Page 1 before the iowa industrial commissioner ____________________________________________________________ : JANICE EISENBARTH, : : Claimant, : : vs. : : File No. 865360 SNAP-ON TOOLS CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed August 14, 1989 is affirmed and is adopted as the final agency action in this case, with the following additional analysis: The claimant's appeal arguments concerning the cumulative date of injury are without merit. Claimant is not entitled to a "running" injury date. See McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985); Terwilliger v. Snap-On Tools, Appeal Decision, May 24, 1991. The calculation of interest is governed by Farmer's Elevator Co., Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979); Benson v. Good Samaritan Center, Ruling on Rehearing, Oct. 18, 1989; McNeal v. Iowa Department of Transportation, Order Nunc Pro Tunc, May 31, 1990; and Clausen v. Carmar Farms, Ltd., Vol. 1, No. 3 State of Iowa Industrial Commissioner Decisions 540 (1985). No further ruling is required. Claimant urges on appeal that the claimant's injury extended to the body as a whole. It is noted that the opinion of Timothy C. Mead, M.D., was based on subjective evidence, and that the objective findings of Dr. Mead did not indicate a permanent impairment of the shoulders. Many tests of claimant's shoulders were impeded by claimant's failure to cooperate with the testing procedures. Taken as a whole, the evidence of Dr. Mead and Dr. Wirtz as to claimant's shoulder condition is given less weight than the evidence of the numerous other physicians that examined claimant and found no objective indicia of permanent impairment. In addition, claimant's significant functional overlay, acknowledged by all of her physicians, also supports the conclusion that claimant's injury did not extend beyond the Page 2 upper extremity to the body as a whole. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Defendants shall pay all other costs of this action. Signed and filed this ____ day of June, 1990. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Mark S. Soldat Attorney at Law 714 E. State St. Algona, Iowa 50511 Mr. Paul C. Thune Attorney at Law 218 6th Ave., Suite 300 P.O. Box 9130 Des Moines, Iowa 50306 1803.1 - 2209 Filed June 25, 1991 Clair R. Cramer BJO before the iowa industrial commissioner ____________________________________________________________ : JANICE EISENBARTH, : : Claimant, : : vs. : : File No. 865360 SNAP-ON TOOLS CORPORATION, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1803.1 Claimant's injury found not to extend beyond the arm to the shoulder or back. All of claimant's physicians but one rated claimant's arm only. The one physician who opined whole body impairment acknowledged that it was based on subjective evidence alone. Also, claimant had significant functional overlay noted by all of her physicians. 2209 Claimant's theory of a "running" cumulative injury date over several years was rejected. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JANICE EISENBARTH, Claimant, File No. 865360 vs. A R B I T R A T I O N SNAP-ON TOOLS CORPORATION, D E C I S I O N Employer, and F I L E D ROYAL INSURANCE COMPANY, AUG 14 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Janice Eisenbarth, against Snap-On Tools Corporation, employer, and Royal Insurance Company, insurance carrier, as a result of alleged injuries sustained on January 23, 1986. This matter came on for hearing before the undersigned deputy industrial commissioner in Storm Lake, Iowa, on March 21, 1989. The record consists of the testimony of claimant, claimant's husband, Deborah Monroe, Nancy Simonson, Rebecca Garman, Martina Lenz, Lee Gunderson, Dennis McGreevey, Shirley Hoveland; claimant's exhibits A through G; and defendants' exhibits 1 through 16. ISSUES The issues for resolution as to all three of the injuries, left and right carpal tunnel and the shoulder injury are: 1. The nature and extent of claimant's disability; and 2. Claimant's entitlement to 86.13 benefits. As to the shoulder injury, there is an additional issue of whether claimant's alleged shoulder inJury on January 23, 1986 is causally connected to her disability. REVIEW OF THE EVIDENCE Claimant testified that she has worked since graduating from high school 50 percent of the time mainly in various factory or restaurant jobs, which involved manual labor. Claimant stated that the remaining 50 percent of her post-high school time involved working inside the home. Claimant began working for defendant employer on April 4, 1979. Claimant testified that her work initially involved the production and finishing of metal tool boxes. Claimant indicated these boxes varied in size, some as wide as four to five feet and as tall as claimant and weighing from 5 to 600 pounds. Claimant testified that for the last eight and one-half to nine years she has worked in the spot welding department. Claimant said that she learned how to use small tools while working for defendant employer. Claimant emphasized she was strong, in good health and had no problems with her hands, arms or shoulders prior to being hired by defendant employer. Claimant testified that around 1983 or 1984, she began noticing tingling in her hand while welding fronts on drawers that are a part of the toolbox. Claimant stated she went to Dr. Rooney, her local doctor, concerning this problem in 1983 to 1984. Dr. Rooney referred claimant to Dr. Trimble, in Mason City, who then referred her to Timothy C. Mead, M.D. Claimant said Dr. Mead then became her treating physician. Claimant testified her treatment involved various conservative measures including some restrictions which claimant could not recall. Claimant contends she has been under restrictions since being under Dr. Mead's care and that the employer has not followed the restrictions. Claimant stated that the employer violated these restrictions weekly and when that occurred, her hands would swell and she sometimes would leave work because of the pain. Claimant indicated she would use her leg, back or hip instead of her hands,to push items around when her hands were hurting and swelling. Dr. Mead performed a bilateral carpal tunnel surgery in October, 1986. Claimant testified she could not remember any particular incident involving her shoulders. Claimant said she was treated by Dr. Mead in 1986 for her shoulder pain. Claimant stated she had pain in her wrists and shoulders prior to her carpal tunnel surgery in October 1986 and the pain never went away completely. After her October 1986 carpal tunnel surgery, claimant returned to work on February 20, 1987. Claimant testified that within a month of her return to work, she began hurting again and went to John W. Follows, Jr., M.D., on October 30, 1987 because she was having a lot of pain in her shoulder and arm. Claimant stated that she went to David L. Jenson, a chiropractor, on October 19, 1987, while waiting for her appointment with Dr. Follows. Claimant stated she received six treatments and that these helped give her relief in her wrists and neck. Claimant stated she was then sent by defendant employer to Peter D. Wirtz, M.D., in Des Moines, on December 2, 1987. Claimant contends she was still having severe pain in her hands, shoulder, neck and down her back. Claimant said Dr. Wirtz referred her back to Dr. Mead. Claimant said that she went to Mayo Clinic in January 1988 to find out why she was having problems. Claimant stated that she was later assigned to Michael W. Crane, M.D., because Dr. Mead moved to Michigan. Claimant indicated she currently uses traction and hot and cold packs. Claimant said she devotes a lot of time to these therapy measures depending on the type of work she was doing that day. Claimant emphasized she is not overexaggerating her symptoms. Claimant said she disagrees with Dr. Follows if his 1987 records show claimant mentioned her shoulder problems only on the last of five or six visits. Claimant also said she disagrees with Mark R. Peltan, Ph.D., Mercy Hospital in Mason City, if his September 1988 records show claimant had only a hand pain discomfort. Claimant contends that the various jobs she has been requested to do by defendant employer violates her work restrictions. Claimant denied there is any resentment from the other employees because she is getting all the easy jobs. Claimant complained that she received very few healing period checks on time, but had no records to show when she actually received them. Claimant testified that she was satisfied with the employer's medical care provided her prior to her carpal tunnel surgery. Claimant said she feels she has been harassed by defendant employer since her shoulder and back injury and after her bilateral carpal tunnel surgery. Tom Eisenbarth, claimant's husband, testified that he is a press break operator for Snap-On Tools and has worked eleven years for them. He married claimant in 1985. He said that claimant complained of shoulder, back and neck problems before and after her carpal tunnel surgery in 1986. He stated that after the October 1986 surgery, he massaged claimant and used heated towels on her. He said he continues this process on claimant to the present time. Eisenbarth testified he went to the doctor's office with claimant on different occasions when she was having examinations. He indicated on one occasion that he thought claimant had swelling on her body and Dr. Crane did not think there was any swelling. Eisenbarth recalled only one instance of a benefit check delayed due to a mix-up. Deborah Monroe has worked for Snap-On Tools twelve years and presently is a spot welder. Monroe testified she has worked with claimant on and off for five years. Monroe related two occasions when she has seen claimant's hands swollen - once at work and once when she came back from Dr. Crane's office. Monroe acknowledged that she has a workers' compensation case pending against Snap-On Tools. Nancy Simonson is a former employee of Snap-On Tools and presently has a workers' compensation case pending against them. She testified she worked three years in the spot welding department and worked with claimant approximately six times a year and took breaks with her three times a day during this period. Simonson stated she saw claimant's arms, wrists and eyes swollen at work and that claimant appeared to be in pain. Rebecca Garman worked twelve plus years for Snap-On Tool, the last five years back and forth between welding and electrical. Garman testified she worked side by side with claimant one or two times a week for five years. She admitted that Deborah Monroe is her sister. Garman stated that on three occasions she saw claimant's arm swell up with the swelling going up to claimant's neck and eyes. Martina Lenz has been employed with Snap-On Tools as a spot welder for the last eleven and one-half years. Lenz testified she has worked off and on with claimant for approximately six years. Lenz said she has observed claimant with swollen fingers, arm and right eye approximately once a week over the last two or three years. Lenz stated she has observed swelling in claimant's neck and shoulders approximately once every one or two months over this two or three year period. Lee Gunderson testified he has been the personnel manager for Snap-On Tools since September 1986, and prior to that time he was the assistant personnel manager for ten years. Gunderson testified one of his responsibilities is working with workers' compensation cases. Gunderson said he was familiar with the claimant and was responsible for claimant being moved to the night shift. Gunderson indicated that the electrical department was closed and those with seniority who picked the welding department bumped claimant and others to the night shift. Gunderson said that Snap-On Tools employs 450 people and that the company had a contract with the union. Gunderson stated that he does not recall any instances in which claimant complained of work restriction violations, before or after her carpal tunnel surgery. He stated that the job of welding drawer fronts was within claimant's restrictions. Gunderson indicated that the employer attempted to work with claimant's work restrictions and at times it was difficult to come up with work within that restriction. Dennis McGreevey has worked for Snap-on Tools 15 years and is presently a spot welding supervisor. McGreevey testified that he was claimant's cosupervisor. McGreevey recalled two occasions in which claimant complained that her work was violating her work restrictions. McGreevey said that claimant was removed from the particular job on both occasions. McGreevey explained the particular jobs that are shown in the video tape, exhibit 16. He emphasized