BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID CUE, Claimant, File No. 865320 vs. A R B I T R A T I O N FARMLAND FOODS, D E C I S I O N Employer, and F I L E D AETNA CASUALTY & SURETY AUG 30 1989 COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, David Cue, against Farmland Foods, employer, and Aetna Casualty & Surety Company, insurance carrier, to recover benefits as a result of an alleged injury sustained on September 26, 1987. This matter comes on for hearing before the deputy industrial commissioner in Sioux City, Iowa, on June 20, 1989. The record consists of the testimony of claimant, claimant's wife, Barbara Holmes, and Karen Stricklett; and joint exhibits 1 through 49. ISSUES The issues for resolution are: 1. Whether claimant's injury on September 26, 1987 arose out of and in the course of his employment; 2. Whether claimant's claim is barred by the statute of limitations, 85.26 Iowa Code; 3. Whether claimant's alleged disability is causally connected to his alleged injury of September 26, 1987; 4. The nature and extent of claimant's disability; 5. Whether claimant is entitled to permanent total disability pursuant to the odd-lot doctrine; and 6. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. REVIEW OF THE EVIDENCE Claimant testified to the various manual labor jobs he performed beginning at age 14 up to April 1974, when he began employment with defendant employer. Claimant said his pre-April 1974 jobs included carpentry work, ready-mix concrete work, truck driving, laying asphalt, loading hides at IBP, and general heavy construction work. Claimant described the various jobs he performed after he began working at Farmland Foods. Claimant said these jobs included working on the cut floor, cutting shoulder picnics, pulling butts, throwing loin boxes and rib boxes, running the belly saw, grading and skinning hams, loading boxes of meat on pallets manually and with a machine, inventory, assembly, and dock loading. Claimant contends that his jobs with Farmland over the years prior to his alleged injury on September 26, 1987 involved repetitive lifting 5 to 120 pounds six to ten hours per day. Claimant testified there is no one injury he incurred. Claimant contends that the repetitive twisting, bending and lifting he had done at work resulted in him not being able to work. Claimant said his back hurt so bad on April 26, 1987 he went home. Claimant testified that his wife and not claimant raises dairy goats on their acreage. Claimant said that his wife also has six feeder pigs and they both have a few chickens, a few ducks, cats and 20 dogs. Claimant said he and his wife raise alfalfa, both for food for the animals and to sell. Claimant said he has talked to a rehabilitation consultant who indicated nothing could be done to help him until the doctor indicated what he could and could not do. Claimant contends the doctors told him he could do nothing. Claimant stated he has had migraine headaches for the last seven to eight years, and that these headaches have become so severe that they go down into his neck and shoulders. Claimant stated that he started getting migraine headaches in 1979 or 1980, but he did not start getting the real bad cluster migraines until the last four years. Claimant stated he injured his head in 1974 and was hospitalized overnight when a truck transmission fell on his head. Claimant stated in his April 1989 deposition that he "hurt, pulled muscles in my back and hurt it several times at work. I got hurt in '79, I had it hurt in '84. I've pulled muscles in my back. There's a number of times that I've had back sprain or strain, whatever they call it." (Joint Exhibit 48, page 36) Claimant said he is presently taking Voltain for his back and Verapamil three times a day for his headaches. Claimant admitted he has a degenerative disc disease and was made aware of it by D.M. Tan Creti, M.D., Leslie Hellbusch, M.D., and Dr. Rutherford in 1985. Claimant also acknowledged that he has had left leg trouble since his fall in 1979. Claimant said his leg condition had been getting worse during the year prior to September 26, 1987 injury. Claimant stated: "It just wouldn't do what it was suppose to, and stuff." (Jt. Ex. 48, p. 46) Claimant did not recall any doctor giving him a 25 percent rating for his 1979 injury. Claimant admitted he saw Leonard Weber, M.D., a neurologist, in July 1987 because: My left leg wasn't working right. I was afraid it had something to do with cluster migraines is why I went to see him, because he's a headache specialist. That was when he diagnosed the cluster migraines for sure, and he told me he thought my leg was, my back, and I should do back exercises. And I told him I had all them sheets for back exercises. And he said if it kept getting worse, I should see a specialist. And that's all there was to it. (Jt. Ex. 48, p. 48) Claimant said he has had a hearing before a social security administrative law judge. Claimant testified that he presently cannot stand or sit down, cannot walk too far, and cannot bend or lift anything. In his deposition approximately two months earlier,claimant stated; I have a lot of pain in my back. And I have pain in my left leg; and it's shooting pains, and it doesn't always work right. I don't -- the nerve control's not right in it. And I get aches in, on up my upper back and shoulders, but I think that's 'cause of the muscles in my lower back. And of course I have migraines all the time; the headaches. (Jt. Ex. 48, p. 54) Claimant stated Dr. Tan Creti, in September 1985, prescribed the cane he is using because his left leg gives out. Claimant said he has not returned to work since his September 26, 1987 injury and emphasized he is not able to perform the work at defendant employer as a dock worker due to his present condition. Claimant denied that an incident with a goat he was walking on September 26, 1987 resulted in any back injury. Claimant acknowledged that after this goat incident, his back pain became worse. Claimant contends that the pain in his back is the same as the pain he incurred with his alleged repetitive September 26, 1987 injury. Claimant does not contend the headaches are the result of his alleged September 26, 1987 injury. Claimant indicated he has not been terminated, but is on indefinite sick leave. Claimant said that Farmland told him if he got a light duty slip, he should call Farmland about a job. Except for one attempt, claimant said he has made no search for other jobs as he has not been released by a doctor. Claimant said he received a work release on June 12, 1989 for light duty from Dr. Tan Creti. Claimant said he would accept a job from Farmland if offered. On cross-examination, claimant acknowledged that when he first saw Dr. Tan Creti on September 27, 1987, he did not relate his injury to his employment. Claimant said his wife went with him and gave a history to the doctor. Claimant admitted that when he went to the hospital on September 27, 1987, he indicated his back flare-up was a result of claimant leading his goat. Claimant admitted that prior to his goat incident on September 26, 1987, he was able to work and that after the goat incident, he has been unable to work. Claimant acknowledged that Dr. Hellbusch suggested claimant consider lighter labor and did not put him on any absolute permanent restrictions. Claimant said that he did not consider going back to work at Farmland as this was contrary to Dr. Tan Creti's advice. Claimant admitted that Dr. Tan Creti sent him to Dr. Hellbusch, who is a specialist. Brynne Cue, claimant's wife, testified that the goat incident caused no difference in claimant's medical condition. She contends that from 1985 to 1987, claimant came home in pain and had a hard time walking. Mrs. Cue stated that on September 26, 1987, claimant was walking a goat to the barn and got a pain in his leg and fell down as if he twisted his ankle. Mrs. Cue emphasized that she raises the 40 goats. She said that claimant helps her fix fences, milk the goats, and bale the hay. Mrs. Cue agreed that claimant's migraine headaches have been so bad that he is unable to work at times. Mrs. Cue admitted that claimant has had pain since his 1979 injury. She acknowledged that she helped claimant fill out the answers to interrogatories. Barbara Holmes works at Crawford Memorial Hospital as an x-ray technician. Holmes testified that she knows claimant, who used to work with her husband on the Farmland loading dock and used to be her neighbor. Holmes said she took x-rays of claimant's lumbar spine in September 1987. Holmes stated claimant tola her he had slipped chasing a goat. Karen Stricklett, a rehabilitation consultant, testified that she reviewed claimant's medical records, his deposition, talked to claimant, and Farmland's nurse and safety and health supervisor. Stricklett said claimant demonstrated no motivation to go back to work or to participate in vocational rehabilitation services at this time. Claimant's medical records indicate claimant experienced lumbar muscle spasms on June 2, 1979. On June 4, 1979, Gerald M. Paul, M.D., diagnosed an "acute lumbosacral strain syndrome" and indicated "range of motion of his lumbosacral spine is restricted by approximately 25 percent." (Jt. Ex. 6, p. 1) The notes of D. M. Tan Creti, M.D., reflect that prior to September 27, 1987, claimant was having problems with his back in November 1982. In August 1984, claimant told this doctor that he hurt his back while lifting boxes and his right leg feels numb. Claimant complained to Dr. Tan Creti of back problems in October and December 1984, February 1985, and January 17, 1987. Claimant went to Leonard E. Weber, M.D., on August 24, 1987 for an evaluation of his headaches. On August 25, 1987, Dr. Weber wrote in claimant's record: Associated symptoms include some fuzziness of vision, quivering lights, and vomiting when the headache is severe, generally a few times a week. Sometimes the left leg does not seem to do what it is supposed to, over the past two months. This occurs when his headache is especially severe. Moreover, when his headaches are severe he can get some aching discomfort to the shoulder and back. (Jt. Ex. 18, p. 1-2) In his comments and recommendations, Dr. Weber wrote: The constant nature of these headaches, their spread to the shoulder and back muscles when severe, and they are exploding or non-throbbing band-like quality strongly speaks for headaches of the muscle tension type. He does have some features of migraine, however, namely the quivering lights, and the occasional vomiting with the more severe headaches. (Jt. Ex. 18, p. 3) On September 27, 1987, claimant sought emergency treatment. His outpatient record signed by claimant, reflects "Patient's General Condition, Reactions, or Other Remarks was leading a goat last evening at approximately 5:30 pm. Goat moved suddenly & experienced sharp pain left lower back with radiation of pain into (L) leg with certain movements. Has hxg back problems." (Jt. Ex. 19, p. 2) X-ray Report: "SUMMARY: Early disc degeneration between L5-S1." (Jt. Ex. 19, p. 1) In a Farmland Foods' Medical Certification, Dr. Tan Creti checked "No" to the question of "Did this sickness or injury arise out of patient's employment?" On October 19, 1987, Dr. Tan Creti reversed his position and marked "Yes" to the same question. On October 5, 1987, Leslie C. Hellbusch, M.D., a neurologist, wrote: David Cue was seen in my office on October 5, 1987. As you know, he gets some back and left leg pain which he has had now presently for about 10 days. He initially hurt his back on the job in 1979. He has had other episodes of back and left leg pain but prior to this present episode, he was asymptomatic for about four months. On exam, straight leg raising at 80 degrees on the left produced some left posterior thigh pain. He had a slightly decreased range of motion of his back on all directions, all these maneuvers producing some back pain. He had slight loss of pin sensation in the left S1 distribution. Lumbar CT scan done today on October 5, 1987 showed minimal L5-S1 disk bulging. He has L5-S1 degenerative disk disease. I do not think he has a frank disk herniation at this time. (Jt. Ex. 21) On December 18, 1987, Dr. Tan Creti wrote: It is my opinion that after study and review of the medical records and review of the history that Mr. Cue's injuries are a direct result of his work and employment in the meat packing industry. The initial history taken on 9/27/87 was that Mr. Cue had been leading a goat at his home the evening prior to being seen. The goat moved suddenly and following that he developed pain in the lower back and had radiation of the pain into the left leg. Further history revealed that Mr. Cue has had a history of work related back problems. It is my opinion with reasonable medical certainty that the event with the goat at his home was the immediate event which lit up the pain and spasm symptoms of his back injuries related to his work. I believe that in the course of ordinary daily living activities and his work, these symptoms would have eventually