was tender to the touch over the next several days and weeks. Dan Seale, an employee of Millard Warehouse in Iowa City, testified by deposition that he recalls an oral complaint to him from claimant of groin pain at the time he unloaded the equipment. Pay records submitted into evidence from Accurate indicated that claimant was working in Iowa City on July 2 and 3, 1987 but not on the 7th or 8th of July. On July 11, 1987, claimant sought medical treatment for his groin pain at an emergency room of a hospital. Emergency records indicate that claimant complained to doctors at that time of pain in the left testicle and lower abdominal region for the last 11 days. The emergency room doctors indicated that "no hernia was seen or felt." Upon a diagnosis of epididymitis or infection, claimant was given antibiotics. Claimant testified that his swelling decreased after receiving treatment but a "grabbing pain" persisted over the next several weeks which continued to bother his lifting at work. Claimant explained he did not file an accident report at that time with Accurate because of the diagnosis of infection. On August 17, 1987, claimant left the employment of Accurate for reasons unrelated to any work injury and at that time sought further medical treatment for his persistent groin pain from R. D. DesKamps, D.O. Dr. DesKamps diagnosed;that claimant had a hernia and surgically repaired the hernia on August 25, 1987. Dr. DesKamps testified live at hearing and explained that he felt from the history presented that the lifting incident in July of 1987 was the cause of the hernia. He stated that the symptoms of hernia can resemble epididymitis and it was possible for a physician to miss a hernia upon examination. The fact that claimant did not respond to antibiotic therapy was good evidence of the original misdiagnosis according to Dr. DesKamps. APPLICABLE LAW AND ANALYSIS Note: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue as to the time and extent of the alleged injury. From his demeanor while testifying, claimant was found credible. I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, the fact that claimant was not precisely correct in his alleged injury date does not defeat his claim. The onset of pain after lifting at Iowa City while working for Accurate was verified by an independent, disinterested witness. The credible history presented to Dr. DesKamps demonstrated to the doctor that the lifting incident was a likely cause of the hernia. Dr. DesKamps' opinions are not controverted in the record. The views of the emergency room doctor given claimant's subsequent history were notably absent from the evidence. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. However, claimant is entitled to an order of reimbursement only if claimant has paid those expenses. Krohn v. State, 420 N.W.2d 463 (Iowa 1988). Defendants argue that they, therefore, are not obligated to pay the expenses. This is incorrect. The Supreme Court in Krohn also stated that claimant is entitled to an order from this agency directing the responsible defendants to make such payments directly to the provider or to others who have made those payments on behalf of claimant. This order is likewise enforceable in the Iowa District Court. As the hernia was found to be work related, under the parties' stipulation in the prehearing report, there is no further issue involving causal connection. FINDINGS OF FACT 1. Claimant was a credible witness. Claimant's appearance while testifying indicated that he was testifying truthfully. 2. On or about July 8, 1987, claimant suffered a hernia injury which arose out of and in the course of employment with Accurate. This injury was initially misdiagnosed as infection. The injury eventually required surgery and a period of recovery from surgery. CONCLUSIONS OF LAW Claimant has established under law entitlement to 8 1/7 weeks of temporary total disability benefits and to $2,552.27 in medical benefits. ORDER 1. Defendants shall pay to claimant temporary total disability benefits from August 17, 1987 through October 12, 1987 at the rate of four hundred fourteen and 78/100 dollars ($414.78) per week. 2. Defendants shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendants are ordered to pay the provider directly or reimburse the Union Health and Welfare Fund for any of the expenses paid by it. 3. Defendants shall pay accrued weekly benefits.in a lump sum. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 12th day of October, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Martha Mertz Attorney at Law P O Box 496 Knoxville, IA 50138 Mr. Richard G. Book Mr. Jon Kurt Hoffmann Attorneys at Law 500 Liberty Bldg Des Moines, IA 50309 5-1108 Filed October 12, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER CLIFFORD DE MOSS, Claimant, File No. 863341 vs. A R B I T R A T I O N ACCURATE MECHANICAL CO., INC., D E C I S I O N Employer, and MARYLAND CASUALTY COMPANY, Insurance Carrier, Defendants. 