that the claimant would be able to use the projection welder and spot welder and keep within her medical restrictions. McGreevey said he tried to give claimant the light duty work and see to it that she got the lighter duty job. Shirley Hoveland has worked for Snap-On as a personnel specialist since November 1986. She testified that her work also involves workers' compensation cases. Hoveland testified that she became involved in the correspondence with the employee and insurance company, electing the treating physicians, and making recommendations. Hoveland said that claimant was sent to Dr. John Follows because claimant was missing a lot of work and the employer was not seeing a lot in terms of successful treatment with Dr. Mead. Hoveland emphasized that defendants wanted claimant to be able to get back to work successfully and felt it was necessary to seek another physician. Hoveland testified she could not recall any time in which claimant complained as to her work not being within her restrictions. Michael W. Crane, M.D., an orthopedic surgeon, testified on February 28, 1989, through his deposition, that he first examined claimant on January 26, 1989 at the Park Clinic in Algona, Iowa. Dr. Crane stated claimant's history indicated claimant had complaints in her arms, shoulder girdle, and radiating into her neck. Dr. Crane said claimant's complaints were more in the shoulder than in the hands. He acknowledged claimant told him of her history of swelling and showed him her arm. Dr. Crane said he could not determine any swelling. Dr. Crane indicated claimant became very emotional while relating her history. Dr. Crane testified he performed a range of motion test, grip strength test, touch test and Phalen's test for carpal tunnel. He said he found nothing abnormal from an objective standpoint. When Dr. Crane was asked from the subjective standpoint, he answered: "She expressed a lot of pain with her range of motion, her gripping. That's part of her emotional response was that just about everything she did she felt made her uncomfortable." (Michael W. Crane, M.D., Deposition, Defendants' Exhibit 14, page 13) When asked: Q. What was your impression at that time? A. Well, under impression I state she suffers from chronic tendinitis and myalgias. I also felt,she was a symptom magnifier, and I informed her that I didn't feel there was anything I could do to change her problems." (Crane Dep., Def. Ex. 14, p. 14) Dr. Crane testified that when he examined claimant on February 17, 1989, her complaints ranged from the tips of her fingers up to the right eye with swelling, numbness, the whole works." Q. And did you perform an examination on that date? A. I stated when I try to examine her she's basically weak as a kitten and I really can't tell if she's giving me an effort or not. I stated I saw nothing objective to suggest a cervical radiculopathy, and by that I,would be referring to the fact that her symptoms were not along the lines of anatomic distribution that would indicate a nerve root. Her complaints, if they came from the neck, would have had to be a problem from the entire brachial plexus, which is anatomically difficult to do. Q. Okay The third line down in your office note you say the following. Today I see nothing. Was that referring to the swelling that Mrs. Eisenbarth has reported? A. Yes. Q. Your note goes on to say the pain is not in a reasonable distribution. Would you explain that, please? A. That reflects the previous sentence referring to the cervical radiculopathy. For instance, if you have a -- the sixth cervical nerve root, you've got a streak of pain or numbness in a certain position on the arm. Your index and long -- or index and thumb should have some complaints. That type of thing wasn't there. (Crane Dep., Def. Ex. 14, pp. 18-19) Dr. Crane stated he ordered a Lido evaluation through the physical therapy specialist in order to get some objective evidence. He described the Lido evaluation as a method of putting numbers on what a person can do, in other words, a person's ability. Dr. Crane also emphasized that this Lido machine will give one an indication of whether or not the patient is putting forth any effort. Dr. Crane was asked: Q. Okay. Now, in looking at Exhibit 3, can you tell us how Mrs. Eisenbarth was tested on that day and what she was asked to do as part of the evaluation? A. She was put through the shoulder flexion extension, internal rotation, external rotation and abduction and adduction. She did not complete all of the tests, specifically the abduction and adduction. She became very weepy, stated that she needed a chiropractor. Then some other therapy modality, such as the ice treatment, was used and that did help, and she was instructed in giving degrees of effort but the speeds she produced continually produced the same results, and on this type of machine, should -- your speeds should change as the foot-pounds of force you put out change, and she wasn't able to do that. All of her results came out in the -- like one, two and three foot-pound amounts. (Crane Dep., Def. Ex. 14, pp. 23-24) Dr. Crane stated that on the 17th claimant complained mainly as to her right shoulder. Dr. Crane said he saw claimant again on February 23 at which time she was complaining of pain, mostly in her right arm, down her arm into her shoulders and up into her face, etc., "none of which have anything to do with a normal anatomic distribution." Dr. Crane testified that he saw claimant on the 28th of February, the date of his deposition, and claimant's complaints were the same as they were on the 24th of February. He sent claimant to a physio-therapist who did another identical Lido test on her. Dr. Crane testified on February 28, 1989 as to Lido tests done on claimant that day. Q. So based upon the two Lido evaluations that we've just talked about, I guess my question is of what significant -- significance are the results of these studies? A. Well, in Kurt Walderbach's evaluation, one of the things he did was have Miss Eisenbarth stand at a table with her arm held straight out in front of her and she was told she was -- they were going to see how much weight she could handle. She could hold up to three and a half pounds, which is calculating the access or rotation, which is a lever arm from the hand to the shoulder. In her case it's 24 inches. It comes out to -- if you're holding three and a half pounds you're producing 7 foot-pounds of energy. So she was able to produce at that time 7 foot-pounds for him but at no time during any of the tests did she produce that type of energy, and granted, in today's test, she was only asked to do it in external and internal rotation, but, you know, she didn't do it in any of the movements on the previous evaluation data either. Q. Meaning February 17? A. Meaning February 17. Q. So of what significance would all this be then? A. It means to me that she's not putting out her full effort when she's been asked for an evaluation. Q. Okay. Would these results that we've just talked about and the findings of the physical therapist be consistent with your impression of the symptom magnifier? A. Yes. Q. In what way? A. For one reason or another she feels she can't move her arms. She's feeling a lot of pain in her arms, right now her arm, right more than her left arm, and unfort -- I can't explain that, and because I can't explain that, I need things like the Lido evaluation to show me on paper some inconsistencies and I think it's done that. I feel there is an inconsistency in the amount of pain she states she has and her physical examination. Q. Okay. Doctor, have you in the past actually examined or treated people who have fallen into the one or two percent categories based on these Lido evaluations, such as Mrs. Eisenbarth? A. Yes. Q. Okay. Where the test results have been felt to be valid? A. Well, frankly I wouldn't put someone who I would expect to be that weak on the test machine. Those type of patients are your severely disabled rheumatoid arthritics. People that are barely able to get to the bathroom. Q. I guess that was my next question, and that was what would you commonly expect to see in a patient who had these kind of test results? A. You know, severe muscular dystrophy, some very severe problem. (Crane Dep., Def. Ex. 14, pp. 42-44) Dr. Crane further testified, "[I]t is my feeling that someone who has had a carpal tunnel operation has a certain amount of disability due to the change in anatomy, and I -- that's usually in the area of about 5 percent of the upper extremity."(Crane Dep., Def. Ex. 14, p. 47) On January 29, 1989, Dr. Crane wrote: This is my first meeting with Mrs. Eisenbarth. I did review Dr. Mead's notes and they are quite interesting. She's complaining of pain just about everywhere. She states that they push the 20 pound limit almost constantly. As she talks about it, she becomes quite tearful, crying, beside herself, wondering how she is supposed to manage life when she has so much pain when she works.... ...Strength in the hands is satisfactory.... Today she points to an area in her arm that is swollen. In fact, that is a muscle belly and it is the same on both arms. IMPRESSION: This lady suffers from chronic tendinitis and myalgias. She also is a considerable symptom magnifier. I informed her that there really isn't anything that I can do to change her problems. (Cl. Ex. C, p. 39, Def. Ex. 9, p. 2) On March 9, 1989, Dr. Crane wrote: It is my feeling that Janice Eisenbarth has reached a point of maximum medical healing. Her symptoms have not changed for some time. She is currently off work because of what I feel are subjective complaints and have been nothing that I could demonstrate objectively. (Def. Ex. 9, p. 12) Dr. John W. Follows Jr., M.D., an orthopedic surgeon, testified by deposition on March 6, 1989, that he first examined claimant April 27, 1987 through a referral by her employer for a second opinion. Follows said his examination primarily consisted of claimant's hands. He thought there was some re-occurrence of her carpal tunnel syndrome on both sides as a result of some scarring and that claimant likely was going to have to change her job description in some way. Dr. Follows examined claimant on September 17, 1987, and her complaints were "numbness in her fingers, coldness in her fingers, dropping things, waking at night." Dr. Follows examined claimant on October 30, 1987, and claimant's complaints changed with the additional complaint that her whole right arm was bothering her. Dr. Follows indicated that claimant never complained to him before as to her shoulder. He found some tenderness in the anterior upper part of claimant's shoulder and some limitation of motion. Dr. Follows testified claimant "seemed to have a lot of so-called functional problems. She seemed to be very emotional, and -- as opposed to objective in her complaints." Dr. Follows believed this to be a factor in the extent of claimant's problems and the nature of her complaints. Dr. Follows acknowledged that he relied upon Dr. Hayreh's letter report and Dr. Pelton's report of May 1987 in arriving at his ultimate opinion and conclusions. Dr. Follows agreed with Dr. Hayreh's opinion that claimant had a mild reflex sympathetic dystrophy. In describing what that is, Dr. Follows said: Many of the symptoms are similar to what she has, feeling of coldness in her hands, or numbness, or swelling, it would be typical. Often with -- with a sympathetic dystrophy. you can see more than you could with her. Often the extremity is swollen, kind of shiny, skin is thin, skin temperature can be colder than normal, or warmer than normal. (Def. Ex. 15, pp. 20-21) Dr. Follows also indicated that his conclusion was based on claimant's subjective complaints rather than objective findings. Dr. Follows also agreed with Dr. Hayreh's assessment that claimant had a significant degree of functional overlay. He described functional overlay as "I think basically means that there is a lot of emotional component, as compared to hard and firm organic pathology going on." Dr. Follows testified he was unable to find any evidence of a permanent physical impairment of claimant. He indicated claimant did have some sensory impairment but he didn't put too much value on that because it was not in a physiologic distribution. Dr. Follows stated that to his knowledge claimant was sent to him for a second opinion and not for an impairment rating. The doctor acknowledged that he refused to give a disability rating. David L. Jenson, D.C., testified by deposition on March 16, 1989, that he first met claimant on October 19, 1987, at which time she was complaining of right arm, right side, neck pain and shoulder pain. Dr. Jenson described the various tests he