been precipitated. I do not believe that the event at home contributed to any appreciable extent to the injury of his spine and nerves. (Jt. Ex. 24) Dr. Hellbusch on April 5, 1988 opined: David Cue has a ten percent permanent partial disability of the body as a whole as a result of his low back problem. In the past, I have suggested to him that he consider lighter labor but I do not know any reason to put him on any absolute permanent restrictions at this time. When I last saw him in my office on March 3, 1988, I recommended that he consider a work hardening physical therapy program or a pain clinic. I also recommended that he should try to increase his activity and discontinue his Tylenol with codeine and continue the Feldene. (Jt. Ex. 28) Dr. Tan Creti on October 12, 1988 opined: Since it is over one year from the date of the injury I believe at this time we can make a determination of permanency. I believe that he has a permanent partial disability due to injuries to both the spine and to the nervous system. I believe Mr. Cue has a 12% permanent partial disability of the body as a whole as a result of his back problems. I can not believe that his gastrointestinal symptoms or that his headaches contribute to this permanent partial impairment. (Jt. Ex. 31, pp. 31-32) Bernard L. Kratochvil, M.D., orthopedic surgeon, examined claimant on January 17, 1989 and concluded that claimant had a degenerative lumbar disc L5-S1 and a chronic dorsolumbar strain. He also did not recommend surgery. He opined no causal connection. It was obvious in claimant's history that he did not know of the goat walking incident in September 1987. This doctor later wrote on April 9, 1989 David R. Cue was examined by me for the Disability Determinations Services Bureau, on the 17th of January of 1989. It is my opinion that his diagnosis of chronic dorsolumbar strain is work related. He does have degeneration of the lumbar disc at L5-S1, but the etiology of that condition is uncertain. (Jt. Ex. 35) On April 7, 1989, Dr. Hellbusch responded to claimant's attorney and wrote: "Based on the patient's history and with a reasonable degree of medical certainty, I would state that David Cue's degenerative disc problem at L-5, S-1 was caused or made worse by the repetitive trauma in his work at Farmland Foods Plant in Denison Iowa." (Jt. Ex. 34) This doctor later concurred with a 10 percent impairment or the body as a whole rating and indicated, "I have not placed him on any specific restrictions. In the past, I have suggested to him that he consider lighter labor." (Jt. Ex. 37) Claimant was examined Dr. John J. Dougherty, M.D., on May 1, 1989. Dr. Dougherty wrote on May 3, 1989: In conclusion, I have reviewed the record on this patient and I have reviewed some x-rays that have been forwarded to me. That degenerated disc has been there for a long time. Certainly doesn't appear to me that he has any significant weakness in the left leg, so I don't quite understand the need for a cane. Also, is rather interesting, you mentioned something about a goat, I did not get that history from the patient. It would appear to me that this is just a chronic lumbosacral strain superimposed upon a degenerated disc at L-5, S-1. With regard to permanent partial disability, I think this patient is probably entitled to 5-10% permanent partial impairment of his body. It would be interesting to know exactly what his myelogram and CT scan showed. How much of this is attributable to what, I don't think there is any way you're going to say this. He had trouble way back in 1979. He's had a couple of accidents as per your letter. He has also had a narrowing of his disc space since 1985. Overall, I think that is where he stands. I really don't think you can pin it down any closer than that and it would certainly appear to me that this patient is not having the trouble he would lead one to believe. I really question how much he's doing. I think perhaps he should be evaluated by a back clinic. Perhaps he should be evaluated with an EMG or his left lower extremity. I don't know as I can be any more specific. .... It would certainly appear to me that this patient exaggerates. He came with a cane. That is certainly a bad thing for him. I don't think you can pinpoint this to one specific incident. If it was just due to that, without any evidence of herniated disc, I think it should subside. I think it is of longstanding duration. (Jt. Ex. 39, p. 1-3) Farmland records reflect a correspondence from the company nurse, Nancy Wiese, dated October 26, 1987, that indicates: DAVID CUE DID NOT REPORT ANY BACK PROBLEMS TO ME OR TO HIS FOREMAN AT ANY TIME BEFORE HE WENT TO HIS OWN DOCTOR. HE STILL DID NOT REPORT ANY WORK RELATED PROBLEM TO US EVEN AFTER SEEING HIS DOCTOR UNTIL ON 10/24/87 WHEN I CALLED HIM ON THE PHONE TO SEE HOW HE WAS DOING. HE CLAIMS THAT HE DID NOT HAVE ANY INJURY THAT SINCE BACK INJURY IN 1979 HAS HAD PROBLEMS WITH HIS BACK. HE CLAIMS THAT DR. TAN CRETI STATES HIS PROBLEM MAY BE A HERNIATED DISK. (Jt. Ex. 41) Claimant filed a medical expense claim with his health insurance carrier on November 9, 1987 and noted thereon that his injury on September 26, 1987 was not a workers' compensation matter. Claimant indicated his claim is related to a June 1979 and September 26, 1987 accident. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 26, 1987 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The claimant has the burden of proving by a preponderance of the evidence that the injury of September 26, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962). An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). This 35-year-old claimant has worked at Farmland Foods for approximately 15 years. Claimant incurred an injury in June 1975 to his low back. The greater weight of medical evidence indicates that claimant has never fully recovered from that injury. Claimant testified that he has had back trouble since that injury up to his September 26, 1987 alleged injury. Claimant gave a history to Dr. Tan Creti on September 27, 1987 which indicated claimant was leading a goat at his home the evening before. The goat moved suddenly and following that, claimant developed pain in the lower back and into the left leg. Dr. Tan Creti had been treating claimant several years before this alleged 1987 injury. Dr. Tan Creti's records of November 1982 reflect claimant's back problems and also note that in August 1987, claimant hurt his back again while lifting boxes. Dr. Paul in June 1979 opined "claimant's range of motion of his lumbosacral spine is restricted by approximately 25 percent." (Jt. Ex. 6) Claimant told an x-ray technician on September 27, 1987, when he was seeking emergency treatment, that he was leading a goat the prior evening when his pain developed. The evidence shows claimant's story varied as to the manner in which he was injured while caring for the goat. At those times when claimant related his September 26, 1987 injury to this goat incident, he also referred to his prior back problems. It was obvious claimant was referring to the 1979 work injury to his low back. Claimant's answer to interrogatory No. 6 (jt. ex. 47) reaffirmed claimant's belief of what he thought caused his September 26, 1987 injury. The undersigned cannot determine from the exhibit or other evidence when this answer to interrogatory was signed or filed, but it most likely would be after claimant's petition was filed in February 1988. Claimant's wife testified that she helped claimant with his answers. The evidence shows claimant and his wife fixed fences and baled hay in relation to caring for the goats. The wife emphasized she owned the goats and did most of the work. The parties also raised some hogs, chickens and ducks. The undersigned believes claimant had more involvement with the care of the parties' livestock than what they wanted the undersigned to believe. Claimant alleges that his injury on September 26, 1987 was the result of many cumulative work injuries resulting in his inability to work since September 27, 1987. Claimant refers to Dr. Tan Creti's opinion reflected in joint exhibit 24. The undersigned believes a different or confusing message exists in this doctor's opinion, particularly concerning Dr. Tan Creti reversing his original position reflected in exhibit 20. Dr. Tan Creti refers to the nature of claimant's work and the meat packing industry. He speculates that this injury of September 26, 1987 would have eventually been precipitated in the course of ordinary living activities. He refers to claimant's past back history. Claimant's prior low back history extends over an eight year period prior to his alleged September 26, 1987 injury. Claimant contends in its brief that the employer would have produced witnesses that claimant was not having pain at work. Claimant has the burden of proof. Defendants need not produce any evidence if claimant cannot prove his case. The undersigned feels sorry for claimant. He apparently has some impairment. The fact claimant has an impairment does not make defendant employer liable unless the injury arose out of and in the course of claimant's employment and is causally connected to a work-related injury. The undersigned finds that claimant's alleged cumulative injury on September 26, 1987 did not arise out of and in the course of his employment. The undersigned finds that claimant injured his back in 1979 and that he is still suffering from the results of that injury to some extent. The undersigned also finds that claimant further injured his back on September 26, 1987 when he was walking and caring for a goat at his home. Claimant's 1979 injury and impairment therefrom precipitated and increased the effect of claimant's injury on September 26, 1987, which has resulted in an increase in claimant's current impairment. Claimant's present disability is not causally connected to claimant's alleged cumulative injury on September 26, 1987. There are several other issues that are now moot in light of the above findings. The undersigned deputy finds that claimant was not a credible witness. Claimant will take nothing from these proceedings. FINDINGS OF FACT 1. Claimant received an injury on September 26, 1987 while walking and caring for a goat at his residence. 2. Claimant's injury on September 26, 1987 while walking and caring for a goat was not work related. 3. Claimant's alleged disability is not the result of a work-related cumulative injury on September 26, 1987. 4. Claimant received a work-related injury in 1979 which contributed to claimant's nonwork-related injury on September 26, 1987. 5. Claimant's nonwork-related injury on September 26, 1987 materially aggravated claimant's work-related injury of 1979. 6. Claimant has a degenerative low back disc condition in the area of L5-S1 which did not result from claimant's alleged cumulative injury on September 26, 1987. 7. Claimant is not a credible witness. CONCLUSIONS OF LAW Claimant's alleged cumulative low back injury on September 26, 1987 did not arise out of and in the course of claimant's employment. Claimant's current disability is not causally connected to his alleged cumulative low back injury on September 26, 1987. Claimant's low back degenerative disc condition in the area of L5-S1 is not causally connected to his alleged cumulative low back injury of September 26, 1987. Claimant was injured on September 26, 1987 while walking and caring for a goat at his residence. ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That claimant and defendants each pay one-half of the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 30th day of August, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Sheldon M. Gallner Attorney at Law 803 3rd Ave P.O. Box 1588 Council Bluffs, IA 51502 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Bldg P.O. Box 3086 Sioux City, IA 51102 5-1402.30 Filed August 30, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER DAVID CUE, Claimant, File No. 865320 vs. A R B I T R A T I O N FARMLAND FOODS, D E C I S I O N Employer, and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. 