Page 1 before the iowa industrial commissioner ____________________________________________________________ : HAROLD HENNIGAR, : : Claimant, : : vs. : : File No. 876371 GREEN ACRES EXPRESS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Harold Hennigar against Green Acres Express, his former employer, and Liberty Mutual Insurance Company based upon an injury that occurred on February 16, 1988. The extent of any entitlement to temporary total disability or healing period is disputed as is the extent of any permanent disability. The issues also include assessment of costs as shown in the attachment to the prehearing report. The case was heard and fully submitted on October 1, 1992. The evidence consists of testimony from Harold Hennigar and Marianne Hennigar. The record also contains joint exhibits 1 through 16, claimant's exhibit 1 and defendants' exhibit A. 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: Harold Hennigar is a 59-year-old married man who dropped out of school during the tenth grade. Most of his life's employment has been truck driving. Harold has had severe cardiopulmonary problems. He underwent coronary bypass surgery in 1977(joint exhibits 8 & 9). In January 1987 Harold injured his back. The injury was diagnosed as a myofascial strain and resolved by the end of 1987 (jt. ex. 2). In 1983 he underwent thoracic outlet surgery. Robert J. Foley, M.D., is claimant's long-term family physician. Harold was employed by Pulley Freight Lines when he underwent bypass surgery in 1977. After the 1983 thoracic outlet surgery, however, Pulley refused to take him back to Page 2 work. Harold then obtained work, again as a truck driver, for Central Express. He held that job until 1985 when he was again hospitalized with heart problems. When he returned to work he was placed in the office and assigned local driving duties. His 1987 back injury occurred while moving furniture in the office at Central Express. Harold was not allowed to return to work with Central Express following recovery from the 1987 injury. Harold obtained work with Green Acres Express, Inc. in 1987. He worked as an over-the-road driver. Typically he would be driving for two weeks, home for two days and then back on the road for two weeks. He had no real health problems until February 16, 1988, when he fell from the back of this trailer while he was at Salt Lake City, Utah. Initially the pain was not severe and he continued performing his duties. On the following day the pain became more severe and he was hospitalized at Eastern Iowa Regional Medical Center. While hospitalized he was diagnosed with kidney failure and other evidence of internal infection. The precise cause of the infection and kidney failure was never determined with certainty. In any event, he recovered and was allowed to return to Des Moines after having been hospitalized for approximately three weeks. His back complaints had resolved during the hospitalization (ex. 13). After returning to Des Moines, Harold began treating with his family physician, Robert J. Foley, M.D. Eventually he was referred to Orthopedic Surgeon William R. Boulden, M.D. Dr. Boulden diagnosed claimant as having degenerative disc disease and spinal stenosis as well as neurogenic claudication, a condition also referred to as pseudo claudication. Epidural steroid injections were administered successfully (jt. ex. 6, pages 1-6). Dr. Boulden recommended that Harold not return to work as a truck driver because he felt that it would be a major problem in view of the condition of Harold's back. He recommended that Harold apply for social security disability benefits. Dr. Boulden stated that driving trucks would aggravate the underlying condition that had caused Harold's spinal stenosis. That underlying condition was degenerative disc disease. Dr. Boulden noted that many studies have shown a very high incidence of spinal degenerative conditions in truck drivers. He stated that it is a job that over time will render the spine more diseased than one would expect with normal daily activities (jt. ex. 6, pp. 8-10; ex. 7, p. 1). Dr. Boulden had initially felt that Harold's back complaints had resulted from the February 16, 1988 injury, but upon becoming more familiar with the case changed his opinion. He felt that the injury of February 16, 1988, was only a temporary aggravation of the preexisting degenerative condition and that the aggravation had lasted through May 26, 1988 (jt. ex. 6, pp. 17, 27 & 28; ex. 7, p. 1). Dr. Boulden's activity restrictions were imposed due to the underlying overall condition of Harold's spine, not just the stenosis and pseudo claudication (jt. ex. 6, p. 29). He Page 3 rated Harold as having a 7 to 9 percent permanent impairment of his spine. He stated that Harold is disabled from truck driving but not all gainful employments (jt. ex. 6, p. 39). From the record it is clear that Dr. Boulden attributes the pseudo claudication to the spinal stenosis which in turn is a result of the degenerative disc disease and that Harold's 20 or more years of truck driving was a significant factor in developing the degenerative disc disease. The evidence in the record of this case from Dr. Boulden is uncontroverted. It seems quite logical and is fully accepted as being correct. Harold has not worked since February 16, 1988. He and his wife are now supported by social security disability benefits. During the 13 weeks prior to his injury, he earned $6,789.64. He had