performed on claimant. Basically, claimant was below normal or tested positive in all the tests involving the hand, wrist, cervical spine area and shoulders. Dr. Jenson stated that his nervoscope test of the spine showed pressure at the 7th cervical and 4th thoracic vertebra. He indicated claimant's x-rays show several kythosis of the cervical spine and a flattening of the thoracic spine. Dr. Jenson testified he concluded on October 19, 1987, that claimant had a branchial neuritis, a cervical subluxation, and generalized pain to the right hand but did not conclude any work-related causation. Dr. Jenson stated that as his treatment of claimant proceeded, he found that claimant's problems would occur in relation to whether claimant went back to work or not. Dr. Jenson described his chiropractic treatment of claimant which basically involved claimant's C7 and T4 areas. These treatments began in October 1987 and continued until June 7, 1988. He also saw claimant on January 24, 1989. Dr. Jenson said that he gave claimant another examination January 15, 1988, and his diagnosis was the same as in October 1987, namely, nerve root irritation in the cervical spine and loss of curvature in the cervical spine. Dr. Jenson related that on claimant's March 11, 1988 office visit he noted she had more than a normal root irritation at that level. He advised claimant that she should consider other type of work. Dr. Jenson explained that every time claimant rested or stayed away from work it seemed like her symptoms were not nearly as bad. Every time she went back to work, she was back in his office with the same recurring condition. Dr. Jenson said he did not attempt to measure the degree of permanency in claimant's arms and shoulder extremities. Dr. Jenson stated that he had no reason to feel claimant was magnifying the symptoms she described. Dr. Jenson said his records indicate claimant came to him on her own and not through the referral by another doctor. He acknowledged that when claimant first saw him in October 1987, her complaints were swelling right hand and wrist. He said that he was the one who discovered the problems in claimant's cervical region. Dr. Jenson acknowledged that it is helpful to review the medical records of other doctors who have treated claimant in order to help determine the mode of treatment. Dr. Jenson said he did not review the medical records of any doctor who examined claimant over the years. Dr. Jenson agreed that claimant oftentimes appeared to be a tense and nervous individual. Dr. Jenson admitted that he does not know what the MMPI psychological test is and did not know claimant took such a test in September 1988 which resulted in an indication that claimant's repressed psychological conflicts are manifested through an increase in pain. Dr. Jenson agreed that grip strength test results are dependent upon the amount of effort that the patient puts into it. Timothy C. Mead, M.D., of the Park Clinic, was claimant's doctor in 1983 up to apparently the time he left his practice in the state of Iowa. Dr. Mead's records on January 23, 1986 reflect: Janice was pulling something at work this week and started developing increasing pain in the left upper extremity. It has now been getting worse and worse for the last couple of days. She has been very uncomfortable. The pain has been in the shoulder radiating down to the elbow and all the way into the forearm. (Cl. Ex. A, p. 39; Def. Ex. 1, p. 17) Dr. Mead's records indicate he proceeded with conservative measures including injections of the carpal tunnel. On October 20, 1986, Dr. Mead's notes reflect: IMPRESSION: 1) Bilateral carpal tunnel syndrome. 2) Rotator cuff tendinitis, left shoulder. PLAN: At this time she will undergo decompression of the carpal canals with division of the transverse and a portion of the volar carpal ligament [sic], tenolysis as necessary and [not legible] as necessary. (Cl. Ex. A, p. 26) Dr. Mead's notes on September 8, 1986 reflect: Mrs. Eisenbarth states that last week she bumped into the metallic rack while work. She struck the left side of her back and thigh region. She did not notice any immediate discomfort but started having pain radiating [sic] on the lateral thigh down to the level of the knee. (C. Ex. A, p. 28) There is a written notation at the bottom of the exhibit which states: "9-23-86 Lower extremity problem never reported to anyone at Snap-On. Saw Dr. on her own." On May 24, 1988, Dr. Mead's notes reflect: "She does have, therefore, some intermittent symptoms into the right carpal tunnel which would probably be a 3% impairment of the upper extremity function." (Def. Ex. 34, p. 22) Sant M.S. Hayreh, M.D., a neurologist and a clinical assistant professor of neurology at the University of Iowa, wrote on May 15, 1987: Mrs. Eisenbarth had a status/post bilateral carpal tunnel release surgery, who at present possibly has a mild reflex sympathetic dystrophy on the right side, but in addition, patient has a significant degree of functional overlay in her symptoms and physical findings. I have,elected to evaluated (sic) her further with a routine lab work up including, x-ray of right wrist and hand and EMG studies. In addition, I have also requested MMPI testing. I will discuss her further management after reviewing above studies. (Def. Ex. 4, p. 3) On June 5, 1987, Dr. Hayreh wrote: Further to my letter of May 15, 1987, I evaluated Mrs. Janice Eisenbarth with the following studies which included; a normal CBC, ESR 16 mm., RA Latex was negative, ANA was negative. Chemistry Panel was within normal limits including normal Blood Sugar of 89, Thyroid functions and electrolytes. The nerve conduction and EMG studies in the median and ulnar nerves on both sides were within normal limits. She was further evaluated with MMPI testing which revealed a significant degree of over control of her feelings, especially that of unhappiness and anger with a tendency for psychological distress to aggravate her physical symptoms. I think Mrs. Eisenbarth probably.has a mild reflex sympathetic dystrophy following carpal tunnel release surgeries which may be causing some of her symptoms but in addition there is a significant degree of functional overlay. Considering her poor response to conservative therapy, I have requested Dr. DeBartolo, who specializes in hand disorders, to evaluate her further and she is schedules [sic] to see him on June 23, 1987 and hopefully he can offer her any further help. I will be in touch with you after hearing from Dr. DeBartolo. (Def. Ex. 4, p. 1) It does not appear from the medical records that claimant saw Dr. DeBartolo, at least there is no medical report from him. There is a note at the bottom of Dr. Hayreh's June 5 1987 letter, which is in handwriting: "6-5-87 Pt cancelled her appointment with Dr. DeBartolo." On December 2, 1987, Peter D. Wirtz, M.D., orthopedic sports medicine specialist, examined claimant and wrote: At the present time she has a tendinitis of the right shoulder with stiffness and will require physical therapy. This patient is capable of full employment within her physiologic strength and dexterity. The right hand continues to be symptomatic but does not have any specific medical therapy or physical therapy that will manage this area. Her physiologic strength and dexterity may range anywhere from 10-20 pounds but is not determinable on a clinical examination. If this patient is capable of employment for a four hour period of time without symptoms then she is capable of that same functional employment activity for a full days work. (Def. Ex. 5, p. 2) On December 21, 1987, Dr. Wirtz wrote: The shoulder stiffness will respond with repeated episodes of physical therapy each day; therefore, the burden of benefit is placed upon the patient rather than seeing a therapist. It is anticipated that this therapy will relieve her symptoms in her shoulder and not leave her with any functional restriction at work. (Def. Ex. 5, p. 3) On January 6, 1988, Dr. Wirtz wrote: In review of the physical examination 12/2/87, the patient lacked 20 degrees of forward flexion which is a 3% impairment of the upper extremity. Her internal rotation lacked 15 degrees which is a 3% impairment of the upper extremity. The external rotation lacked 45 degrees which is a 5% impairment of the upper extremity. Summation with the Combined Tables reveals a 6% impairment of the upper extremity related to loss of motion on the examination 12/2/87. (Def. Ex. 5, p. 4) On April 4, 1988, Dr. Wirtz wrote a letter to claimant's attorney and stated as follows: Regarding 3/21/88 correspondence, this patients (sic] disability is related only the right upper extremity. The shoulder blade separates the upper extremity from the body and the shoulder blade is more proximal to the body than the shoulder joint. At the present time I would be considered an independent examiner regarding this patients [sic] case in that it has been well documented by Dr. Follows as to her tendinitis and no specific medical management. Her recommended management would be limitation of stress and strain while working as this is an overstressed syndrome with a psychological overlay. It is anticipated that any further,consultation will not reveal any different diagnosis or management regardless of who she may be referred to. (Def. Ex. 5, p. 6) The January 12, 1988 progress notes of R. D. Beckenbaugh, M.D., reflect the following: Clinically on examination, the examination was difficult, as when one would reach a certain pain threshold on various portions of the examination such as more than 20 degrees of lateral deviation of the neck or more than 10 seconds of carpal tunnel compression testing, the patient would state that was enough and refuse further examination. On examination, there did appear to be sensitivity of the median and when I insisted on proceeding over the median nerve and carpal testing, she did experience an outburst of crying and a sensation of the pain radiating up her arm up into the shoulder and neck areas and, not describing the headache outright, stated it tended to reproduce her symptomatology. Similarly, however, on resisted flexion and extension of the wrist during the initial part of the examination, the symptoms were aggravated; yet, while attempting to identify resisted extension and flexion of the wrist and later examination while we were testing for strengthening, she was unable to generate any force to even bring on this symptomatology. Sensory examination and others recorded are difficult to interpret but would seem to indicate a rather diffuse sensory loss on the right hand and wrist if her cooperative level is, indeed, accurate. On attempting to test the patient's range of motion as implied above she would reach mobility levels of approximately 20-30% of normal and complain of pain and discomfort involving the arm and neck which would prevent her from going through further mobility exercises and/or testing. She experienced rather marked tenderness at the trigger points over the mid-trapezium and over the supraclavicular fossa areas. There was no tenderness or trigger points about the shoulder. On attempts to examine the musculature of the upper extremity on the right, there was gross giving way which the patient stated was due to pain. I was, therefore, unable to demonstrate any weakness. I might add, however, that during other types of testing, as mentioned above, for trying to aggravate nerve pressure situations, there appeared to be reasonably good strength in the right upper extremity. The left upper extremity testing was normal. The patient describes swelling throughout the arm. She feels there is some swelling present today. Circumferential measurement 4 cm below the elbow flexion crease revealed 26.5 cm on the right dominant arm and 26.0 cm on the left nondominant arm, or in other words, normal limits. I can detect no visual gross swelling myself. X-rays of the hand are within normal limits. During the interview, the patient stated she has had considerable relief from intermittent treatments performed by a chiropractor and upon manipulation of certain elements of her spine, she sometimes obtained hours of relief from the discomfort in her right upper extremity. Additionally during the interview she was somewhat inappropriate in her affects and that she would discontinue or disallow continuous examinations, would break out crying spontaneously, and obviously is very emotionally involved in the whole problem of the right extremity. It is difficult, however, for me to sort out organic pathology. It would certainly appear to be grossly conversion or hysterical reaction and the examination of the motor power and power examination of right upper extremity but one would always be