5-1402.30 Claimant failed to prove his injury arose out of and in the course of his employment. Claimant's nonwork-related injury occurred while walking a goat and not as a result of a cumulative injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DUANE LILLY, Claimant, File No. 865324 vs. A R B I T R A T I O N PLM RAILCAR MAINTENANCE D E C I S I O N COMPANY, F I L E D Employer, DEC 22 1989 and INDUSTRIAL SERVICES AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Duane Lilly against his former employer PLM Railcar Maintenance company and its insurance carrier Aetna Casualty & Surety company. The case was heard and fully submitted at Sioux City, Iowa, on December 4, 1989. Claimant alleges that he developed tinnitus as a result of noise exposure and seeks compensation for healing period, permanent partial disability and to recover medical expenses. The record in this proceeding consists of testimony from Duane Lilly and Karen Keleher. The record also contains jointly offered exhibits 1 through 18. Official notice was taken of the contents of the agency file connected with the prior hearing and dismissal and also of the fact that the Monday prior to July 18, 1987 was July 13, 1987. ISSUES The issues presented by the parties are whether claimant sustained an injury which arose out of and in the course of employment, determination of the claimant's entitlement to weekly.compensation and medical expenses. Particular issues identified are whether any permanent disability is a scheduled disability under Iowa Code sections 85B.6, 85.34(2)(r), or an industrial disability under Iowa Code section 85.34(2)(u). Defendants assert that Iowa Code section 85B.11 bars any recovery for occupational hearing loss since claimant's period of employment with the employer was less than 90 days. Defendants also seek to recover costs incurred as a result of claimant's dismissal of this claim on March 31, 1989, the time this case was previously set for hearing. Defendants' statement of costs lists $1,294.75 in attorney fees and $13.75 in copying charges. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Duane Lilly is a 29-year-old man who is currently employed as a beef lugger for IBP, Inc. His employment history includes service in the Army, meat packing industry, and construction industry. He has generally performed laboring type of work. Lilly testified that he is afflicted with a ringing or buzzing in his ears which has been present continuously since he commenced work with PLM Railcar Maintenance Company on July 13, 1987. He denied having any problems with his ears prior to that date other than one occasion during his employment with John Morrell & Company when he had ringing in his ears which continued for a short period of time but then ceased. Claimant testified that the ringing is aggravated and worsened by exposure to loud noise and that if he is exposed to loud noise, he develops severe headaches. Claimant testified that since leaving PLM, he held employment for a few days at Siouxland Quality Beef where he lugged beef. Claimant stated that the lugging was performed in a noisy processing area of the plant. He stated that even with use of ear plugs, the noise aggravated his condition. Claimant stated that he was unable to wear shooter's muff type of ear protection and carry beef at the same time. Claimant resigned the Siouxland Quality Beef job after only two days because he stated that it aggravated the ringing and caused headaches. Following that, claimant worked for a period estimated to be from three to six weeks in a plant which processed sheep hides. He stated that the work was quiet, but that he left due to a low rate of pay. Claimant worked for J & R Construction as a carpenter until May of 1988 when he obtained employment with IBP. Claimant stated that his current job with IBP is not performed in a noisy area. He stated that he is now incapable of work which exposes him to loud noise. Claimant was hired at PLM and started work on July 13, 1987 (exhibits 5 and 9). Claimant worked as a sandblaster cleaning paint and rust from railroad cars. He stated that the bulk of the cars that he worked on were a type of car used to haul grain, but that he also worked on some tank cars which were used to transport liquids. Claimant testified that the sandblaster he operated made a loud, high-pitched "schishing" noise. He stated that while working on the very first day of employment, he developed ringing in his ears following exposure to the noise and that the ringing has continued to the present time. On Friday of the first week during which he worked at PLM, claimant reported his problems to the employer's office and was seen on the following day by the company physician, whom he had seen a week earlier for his preemployment physical. The doctor diagnosed claimant as being afflicted with tinnitus and recommended that he wear an earmuff type of hearing protector in addition to the foam type earplugs which had been provided by his employer (exhibit 3). Claimant testified that use of both types of hearing protective devices at the same time provided adequate noise protection, but that the ringing never subsided. Claimant was laid off from his employment with PLM effective September 15 or 16, 1987 (exhibits 6, 8 and 9). When claimant was examined for his preemployment physical on July 10, 1987, an audiogram which was taken showed him to have a hearing loss of 11.25 decibels in his right ear and 16.25 decibels in his left ear. Claimant was evaluated on September 9, 1988 under the direction of Verne R. Heimann, M.D. An audiogram taken at that time demonstrated a hearing loss of 13.75 decibels in claimant's right ear and 18.75 decibels in the left. The foregoing hearing losses are based upon the audiogram reports contained as part of exhibits 2 and 4. The heating.loss in decibels is the average loss shown on each audiogram for the four frequencies specified in Iowa Code section 85B.4(1), namely, 500, 1,000, 2,000 and 3,000 Hertz. Dr. Heimann also diagnosed claimant as having tinnitus, but he was uncertain with regard to whether it would be permanent. Dr. Heimann also indicated that there was no effective treatment for tinnitus other than aspirin or Tylenol for the headaches (exhibit 4). APPLICABLE LAW AND ANALYSIS Iowa Code section 85B.11 provides that compensation cannot be recovered for an occupational hearing loss unless the employee has been employed by the employer for at least 90 days. Claimant's term of employment with PLM Railcar Maintenance Company is far short of that 90-day threshold. He is therefore not entitled to recover compensation under Chapter 85B of The Code. It is also noted that his hearing loss is far less than the amount which reaches the threshold of compensability under Iowa Code section 85B.9. For that second reason, he is also denied any recovery of weekly compensation under Chapter 85B of The Code. Claimant also seeks compensation under Chapter 85 of The Code. Chapter 85B.4 of The Code defines an occupational hearing loss as one "... which arises out of and in the course of employment caused by prolonged exposure to excessive noise levels." According to claimant's testimony, the tinnitus upon which his claim is based manifested itself on the first day of his employment with PLM and it has not since resolved. For this reason, it is determined that claimant's claim is not one which should be brought under Chapter 85B. His claim is for a traumatic injury, rather than one resulting from prolonged exposure. Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant's appearance and demeanor were observed as he testified. His testimony was considered in light of the other evidence in the case. He is determined to be a credible witness with regard to his recitation of the onset and existence of his symptoms. It is therefore determined that the claimant did sustain an injury in the nature of tinnitus which arose out of and in the course of his employment. The finding of proximate cause is based upon the scenario of events which claimant described, which scenario is accepted as being correct and also upon the fact that both physicians, a Dr. Gordon and Dr. Heimann, did not dispute claimant's history regarding the onset of his symptoms as following the sandblasting work (exhibits 3 and 4). The claimant has the burden of proving by a preponderance of the evidence that his injury is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant seeks compensation for temporary total disability or healing period. The record in this case does not contain any support for weekly compensation during a :period of recuperation. Claimant's own testimony demonstrates that he obtained employment with Siouxland Quality Beef shortly following his dismissal from PLM. At no time was claimant under active medical treatment for his hearing condition. There is no evidence in the record from any medical authority which indicates that claimant was in any way disabled from working during a period of recuperation. Claimant's claim for temporary total disability or healing period is therefore denied. An issue exists in this case with regard to whether any permanent disability should be evaluated industrially or as a scheduled member hearing loss. The Iowa Supreme Court has not yet addressed the issue of whether tinnitus is a scheduled disability or one to be compensated under section 85.34(2)(u). The ringing from tinnitus is not normally disabling from an industrial standpoint, but if the tinnitus is aggravated by noise exposure, the resulting headaches, loss of sleep and emotional distress which afflict some tinnitus sufferers can result in a lack of ability to perform some types of gainful employment. There is also no method of measuring tinnitus objectively. For these reasons, some authorities have ruled that tinnitus should be evaluated and compensated as a nonscheduled disability. Dotolo v. FMC Corp., 375 N.W.2d 25 (Minn. 1985); 1B Larson Workmen's Compensation Law, section 41.55. Tinnitus is commonly, though not exclusively, accompanied by a hearing loss, but the relationship between the two is such that the existence of an objectively determined hearing loss lends credibility to a claim of tinnitus. Each can exist without the other. The degree or extent of hearing loss is not a reliable predictor of whether the hearing loss will be accompanied by tinnitus or of the severity of any accompanying tinnitus. Agency expertise is relied upon when providing the foregoing general description of the general nature of tinnitus [Iowa Code section 17A.14(5)]. The industrial commissioner has determined that tinnitus is included within scheduled hearing losses and that the only compensation payable for tinnitus is that which is provided for a scheduled hearing loss. In this case, any permanent partial disability compensation would be payable under Iowa Code section 85.34(2)(r). Cannon v. Keokuk Steel Casting, file number 795331 (App. Decn. January 27, 1988). It appears that claimant would have had a hearing test when he commenced employment with IBP, although the records of that test have not been received into evidence. The two audiograms in evidence show a worsening of 2.5 decibels in claimant's hearing from the time of the first test to the time of the second when considering only the four frequencies used for awarding compensation.under Chapter 85B of The Code. Those two audiograms.were administered by different technicians at different places. It is noted that while the overall loss appears to be slightly more pronounced at the time of the second, there are some frequencies where the hearing appears better in 1988 than it did in 1987. Division of Industrial Services Rule 343-2.4 provides that the Guides to the Evaluation of Permanent Impairment may be used to determine the payment of weekly compensation for permanent partial scheduled injuries and that payments so made are to be recognized by the industrial commissioner as a prima facie showing of compliance with the Workers' Compensation Act. Dr. Heimann, when he made his ratings in exhibit 4, did not state whether or not he used the AMA guides. He rated claimant as having a two percent hearing loss in his right ear and a six percent loss in his left ear. The industrial commissioner has ruled that it is not permissible to use the AMA guides when evaluating scheduled disability unless a physician has stated that the physician used the guides when arriving at the impairment rating which the physician provided. Shank v. Mercy Hosp. Medical Center, file number 719627 (App Decn. August 28, 1989). The audiograms clearly show that claimant does have an objectively determined hearing loss. The most remarkable noise exposure is that which he experienced during his first week of employment with PLM. It is therefore determined that the noise exposure during claimant's first week of employment with PLM is a substantial factor in producing the hearing loss which currently afflicts him. The rating made by Dr. Heimann appears to be consistent with the audiogram and is not controverted. It is therefore accepted as being correct. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). In this case it is patently clear that claimant did have some preexisting hearing loss. From the evidence, it appears as though that loss has worsened. The method or scheme of rating the loss which was used by Dr. Heimann is not in the record. It therefore is impossible to determine what disability threshold, if any, Dr. Heimann used when arriving at his two percent and six percent loss ratings. Accordingly, it cannot be determined from the record in this case whether or not any of that two percent or six percent disability preexisted claimant's employment with PLM Railcar Maintenance. When the injury is an aggravation of a preexisting condition, as is found to be the situation in this case, the party defending the claim has the burden of proving the existence and extent of any preexisting disability or else the entire disability is attributed to the current defendant. Varied Enterprises v. Sumner, 353 N.W.2d 407 (Iowa 1984); Becker v. D & E Distributing Co., 247 N.W.2d 727, 731 (Iowa 1976); Rule 14(f)(5), Iowa Rules of Appellate Procedure. While the record in this case clearly shows that claimant had some prior hearing loss, the record does not disclose what portion, if any, of that prior loss is included within Dr. Heimann's two percent and six percent ratings. The disability therefore cannot be apportioned and the entire disability is assessed to the defendant PLM Railcar Maintenance Company. Where Dr. Heimann uses the term "hearing loss" in his report, the term is construed to be a hearing disability rating, rather than a measurement of loss in decibels. Dr. Heimann apparently used some threshold since the two percent and six percent ratings are not proportionate to the number of decibels of hearing loss which is shown to exist. Since the average loss is less than 25 decibels, it is apparent that Dr. Heimann did not use the criteria used in section 85B.9 of The Code to compute the percentage of hearing loss. The usual method of computing binaural hearing loss is to multiply the hearing loss in the best ear by five, add the loss in the worst ear and then divide the sum by six. The binaural loss affecting both ears is therefore determined to be two and two-thirds percent. Under section 85.34(2)(r), two and two-thirds percent of 175 weeks provides an entitlement to four and two-thirds weeks of compensation for permanent partial disability. Claimant also seeks to recover $100.00 incurred with Dr. Heimann (exhibit 15). A review of exhibit 14 makes it patently clear that the primary purpose of having claimant evaluated was for an independent evaluation. The expense is therefore not recoverable as an expenses of treatment under Code section 85.27. An employer-retained physician had not provided an evaluation of impairment and therefore the expense cannot be recovered under section 85.39 of The Code. Defendants seek to recover attorney fees and copying expenses based upon the prior dismissal. No explanation is given with regard to either. No claim or request has been made to assess fees as a penalty under Iowa Rule of Civil Procedure 80(a). The costs which can be recovered and used as an offset against the award made herein is therefore limited to those matters contained within Division of Industrial Services Rule 343-4.33. Attorney fees and copying expenses are not part of these costs. FINDINGS OF FACT 1. Duane Lilly developed tinnitus and aggravated a preexisting hearing loss as a result of noise to which he was exposed during the first week of his employment with PLM Railcar Maintenance Company. 2. Claimant has a two percent hearing loss disability in his right ear and a six percent hearing loss disability in his left ear. This results in a two and two-thirds percent binaural loss disability. 3. The noise to which claimant was exposed during the first week of his employment with PLM Railcar Maintenance Company was a substantial factor in producing the hearing loss and disability which currently afflicts him. 4. It is not possible from the record made to determine how claimant's preexisting hearing loss disability as shown in his preemployment physical correlates with the hearing loss disability ratings provided by Dr. Heimann. 5. The record fails to show that claimant was ever disabled from engaging in employment in general as a result of the injury for purposes of recuperation. 6. The $100.00 expense with Dr. Heimann was not incurred for the purpose of treatment nor was it incurred following a rating of impairment made by an employer-retained physician. 7. Claimant's testimony regarding the onset of his symptoms and the manner in which they continued to afflict him.is accepted as being correct. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant is not entitled to any recovery under Chapter 85B of The Code because his term of employment was less than 90 days, the hearing loss was not a result of prolonged noise exposure and also because the amount of his hearing loss does not reach the threshold of compensability provided by Chapter 85B. 3. Claimant's hearing loss and tinnitus is a scheduled disability to be compensated under the provisions of Code section 85.34(2)(r). 4. Claimant has a two percent loss of hearing in his right ear and a six percent loss of hearing in his left ear, which converts to a two and two-thirds percent binaural hearing loss disability, which was proximately caused by noise exposure at PLM Railcar Maintenance Company. 5. The tinnitus and loss of hearing is an injury which arose out of and in the course of claimant's employment with PLM Railcar Maintenance Company. 6. The record of this case does not provide a basis for computing the percentage of any preexisting hearing loss disability and therefore no apportionment of claimant's hearing disability can be made. 7. Claimant has a two and two-thirds percent binaural loss of hearing which entitles him to recover four and two-thirds weeks of compensation under the provisions of Iowa Code section 85.34(2)(r). 8. Claimant is not entitled to recover expenses incurred with Dr. Heimann under either Iowa Code section 85.27 or 85.39. 9. The costs which defendants may use as an offset in this case are limited to those provided by Division of Industrial Services Rule 343-4.33. It does not include attorney fees or copying costs. ORDER IT IS THEREFORE ORDERED that defendants pay claimant four and two-thirds (4 2/3) weeks of compensation for permanent partial disability at the stipulated rate of one hundred fifty-nine and 20/100 dollars ($159.20) payable commencing July 18, 1987. IT IS FURTHER ORDERED that all amounts are past due and owing and shall be paid in a lump sum together with interest pursuant to Iowa Code section 85.30 computed from the date each payment came due until the date of actual payment. IT IS FURTHER ORDERED that the costs of this proceeding are assessed against defendants pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants are entitled to offset costs recoverable under Division of Industrial Services Rule 343-4.33 from the costs and award of weekly compensation made herein based upon the voluntary dismissal of this claim on March 31, 1989. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 22nd day of December, 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Ronald E. Runge Attorney at Law 236 Davidson Building Sioux City, Iowa 51101 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 1402.20, 1402.30, 1402.40 1403.20, 1702, 1803.1 1806, 2206, 2208, 2907 Filed December 22, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER DUANE LILLY, Claimant, vs. File No. 865324 PLM RAILCAR MAINTENANCE COMPANY, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. 1402.20, 1402.30, 1402.40 Claimant had a preexisting hearing loss. On the first day of work he developed tinnitus which has never completed resolved. His measured hearing loss also increased. A doctor rated a two percent hearing loss disability in one ear and a six percent loss in the other. 1403.20, 1702, 1806, 2206, 2208 The injury was an aggravation of a preexisting condition. The measured hearing loss in decibels is not normally considered to be equal to the percentage of hearing loss disability. Since the method used by the physician in making the rating was not in the record, it could not be determined whether any of the disability had preexisted. Since the defendants benefit from showing the amount of any preexisting disability, they have the burden of proof to show how much, if any, of the current disability preexisted the current injury. 1803.1 The loss was held compensable under Iowa Code section 85.34(2)(r) rather than 85.34(2)(u) or 85B.6. 2907 Defendants sought to recover costs from a prior dismissal of this same case. Attorney fees and copying expenses were not allowed. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KIM HAMMAKER, Claimant, File No. 865327 vs. A R B I T R A T I O N LOUIS RICH FOODS, D E C I S I O N and F I L E D LIBERTY MUTUAL, SEP 17 1989 Insurance Carrier, Defendants. IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE This is a proceeding in arbitration brought by Kim Hammaker, claimant, against Louis Rich Foods, employer (hereinafter referred to as Rich), and Liberty Mutual Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on March 14, 1986. On March 21, 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. On March 14, 1986, claimant received an injury which arose out of and in the course of her employment with Rich. 2. Claimant's entitlement to healing period benefits extends from June 10, 1986 through December 4, 1986. 3. If the injury is found to have caused permanent disability, the type of disability is scheduled member disability to the arm. 4. If permanent disability benefits are awarded, they shall begin as of December 5, 1986. 5. For purposes of computing claimant's rate of compensation, claimant was single and entitled to one exemption at the time of the injury. 6. All requested medical benefits have been or will be paid by defendants. 7. Claimant was paid 12.5 weeks of permanent partial disability benefits prior to hearing. ISSUES The parties submitted the following issues for determination in this proceeding: I. The extent of claimant's entitlement to weekly benefits for permanent disability; and, II. Claimant's rate of compensation. 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 independently 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 testified that she worked for Rich from 1984 until her work injury. She stated that her duties consisted of manual labor. Initially she was assigned as a labeler putting labels on product. In March 1986, she was assigned to a molder job where she was required to use her fingers and hands on a more repetitive basis. Claimant was also assigned to palletizing boxes of product. Due to recurrent carpal tunnel syndrome symptoms, claimant has not returned to work at Rich. Between March and June 1986, claimant complained of right wrist and hand pain along with numbness after being assigned to the molder job. She was initially treated by the company nurse with a wrist splint but was later referred to Steve Palmer, M.D. Dr. Palmer diagnosed right carpal tunnel syndrome and treated claimant with medication, splint, heat and light duty. Claimant's complaints continued with shooting pain at the arm and shoulder with activity. Claimant was referred then to Bruce Sprague, M.D., an orthopedic surgeon. After his examination and testing, Dr. Sprague also diagnosed right carpal tunnel syndrome and attempted a surgical release of the entrapped median nerve in June 1986. Claimant testified that she was not greatly helped by the surgery and continued complaining of loss of grip strength, night pain and limited reaching ability behind her back and above her head. Dr. Sprague left the community and referred claimant to another orthopedic surgeon, William Catalona, M.D. Dr. Catalona did not recommend further treatment modalities beyond a change of occupation. Dr. Catalona rated claimant as suffering from a five percent permanent partial impairment to the arm. Claimant testified that she was released to return to work without restrictions by Dr. Sprague in August of 1986. In August 1986, claimant was also evaluated by a board certified orthopedic surgeon, William Irey, M.D. Using various testing apparatus and after his examination of claimant, Dr. Irey found claimant to be suffering from only a two percent permanent partial impairment to the upper extremity due to approximately a one-third loss of grip strength on the right side as compared to the left extremity. Dr. Irey found no measurable permanent partial impairment due to loss of sensation or range of motion. Dr. Irey felt that although claimant would receive no permanent partial impairment rating under AMA Guidelines, he felt that the loss of grip strength was sufficient to warrant some permanent partial impairment. In January 1989, claimant was evaluated by F. Dale Wilson, M.D., specialty unknown. Dr. Wilson opined that claimant suffers from a 40 percent permanent partial impairment to the arm due to loss of sensation, grip strength and continuing pain. Dr. Wilson did not indicate what guidelines or standards, if any, he used in rating claimant's impairment. Claimant states that she can no longer work at the type of work she was performing at Rich. She can no longer play softball or write long letters. She doubts her ability to operate a typewriter. Claimant said that she disputes the $6.79 per hour wages reported by Rich in exhibit A and felt it was higher $6.90 or so." APPLICABLE LAW AND ANALYSIS I. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Martin v. Skelly Oil Co., 252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 332 N.W.2d 886, 997 (Iowa 1983). When the result of an injury is loss to a scheduled member, the compensation payable is limited to that set forth in the appropriate subdivision of Code section 85.34(2). Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to 'loss' of the member. Moses v. National Union C.M. Co., 194 Iowa 819, 184 N.W. 746 (1922). Pursuant to Code section 85.34(2)(u) the industrial commissioner may equitably prorate compensation payable in those cases wherein the loss is something less than that provided for in the schedule. Blizek v. Eagle Signal Company, 164 N.W.2d 84 (Iowa 1969). The measurement of functional loss of use or impairment is largely a matter of medical opinion. In this case, we have three ratings, 5 percent, 2 percent and 40 percent. First, the rating by Dr. Wilson must be rejected. Dr. Wilson does not have a specialty in orthopedic surgery as do Drs. Irey and Catalona. Secondly, Dr. Wilson's rating is so far out of line with the other ratings as to not be convincing. The undersigned cannot give much weight to the rating of an orthopedic problem by a general practitioner without a record of that practitioner's expertise in such matters or at least a record of the doctor's use of a recognized rating standard or manual. Claimant has shown neither in this case. The rating by the board certified orthopedic surgeon, Dr. Irey, is the most convincing because Dr. Catalona referred to his rating as only "arbitrary" in his written report submitted in the evidence. Claimant testified as to a loss of range of motion in her arm but no physician has opined that this is related to the work related carpal tunnel syndrome or any other injury claimant experienced at work. Admittedly, claimant is not able to return to work at Rich. Probably, the amount of compensation awarded in this case will not fully compensate her for her loss of earning capacity. However, the undersigned has no choice but to follow our workers' compensation statutes which limit an injured workers' compensation for injuries to the arm to a schedule based upon a loss of function only, not its effect upon claimant's employability. See Chapter 85.34(2) et. seq. Loss of earning capacity is only compensable in industrial disability cases involving injuries to the body as a whole. From the evidence submitted, it is found as a matter of fact that the work injury is a cause of a two percent loss of use of the arm. Based upon such a finding, claimant is entitled as a matter of law to five weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(m) which is two percent of 250 weeks, the maximum allowable number of weeks for an injury to the arm in the subsection. II. With reference to claimant's gross weekly rate of compensation, claimant is correct. The exclusion of nonrepresentative weeks in the calculation has long been recognized by this agency. Lewis v. Aalf's Manufacturing Co., I Iowa Indus. Comm'r Report 206 (Appeal Decision 1980). Claimant was correct in excluding the two weeks around the holidays in the latter part of 1986 as not representative. However, claimant was not convincing in her testimony that she earned in excess of $6.79 per hour. Therefore, using the total of 425.02 hours, in the 11 weeks prior to the injury, the average weekly wage over the period is found to be $262.35 per week. Using the commissioner's rate booklet for an injury in March 1986 and the stipulation as to marital status and exemptions, claimant's rate of compensation is found to be $161.74. FINDINGS OF FACT 1. The work injury of March 14, 1986, is a cause of a two percent permanent partial impairment to the right arm. The impairment is due to loss of grip strength but claimant has not shown by a preponderance of the evidence a measurable loss of sensation or loss of range of motion causally connected to the work injury. 2. Claimant's gross weekly earnings over 11 representative weeks prior to the injury was $262.35 per week. 3. Claimant has been paid permanent partial disability benefits equivalent to 12.5 weeks at the rate of $159.54 per week. Claimant has been paid healing period benefits from June 10, 1986 through December 4, 1986 at the rate of $159.54 per week. CONCLUSIONS OF LAW As claimant has been paid in excess of her entitlement to disability benefits, no award of benefits can be made. ORDER 1. Claimant shall take nothing from this proceeding. 2. Claimant shall pay costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 27th day of September, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David W. Newell Attorney at Law 323 E. 2nd St. P. O. Box 175 Muscatine, Iowa 52761 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801 5-1803 Filed September 27, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER KIM HAMMAKER, Claimant, File No. 865327 vs. A R B I T R A T I O N LOUIS RICH FOODS, D E C I S I O N Employer, and LIBERTY MUTUAL, Insurance Carrier, Defendants. 5-1803 - Nonprecedential - extent of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROGER L. HANSON, Claimant, VS. File No. 865328 FARMLAND FOODS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Roger L. Hanson, against his employer, Farmland Foods, and its insurance carrier, Aetna Casualty & Surety Company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury allegedly sustained in spring, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner at Sioux City, Iowa, on September 29, 1989. A first report of injury was filed on March 18, 1988. The file reflects that no workers' compensation benefits have been paid claimant. The record in this proceeding consists of the testimony of claimant as well as of JoAnne Hanson, Duane Cato, and Jake Schabeen, as well as of joint exhibits 1 through 33. Defendants submitted a brief. ISSUES Pursuant to the prehearing report and the oral stipulations of the parties at hearing, the parties stipulated: That claimant's rate of weekly compensation in the event of an award is $232.78; HANSON v. FARMLAND FOODS Page 2 That claimant's disability, if liability is found, is a scheduled member disability to the left leg; and, That defendants are entitled to credit for sick leave benefits paid should a workers' compensation award be made and that such benefit credit is in the amount of $5,782.80. Issues remaining to be decided are: 1. Whether claimant received an injury which arose out of and in the course of his employment; 2. Whether a causal relationship exists between the alleged injury and the claimed disability; 3.The nature and extent of any disability resulting from the alleged injury; and, 4. Whether claimant's claim is barred as filed beyond the appropriate statute of limitations. REVIEW OF THE EVIDENCE Claimant is 56 years old and had worked for Farmland Foods for approximately 13 1/2 years before undergoing a unicompartmental total arthroplasty in September 1987. Claimant had previously had an arthroscopy with partial removal of the medial meniscus of the left knee on April 9, 1982. That procedure was occasioned by a tear on the posterior horn of the medial meniscus of the left knee which condition was considered the result of claimant's employment at Farmland Foods. Defendants paid claimant permanent partial disability benefits of 10 percent of the left knee on account of the 1982 injury. Claimant testified that he had difficulties with the left knee for approximately six to eight months after his 1982 surgery, but that the knee got to the point where it was "halfway normal" and did not bother him for approximately three and one-half years. Claimant testified that his left knee started hurting at bedtime, apparently in late 1986 or early 1987. Claimant reported that on February 24, 1987, he was working Reo-pac on the cure line. Reo-pac is a standing job and the worker stands on a platform or lift that claimant described as approximately one foot off the floor. At times the worker needs to get up and down to fix the machine. Claimant .testified that on February 24, 1987, he missed the end of the platform or stand with his right foot and went down twisting his left knee. He testified he did not report the incident as he figured the knee would be all right in a few days, even though he had a bit of left knee pain at the HANSON v. FARMLAND FOODS Page 3 time. Claimant also reported an incident on March 16, 1987 where he fell backwards while raking hams. He reported that he "lit off balance" on his left foot and sprained his left knee. Claimant agreed that he also did not report that incident, but stated that Al Kneewig, his foreman, saw the incident. On cross-examination, claimant agreed that he mentioned neither incident in his petition for benefits or in his responses to defendants' interrogatories. On March 27, 1987, claimant stayed in the plant and worked for approximately 19 hours on account of a blizzard which prevented his leaving and which prevented much of the night crew from arriving for work. Claimant reported that he operated the mule, a machine which moved boxed skids of meats that evening and that he felt that bothered his knee. He reported that subsequent to the blizzard, his left knee hurt quite a little more and just kept hurting. Subsequent to claimant's problems in early spring 1987, claimant saw Thomas P. Ferlic, M.D., the board-certified orthopaedic surgeon who had performed claimant's 1982 surgery. Dr. Ferlic then diagnosed claimant's condition as medial meniscal tear of the left knee and degenerative joint disease of the left knee. On April 23, 1987, Dr. Ferlic performed a partial medial meniscectomy. Conservative care was then undertaken, but unsuccessfully. On September 17, 1987, Dr. Ferlic performed the hemi-knee arthroplasty referred to above. In his September 17, 1987 operative report, Dr. Ferlic reported that the medial compartment was noted to have gross degenerative changes with osteophytes noted on the entire border of the tibial plateau. Claimant has not returned to work for Farmland Foods subsequent to September 16, 1987. Dr. Ferlic does not advise that claimant return to Farmland or to like work. Claimant testified that he was paid 94 days of sick leave after he left work on September 16, 1987. The amounts classified as sick leave include three weeks of vacation pay as well as holiday pay. Claimant has formally retired from Farmland Foods. He currently works for a farmer. He uses a self-unloading grinder mixer to mix hog feed and cleans the hog confinement area with a skid loader. Claimant lives in a two-level house with a basement. He testified he goes to and from the basement, but does not use the upper living level of the house. In his deposition taken August 30, 1989, Dr. Ferlic indicated that claimant could work at that time at a lighter HANSON v. FARMLAND FOODS Page 4 job, but that he should not do heavy lifting, bending, stooping, squatting or like activities. JoAnne Hanson, claimant's spouse, corroborated claimant's testimony that he had had no problems with his left knee after his recovery from his 1982 surgery until early 1987. She reported that after spring 1987, claimant limped a lot and had difficulty with climbing and stooping. In a letter to Farmland Foods dated April 7, 1987, JoAnne Hanson expressed her opinion that claimant's knee injury was due to his past injury. On cross-examination at hearing, Mrs. Hanson denied that she felt claimant's problem in 1987 was the same problem as he had experienced in 1982. Duane A. Cato, a friend of claimant's and a Farmland Foods employee for 11 years, reported that he had worked regularly with claimant at Farmland. He testified that, in his time as a coworker of claimant, claimant had worked as a bacon slicer, a pack off line worker, and a Reo-pac operator. Mr. Cato indicated that bacon is sliced on a vac-line slicer which slicer is approximately three and one-half to four feet high. An approximately five foot high pallet of meat is behind the slicer. Cato stated that the belly must be physically rammed through the knife to get it started and that that involves a great deal of force which is hard on the shoulders and knees. He reported that the worker stoops at the end to get the last belly from the pallet to the slicer. Cato described bacon slicing as a fast operating job which involves constant twisting, turning, bending and an up-and-down motion. He stated that claimant operated the bacon slicer for approximately four or five years from 1981 onward. Cato now works as a Reo-pac operator. On Reo-pac, boneless hams come down the line where the operator grabs them and places the ham in one of two machines. The operator then pushes a button to start the Reo-pac process. Cato stated that in bacon slicing, one bends way over as well as bends at the knees and waist. He reported that ten skids of meat are processed per day. Cato agreed he was not present when claimant allegedly fell in March 1987, but stated that claimant talked about the incident on the ride home. Cato worked with claimant during the March 1987 blizzard. He reported that claimant complained about his left knee in the morning after the blizzard while still at the plant and also that Sunday afternoon while riding home. Cato could not remember HANSON v. FARMLAND FOODS Page 5 claimant limping in spring 1987, but reported that claimant had not complained about his knee after 1982 [until 1987]. Jake Schabeen testified that he has been employed with