no earnings in 1989 or 1990. During 1987 the combined earnings of Harold and his wife were $2,577. In 1986 they earned $18,780. The overwhelming bulk of those earnings were from Harold. The record in this case does not suggest the existence of any particular type of employment which Harold is capable of performing or for which he would have any reasonable chance of being hired. conclusions of law The fighting issue in this case is whether the February 16, 1988, injury was a mere temporary aggravation of a preexisting condition or whether it is responsible for Harold's current state of very substantial disability. In a sense there were two injuries on February 16, 1988. Harold fell from the truck and sustained a temporary aggravation of the preexisting degenerative condition in his spine. That date also, however, marks the last day Harold Hennigar actually worked as a truck driver in accordance with the recommendations from Dr. Boulden. The degenerative condition in his spine is a cumulative trauma type of condition. The last day of work before the onset of disablement is the date of injury in those cases. Oscar Mayer Foods Corp. v Tasler, 483 N.W.2d 824 (Iowa 1992). At this point in the analysis it should be noted that there is a reasonable argument which can be made to the effect that Harold's cumulative trauma type of injury to his spine, resulting in degenerative disc disease, is actually an occupational disease. The statutory definition of occupational disease as well as the definition found in the judicial precedents would make many ailments which are commonly treated as cumulative trauma injuries fall within the occupational disease law. It can be logically argued that the supreme court adopted the occupational disease rules for cumulative trauma injuries because they often are occupational diseases. The similarity between occupational disease and Page 4 cumulative trauma injury is important because the supreme court applies the rules of occupational disease when dealing with cumulative trauma injuries. In McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985) the supreme court confirmed what had been a long-standing agency practice of recognizing cumulative trauma as a means of injury. As noted by the court cumulative injury has been recognized as being compensable since Black v. Creston Auto Company, 225 Iowa 671, 281 N.W. 189 (1938). The compensability of cumulative injury had been generally accepted long prior to 1985. Likewise, the recognition of conditions such as bursitis or tendonitis being an occupational disease, even though the conditions resulted from cumulative trauma, was likewise well recognized by this agency subsequent to 1973 when the statute was changed to eliminate the specified list of occupational diseases. Johnson v. Franklin Mfg Co., Thirty-fourth Biennial Report of the Industrial Commissioner 152 (App. Dec. 1978). The "landmark" parts of the McKeever decision were the parts which defined that the date of injury would be the date that a person became disabled from working and also the part which applied the last injurious exposure rule to cumulative injury cases. The court also clarified that the rate of compensation to be employed would be based upon the earnings prior to the date of injury as that term was defined in the supreme court decision. The important comparison is that all of the landmark parts of the McKeever decision were simply adopting the rules of occupational disease for cumulative trauma injuries. It has been previously held in the occupational disease field that the date of disablement occurs when competent medical advice compels the individual to remove himself from the injurious employment. It is not necessary that the employer continue to work until the most severe stage of the disease is reached. Frit v. Langenwalter, 443 N.W.2d 88 (Iowa App. 1989). Along those same lines, it is recognized that when dealing with occupational disease, and cumulative injury as well, the exposure to the trauma or agent responsible for the physical affliction that is actually responsible for producing the disability is most likely the exposure that occurred several prior to the onset of the actual disablement which removes the person from the employment. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). According to Dr. Boulden this case is not a typical. Claimant's approximately 13 weeks of employment with Green Acres Express, Inc. probably contributed little to the overall degenerative condition of his spine. That fact does not, however, relieve the last employer from liability. Any exposure to a harmful condition is most likely injurious. Nevertheless, the last injurious exposure rule as explained in Doerfer Div. of CCA v Nichol, 359 N.W.2d 428 (Iowa 1984) has been applied to cumulative trauma injuries. In this case Green Acres Express, Inc. is the employer in whose employ the last injurious exposure occurred. The evidence from Dr. Boulden shows the overall part of that employment to be a very small fraction of the activities responsible for Harold's problem, but it does not show the most recent Page 5 employment to have been absolutely no factor whatsoever (jt. ex. 6, p. 33). One important distinction in this case between whether the case is treated as an occupational disease or a cumulative trauma injury is found in section 85A.7(4). Under the occupational disease law the rules of apportionment and preexisting condition which apply in injury cases are inapplicable. It is only the disability which results from the occupational disease that is compensated under chapter 85A. Nevertheless, this agency has ruled that an occupational disease requires the entry of a foreign agent into the body and that anything else is an injury, regardless of whether or not the statutory definition of occupational disease has been met. Noble v. Lamoni Products, file numbers 857575 & 851309 (App. Dec. May 7, 1992). This case must therefore be treated as a cumulative injury case, even though Dr. Boulden has characterized the condition as a disease. It is therefore concluded that Green Acres Express, Inc. is responsible for the permanent disability afflicting Harold Hennigar as a result of the degenerative condition of his spine. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Hence, where employment is maintained and earnings are not reduced on account of a preexisting condition, that condition may not have produced any apportionable loss of earning capacity. Bearce, 465 N.W.2d at 531. Likewise, to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. The concept of aggravation of a preexisting condition Page 6 is inherent in a cumulative trauma injury. On the other hand, the concept of apportionment is not applied to the parts of a cumulative trauma injury process since, in most cases, it would entirely defeat the claim. It is irreconcilable with the last injurious exposure rule. It can, of course, be applied to preexisting disabilities which are not part of the cumulative injury process. The same rule is found in section 85A.7(4). In this case all of Harold's physical spinal ailments are to be considered when determining his degree of industrial disability for which the employer will be held liable. 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 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. 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. Page 7 Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Harold has been rated as having only a 7 to 9 percent permanent impairment. His education is less than the high school level. There is no showing that he has the capacity to perform any particular type of work for which he is qualified or experienced. There are probably jobs which he is physically capable of performing, but the record does not show that he has the training, skills or qualifications to perform any of those jobs. The record of this case does not identify any particular job which Harold might be capable of performing. Not only must an individual be capable of performing a job, but they must also have a reasonable probability of being able to be hired for the job in order to defend against a claim of total disability. In this case Harold Hennigar has obtained social security disability benefits. That fact alone is an indication that he is totally disabled, but it is certainly not conclusive. The record in this case does not show that there is any reasonably stable market for the services which Harold is capable of performing. It is determined that Harold Hennigar is totally disabled from a workers' compensation standpoint. Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985); Diederich v. Tri-City R. Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). Harold is therefore entitled to recovery weekly compensation under the provisions of section 85.34(3). Since claimant is prevailing in this case, he is entitled to recover costs in accordance with rule 343 IAC 4.33. The costs he seeks are an expert witness fee for Dr. Boulden in the amount of $500, the filing fee in the amount of $65 and court reporter fees in the amount of $174.61. Those three items all qualify as costs under the rule. The recovery for the expert witness fee is limited, however, to the sum of $150 in accordance with section 622.72 of the Code. The total is $389.61. order IT IS THEREFORE ORDERED that defendants pay Harold Hennigar weekly compensation for permanent total disability at the stipulated rate of three hundred twenty-one and 40/100 dollars ($321.40) per week payable commencing February 17, 1988 and continuing for so long as Harold remains totally disabled. It is further ordered that defendants pay all accrued, unpaid amounts in a lump sum together with interest pursuant to the provisions of section 85.30. It is further ordered that defendants pay to claimant the cost incurred in this action in the amount of three hundred eighty-nine and 61/100 dollars ($389.61). It is further ordered that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Page 8 Signed and filed this ____ day of February, 1993. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Dennis Hanssen Attorney at Law 2700 Grand Ave, STE 111 Des Moines, Iowa 50312 Mr. Richard Book Attorney at Law 500 Liberty Bldg Des Moines, Iowa 50309-2421 Page 1 1108.50 1402.30 1804 2203 2209 1806 2206 Filed February 24, 1993 Michael G. Trier before the iowa industrial commissioner ____________________________________________________________ : HAROLD HENNIGAR, : : Claimant, : : vs. : : File No. 876371 GREEN ACRES EXPRESS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INS. CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.50 1402.30 1804 Fifty-nine-year-old man with eighth grade education with lifelong career driving trucks was held totally disabled when employer's doctor recommended against return to truck driving due to degenerative spinal condition. Degenerative condition resulted from career of truck driving. Injury was temporary aggravation that preexisted condition but was also last date of employment for application of last injurious exposure rule. Also had coronary condition. 