5-1108 - Nonprecedential - medical causation issue involving a hernia. Page 1 before the iowa industrial commissioner ____________________________________________________________ : TERRANCE LEE SIMMONS, : : Claimant, : : vs. : : File No. 863395 HEYL TRUCK LINES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY, : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on August 6, 1991, in Fort Dodge, Iowa. The record in the proceeding consists of the testimony of claimant and Keith Pease; claimant's exhibits A, B and C; and defendants' exhibits 1 through 14. issues The issues for resolution in this case are: 1. Whether claimant's alleged injury on January 18, 1988 arose out of and in the course of claimant's employment; 2. Whether there is any causal connection between claimant's alleged disability and the January 18, 1988 alleged injury; and 3. The nature and extent of claimant's disability and entitlement to disability benefits. findings of fact The undersigned deputy having heard the testimony and considered all the evidence, finds that: Claimant is a 44 year old high school dropout who has been an over-the-road truck driver for sixteen or seventeen years. He obtained his GED in 1967. Claimant has worked with defendant employer on two occasions, for one month in 1987 and again December 2, 1987 until his alleged January 18, 1988 injury. Claimant described the nature of his alleged injury on January 18, 1988, at which time he was preparing to load some pallets in the company truck in Madison, Nebraska. He Page 2 said he opened the rear truck door which was then blown shut by the gusty winds, knocking him down. He recalled the event occurring around noon. He described the weather as a blizzard. He said he was knocked back to the ground and stunned but was not unconscious. He indicated he doesn't remember everything that really happened except he recalled he was lying in the snow. Claimant said he eventually called the dispatcher. Claimant desired to return for medical help but was told by the dispatcher to continue his route of picking up and delivering at certain locations. He described the places to which he delivered and picked up merchandise subsequent thereto. Claimant contends he was hurting during this time. Claimant eventually arrived at defendant employer's home base truck yard on January 21, 1988, as he recalls, after refusing to pick up another load. Claimant testified as to his medical treatment and the various doctors he went to. Claimant said he tried to work at two separate jobs but could not do the moving and lifting required without pain in his low back and neck and down his leg. His last job was at a countryside fertilizer company in Minnesota in April 1989, in which he did shop welding for one and one-half months, three days a week. He quit when they started going to the fields as he could not do the work. Claimant has not worked since April 1989. Claimant has been living on ADC since that time with his wife and three children. Claimant obtained funding through state and federal grants to go to a heating and air conditioning technical school beginning in September 1990. He dropped out because he was having marital problems. He did not obtain any credits. He intends to start again in September 1991 for a two year course. He believes he can do this heating and air conditioning type work but emphasized he can no longer drive trucks because of the sitting, jiggling and bouncing. Claimant was a substance abuse counselor several years ago but indicated his knowledge would be outdated today. He has not tried to find work in this area. He said the pay is too little and he could not support himself on this. Claimant is not getting medical help now as he said it doesn't do any good. Claimant related one of his current problems as sleeping one or two hours due to pain which he said he relieves by drinking a lot. He also takes Tylenol. Claimant had no logical explanation as to how he would expect to work or go to school if he sleeps every two hours. Claimant acknowledged he was a cook in the navy and has restored cars and done mechanical work but it is obvious he has not tried to find work in this area either. Claimant admitted he fell off a truck three years ago but denies he injured his mid-back. He said he only hurt a muscle in his back. Claimant initially agreed he has been given no Page 3 restrictions by a doctor, but later he referred to a social security record in which weight restrictions were indicated (Claimant's Exhibit C). On cross-examination, claimant was asked about several items defendants contend were inconsistencies in his testimony at the time of his deposition now and in his medical records. They involve the extent of the weather conditions, extent of his consciousness at the time of the injury, what parts of his back were affected by the alleged January 18, 1988 injury, whether he was injured the 17th, 18th or the 12th and exactly what he was doing at the time of the alleged injury. Keith Pease, director of safety for defendant employer, said claimant was first employed on September 25, 1987 until October 1987, and quit without notice. Claimant was again employed on December 2, 1987. He indicated defendants' records show claimant's itinerary was January 11 and 12 to January 17, 1988, on which day claimant was off work and not the January 18 to approximately January 23, 1988, as claimant indicated. He said claimant