somewhat concerned that there is a pain source which has prevented her from adequately cooperating in these examinations in addition to functional overlay. (Def. Ex. 6, p. 2) Dr. Beckenbaugh's notes of February 26, 1988 reflect the following: Mrs. Eisenbarth returns. Appreciate neurologic opinion. The EMG is totally within normal limits, as was the neurologic exam, with confirmation of findings of giving away functional components and absence of identification of any organic pathology. Agree with Dr. Fealey's recommendations that the patient could get together with her employer and other workers who are having the same problems if they feel the tools are improper at work. Clinically at this time we are unable to make a diagnosis of a pathologic condition other than overuse and muscle tension and are unable to identify any impairment. From my standpoint, could return to work. Suggest discussions with employer. I will try to arrange for her to see Physical Medicine here for instructions in the use of a cervical spine traction unit.to see if this could be of any benefit for the neck tension. We suggested she not see a chiropractor for this condition. I have tried to reassure her that we could not identify a serious problem and EMG indicates no damage to nerves and/or muscles. (Def. Ex. 6, p. 3) On February 24, 1988, Dr. Beckenbaugh wrote Dr. Follows: In summary, as noted in my examination note, we were unable to identify any significant organic pathology in Mrs. Eisenbarth. We have encouraged her to return to normal activities and we did not find evidence of impairment nor specifically suggest any restrictions with regard to work activities. We felt the tension was certainly a factor in this condition and we suggested that if you are having problems, as other (sic] were in the area of her work environment, that you discuss this with her employer to see if she could assist in modifying what she feels now is a current heavy work load associated with obsolete equipment. I am sure that you are closer to the situation and you could perhaps advise her further of this. (Def. Ex. 6, p. 4) Claimant had a psychological evaluation at St. Joseph's Mercy Hospital, in Mason City, and those records on the date of testing, September 20, 1988, reflect the following: She spoke about the continued discomfort in her arms and hands and about the steps she has taken to adjust to her son's death which includes attending a support group. She noted that she continues to work at Snap-On and that she actually enjoys her job. Mrs. Eisenbarth was questioned about how other person's alcoholism has effected her life and she noted that her first husband was an alcoholic. ...Her optimistic attitude may help her to cope with her pain complaints although again there is some indication that her repressed psychosocial conflicts are manifested through an increase in pain. ...Her own problems may then be experienced indirectly, again such as through an intensification of pain complaints. However,.these test results again do not indicate an actual conversion reaction in which pain or physical,dysfunction is solely due to emotional problem. (Def. Ex. 8, p. 2-3) LAW AND ANALYSIS The claimant has the burden of proving by a preponderance of the evidence that the injury of January 23, 1986 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or.rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Iowa Code section 85.34(2)(s) provides, in part: "The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such." Workers' compensation benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under Iowa Code section 85.34(2)(s) and that the degree of impairment caused by a partial loss must be computed on the basis of functional, rather than industrial disability. Simbro v. DeLong's Sportswear, 332,N.W.2d 886 (1983). Claimant alleges three repetitive injuries occurring on January 23, 1986. Two injuries resulted in a bilateral carpal tunnel syndrome surgery in October 1986. The parties agreed to the causal connection between claimant's bilateral carpal tunnel injury and any recurring disability. The degree of permanent disability is in dispute. Claimant contends she also injured her shoulders on January 23, 1986. Claimant could not remember any particular instance involving her shoulders, but believed the repetitive injury occurred during the time she was using her legs, back and hip to push items around when her hands were hurting and swelling. Both claimant's testimony and medical testimony often refer to shoulders and shoulder interchangeably. It was difficult at times to determine which shoulder was involved when singular was used. A good example of the confusion is reflected in the need for claimant's attorney to write Dr. Wirtz to explain which upper extremity the doctor was rating. Dr. Crane testified "it is my feeling that someone who has had a carpal tunnel operation has a certain amount of disability due to the change in anatomy, and I -- that's usually in the area of about 5 percent of the upper extremity." (Def. Ex. 14, p. 47) Dr. Crane did not refer to either the left or the right upper extremity. The undersigned believes he was talking about both left and right and that is why he was not specific. It is also obvious that he was talking about the hands when he was referring to the upper extremity. The greater medical evidence shows that the left and right carpal tunnel involved nothing but the hand and wrist. The wrist has been held to be part of the hand. See Iowa Workers' Compensation Law and Practice, Lawyer and Higgs, Chapter 13-4, p. 110 (1984). Dr. Wirtz's rating of the upper right extremity on January 6, 1988, was obviously referring to the shoulder condition of claimant and not the carpal tunnel injuries. Claimant testified to various physical complaints she related to the bilateral carpal tunnel syndrome and the shoulder injuries. It is obvious the employer can do no good in the mind of claimant. Claimant brought in several other workers as witnesses, some having workers' compensation claims against defendant employer. There is no medical testimony causally connecting claimant's shoulders or arm complaints to the repetitive injury of January 23, 1986. Claimant saw many doctors, many of whom are specialists in their field, who concluded: Dr. John Follows, M.D.: "[T]here is a lot of emotional components, as compared to hard and firm organic pathology going on. There is a significant degree of functional overlay." (Def. Ex. 15, p. 22) Sant M.S. Hayreh, M.D.: "[C]laimant had a significant degree of functional overlay." (Def. Ex. 5, p. 1; Ex. 15, p. 22) Michael W. Crane, M.D.: "She is currently off work because of what I feel are subjective complaints and have been nothing that I could demonstrate objectively." (Def. Ex. 9, P. 12) "She also is a considerable symptom magnifier." (Def. Ex. 9. p, 2) Peter D. Wirtz, M.D.: "Her recommended management would be limitation of stress and strain while working as this is an overstressed syndrome with a psychological overlay." (Def. Ex. 5, p. 6) R.D. Beckenbaugh, M.D., of the Mayo Clinic: "EMG is totally within normal limits, as was the neurologic exam, with confirmation of findings of giving away functional components and absence of identification of any organic pathology." (Def. Ex. 6, p. 3) St. Joseph Mercy Hospital - Psychological Evaluation: "[H]er repressed psychosocial conflicts are manifested through an increase in pain." (Def. Ex. 8, p. 2) On more than one occasion, claimant was convinced she had swollen arms and the doctor could not see any swelling. The undersigned is disturbed by the medical evidence that indicates there is "a lack of effort".on claimant's part in certain tests or evaluations. Dr. Crane testified as the results of the Lido tests. Claimant was not putting out the effort that the doctor thought she should and could. It appeared claimant was faking. Her symptoms were not along the lines of anatomic distribution. There is obviously some pain. There is no distinction or division as to what pain is from her emotional problems and those that are truly from the alleged injuries. There is no medical opinion from a psychiatric specialist relating any of claimant's emotional problems to her alleged injuries. There is a notation in claimant's Mercy Hospital psychological evaluation when claimant was tested on September 20, 1988 (def. ex. 8, p. 2). Claimant discussed the steps she is taking to adjust to her son's death and is attending a support group, and how her first husband's alcoholic problem has affected her life. The undersigned believes Dr. Crane sums up claimant's work-related bilateral carpal tunnel condition more accurately when he testified "it is my feeling that someone who has had a carpal tunnel operation has a certain amount of disability due to the change in anatomy, and I -- that's,usually in the area of about 5 percent of the upper extremity." (Crane Dep., Def. Ex. 14, p. 45) The undersigned accepts Dr. Crane's opinion that claimant has an impairment of 5 percent to her left upper extremity and 5 percent to her right upper extremity, and believes the doctor is referring to the left and right hand. The parties stipulated that the bilateral carpal tunnel syndrome is a result of a single injury on January 23, 1986. This finding brings into play Iowa Code section 85.34(2)(s). Dr. Crane referred to 5 percent of the upper extremity. The question arises whether this is 5 percent of each hand. Since a 5 percent impairment to the upper extremity is the same under the AMA Guides as 5 percent to the hand, the question is moot. Iowa Code section 85.34(2)(s) requires the use of the combined values chart. A 5 percent impairment to the left and right upper extremities converts to 3 percent of the whole person per Table 3 AMA Guides To The Evaluation Of Permanent Impairment, 3rd Edition. This equals a 6 percent body as a whole impairment on the combined values chart. The undersigned finds claimant has a 6 percent impairment to her body as a whole as a result of her bilateral carpal tunnel syndrome injury on January 23, 1986. Claimant is entitled to 30 weeks permanent partial disability benefits. The parties stipulated to the time claimant was off work and paid healing period benefits, accordingly. Claimant had several healing periods and there is no dispute as to the healing period benefits paid. Without setting out the numerous specific periods of time, the deputy accepts the stipulation and finds that claimant is entitled to 56.286 weeks of healing period benefits. These were paid at the rate of $230.44. In fact, as stipulated by the parties at the hearing, the rate should be $229.50 per week. The parties disputed whether there was any causal connection between the claimant's shoulder injuries of January 23, 1986 and her claimed disability. There is insufficient medical evidence causally connecting claimant's alleged disability and her alleged repetitive shoulder injuries on January 23, 1986. There is no impairment rating by any doctor except Dr. Wirtz. Dr. Wirtz referred to claimant's psychological overlay. It appears that if claimant managed her stress, this could solve her pain magnification and alleged physical complaints in this area. It would be too speculative for the undersigned to outguess and determine any percent of disability. Claimant must prove a causal connection. The undersigned can sympathize with claimant. She obviously has emotional problems. Claimant has the burden of proof. She has not carried that burden as to her alleged shoulder injuries. The mere fact that claimant has an injury does not make defendants liable for the consequences which are not causally connected to the injury. The undersigned finds that the employer has attempted to work within claimant's restrictions. It appears nothing will satisfy claimant as long as she has her emotional problems and those symptoms that several doctors refer to as functional overlay or pain magnification. This deputy feels claimant is able to perform many jobs the employer has offered her under the present circumstances. Claimant's employer has made reasonable efforts to accommodate claimant. If claimant sought help,and a cure for her emotional problems that the undersigned has found not proved to be causally connected to her injury, claimant could better perform the duties. This deputy believes that when this litigation ends claimant will better grasp reality and true cause of many of her problems with further help. There is no expert medical evidence causally connecting claimant's emotional problems to her work-related injuries. This deputy does not have the medical expertise nor can he speculate as to causation. The remaining issue for resolution is whether claimant is entitled to Iowa Code section 86.13 penalty benefits. Dr. Crane's testimony on February 29, 1989 was the first medical opinion as to impairment to both upper extremities. As found herein, he is referring to impairment resulting from the bilateral carpal tunnel syndrome injuries, not the shoulder. The parties agreed there was a bilateral carpal tunnel syndrome injury on January 23, 1986. This should immediately have made the parties aware of Iowa Code section 85.34(2)(s) and consideration of permanent partial disability benefits based on 500 weeks. Without an impairment rating to two members, 85.34(2)(s) would not be applicable. Defendants paid 15 weeks based on the 6 percent right upper extremity impairment soon after that determination was made. With all the nonwork-related emotional problems claimant has had, the medical record is confusing. Defendants' reluctance to pay additional weekly or lump sum payments was reasonable under the circumstances. This deputy finds that defendants did not delay the commencement or terminate weekly benefits without reasonable or probable cause or excuse. It has been held previously that 86.13 does not apply to medical benefits. See Klein v. Furnas Electric Co., 384 N.W.2d 370 (1986). FINDINGS OF FACTS THEREFORE, it is found: 1. Claimant received a work-related injury to her two hands in a single accident on January 23, 1986, which resulted in a bilateral carpal tunnel release operation in October 1986. 