2203 2209 Case held to be cumulative injury rather than occupational disease. Similarities and supreme court's practice of applying rules of occupational disease law to cumulative trauma injuries discussed. 1806 2206 Rules of apportionment held inapplicable to cumulative trauma injuries for disability attributable to parts of the cumulative injury process. Aggravation of preexisting condition integral part of the cumulative injury process. Differences discussed between treatment of apportionment and aggravation of preexisting conditions depending upon whether dealing with cumulative injury or occupational disease. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BARBARA MANESS, : : Claimant, : : vs. : : File No. 876453 McKEE BUTTON COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Barbara Maness against her former employer, McKee Button Company, and its insurance carrier, Wausau Insurance Company. The record in this case consists of joint exhibits 1 through 6; defendants' exhibits A and B; and, testimony from the claimant, claimant's daughter, Teresa Maness, Department Supervisor Stuart Perkins, and, co-employees, Michelle McIntire and Pamela Calvelage. ISSUES The parties submit the following issues for resolution: 1. Whether claimant received an injury on February 9, 1988, which arose out of and in the course of her employment; 2. Whether there is a causal relationship between the alleged injury and claimant's current disability; 3. Whether is entitled to temporary total disability or healing period benefits, or permanent partial or total disability benefits; 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27; 5. Whether defendants are entitled to a credit as provided for under Iowa Code section 85.38(2); and, 6. Whether claimant is an odd-lot employee. FINDINGS OF FACT The undersigned deputy, having reviewed all of the Page 2 evidence received, finds the following facts: Claimant, Barbara Maness, was born on October 18, 1936. At the time of the hearing, she was 55 years old. Currently, she is unemployed. Claimant's work history includes factory work, waitressing, farm work, home sales and real estate sales. From 1983 to 1988, claimant did not work outside of the home. Her educational background includes an associate degree earned in 1984 from a community college in Muscatine, Iowa. Claimant earned a bachelor's degree in fine arts from the University of Iowa in 1989. In October of 1987, claimant began working for defendant, McKee Button Company, a button processing plant located in Muscatine, Iowa. She worked in the molding department and inspected buttons. Part of her job included placing plates of buttons into a machine which pushed finished buttons into a tub. After a tub became full, she carried it approximately 15 feet to a corner of the room in which she worked. She estimated that the tubs weighed 50 pounds or more. On February 9, 1988, claimant attempted to lift a tub she thought weighed between 60 to 70 pounds which was in front of her machine. She stated that because there were numerous sheets of buttons in front of the machine, she was unable to get a good grip on the tub and was in an awkward position. She attempted to turn the tub, got her fingers caught in the rim, jerked around and felt a "searing pain" up and down her spine and down both legs. Claimant testified that she "cried out" due to the pain and dropped the tub. Claimant stated that she reported the incident to her supervisor, Stuart Perkins, and that he filled out an accident report. Claimant testified that she signed the accident report filled out by her supervisor, Stuart Perkins. The only report produced does not contain claimant's signature. Claimant stated that three other co-workers, Michelle McIntire, Sandy Kemper and Pamela Cavelage and her supervisor, Stuart Perkins, were present during the incident, and that they all laughed when claimant hurt herself. Claimant continued with her duties to finish her shift, and while she contends that Mr. Perkins told her to perform only the inspection duties, Mr. Perkins denied this and testified that claimant continued with her regular duties. Michelle McIntire, a current McKee employee and a former co-worker of claimant's, testified at the hearing. She stated that on February 9, 1988, she and claimant engaged in a conversation wherein claimant admitted she had hurt her back while helping her daughter move. Ms. McIntire Page 3 testified that two other co-workers, Pamela Calvelage, and Sandy Keumper, were also present during the conversation. During her testimony, she denied that she had observed claimant hurt herself; did not hear claimant cry or scream and in pain; and did not laugh at the claimant. Pamela Calvelage also testified for the defense. She is presently employed by McKee. She, too, testified that on Monday or Tuesday (February 8 or February 9, 1988), claimant spoke about helping one of her daughters move and that her back was bothering her. Ms. Cavelage denied that she observed claimant drop or struggle with a tub or bucket filled with buttons, denied that she heard claimant cry out in pain, and denied that she laughed at claimant. Teresa Maness, one of claimant's daughters, testified on behalf of her mother. She