was told by defendant employer after the doctor released him that a truck was available. Claimant indicated he would like to try. A DOT physical was scheduled to see if claimant was qualified to drive. Claimant never showed up nor did he call so the load was given to another driver. Three or four days later, claimant called and said he could not work. The medical records of McCrary-Rost Clinic, of which Dave Archer, M.D., is a member, reflect that claimant's first visit on January 18, 1988 was regarding claimant's neck pain. Claimant was a "no show" on May 2, 1988, and on June 30, 1988, claimant was released to go back to work on July 1, 1988 (Cl. Ex. A). On this date, the doctor referred to claimant's neck and back pain. On July 29, he referred to claimant's "vague" lower back pain. On April 7, 1988, Dr. Archer presumed that claimant is doing fine and returned to work (Defendants' Exhibit 4). Claimant's x-ray report of February 3, 1988 shows only cervical spine exam which was normal. John R. McKee, M.D., examined claimant on June 14, 1988, and found no neurologic deficit or cervical or lumbar radiculopathy. He suggested an MRI to settle a cervical disc issue. Defendants' exhibit 9, Dr. McKee's letter of October 11, 1988, indicates an MRI was normal and he said he has no indication that claimant's current problems are work related. He had not seen claimant since August 2, 1988. Dr. Archer, a family practitioner, wrote a letter on March 21, 1989, reflecting claimant was injured on January 11, 1988. The history is obvious that the events are the same or similar as claimant described occurred on January 18, 1988 in his petition and testimony. He indicated claimant had a permanent impairment and was unable to continue working as a truck driver (Cl. Ex. A). Page 4 Claimant applied for social security benefits. A medical report of Dr. Larry T. Grubbs, M.D., attached to the social security decision, indicated claimant has a chronic neck and back pain of a stable variety secondary to a prior injury. The lumbar spine films were normal by the radiologist (Cl. Ex. C). Robert J. Weatherwax, M.D., an orthopedic surgeon, on April 19, 1988, indicated claimant would be released to work on May 2, 1988, and he anticipated no permanent impairment (Def. Ex. 5). There was considerable testimony on cross-examination of claimant concerning inconsistencies or alleged discrepancies in his testimony, comments, deposition or medical records, as to the facts of this case. Claimant's deposition was not an exhibit. It is of interest to the undersigned that claimant's petition alleges a January 18, 1988 injury and yet it would appear that the events concerning the weather and considering that defendants' records are accurate as to the route and pickup of the loads that claimant was delivering, that the accident, if it happened, had to occur on or around January 12, 1988. The undersigned believes the testimony of Mr. Pease, who had the records concerning the travel itinerary of the claimant and January 11 through 17 are the dates in which claimant was making the loads as he described. Claimant described the nature of the weather on the date of his alleged injury. Defendants' exhibit 14 is the weather records, and it would appear that January 12 would fit closely to the description claimant gave as to the weather conditions on that date. Although there are no records for Madison, Nebraska, the place where the alleged injury occurred, the records of Norfolk, Nebraska, approximately fifteen miles away, indicate blowing snow a good portion of that day around 8:30 that morning through 2:30 in the afternoon, which would encompass the time to which claimant referred during the day of his alleged injury. The temperatures were basically in single digits and the wind velocity was in the 30 mile range. Defendants seem to indicate or contests claimant's description of a blizzard occurring. Although there is no definition in the record for a blizzard, the undersigned finds that the conditions were such that one could consider a blizzard occurring. There is agency precedence that a deputy can determine a date different than a date either stipulated by the parties or stated in the petition. Although the undersigned is surprised that the claimant did not amend his petition, the undersigned finds that the date in question of claimant's alleged injury is January 12, 1988, and so finds. The undersigned believes that on January 12, 1988, claimant was injured after having been struck by the rear door of the company truck which was blown by the wind. Therefore, the undersigned finds that claimant did receive an injury which arose out of and in the course of his employment on January 12, 1988. Page 5 Claimant has not worked since April 1989. Claimant contends he is unable to drive a truck any longer nor is he able to do much of anything. Unfortunately, the claimant has not tried to do much and appears very unmotivated. Claimant appears to be satisfied living on ADC and it appears after two years that the welfare system is claimant's mode of living. Claimant did attempt to enroll in a technical school but marital problems forced him to drop out. Although he intends to