Farmland Foods for 19 years and is currently assistant plant superintendent. Mr. Schabeen had been claimant's foreman when claimant began work with Farmland in 1974. He reported that he has performed the bacon slicing operation and has trained others to do that job. He testified that nine skids are sliced per day. Schabeen reported that different movement is required as the amount of product on the stacked pallets declines. He stated that the additional bending is from the hips and that squatting is not necessary. Schabeen expressed his belief that the Reo-pac operation requires only minimal squatting.. He described the step in the Reo-pac operation as equivalent to an ordinary household stair step. On October 25, 1982, Dwight W. Burney, Jr., M.D., a then partner of Dr. Ferlic, reported that claimant had full motion of the left knee although he lacked about five degrees of full extension of the left knee with good flexion. Ligaments seemed stable, but there was definite varus of the left knee and tenderness over the medial joint line. Dr. Burney believed that claimant had some traumatic arthritis of the medial compartment of the left knee secondary to torn posterior horn of the medial meniscus. He reported that it was possible claimant would be helped by valgus osteotomy of the proximal tibia and fibula to remove some of the strain from the medial joint compartment, but reported that claimant did not wish to consider further surgery. He discharged claimant from further observation and opined that claimant had a 20 percent permanent partial, disability of the left lower extremity as a result of his knee injury and subsequent surgery. John J. Dougherty, M.D., also a board-certified orthopaedic surgeon, examined claimant on December 10, 1982 and issued a report on December 13, 1982. In his report, Dr. Dougherty stated that claimant reported he was better since August . Claimant at that time had no swelling, but his knee continued to bother him medially. Claimant had no locking or giving out [of the knee], but reported that he could not run well. Claimant then reported that squatting bothered him and he had some stiffness in the left knee. Dr. Dougherty reported claimant had varus of his knee, but that was about the same as on the other side. Dr. Dougherty did not believe that claimant then was a candidate for osteotomy. Dr. Dougherty opined that claimant had a five percent permanent partial impairment to the lower extremity based on a history of some residual discomfort in the knee. HANSON v. FARMIAND FOODS Page 6 In a note of October 9, 1984, apparently Dr. Ferlic reported that as regards claimant's 1982 arthroscopy, it . . . took him a couple months but he did get better and has had no problems since that point." Dr. Dougherty reexamined claimant on September 7, 1989. He reported that claimant then walked pretty good [sic] and seemed to be getting his knee out straight. He flexed [the left knee] at about 90 + 50 degrees and flexed the (right knee] about 10 degrees further. Claimant had a little anterior laxity with his left knee flexed and a little crepitation with flexion, extension, and rotation. He was minimally tender medially at the joint line. His medial and lateral collateral ligament was stable upon stressing and did not bother him. Claimant had a negative McMurray and a negative Lachmans [sign]. In a report of September 11, 1989, Dr. Dougherty stated the following: In attempting to answer the questions posed by you, I,think there is an increase in the patient's functional impairment since 1982. He now has a unicompartmental total knee arthroplasty. I felt that basically in 1982, he was really doing well. As far as the deterioration, I think it is an ongoing problem. He had a degenerated tear in 1982 according to Dr. Ferlich [sic]. He also had one in the other knee. I think this gradually attributed after the medial meniscectomy to more arthritic problems with his knee. I suppose one could say that this had something to do with the posterior horn tear, although at the time his anterior horn and medial portion of the meniscus were intact. I think you'd probably have to say that it might be related some to the 1982 accident, I don't think entirely. Apparently he had the same kind of tear in the opposite knee and he had no injury to attribute this to; namely a degenerative tear. The other thought would be, perhaps the meniscal degenerative tear of 1982 of his left knee wasn't directly a result of the so called twisting of his knee. This could have just been coming on. Again, I think the lifting incident in 1982 could be looked at possibly as an. initiating cause of the patient's knee trouble. From what I can gather, I don't think it could be attributed 100% to this, especially since he had a similar problem with similar type of surgery on his right knee without any history of any injury. HANSON v. FARMLAND FOODS Page 7 Certainly I think it is open for discussion, that had he not had this so called twisting in 1982, he perhaps would have had the same trouble anyway and perhaps he's going to go the same way with the right knee. He says at this point in time, he doesn't have any trouble with the right knee, but he's two years behind. In his deposition of September 20, 1989, Dr. Dougherty opined that claimant had something less than 20 percent permanent partial impairment resulting from his September 1987 surgical procedure. Dr. Dougherty agreed with an opinion of Dr.. Ferlic that subsequent to a meniscectomy, there is a tendency to develop degenerative joint disease. The doctor opined that twisting of the legs and squatting could contribute to degenerative changes in the meniscus, but that bending from the trunk would probably not be significant (for such degenerative changes]. In his deposition, Dr. Ferlic opined that claimant's 1982 left knee injury resulted from his work. He opined that when he saw claimant in February 1987, claimant had early degenerative joint disease which was exacerbated by work claimant was performing at that time. He described degenerative joint disease as an attritional process involving arthritic changes over time. He stated: A. Well, many people perform standing, stooping and lifting, and never have degenerative changes within their knee. I would say that, that a certain number of people do have some degenerative joint disease, which is just, they have it for whatever reason. In this gentleman, however, the fact that he had.a medial meniscectomy means that he will probably develop degenerative joint disease down the line. once you have your cartilage taken, that's, there's a correlation with that, with developing degenerative joint disease. And so, if you follow a group of patients who have medial meniscectomies done, and you follow them out for a period of time, you will find that they begin to develop degenerative joint disease as a result of a loss of that cartilage. (Dr. Ferlic deposition, page 11, line 11 through line 25) The following discussion later took place between Dr. Ferlic and claimant's counsel: . . . I went ahead and arthroscoped him on 4/23/87. At that time, he did have, he had an HANSON v. FARMIAND FOODS Page 8 uneven meniscal surface, which was cleaned, but he also showed degenerative changes in the knee, especially over the medial femoral condyle. Q. Now, you said he had an uneven meniscal --? A. Rim. Q. Rim. What's that tell you, Doctor? A. It just tells me that his meniscus had wear and tear since I had seen him the last time. Q. Doctor, do you have an opinion whether or not that would have been caused or aggravated by his employment? A. I think it was in correlation with his first injury. So, I can't -- so, caused by his employment, caused back in '82, yes, but I think it's, once you take the rim out that the posterior horn begins to look like that. It may have been aggravated by his employment; by squatting and stooping, and things like that, but the cause was back several years to his initial accident. Q. You're saying that the, the bad knee results from the '82 problem? A. Yes. If -- the result of his bad knee in '87 was his '82 injury, and it could be exacerbated but not caused by, essentially. Q. I see. Would his work that he did, from 1982 to 1987, in your opinion, have aggravated the preexisting condition? A. Yes, sir. It could have. Q. Would it be your opinion that it did? (short pause.) A. Somewhat, yes. if he had had a sedentary job, I'm, I'm sure that, that this problem would have been less likely to bother him to the extent it did. He may have still had the problem, but I think that, that you could safely say that repetitive load, cyclic loading over those five years had it's effect. HANSON v. FARMLAND FOODS Page 9 (Dr. Ferlic deposition, page 13, line 4 through page 14, line 17) The following discussion later took place between the doctor and defense counsel: Q. Doctor, are you telling us that even though he's retired from Farmland Foods, that if he at some future time needs a total knee replacement, even if he's doing farming activities now, that we're going to attribute that total knee replacement to his work he did at Farmland Foods from 1982 to 1987? A. No. I think it can be correlated with his initial accident back in 1982, at which time he squatted and injured his meniscus. I think that the literature is fairly complete saying that people who suffer this type of accident, who suffer medial meniscal tears undergo degenerative changes in their medial compartment, in that they are likely to have osteoarthritic changes within their knee, and that that's a direct correlation over time. . . . (Dr. Ferlic deposition, page 20, line 21 through page 21, line 10) The doctor subsequently opined that it was medically probable that the work claimant performed from 1982 to 1987 aggravated claimant's condition somewhat. Dr. Ferlic subsequently reported that he had assumed that claimant's work [from 1982 to 1987] involved standing and repetitive squatting. Dr. Ferlic opined that claimant would have a 50 percent "disability" of his left lower extremity, secondary to his hemi-knee arthroplasty based on the AMA guides. The doctor subsequently testified that he did not mean that claimant had 50 percent more disability than he had subsequent to his rating for his 1982 condition, but that claimant had 30 percent more [permanent partial impairment] than he had had whenever his original [permanent partial impairment rating] was assigned. Dr. Ferlic further opined that a unicompartmental knee is "a device used to buy time" before a total knee osteoplasty. He reported that one could reasonably expect some type of mechanical failure within the knee and a need to replace the unicompartmental device within 7 to 14 years. HANSON v. FARMIAND FOODS Page 10 Dr. Ferlic had not been aware that claimant had done farming activities since his retirement from Farmland Foods. The doctor reported that when he examined claimant, claimant had stated claimant was able to do most of the things he wanted to do. The doctor stated that as the doctor had previously noted that the doctor did not wish claimant to return to heavy labor, the doctor had assumed claimant was doing lighter labor. The doctor reported that claimant should have a job where he could alternate between standing and sitting throughout the day, which job did not involve significant walking. APPLICABLE LAW AND ANALYSIS Our first concern is whether claimant received an injury which arose out of and in the course of his employment in late 1986 or early 1987. Given the factual pattern existing in this matter, the issue of whether a causal relationship exists between the alleged injury and the claimed disability will be discussed concurrently, however. Claimant has the burden of proving by a preponderance of the evidence that he received an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). The injury must both arise out of and be in the course Of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402,, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35,.38 (1934) HANSON v. FARMIAND FOODS Page 11 discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury.does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury .... The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that his injury is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa .375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt , 247 Iowa 691, 73 N.W.2d 732. The opinion HANSON V. FARMIAND FOODS Page 12 of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated,.worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. When a worker sustains an injury, later sustains another injury, and subsequently seeks to reopen an award predicated on the first injury, he or she must prove one of two things: (a) that the disability for which he or she seeks additional compensation was proximately caused by the first injury, or (b) that the second injury (and ensuing disability) was proximately caused by the first injury. DeShaw v. Energy Manufacturing Company, 192 N.W.2d 777, 780 (Iowa 1971). An award of benefits cannot stand on a showing of a mere possibility of a causal connection between the injury and the claimant's employment., An award can be sustained if the causal connection is not only possible, but fairly probable. Nellis v. Quealy, 237 Iowa 507, 21 N.W.2d 584 (1946). The work incident or activity need not be the sole proximate cause if the injury is directly traceable to it. Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974). A cause is proximate if it a substantial factor in bringing about the result. It need be only one cause of the HANSON v. FARMLAND FOODS Page 13 result; it need not be the only cause. Blacksmith v. All-American. Inc., 290 N.W.2d 348, 354 (Iowa 1980). The American Heritage Dictionary, Second College Edition, at page 1213 defines "substantial" as follows: 1. Of, pertaining to, or having substance; material. 2. Not imaginary; true; real. 3. Solidly built; strong. 4. Ample; sustaining: a substantial breakfast. 5. Considerable in importance, value, degree, amount, or extent: won by a substantial margin. Claimant's initial claim is of cumulative trauma in 1986 and 1987 which resulted in the unicompartmental total arthroplasty in September 1987. We do not find that the record when taken as a whole supports claimant's claim. While claimant at hearing reported three specific incidents which claimant then testified he felt brought on his left knee problems in spring 1987, claimant did not identify any of the incidents on his petition and did not identify any of the incidents on his answers to interrogatories which defendants propounded. Those facts make suspect claimant's claim of a correlation between those alleged incidents and his knee problems in 1987. Likewise, claimant has claimed cumulative injury to his knee resulting from the nature of his work injuries. Claimant and Mr. Cato described claimant's duties as involving much squatting and bending from the leg or knee area. Mr. Schabeen reported that claimant's various work duties since 1982 involved substantially different physical movements than that which claimant and Mr. Cato reported. Mr. Schabeen's description of claimant's duties would suggest that,only minimal bending and squatting was required of claimant. Such appears more consistent with claimant's ability to perform his various job duties in the five years subsequent to his arthroscopy with partial removal of the medial meniscus of the left knee on April 9, 1982. 1 Likewise, we do not find that the medical evidence supports a finding of an injury in spring 1987 with any existing current disability being causally connected to that alleged injury. only two experts testified in this matter: those being Dr. Dougherty and Dr. Ferlic.. The testimony of both is at times twisted and tangled. A recurrent thread appears in the statement of both of those gentlemen, however. That thread is that claimant's current problems result from degenerative joint disease which degenerative joint disease directly correlates with claimant having had a medial meniscectomy in 1982. Dr. Ferlic went so far as to indicate that should claimant require a future total knee HANSON v. FARMIAND FOODS Page 14 replacement, that procedure could be correlated with the initial 1982 injury. Both physicians described claimant's degenerative joint disease as a gradual, ongoing process with more or less inevitable results. Each on some level appears to believe that claimant's work, if such work involves substantial squatting and bending, a fact not wholly substantiated on this record, could have aggravated claimant's left knee condition. Neither physician appears to believe that claimant's not performing such work would have prevented the condition from occurring at some time, however. Given such, we cannot say that any aggravation can be classified as a material aggravation of claimant's preexisting condition. Likewise, given such, we cannot say that claimant's work at Farmland from 1982 through 1987 has been shown to have been a substantial factor in the development of his current knee condition. Therefore, we find that claimant has failed to establish both an injury which arose out of and in the course of his employment in spring 1987 and a causal relationship between that alleged injury and any claimed disability. We note in passing the issue of whether claimant's claim is barred as filed beyond the appropriate statute of limitations. Initially, claimant's claim is not that he had an injury in 1982 and is entitled to benefits as a result of disability resulting from the 1982 injury. claimant's petition filed February 26, 1988 alleges in paragraph 4 an injury date in late 1986 or early 1987. Hence, the question of whether claimant had a compensable injury in 1982 is not now before us. The record does show that claimant did receive permanent partial disability benefits of 10 percent of the left knee on account the results of his partial removal of the medial meniscus of the left knee on April 9, 1982. The 1982 injury apparently was established by way of a memorandum of agreement. Section 85.26(l) provides that where weekly benefits have been paid, a claim for further weekly benefits must be made within three years from the date of the last payment of benefits. It would appear that that provision would bar any claim for further weekly benefits on account of the 1982 injury. Claimant, of course, is entitled to payment of any medical costs which claimant can show are causally related to the 1982 injury. As claimant has not established an injury arising out of and in the course of his employment in 1987 or a.causal relationship between that alleged injury and any claimed disability, we need not reach the question of the nature and extent of any benefit entitlement. HANSON V..FARMLAND FOODS Page 15 FINDINGS OF FACT WHEREFORE, IT IS FOUND: Claimant is 56 years old and worked for Farmland Foods for approximately 13 and 1/2 years. Claimant had a work-related arthroscopy with partial removal of the medial meniscus of the left knee on April 9, 1982. Claimant had similar surgery on his right knee without history of injury in 1984. From 1982 through 1987, claimant worked as a bacon slicer, a pack off line worker, and a Reo-pac operator. Claimant's job duties at Farmland Foods from 1982 through 1987 may have involved some squatting and some bending at the knees, but his duties did not involve substantial squatting or bending. In spring .1987, claimant had a medial meniscal tear of the left knee and degenerative joint disease of the left knee. Claimant underwent a partial medial meniscectomy on April 23, 1987. Claimant underwent a hemi-knee arthroplasty otherwise known as a unicompartmental total arthroplasty on September 17, 1987. Claimant's medial compartment then had gross degenerative changes with osteophytes noted on the entire border of the tibial plateau. A medial meniscectomy with loss of cartilage in the knee generally correlates with the development of degenerative joint disease. Claimant's work at Farmland Foods from 1982 through early 1987 was not a material or substantial factor in,his left knee problems in 1987 and his need for a partial medial meniscectomy in April 1987 or a hemi-knee arthroplasty in September 1987. HANSON V. FARMLAND FOODS Page 16 CONCLUSIONS OF LAW THEREFORE, IT IS CONCLUDED: Claimant has not established an injury which arose out of and in the course of his employment in spring 1987. Claimant has not established a causal relationship between an alleged injury in spring 1987 and his claimed disability to his left knee. ORDER THEREFORE, IT IS ORDERED: Claimant take nothing from these proceedings. Claimant pay costs of these proceedings pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 3rd day of January, 1990. HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Gregory J. Siemann Attorney at Law 801 North Adams Carroll, Iowa 51401 Ms. Judith Ann Higgs Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 1108.50, 2206 Filed January 3, 1990 HELENJEAN WALLESER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROGER L. HANSON, Claimant, VS. File No. 865328 FARMLAND FOODS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. 1108.50, 2206 Claimant did not show an injury arising out of and in the course of his employment in spring, 1987 which injury was the result of an aggravation of a preexisting condition where conflicting medical evidence more strongly suggested that claimant's left knee problems in spring, 1987 and his need for a partial medial meniscectomy in April, 1987 and a hemi-knee arthroplasty in September, 1987 was a direct correlative of claimant's work-related arthroscopy with partial removal of the medial meniscus of the left knee on April 9, 1982. BEFORE THE IOWA INDUSTRIAL COMMISSIONER KRISTINE A. RAMIREZ, Claimant, File No. 865334 vs. A R B I T R A T I O N OSCAR MAYER, D E C I S I O N Employer, F I L E D Self-Insured, Defendant. SEP 27 1989 IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE This is a proceeding in arbitration brought by Kristine Ramirez, claimant, against Oscar Mayer, a self-insured employer, defendant, for workers' compensation benefits as a result of an alleged injury on September 30, 1987. On March 21, 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. On September 30, 1987, claimant received an injury which arose out of and in the course of her employment with Oscar Mayer. 2. Claimant is seeking temporary total disability or healing period benefits from November 12, 1987 through December 22, 1987; from March 31, 1988 through April 8, 1988; and, from June 7, 1988 through August 21, 1988 and defendants agree that she was not working during these periods of time. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 4. If permanent disability benefits are to be awarded, they shall begin as of August 22, 1988. 5. Claimant's rate of weekly compensation shall be $299.26. 6. The medical benefits submitted by claimant at hearing were fair and reasonable but their causal connection to any work injury remained at issue. ISSUES The parties have submitted the following issues for determination in this proceeding: I. Whether there is a causal relationship between the work injury and the claimed disability; II. The extent of claimant's entitlement to weekly benefits for disabilities; and, III. The extent of claimant's entitlement to medical benefits. 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 independently 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. The claimant, Kristine Ramirez, has been employed by Oscar Mayer Foods Corporation since June 1974. She has held a number of different jobs at the company, but in July of 1987 she transferred to an area of the Davenport plant called D-Shaped Beef. This department makes roast beef products known as delicatessen meats. Claimant's job was multivac operator. This is a computerized meat processing machine. On September 30, 1987, claimant was accidentally struck by an airlock door when a fellow employee pulled the cord which activates the door. Claimant continued to work that day although she did report to first aid where she was instructed to use ice. Claimant continued to work following her accident and did not seek any medical care until November 4, 1987. At that time she saw John Bishop, M.D. She later saw Paul Hartman, M.D., who took her off work. She was then seen by Gordon Flynn, M.D., on November 16, 1987. Claimant remained off work until December 22, 1987. She then returned to her job at Oscar Mayer and continued to work until surgery on July 15, 1988, with the exception of a brief period of layoff unrelated to her injury. The surgery was performed by Arlo Brakel, M.D., a neurosurgeon. After her surgery claimant returned to work for Oscar Mayer with permanent work restrictions consisting of no lifting over 20 to 25 pounds and no repetitive bending or stooping. Claimant is performing the same job she did prior to her injury. Mike Moes, the claimant's supervisor, testified at the hearing that claimant's employment is secure at Oscar Mayer and that her job performance has been good following her surgery. Claimant has been encouraged to report any difficulties in doing her job and, if necessary, she would be assigned a different task. Moes testified that he has to date not received any such complaints from claimant. Claimant testified that she feels secure in her current job as she has high seniority in the plant and she now earns $10.90 an hour, a higher wage than she earned at the time of injury. However, due to her back problems she said that she does not work all of the overtime offered to her. The medical evidence shows that one month prior to her accident at Oscar Mayer, claimant saw her family physician, Richard Kasper, M.D., for complaints of low back pain radiating to the right leg with tingling and numbness in the right foot. (Joint Exhibit 1, page 1). Dr. Kasper's notes disclosed that claimant had symptoms "on and off for the past month." The pain was apparently severe enough for the doctor to prescribe bed rest, Tylenol No. 3 and Nalfon plus a sleeping medication. According to Dr. Kasper, a significant portion