stated that, although she was not present during the occasions claimant helped her other daughter move, she was positive that claimant did not carry any heavy items. In fact, she indicated that claimant merely drove a truck to the new residence. While claimant testified that she stayed in bed and did not report to work the following day, a time card used by employees to punch in and out when reporting to and leaving work revealed that claimant worked 8-3/4 hours on Wednesday, February 10, 1988. The evidence shows that claimant received medical treatment from Dr. Olson, the company physician, on February 11, 1988. His notes, although very difficult to read, seem to report that claimant had experienced pain from her cervical spine to her lumbar spine since the accident. He diagnosed a lumbar sacral strain, prescribed Flexeril, and told claimant to return in seven days (Joint Exhibit 6, page 1). Although claimant did not return on her next scheduled appointment, she did return to Dr. Olson for additional visits. His notes indicate a resolving lumbosacral strain, but in April of 1988, the notes state that claimant complained of numbness in the toes of both feet, and burning sensations in her legs and feet. He referred her to James Worrell, M.D., a neurologist (Jt. Ex. 6, pp. 1-2). Dr. Worrell regularly treated claimant from April 1988 until September 1988. His notes dated May 3, 1988 reflect that although claimant was undergoing physical therapy and taking medication, she still experienced "tingling and numbness in the feet and legs." Results of a CT scan, plane x-rays of the lumbosacral spine and an EMG performed on the right paraspinal lumbar and lumbosacral area were negative. He diagnosed myofascial pain syndrome, secondary to injury. Dr. Worrell recommended continued physical therapy, mild analgesics and anti-inflammatories. She was to be rechecked in two or three months (Jt. Ex. 1, p. 1; p. 4). In June of 1988, Dr. Worrell's examination noted an improvement in claimant's condition, although she still complained of discomfort in the mid and low back area as well as pain and numbness in the feet. Medications included Equagesic and she was to return on an as-needed basis (Jt. Page 4 Ex. 1, p. 2). In July, she visited Jeffrey A. Shay, a chiropractor in Muscatine, Iowa. He noted possible nerve impingement (Jt. Ex. 2, pp. 1-2). In August of 1988, claimant again sought treatment from Dr. Worrell. She was scheduled for a lumbar myelogram, a follow-up CT scan, and was released to return to light duty work (Jt. Ex. 1, p. 3). Claimant underwent the myelography and CT scan on September 27, 1988. The myelogram was normal, although the CT scan revealed some arthrosis of the articular facets but no evidence of a herniated disc (Jt. Ex. 1, pp. 8-9). The diagnosis remained myofascial pain syndrome, and it was recommended that claimant continue with exercise and a weight loss program. She was to return to Dr. Worrell on an as-needed basis (Jt. Ex. 1, pp. 5 and 7). Claimant did not return to Dr. Worrell until March 21, 1990, when she returned to him for an impairment rating. Dr. Worrell noted decreased range of motion in the back and tenderness in the sacroiliac lumbosacral area. Claimant favored her right hip when walking and exhibited diminished feeling on pinprick on the feet. He stated he would be "willing to give her [claimant] an 8 percent permanent partial impairment rating to the body as a whole." (Jt. Ex. 4, p. 17) In January of 1991, claimant started treatment with the cardiology clinic at the University of Iowa Hospitals and Clinics in Iowa City. During the next year, she regularly saw doctors for numerous physical ailments seemingly unrelated to her back condition. In March 1992, she reported low back pain and was seen by several physicians for continued back pain. Margaret Saehler, a physical therapist, noted that claimant had normal range of motion and strength in the lumbosacral area of the spine. It was recommended that she perform exercises at home and lose weight (Jt. Ex. 5, p. 24). A radiological report noted a possible superior plate injury at the L2 vertebral body, mild anterior osteophyte formation at all levels of the lumbar spine, marked limitation of flexion and mild limitation of extension (Jt. Ex. 5, p. 26). A final report from Malcom Yeh, M.D., noted chronic low back pain. He recommended continued medication of Elavil, proper diet and back exercises (Jt. Ex. 5, p. 28). At the hearing, claimant testified that she was unable to either sit or stand for more than one-half hour without enduring considerable pain. However, claimant was on the witness stand for more than two hours, and showed no apparent discomfort. ANALYSIS AND CONCLUSIONS OF LAW The first issue to be addressed is whether claimant Page 5 sustained an injury on February 9, 1988, which arose out of and in the course of her employment. An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). There are numerous and consistencies between testimony from the claimant and testimony from the defendants: Claimant stated she signed an accident report filled out by her supervisor, Stuart Perkins, defendants testified that only one accident report was filled out and there is no signature of the claimant on the report.; claimant stated the injury happened after lunch on February 9, 1988, and the defendants argue that she told her supervisor that the incident happened before lunch in the morning; claimant stated that her