begin again in the fall of 1991, claimant's lack of motivation makes it doubtful that he will complete any course of study unless he improves his attitude. He contends he sleeps only two hours and wakes up and then goes back to sleep again. He seems to feel that drinking relieves his problem without realizing that it will only compound his problem, which may be the reason claimant has little or no motivation. Claimant's medical records indicate there has been no impairment rating. Although impairment rating isn't necessary to find industrial disability, it is an element to consider. Claimant's MRI's have been normal and x-rays of the spine are normal. Dr. Weatherwax, an orthopedic surgeon, found no permanent impairment. He released claimant to go back to work May 2, 1988. Defendants contend he is the only authorized doctor. Dr. Archer released claimant to go back to work July 1, 1988 (Cl. Ex. A), but then on April 7, 1988, he presumed that claimant is doing fine and returned to work (Def. Ex. 4). Medical testimony in this case is something to be desired taken as a whole. Dr. McKee examined claimant on June 14, 1988 and found no neurological deficit or cervical or lumbar radiculopathy. A subsequent MRI was normal. Dr. Archer is a family practitioner. The other two referred to doctors are specialists in their fields. The undersigned finds that on January 12, 1988, claimant incurred a work- related injury which resulted in a temporary total disability beginning January 18, 1988 and ending up to but not including May 2, 1988, at which the defendants' authorized doctor indicated claimant had no permanent impairment and was released to return to work. The undersigned finds that this temporary total disability was causally connected to his January 12, 1988 injury. The greater weight of medical testimony indicates that claimant has no permanent impairment or any permanent work restrictions. The undersigned realizes that a social security decision referred to in its explanation of determination the reports of two doctors, namely, Dr. Archer and Dr. Grubbs (Cl. Ex. C). This explanation referred to certain lifting restrictions which would appear to have been taken from one of the two doctor's reports referred to. The only medical report attached was that of Dr. Grubbs. He does not refer to any restrictions. There is no report attached of Dr. Archer dated January 8, 1991. The undersigned finds that claimant has failed in his burden of proof to show that there is a causal connection between claimant's current problems and his work injury of January 12, 1988. The undersigned believes that if claimant made an Page 6 effort to try to find a job, he would be able to do more than he has convinced himself he can't do. Claimant had an opportunity to return to his truck driving and indicated he would try it. A DOT examination was scheduled and claimant did not show nor did he call for an explanation until three or four days later. The undersigned finds that claimant has no industrial disability resulting from a January 12, 1988 injury. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on January 12, 1988, 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 claimant has the burden of proving by a preponderance of the evidence that the injury of January 12, 1988 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). It is further concluded that: Claimant incurred a temporary total disability on January 12, 1988, which arose out of and in the course of his employment. Claimant's temporary total disability was causally connected to his January 12, 1988 work injury. Claimant incurred no permanent impairment or industrial disability as a result of his January 12, 1988 work injury Claimant was temporary totally disabled beginning January 18, 1988 up to but not including May 2, 1988, as a result of his January 12, 1988 work injury. Claimant's total period of temporary total disability amounted to 14.857 weeks and is payable at the rate of $219.91. Said rate is based on the parties' stipulated gross weekly earnings of $330.00 with four exemptions. order THEREFORE, it is ordered: That defendants shall pay unto claimant temporary total disability benefits for the period beginning January 18, 1988 up to but not including May 2, 1988, at the weekly rate of two hundred nineteen and 91/100 dollars ($219.91). The total of said weeks is fourteen point eight five seven Page 7 (14.857). That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties agreed that claimant has been paid twenty-eight point four two nine (28.429) weeks. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Daniel T McGrevey Attorney at Law 142 North 9th St Fort Dodge IA 50501 Ms Judith Ann Higgs Attorney at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51102 5-1801 Filed August 22, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : TERRANCE LEE SIMMONS, : : Claimant, : : vs. : : File No. 863395 HEYL TRUCK LINES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY, : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1801 Claimant awarded temporary total disability benefits which amount defendants had already paid. Basically, claimant took nothing further in this decision.