2. Claimant has a 5 percent impairment to each of her hands as a result of her bilateral carpal tunnel injury on January 23, 1986. 3. Claimant failed to prove that her alleged disability to her right or left shoulder was the result of a repetitive injury on January 23, 1986. 4. Claimant has no impairment to her left or right shoulder as a result of her injury on January 23, 1986. 5. Claimant incurred 56.286 weeks of healing period benefits as a result of her work-related injuries on January 23, 1986 as stipulated to by the parties. 6. Defendants made a reasonable effort to accommodate claimant at work and retain her on the job. 7. Claimant has a significant degree of functional overlay and is a symptoms magnifier. 8. Claimant's repressed psychological conflicts are manifested through an increase in pain. 9. Claimant has failed to prove that any of her emotional problems are the result of her work-related injuries on January 23, 1986. 10. Claimant has failed to prove that defendants delayed the commencement or terminated benefits without reasonable or probable cause or excuse. CONCLUSIONS OF LAW THEREFORE, it is concluded: Claimant incurred 56.286 weeks of healing period benefits at the rate of $229.50. Claimant has a 5 percent impairment to each of her hands which is causally connected to a single injury on January 23, 1986. Claimant's alleged injury to her right or left shoulder is not causally connected to any disability she may now have. Many of claimant's present problems result from her emotional problems and repressed psychological conflicts which are being manifested through an increase in pain. Claimant is not entitled to 86.13 benefits. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits in the stipulated amount of fifty-six point two eight six (56.286) weeks at the stipulated rate of two hundred twenty-nine and 50/100 dollars ($229.50). Defendants shall receive credit for the fifty-six point two eight six (56.286) weeks of healing period benefits already paid at the rate of two hundred thirty and 24/100 dollars ($230.24) and shall be given further credit for the overpayment against the amounts hereafter ordered. That defendants shall pay unto claimant thirty (30) weeks of permanent partial disability benefits at the rate of two hundred twenty-nine and 50/100 dollars ($229.50) beginning at the stipulated date of December 2, 1987. Defendants shall pay the accrued weekly benefits in a lump sum and receive credit for benefits previously paid. Defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Defendants shall file an activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services rule 343-3.1. Signed and filed this 14th day of August, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Mark S. Soldat Attorney at Law 714 E. State St Algona, IA 50511 Mr. Paul C. Thune Attorney at Law 218 6th Ave, Ste 300 P.O. Box 9130 Des Moines, IA 50306 5-1400; 5-1803; 5-2204; 5-1108 Filed August 14, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER JANICE EISENBARTH, Claimant, File No. 865360 vs. SNAP-ON TOOLS CORPORATION, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ROYAL INSURANCE COMPANY, Insurance Carrier, Defendants. 5-1400 Claimant incurred a bilateral carpal syndrome injury and an alleged injury to her shoulders, all on the same date. Claimant failed to prove any disability to her shoulders which is causally connected to her alleged work injury. 5-1803 Claimant incurred a 5% impairment to each of her hands as a result of a single repetitive injury. 85.34(2)(s) is applicable and resulted in a 6% impairment to the body as a whole under the AMA Guides Combined Charts. Thirty weeks permanent partial disability benefits awarded. 5-2204 Claimant was found to have a significant degree of functional overlay and was a symptoms magnifier. 5-2204 Claimant found to have repressed psychological conflicts which were manifested through an increase in pain. 5-1108; 5-2204 Claimant did not prove nor was there any evidence associating her emotional problems with her work injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT L. MORGAN, Claimant, vs. File No. 865365 ROBERT BARNES, d/b/a BARNES, A P P E A L CONSTRUCTION CO., D E C I S I O N Employer, and F I L E D GENERAL CASUALTY COMPANY, DEC 29 1989 Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER and SECOND INJURY FUND OF IOWA, Defendants. STATEMENT OF THE CASE Claimant appeals from a ruling by the deputy industrial commissioner sustaining a motion for summary judgment. The record on appeal consists of the pleadings, motions and rulings in the file. Claimant filed an appeal brief. ISSUES The issues as stated by claimant are as follows: 1. This case is distinguishable from Sawyer v. National Transportation Co. file No. 789205 relied on by the Deputy Commissioner in that the matter had been fully resolved and settled before the Nebraska Division of Workers' Compensation while in this case the payments were made at the choice of the defendants for their benefit and do constitute "weekly compensation, as defined in Section 85.26. 2. When the Employer-Insurance Carrier voluntarily make weekly compensation payments to a worker injured in Iowa (whether the compensation payments are the correct rate or not) and subject to the Iowa Workers' Compensation Laws, are they required to file with the Industrial Commissioner....a notice of Commence [sic] of the Payments? (86.13) a. If affirmative, does defendant Employer-Insurance Carrier's failure to file this notice in this case stop the running of the time periods in Section 85.26 as of the date of first payment? 3. Do weekly compensation payments made by the Employer-Insurance Carrier voluntarily made to an injured worker subject to the Iowa Workers' Compensation Laws extend the statute of limitations for 3 years from the last payment, whether the rates are correct or not as defined in Section 85.26(1)? 4. Can the Employer-Insurance Carrier unilaterally and without disclosure to the worker injured in Iowa and eligible to file a claim in either Missouri or Iowa make payments weekly to the worker for almost three years using the rate of the state where the benefits are substantially less and claim that the statute of limitations has run because they paid the worker weekly compensation but under the rate of the lesser state? APPLICABLE LAW Iowa Code section 85.26 states in pertinent part: 1. An original proceeding for benefits under this chapter or chapter 85A, 85B, or 86, shall not be maintained in any contested case unless the proceeding is commenced within two years from the date of the occurrence of the injury for which benefits are claimed or, if weekly compensation benefits are paid under section 86.13, within three years from the date of the last payment of weekly compensation benefits. 2. An award for payments or an agreement for settlement provided by section 86.13 for benefits under this chapter or chapter 85A or 85B, where the amount has not been commuted, may be reviewed upon commencement of reopening proceedings by the employer or the employee within three years from the date of the last payment of weekly benefits made under the award or agreement. ANALYSIS Claimant seeks review of a ruling by the deputy industrial commissioner that sustained defendants' motion for summary judgment. The ruling is based on section 85.26(1), the statute of limitations. Claimant was injured in the state of Iowa on July 14, 1984. Claimant was a resident of the state of Missouri at the time. The employer was based in Missouri. The employer voluntarily paid benefits to claimant under Missouri's workers' compensation law. No payments were made under Iowa workers' compensation law. Iowa Code section 85.26(1) requires that an original proceeding for benefits be instituted within two years of the date of injury, or, if benefits have been paid pursuant to Iowa Code section 86.13, within three years of the last payment. Claimant's petition was filed March 9, 1988. Claimant maintains that the payments under Missouri's workers' compensation statute should extend the time for filing his Iowa action. However, the case of Sawyer v. National Transportation Co., N.W.2d (Iowa 1989) establishes that payment of workers' compensation benefits pursuant to another state's workers' compensation statute does not constitute the payment of benefits under Iowa Code section 86.13. Claimant seeks to distinguish the Sawyer case by pointing out that the Nebraska payments made in that case were based on an award of benefits, whereas claimant in this case did not receive an award but merely voluntary payments of benefits. However, the Sawyer case concluded that the "award for payments or an agreement for settlement provided by section 86.13 for benefits under this chapter...." language,in section 85.26(2) referred to Iowa benefits. Similarly, "if weekly compensation benefits are paid under section 86.13...." in section 85.26(1) refers to payment of weekly benefits under Iowa law. The three year statute of limitations in either section 85-26(1) or 85.26(2) is available only when payments are made under Iowa's workers' compensation law. Payments under another state's laws, whether in the form of an award or voluntary payments, do not extend the Iowa statute of limitations from two years to three years from the last payment. Similarly, the provisions of section 86.13, which toll the running of the statute of limitations when the employer fails to file a notice of commencement of payments, contemplates commencement of payments under Iowa's workers' compensation law. Claimant argues that he was "deceived" by employer's voluntary payments to him under Missouri law, which also resulted in a lower rate of payment than he feels he was entitled to under Iowa law. However, the employer is not under an obligation to inform claimant of what jurisdictions he might have a cause of action in. Similarly, the employer is not obligated to inform claimant which state might offer him the most favorable rate. Finally, the employer is not obligated to inform claimant of the various statutes of limitations which might apply to his situation. These matters are claimant's own responsibility. Claimant neglected to seek legal counsel until the Iowa statute of limitations had expired. He assumed the employer would pay him the highest rate he might be entitled to. Claimant relied on this assumption at his own peril. Claimant's petition was not filed within the time period required by the statute of limitations. The decision of the deputy granting the motion for summary judgment was appropriate. This agency lacks jurisdiction to consider claimant's petition. FINDINGS OF FACT 1. Claimant, a resident of Missouri, was injured in the state of Iowa on July 14, 1984. 2. Claimant was paid workers' compensation benefits on a voluntary basis under Missouri workers' compensation law. 3. Claimant did not file a petition for Iowa workers' compensation benefits within two years of the date of injury. 4. Claimant did not receive an award of benefits, settlement, or voluntary payment of benefits under Iowa workers' compensation law. CONCLUSIONS OF LAW Claimant failed to file his petition for workers' compensation benefits within the statute of limitations. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendants' motion for summary judgment should be and is hereby sustained. Claimant shall take nothing as a result of this proceeding. Signed and filed this 29th day of December, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. William C. Paxton Attorney at Law P.O. Box 1035 Independence, MO 64051 Mr. Elliott R. McDonald, Jr. Attorney at Law P.O. Box 2746 Davenport, Iowa 52809 Mr. James E. Thorn Attorney at Law 310 Kanesville Blvd. P.O. Box 398 Council Bluffs, Iowa 51502 Ms. Barbara J. Danforth Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 2402 Filed December 29, 1989 David E. Linquist BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT L. MORGAN, Claimant, vs. File No. 865365 ROBERT BARNES, d/b/a BARNES, CONSTRUCTION CO., A P P E A L Employer, D E C I S I 0 N and GENERAL CASUALTY COMPANY, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. 2402 Affirmed deputy's ruling sustaining a motion for summary judgment for failure to file action within statute of limitations. Claimant was a resident of Missouri, injured in Iowa while working for a Missouri company. Claimant was voluntarily paid benefits under Missouri law. Claimant filed an Iowa action for benefits after two year statute of limitations passed. Claimant argued that payment under Missouri's law provided an extension under Iowa Code section 86.13. However, 86.13 refers to payments "under this chapter," and it was held that payments under another state's system would not toll the statute of limitations in Iowa. Claimant sought to distinguish a similar holding in Sawyer v. National Transp. Co., 448 N.W.2d 306 (Iowa 1989) by pointing out that Sawyer involved an award of benefits, while this case involved a voluntary payment only. It was held that section 85.26(1) referred to benefits paid "under section 86.13," and therefore out of state voluntary payments would not extend the statute of limitations. Claimant's argument that he was "deceived" by employer's voluntary Missouri payment held not to have merit. Claimant relied on employer's decision to pay under Missouri system and failed to ascertain other legal options at his own peril. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : VERNE LARRY JOHNSON, : : Claimant, : : vs. : : File No. 865376 FISHER CONTROLS INTERNATIONAL : INC., : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding temporary total disability benefits as the result of an alleged injury on October 23, 1987. The record on appeal consists of the transcript of the arbitration proceeding and joint exhibits 1 through 27. Both parties filed briefs on appeal. ISSUES Defendants state the following issues on appeal: 1. Whether or not claimant received a personal injury arising out of and in the course of his employment with Fisher Controls on or about October 23, 1985, including whether or not there is a causal relationship between an incident occurring on said date and claimed disability; and 2. Whether or not claimant is entitled to temporary disability benefits for time incapacitated as a result of a personal injury arising out of and in the course of his employment, if any. FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed September 19, 1989 are adopted as final agency action. CONCLUSIONS OF LAW Claimant bears the burden to show by a preponderance of Page 2 the evidence that the condition that resulted in his temporary inability to work is causally connected to his work injury. The medical evidence consists largely of the testimony of Carl O. Lester, M.D., and John Grant, M.D. Dr. Lester testified that claimant's ulnar nerve dislocation was not temporarily aggravated by his work activity, although claimant states that Dr. Lester originally told him that it was. Nevertheless, Dr. Lester's testimony at the time of the hearing was clearly that there was no causal connection. Dr. Grant more than once referred to a causal connection between claimant's condition and his work activity as "possible." A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). When pressed by claimant's attorney, Dr. Grant did describe the causal connection as "probable," but then immediately stated that he used the terms "possible" and "probable" interchangeably. Dr. Lester is claimant's treating physician, and has more contact with claimant and his condition. Dr. Grant was an examining physician. Claimant bears the burden of proof. Dr. Grant's testimony, if read as merely opining that a causal connection is "possible," reinforces Dr. Lester's opinion as to a lack of causal connection. Even if Dr. Grant's testimony is read as stating that a causal connection is "probable," the opinion of Dr. Lester is given the greater weight in light of his greater familiarity with claimant's condition. Claimant has failed to carry his burden of proving a causal connection between his ulnar nerve dislocation and his work injury. WHEREFORE, the decision of the deputy is reversed. order THEREFORE, it is ordered: That claimant shall take nothing from these proceedings. Page 3 That claimant shall pay the costs of the appeal including the transcription of the hearing. Defendants shall pay all other costs. Signed and filed this ____ day of February, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Gail E. Boliver Attorney at Law 8 East Southridge Rd Marshalltown, Iowa 50158 Mr. E. J. Giovannetti Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 1108.50 Filed February 28, 1992 Byron K. Orton LPW before the iowa industrial commissioner ____________________________________________________________ _____ : VERNE LARRY JOHNSON, : : Claimant, : : vs. : : File No. 865376 FISHER CONTROLS INTERNATIONAL : INC., : : A P P E A L Employer, : : D E C I S I O N and : : CIGNA, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 1108.50 Where treating physician stated there was no causal connection, and where examining physician stated that causal connection was only "possible," claimant failed to carry burden of proof on causation. Claimant's attorney did get examining physician to say that causal connection was "probable," but the physician then said he used the two terms interchangeably. Even if this testimony is read as "probable," greater weight was given to treating physician due to greater contact with claimant. BEFORE THE IOWA INDUSTRIAL COMMISSIONER VERNE LARRY JOHNSON, Claimant, File No. 865376 vs. A R B I T R A T I 0 N FISHER CONTROLS INTERNATIONAL, INC., D E C I S I 0 N Employer, F I L E D and Sep 19 1989 CIGNA, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Verne Larry Johnson, claimant, against Fisher Controls International, Inc., employer, and Cigna Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on October 23, 1987. On March 9, 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 evidence was received during the hearing. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Fisher Controls at the time of the alleged injury; 2. The alleged injury was not a cause of permanent disability; 3. Claimant is only seeking temporary total disability benefits from December 14, 1987 through February 19, 1988; and, 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $362.66. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. Whether there is a causal relationship between the work injury and the claimed disability; and, III. The extent of claimant's entitlement to weekly benefits for disability. 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 is 39 years of age and a high school graduate. Claimant testified that he has worked for Fisher Controls since 1975, primarily as a welder. Claimant testified that although the job varies from day-to-day, he was required to lift and handle heavy objects using both of his hands and arms on a regular basis. Claimant testified that on October 23, 1987, he was working away from his normal welding booth and while pushing a 200 pound "flat" he felt a sharp pain in both of his arms extending from his wrists to his shoulders. He said that the pain subsided after a few minutes but that evening while attempting to sleep his arms went numb. Claimant sought and received medical treatment from Carl 0. Lester, M.D., a board certified orthopedic surgeon. Dr. Lester had treated claimant previously for pain and numbness in the wrist, fingers and hands which Dr. Lester attributed to mild carpal tunnel syndrome. Dr. Lester, however, diagnosed that claimant was suffering from an additional problem called a dislocated ulnar nerve in both of his elbows. In December 1987 and again in January 1988, claimant underwent surgery by Dr. Lester to transfer the nerves in both of his elbows back to their correct positions. Claimant returned to work in December 1988. In May 1988, claimant reported to Dr. Lester that virtually all of his arm and hand pain had subsided. According to his office notes, this surprised Dr. Lester as he did not connect claimant's hand and neck problems to the ulnar nerve dislocation. Upon inquiry of the doctor by claimant and defense attorneys, Dr. Lester.opined that none of his treatment of claimant's ulnar nerve problems were causally connected to any of claimant's work at Fisher Controls or to the pushing incident in October 1987. Dr. Lester states that claimant's problems were solely a congenital defect in the tissue surrounding the ulnar nerves in the elbows allowing the nerve to move about. He attributed claimant's recovery after the surgery from his hand and arm pain as being off work during recovery from the ulnar nerve surgery. Claimant was examined in July 1988 by John Grant, M.D., another board certified orthopedic surgeon. Although Dr. Grant agreed with the diagnosis and treatment of claimant's elbow problems by Dr. Lester, Dr. Grant opined in his deposition testimony that claimant's work probably aggravated the condition necessitating the surgeries. He based his opinion upon history given to him by claimant that claimant had few problems before the October 1987 incident. Claimant testified that although he had occasional numbness and pain prior to the pushing incident, it was only after that event,that the pain and numbness became continuous. All the physicians opined that claimant has obtained a good result from the surgeries and in all likelihood he will not experience future problems. Claimant testified that his pain and numbness in his hands and arms and fingers and elbows and upper arms have subsided even after his return to full duty in February of 1988. Claimant's appearance and demeanor at hearing indicated that he was testifying truthfully. APPLICABLE LAW AND ANALYSIS I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury which arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited therein. It should be first noted that a credibility finding was necessary due to the differences between claimant's testimony and the medical records of Dr. Lester. There is little question that claimant suffered some sort of injury in October 1987 to his arms. Claimant was found credible from his appearance and demeanor and he testified as to the onset of pain in both arms in October 1987. The records of Dr. Lester do not show a complaint of arm pain at that time. Dr. Lester testified that it was possible that he did not record all of claimant's complaints at that time. Claimant testified that he did report such arm pain to not only Dr. Lester but to company officials. The fighting issue, however, is not the injury but the causal connection of this incident to the ulnar nerve dislocation which precipitated temporary disability. II. The claimant has the burden of proving by a preponderance of the evidence that the work injury is a cause of the claimed disability. A disability may be either temporary or permanent. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was a cause of permanent physical impairment or permanent limitation in work activity. However, in some instances, such as a job transfer caused by a work injury, permanent disability benefits can be awarded without a showing of a causal connection to a physical change of condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). The question of causal connection is essentially within the domain of expert medical opinion. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The opinion of experts need not be couched in definite, positive or unequivocal language and the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Furthermore, if the available expert testimony is insufficient along to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Asse Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith, 290 N.W.2d 348, 354. In the case of a preexisting condition, an employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). In the case sub judice, there is a clear difference of opinion between two board certified orthopedic surgeons as to whether claimant's work aggravated the ulnar nerve dislocation necessitating the surgery and disability. Normally, when faced with two physicians of equal qualifications, the undersigned gives greater weight to the treating physician as that physician is more familiar with claimant's problems on a clinical basis. However, in this case, the views of Dr. Grant are more convincing because his views are the most consistent with claimant's credible testimony as to the course of his pain. Claimant stated that it was not.until the October 1987 incident that his pain became continuous.,requiring him to seek treatment from Dr. Lester. Claimant also stated that almost all of his pain improved after the surgeries, to the surprise of Dr. Lester. Dr. Lester felt that this improvement was due to being off work following the surgery, not due to the surgery. However, this does not explain why claimant remained improved following his return to full duty in February of 1988. Therefore, Dr. Lester is not convincing and it will be found that claimant's work and the incident of October 1987 was at least one significant factor precipitating the surgeries and temporary disability. III. When disability exceeds two weeks in length, claimant is entitled under Iowa Code section 85.33(1) to temporary total disability from the first day of disability until claimant returns to work or until claimant is medically capable of returning to substantially similar work to the work he was performing at the time of the injury, whichever occurs first. Claimant testified that he returned to work after February 19, 1988. FINDINGS OF FACT 1. Claimant was a credible witness. 2. On October 23, 1987, claimant suffered an injury to both elbows which arose out of and in the course of his employment with Fisher Controls. This injury consisted of an aggravation of a congenital defect in claimant's elbows resulting in dislocations of ulnar nerves. 3. The work injury of October 23, 1987, was a cause of a period of total disability from work beginning on December 14, 1987 through February 19, 1988. During this period of time, claimant was totally disabled from work as a result of treatment for his elbow conditions consisting of bilateral surgeries. Claimant returned to work after February 19, 1988. CONCLUSIONS OF LAW Claimant has established under law entitlement to 9 5/7 weeks of temporary total disability. ORDER 1. Defendants shall pay to claimant temporary total disability benefits from December 14, 1987 through February 19, 1988, at the rate of three hundred sixty-two and 66/100 dollars ($362.66) per week. 2. Defendants shall pay accrued weekly benefits in a lump sum. 3. Defendants shall receive credit for previous payments of benefits under a non-occupational group insurance plan as stipulated and set forth in the prehearing report. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the cost of this action pursuant to Division of Industrial Services Rule 343-4.33. 6. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 19th day of September, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Gail E. Boliver Attorney at Law 8 E. Southridge Rd. Marshalltown, Iowa 50158 Mr. E. J. Giovannetti Attorney at Law Suite 111, Terrace Center 2700 Grand Ave. Des Moines, Iowa 50312 5-1108 Filed September 19, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER VERNE LARRY JOHNSON, Claimant, File No. 865376 vs. A R B I T R A T I 0 N FISHER CONTROLS INTERNATIONAL, INC., D E C I S I 0 N Employer, and CIGNA, Insurance Carrier, Defendants. 5-1108 - Medical causation issue - nonprecedential BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAVID L. DEVETTER, Claimant, vs. File No. 865385 CAMANCHE COMMUNITY SCHOOL, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed June 20, 1991 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David L. DeVetter 437 6th St. Tracy, MN 56175 REGULAR & CERTIFIED MAIL Mr. E. J. Giovannetti Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 9998 Filed July 10, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAVID L. DEVETTER, Claimant, vs. File No. 865385 CAMANCHE COMMUNITY SCHOOL, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ 9998 Summary affirmance of deputy's decision filed June 20, 1991. 5-1108.2; 2402 Filed June 20, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : DAVID L. DEVETTER, : : Claimant, : : vs. : : File No. 865385 CAMANCHE COMMUNITY SCHOOL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108.2 Claim of psychological injury denied due to lack of medical expert opinion to back up claimant's lay testimony. 2402 Citing supreme court precedent, mental disability does not toll the operation of the statute of limitation provisions of Iowa Code section 85.26. That case stated that absent a specific exception in the statute, nothing tolls a statute of limitation. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DAN SEPICH, : : Claimant, : : vs. : File No. 865492 : ANDERSON ERICKSON DAIRY, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Dan Sepich against his former employer, Anderson Erickson Dairy, based upon an alleged injury of January 19, 1988. Claimant seeks additional healing period and permanent partial disability compensation. Also in dispute is the rate of compensation. The case was heard and fully submitted at Des Moines, Iowa, on January 21, 1992. The record consists of jointly offered exhibits A through S and testimony from Dan Sepich, Tom Davidson and Jeff Johnson. FINDINGS OF FACT Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Dan Sepich is a 28-year-old married man who obtained a GED after dropping out of high school in the twelfth grade. He has no further formal education or training. His work history consists of his present job of delivering flowers, cleaning buildings, janitorial work, installing siding on homes, servicing heating and air conditioning units and his work with Anderson Erickson Dairy where he delivered milk to customers. With Anderson Erickson Dairy, he earned $6.00 per hour and worked as needed. He did not hold a second job while working for Anderson Erickson Dairy and earned enough money to support himself at a level which he found acceptable. Sepich was injured on January 19, 1988, when he slipped on ice and twisted his back while making a delivery at the Hyperion Club near Des Moines, Iowa. It is possible that Page 2 some earlier events had precipitated or predisposed him to this back injury. Sepich thereafter entered into a course of treatment. Orthopaedic surgeons Martin S. Rosenfeld, D.O., and William R. Boulden, M.D., both recommended surgery after an MRI showed a herniated disc, but Sepich has consistently declined to undergo surgery. Dr. Boulden's recommendation for surgery was made on June 16, 1988, while the recommendation from Dr. Rosenfeld was made on October 31, 1988. It was on September 16, 1988, that an impairment rating of 10 percent of the body as a whole was made under the direction of Dr. Boulden (joint exhibit E). A 20 percent impairment rating was made by Dr. Rosenfeld on January 2, 1989 (joint exhibit D). Claimant has been subsequently seen by neurosurgeon Robert A. Hayne, M.D., who diagnosed him as having a low back strain and characterized his neurological exam as being normal. Dr. Hayne recommended that claimant wear a low back support and limit his lifting to 40-50 pounds (joint exhibit H). It is noted that Drs. Rosenfeld and Boulden both found abnormalities in claimant's neurological examination. Claimant was hospitalized on April 17, 1989. The history and records regarding this are quite limited and the only indication which ties that hospitalization to the claimant's back is found in the history and physical where it indicates that he injured his back approximately a week ago and it is that event to which he attributes his emotional problem. The history also notes back pain continuing since slipping on ice approximately one and one-half years ago. He was diagnosed as having psychotic depression (joint exhibit F). Claimant received further emotional treatment from Sam L. Graham, Ph.D., commencing in January of 1990 with follow-up by psychiatrist Richard D. Turner, M.D., commencing in March of 1990. When initially seen by Graham, a diagnosis of major depressive disorder was made. The treatment which was recommended was pain management. Claimant underwent a pain management program and, by February 27, 1990, it was reported that he had reached a plateau in his treatment (joint exhibit I). Dr. Turner reported that claimant was not exhibiting further depressive symptoms (joint exhibit J). Based upon the foregoing, it is found that, when claimant was hospitalized commencing April 17, 1989, back problems which resulted from the January 1988 injury were the underlying cause. While some seemingly insignificant movement or motion may have somehow exacerbated his symptoms, the primary underlying cause of those symptoms was the original injury. It is further found that claimant's depression was likewise caused by the back injury. Chronic pain is known to be a common cause of depression. The fact that pain management treatment was applied successfully to treat the Page 3 claimant's depression is very strong evidence that the claimant's chronic pain had produced the depression. Claimant had obtained the services of vocational consultant Jeff Johnson and others in attempting to find work. He was eventually successful in finding work on his own with his current employer, Park Florist. Despite his well-documented herniated disc, physical limitations and symptoms which typically accompany such a condition, he is employed working nearly as many hours as he worked for Anderson Erickson Dairy and earning nearly as much as he would be earning per hour if he were still employed in his original capacity with Anderson Erickson Dairy. Anderson Erickson Dairy was an employment setting which provided an opportunity for advancement to what was characterized as a full-time position with fringe benefits and higher pay. That opportunity does not appear to be as readily available with his present employer. Claimant had commenced his employment with Anderson Erickson in September of 1987 and he was injured in January of 1988. There is testimony in the record that he was carried as a part-time employee, though the record also shows that during the 13 weeks preceding the week in which the injury occurred, he worked an average of 37 1/2 hours per week and earned an average of $225.46 per week (joint exhibit Q). While those earnings are less than the earnings of a full-time route person with Anderson Erickson, they are not necessarily irreconcilable with the wages of full-time route delivery persons or truck drivers with other employers or with the earnings of other full-time individuals in the dairy product industry. It is found that the claimant's earnings with Anderson Erickson Dairy were not less than the usual weekly earnings of a regular full-time adult laborer in the line of industry in which the claimant was employed in the central Iowa locality. The record indicates that claimant worked as work was available and that his hours of work varied considerably from week to week. There is no indication that the low number of hours worked during the week ending October 31, 1987, was in any way atypical, particularly in view of approximately the same gross earnings for the week ending September 5, 1987, and the quite large offsetting gross earnings for the week ending October 24, 1987. It is therefore found that the earnings for the weeks ending October 24, 1987, through January 16, 1988, accurately represent the claimant's customary earnings with Anderson Erickson Dairy. Claimant's gross earnings during that 13-week period are $2,931.00. The average weekly earnings are $225.46. CONCLUSIONS OF LAW The workers' compensation system is a structured personal injury system which has eliminated the requirement for the showing of negligence on the part of the employer and the defense of contributory negligence or assumption of Page 4 risk on the part of the employee. It also provides a structured form of damages which are similar, though not identical, to the damages recoverable under the tort laws. Iowa Code section 85.36 provides wage replacement through what is commonly referred to as the rate of compensation. There are 12 numbered subparagraphs under that section. The order in which they appear is not any indicator of which section is to be first applied. The directive for determining which of those numbered subsections is to be applied is found in the initial unnumbered paragraph of Code section 85.36. It provides that "[t]he basis of compensation shall be the weekly earnings of the injured employee at the time of the injury" and that the "[w]eekly earnings means the gross . . . earnings . . . to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, . . ." In this case, as in many, more than one of the numbered subparagraphs could be applied. The one which should be applied is the one which most accurately arrives at the customary earnings. In this case, the claimant worked and was paid by the hour, and therefore subsection 6 could be applied. It is also urged that subsection 10 be applied since his employer considered him to be "part-time" and he earned less than what was typically earned by persons who performed a similar function but were considered to be full-time by the employer. It is noted that Code section 85.36(10) does not make reference to full-time employees with the same employer or necessarily performing precisely the same occupation and job duties. It makes reference to the usual weekly earnings of the regular, full-time adult laborer in the line of industry in which the employee is injured. The term "industry" is much broader than a particular position with a single employer. A basic rule of compensation is to compensate the injured person for the loss that was actually sustained, no more and no less. The workers' compensation law has been consistently held to be a collection of statutes which are to be construed liberally to benefit the injured employee and that its beneficent intent should not be defeated by reading something into the statute which is not there or by a narrow and strained construction. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981); Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); Disbrow v. Deering Imp. Co., 233 Iowa 380, 392, 9 N.W.2d 378, 384 (1943). It is therefore clear that when more than one possible subsection can be applied, the one which should be used is the one which most closely provides weekly earnings which most closely reflect the actual loss of earnings experienced by the employee. It is therefore concluded that, in this case, the rate of compensation should be based upon section 85.36(6). A full 40-hour work week is not necessary to constitute full-time work. Since Page 5 claimant was single and had only himself as an exemption at the time of injury, his rate, based upon weekly earnings of $225.46 is therefore $141.87 weekly. It was previously found that the claimant's hospitalization from April 17, 1989, to April 26, 1989, was proximately caused by the original back injury. He is therefore entitled to recover healing period compensation for that period. It was also previously found that the claimant's emotional disorder in early 1990 resulted from the original back injury. He is likewise entitled to recover healing period compensation from January 11, 1990, through February 26, 1990. Claimant also seeks compensation for permanent partial disability. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); DeWall v. Prentice, 224 N.W.2d 428, 435 (Iowa Page 6 1974); Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. When all the material factors of industrial disability are considered, together with the claimant's change in actual earnings and his limited access to types of employment which he was capable of performing prior to the injury in this case, it is determined that he has experienced a 25 percent industrial disability or loss of earning capacity. ORDER IT IS THEREFORE ORDERED that defendants pay Dan Sepich forty-two and five-sevenths (42 5/7) weeks of compensation for healing period at the rate of one hundred forty-one and 87/100 dollars ($141.87) per week with thirty-four and three-sevenths (34 3/7) weeks thereof payable commencing January 19, 1988, with one and three-sevenths (1 3/7) weeks thereof payable commencing April 17, 1989, and with six and six-sevenths (6 6/7) weeks thereof payable commencing January 11, 1990. IT IS FURTHER ORDERED that defendants pay Dan Sepich one hundred twenty-five (125) weeks of compensation for permanent partial disability payable at the rate of one hundred forty-one and 87/100 dollars ($141.87) per week commencing September 17, 1988. IT IS FURTHER ORDERED that the permanent partial disability compensation be interrupted for the healing periods of one and three-sevenths (1 3/7) weeks payable commencing April 17, 1989, and six and six-sevenths (6 6/7) weeks payable commencing January 11, 1990, and that the permanent partial disability then be reinstituted at the end of each of the intervening periods of healing period compensation entitlement. IT IS FURTHER ORDERED that defendants pay interest pursuant to Code section 85.30 on all past due unpaid amounts after defendants receive credit for the overpayment resulting from having paid one hundred thirty-nine point five seven one (139.571) weeks of compensation at the incorrect rate of one hundred fifty and 50/100 dollars ($150.50) per week ($21,005.44). IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. Page 7 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Tom Drew Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 W. Des Moines, Iowa 50265 Mr. David L. Jenkins Attorney at Law 801 Grand Avenue, Suite 3700 Des Moines, Iowa 50309-2727 3001; 3002 Filed July 13, 1992 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DAN SEPICH, Claimant, vs. File No. 865492 ANDERSON ERICKSON DAIRY, A R B I T R A T I O N Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ 3001; 3002 Employee, who had been employed approximately four months prior to injury and classified as part-time, was held to be entitled to have the compensation based upon section 85.36(6). He was paid by the hour, earned $6.00 per hour and worked an average of 37 1/2 hours per week. It was found that earnings at that level were consistent with the earnings for a regular adult laborer in his line of industry, even though they were less than the earnings of those people who performed a similar function with the same employer whom the employer characterized as "full-time." Page 1 before the iowa industrial commissioner ____________________________________________________________ : GREGORY G. THOMPSON, : : Claimant, : : vs. : : File No. 865630 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Gregory G. Thompson as a result of injuries to his low back and neck which occurred on October 5, 1987. Defendants accepted compensability for the injury, paid weekly benefits and medical expenses. The case was heard and fully submitted at Des Moines, Iowa on December 6, 1990. The record in the proceeding consists of joint exhibits 1 through 6 and testimony from claimant. issue The sole issue for determination is claimant's entitlement to industrial disability. findings of fact Having considered all the evidence received, the following findings of fact are made. Gregory G. Thompson injured his neck and low back while lifting packages at United Parcel Service on October 5, 1987. The injury was diagnosed by Donald K. Bunten, M.D., as spondylolysis at the L-5 level with some secondary degenerative changes. Dr. David Berg, D.O., described the injury as chronic low back pain. Claimant was treated conservatively with physical therapy, rest and medication. Dr. Bunten rated the impairment at 10 percent to the body as a whole with 5 percent preexisting the October 5, 1987 injury. Claimant's current work restrictions are best described as a restriction from manual labor. Dr. Bunten suggested that claimant remain in light duty work activity as it would be less likely to aggravate his underlying condition. Page 2 Claimant's age, education, work experience and motivation must be considered when assessing industrial disability. Claimant, age 33 at the time of hearing, graduated from high school in 1976. He was an average student in high school. Subsequent to high school and prior to October 5, 1987, claimant worked in various heavy to medium labor positions such as road and bridge construction and farm laborer. Claimant's wages averaged about $4 to $4.50 per hour during that period. However, some construction jobs paid as high as $5.50. In 1986, claimant decided to move to Des Moines so as to pursue an education at Des Moines Area Community College. After enrollment in school claimant applied for and received a part-time job with United Parcel Service at the rate of $8 per hour. Subsequent to the work injury of October 5, 1987, employer made several attempts to reemploy claimant at light duty positions. Claimant was unable to tolerate such work. His employment with United Parcel Service was terminated on April 6, 1989 due to the medical condition. After the injury, claimant continued his course of schooling at DMACC and graduated in August of 1988. After leaving school, claimant worked at RCS Millwork in Ankeny, Iowa, for about six weeks. Claimant earned about $5.50 per hour. He left the job because the physical demands aggravated his October 5, 1987 work injury. Claimant's next job was at Elder and Sons in Des Moines working as a carpenter earning approximately $7 per hour. He left this job after three months due to the back pain caused by physical labor. Claimant then went to work for Farmers Home Administration as a construction inspector at a yearly salary of $15,730. Claimant is still employed at this sedentary position and now earns $17,200 per year. His present salary equates to an hourly wage of $8.27 per hour while his starting wage amounted to $7.56 per hour. Claimant stated that he does have some recurrent back pain when he drives long distances. Claimant likes his job with Farmers Home Administration. It should be noted that defendants offered vocational rehabilitation in good faith. However, claimant did not require such assistance due to his high motivation to return to work. It is found that claimant is motivated to return to work. Defendants contend that claimant's present earnings prove that no industrial disability has been sustained. Page 3 This argument is rejected as claimant's work restrictions prevent him from accessing the heavy labor job market. Factors weighing in favor of a higher industrial disability rating include claimant's age, work restrictions and motivation. Factors weighing against a high rating include claimant's current salary; employer's attempt to reemploy and provide vocational rehabilitation, and claimant's education. While claimant has lost access to the heavy labor job market he has at the present time obtained earnings in excess of that earned at the time of injury. It is found that claimant has sustained an industrial disability to the body as a whole amounting to 10 percent. Apportionment of the industrial disability is not appropriate in this case. Dr. Bunten opined that 5 percent impairment preexisted the October 5, 1987 injury. However, claimant was working at heavy manual labor without restrictions prior to the October 5, 1987 accident. Based upon the record presented, claimant had no industrial disability prior to October 5, 1987. conclusions of law 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). Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis Page 4 ability 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. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). Upon considering all the material factors, it is found that the evidence in this case supports an award of 10 percent permanent partial disability which entitles claimant to recover 50 weeks of benefits under Iowa Code 85.34(2)"u". order IT IS THEREFORE ORDERED: That defendants pay claimant fifty (50) weeks of permanent partial disability benefits at the rate of one hundred thirty-two and 46/100 dollars ($132.46) commencing March 25, 1988. That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30 That defendants shall receive credit for benefits previously paid. That defendants pay costs pursuant to rule 343 IAC 4.33. That defendants file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1 Page 5 Signed and filed this ____ day of February, 1991. ________________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr David Drake Attorney at Law 1200 35th St Ste 500 West Des Moines Iowa 50265 Mr Joseph Cortese II Attorney at Law 500 Liberty Mutual Bldg Des Moines Iowa 50309 Page 1 51803 Filed February 4, 1991 Marlon D. Mormann before the iowa industrial commissioner ____________________________________________________________ : GREGORY G. THOMPSON, : : Claimant, : : vs. : : File No. 865630 UNITED PARCEL SERVICE, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51803 Claimant was a full-time student when he was injured at a part-time job. Subsequent to finishing school, claimant acquired employment which paid better than what he earned at the time of injury. Claimant sustained 10 percent industrial disability.