of the symptoms centered around the great toe in the right foot. Dr. Kasper states as follows in his office note of August 24, 1987: Patient has had symptoms on and off for the past month. In the last few days has had decreased sensation in the great toe with hipaesthesias on the lateral aspect of the leg. 0: Has full strength and range of motion of the (undecipherable). However, there is a hint of decreased strength of dorsal flexion in the rt great toe. There is subjective decreased light touch sensation to "sharp" on the rt. The patient denies any acute injury. SLR sign is trace positive at 450 on the rt. There is no pain in the S1 joint. A: Symptoms and physical signs suggestive of herniated nucleuspulposis? Probably L-5, S-1.... Dr. Kasper then ordered a CT scan because he suspected lumbar disc disease with radiculopathy. The CT scan revealed no abnormalities. Claimant testified she only missed one day of work after this incident and returned to full duties and activities including participation in an aerobics class three days a week. Claimant also had low back problems necessitating medical and chiropractic treatment in the late 1970's diagnosed as low back strain. Between 1980 and 1987, claimant reported two incidents of back pain to her physicians but on both occasions this occurred in conjunction with low abdominal pain due to problems other than low back or muscle strain. Claimant testified that any lost work between 1980 and 1987 were due to "female problems." Dr. Brakel, in his deposition, initially opined that claimant's low back difficulties treated by him were causally connected to the September 30, 1987 incident with the door at work as claimant had told him that she had no prior back problems. Dr. Brakel changed his opinion after being told by defendant's counsel during his deposition of a low back pain incident in August of 1987 which was treated by Richard Kasper, M.D. However, in a letter to claimant's attorney in February 1989 after the deposition, Dr. Brakel opined that claimant's problems in August of 1987 were not related to the back difficulty treated by him. Dr. Brakel explained that his treatment involved the L5-S1 disc which had compressed the S1 nerve root. The complaints to the great toe expressed by claimant in August 1989 to Dr. Kasper indicated to Dr. Brakel that the problems at that time were limited to the L4-5 disc and the L5 nerve root. Dr. Brakel initially rated claimant as suffering from a 30 percent disability but stated that a permanent rating could not be made until February of 1989. There is no evidence in the record of any rating by Dr. Brakel in February of 1989 or at any later date. Claimant was also evaluated by John Sinning, M.D., an orthopedic surgeon. Dr. Sinning opined that claimant suffers from a long-standing degenerative disc disease and that claimant has a 14 percent permanent partial impairment due to this condition. Dr. Sinning did not believe that claimant suffered any permanent partial impairment as a result of the work injury. At most, according to Dr. Sinning, claimant only temporarily aggravated that underlying degenerative disc disease at the time of the injury. Dr. Sinning stated in his written report of March 6, 1989, that claimant had a four month history of progressive difficulties beginning in the summer of 1987. Dr. Sinning's major problem with the causal connection stemmed from the time delay between the September 1987 injury and the July 1988 surgery. A general practitioner, Gordon Flynn, M.D., whose practice involves a considerable amount of occupational medicine upon referral from local companies, opined that claimant's difficulties were not related to the September 1987 injury due to claimant's excessive prior history of back difficulties. APPLICABLE LAW AND ANALYSIS Note: A credibility finding is necessary to this decision as defendant places claimant's credibility at issue during cross-examination as to the nature and extent of the disability. From her demeanor while testifying, claimant is found credible. I. 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 views of the treating physician, Dr. Brakel, will be given greater weight on the issue of causal connection due to his more extensive clinical involvement in claimant's case and his greater familiarity with claimant's complaints and treatment. Dr. Sinning only examined claimant once and was incorrect in his history concerning a four month progressive pain condition prior to Dr. Kasper's treatment in August of 1987. Dr. Flynn's opinions were rejected due to his lack of specialized expertise and his characterization of claimant's back problems as extensive prior to August of 1987. Dr. Brakel was convincing in stating that the August 1987 incident was unrelated to the September incident. There does not appear to be a permanency rating by Dr. Brakel and, therefore, the only rating available is from Dr. Sinning as to claimant's chronic back difficulties. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe,Inc., (Appeal Decision, February 28, 1985). Claimant's medical condition before the work injury was not excellent due to occasional episodes of back pain but she had no ascertainable permanent impairment or disabilities as a result of these problems. It was not until the incident of September 30, 1987, that she began to experience continuous pain and was unable to return to work activity without experiencing pain. Also, it was only after the work injury of September 1987, that claimant's physicians restricted claimant's work activities by permanently prohibiting tasks such as heavy lifting, repetitive lifting, bending, twisting and stooping. However, claimant's medical condition as a result of the September 1987 injury, has not prevented a return to her former employment. The efforts of Oscar Mayer to work with claimant and return her to gainful employment is admirable. As a result, apart from her lost earnings during her healing period which will be compensated by healing period benefits, claimant has suffered no significant permanent loss in actual earnings as a result of her disability. Although the award is much lower than would be the case if claimant had not returned to work, a showing that claimant had no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 218, 220 (Appeal Decision 1979). Although it can be argued that due to claimant's work restrictions, claimant would have difficulty finding replacement work should she lose her job at Oscar Mayer, the commissioner has ruled that considering such matters would be improper speculation in an industrial disability case. Umphress v. Armstrong Rubber Co., Appeal Decision filed August 27, 1987. Claimant is 37 years of age and exhibited average intelligence at the hearing. Little is shown to indicate claimant's potential for vocational rehabilitation. However, at the present time vocational rehabilitation is unnecessary as claimant has returned to her former employment. The extent of claimant's education was not discussed at hearing. Claimant's current employment appears suitable and stable at the present time. After examination of all of the factors, it is found as a matter of fact that claimant has suffered a 10 percent loss of earning capacity from her work injury. Based on such a finding, claimant is entitled as a matter of law to 50 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 10 percent of 500 weeks, the maximum allowable number of weeks for an injury to the body as a whole in that subsection. As claimant has established entitlement to permanent partial disability, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work. Dr. Brakel indicated that claimant could not be rated permanently until February of 1989. Claimant returned to work prior to that time. Therefore, the healing periods requested by claimant will be awarded. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred by her for. treatment of the work injury. However, claimant is entitled to an order of reimbursement only if she has paid those expenses. Otherwise, claimant is entitled to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). As Dr. Brakel's opinions were accepted in this case, all of the medical expenses requested contained in the prehearing report will be awarded. FINDINGS OF FACT 1. Claimant was a credible witness. Claimant's appearance while testifying indicated that she was testifying truthfully. 2. On September 30, 1987, claimant was struck by a door while working at Oscar Mayer and suffered an injury to various parts of her body including the low back which arose out of and in the course of her employment. The low back injury set up an inflammatory condition which continued unabated as the nerve root swelling became entrapped in the bony confinement about the exit point of the nerve root. 3. The work injury of September 30, 1987, was a cause of a period of total disability from work beginning on November 12, 1987 through December 22, 1987; from March 31, 1988 through April 8, 1988; and from June 7, 1988 through August 21, 1988, at which time claimant returned to work. Claimant reached maximum healing after this last period off work. During these periods of time, claimant was off work and received extensive treatment for her work injury consisting of limitations on activity, medications for pain and inflammation, home exercises, supervised physical therapy and eventually surgery. 4. The work injury of September 30, 1987, is a cause of a 14 percent permanent partial impairment to.the body as a whole and of permanent restrictions upon claimant's physical activity consisting of no lifting over 20 to 25 pounds and no repetitive bending, twisting or stooping. Although she had experienced low back strain several years before 1987, claimant had no ascertainable functional impairment prior to the work injury of September 30, 1987. A low back injury in August of 1987 was unrelated to the September 30, 1987 injury as it involved a different nerve root compression. 5. The work injury of September 30, 1987 and the resulting permanent partial impairment and work restrictions is a cause of only a 10 percent loss of earning capacity. Claimant is 37 years of age. Claimant had no ascertainable loss of earning capacity prior to the work injury herein. Claimant's physician imposed work activity restrictions does not prevent a return to the job she was performing at the time of injury but it does prohibit employment in many jobs in the Oscar Mayer plant which involves heavy manual labor. Claimant is unable to return to some of the manual labor jobs she has held in the past. A combination of claimant's strong motivation to return to work and defendant's laudable efforts to help her in this effort have resulted in a return to gainful employment which appears suitable and stable at the present time. 6. The medical expenses listed in the prehearing report are fair and reasonable and were incurred by claimant for reasonable and necessary treatment of the work injury of September 30, 1987. CONCLUSIONS OF LAW Claimant has established under law entitlement to 18 weeks of healing period benefits; 50 weeks of permanent partial disability benefits and to medical benefits in the amount of $11,553.63 including medical mileage at the rate of $.21 per mile. ORDER 1. Defendant shall pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred ninety-nine and 26/100 dollars ($299.26) per week from August 22, 1988. 2. Defendant shall pay healing period benefits for the periods of time set forth in finding number 3 above at the rate of two hundred ninety-nine and 26/100 dollars ($299.26) per week. 3. Defendant shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of the expenses she has paid. Otherwise, defendant shall pay the provider directly along with lawful late payment penalties imposed upon the account by the provider. Defendant shall pay medical mileage expenses for transportation expenses incurred by claimant for attending medical treatment at the rate of twenty-one cents ($.21) per mile. 4. Defendant shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for workers' compensation benefits previously paid. 5. Defendant shall receive credit for previous payments of benefits under a nonoccupational group insurance plan pursuant to Iowa Code section 85.38(2) as set forth in the prehearing report. 6. Defendant shall pay,interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 7. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. 8. Defendant shall submit activity reports on the payment of this award as requested by this agency. Signed and filed this 27th day of September, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael W. Liebbe Attorney at Law 115 E. 6th St. P. 0. Box 339 Davenport, Iowa 52805 Mr. Richard M. McMahon Attorney at Law 600 Union Arcade Bldg. Davenport, Iowa 52801 5-1108 Filed September 27, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER KRISTINE A. RAMIREZ, Claimant, File No. 865334 vs. A R B I T R A T I 0 N OSCAR MAYER, D E C I S I 0 N Employer, Self-Insured, Defendant. 5-1108 -- Nonprecedential - causal connection issue.