job duties changed after the accident, her supervisor indicated there was no change in her job duties; the claimant testified that at least four people saw the alleged injury, yet three of the four witnesses she named testified that they did not see her hurt herself; claimant stated that all of the witnesses heard her cry out and began to laugh after she injured herself, the defendants' witnesses denied hearing claimant cry out or laughing; claimant stated that the next day she spent the entire day in bed, the defendants argue that claimant worked a full day on February 10, 1988. Additionally, defendants argue that claimant told co-workers she had hurt her back while helping her daughter move to Hannibal, Missouri, yet claimant denies that she was involved in any lifting during the move. Claimant's daughter, Teresa Maness, also testified at the hearing, and stated that her mother did not help lift anything while helping another daughter move; however, Teresa Maness was not present when her mother was in Hannibal helping another daughter move. Unfortunately, this case presents too many inconsistencies to state that claimant has been able to meet her burden or proof and has shown by a preponderance of the evidence that she sustained an injury on February 9, 1988, which arose out of and in the course of her employment. As a result, claimant takes nothing from these proceedings. ORDER THEREFORE, it is ordered: That claimant take nothing from these proceedings. Page 6 That the defendants shall pay the costs of this proceeding. Signed and filed this ____ day of July, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Allan Hartsock Attorney at Law P O Box 4298 Rock Island IL 61204 Mr Craig A Levien Attorney at Law 600 Union Arcade Bldg 111 E Third St Davenport IA 52801 5-1100 Filed July 27, 1992 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : BARBARA MANESS, : : Claimant, : : vs. : : File No. 876453 McKEE BUTTON COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : WAUSAU INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100 Claimant failed to prove by a preponderance that she sustained an injury which arose out of and in the course of her employment where two co-workers testified that claimant had told them she hurt her back while helping a daughter move. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GENE BOSS, Claimant, File No. 876455 vs. A R B I T R A T I O N RASCH CONSTRUCTION CO., D E C I S I O N Employer, and F I L E D ROYAL INSURANCE COMPANY, AUG 31 1989 Insurance Carrier, INDUSTRIAL SERVICES Defendants. INTRODUCTION This is a proceeding in arbitration brought by Gene Boss against Rasch Construction Company, his former employer, and its insurance carrier, Royal Insurance Company. The case was heard and fully submitted on August 29, 1989 at Des Moines, Iowa. The record in the proceeding consists of claimant's exhibits 1 through 5, defendants' exhibits A, B, and C, and testimony from Gene Boss, Albert Stenstrom, Grant Abernathy, and Robert Henak. ISSUES The only issue for determination is the extent of permanent partial disability affecting claimant's left leg which was caused by the injury that occurred on February 15, 1988. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Of all the evidence received at the hearing, only that considered most pertinent to this decision is discussed. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Claimant suffered a crush injury to his left lower leg, foot, and ankle on February 15, 1988 when a truck overturned. He was diagnosed as having a left ankle bimalleolar fracture with a severe crush of the left foot. The treating orthopaedic surgeon was Mary-Franklin G. Paulus, M.D., who performed open reduction and internal fixation, medial malleolus, left ankle with application of posterior plaster splint custom molded and closed reduction lateral malleolus and posterior malleolus on February 23, 1988. Claimant testified that he continues to experience pain and loss of strength affecting his left leg. He stated that activities such as pushing the clutch of a truck, extended standing, and lifting all cause pain. Defense witnesses testified that claimant had held employment subsequent to the injury which is the subject of this proceeding. Dr. Paulus rated claimant as having a 12 percent impairment of his lower extremity due to the ankle impairment, a 6 percent impairment of the lower extremity due to impairment of his foot, and an additional 17 percent of the extremity due to pain and suffering (claimant's exhibit 3). Claimant was evaluated by Eric L. Paulson, M.D., in January, 1989. Dr. Paulson did not provide an actual impairment rating, although he did perform an orthopaedic examination of claimant's left ankle in which he found claimant to have 45 degrees of plantar flexion and 0 degrees of dorsiflexion. Dr. Paulson also found impairment affecting claimant's foot as well as the ankle (claimant's exhibit 4). In August, 1989, claimant was examined by John H. Kelley, M.D., a Des Moines, Iowa orthopaedic surgeon. Dr. Kelley rated claimant as having a 12 percent impairment of his left lower extremity based upon impairment of the ankle (defendants' exhibit A). APPLICABLE LAW AND ANALYSIS It was stipulated by the parties that this is a scheduled member injury and that the disability is limited to claimant's leg. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Where an injury is limited to a scheduled member, the loss is measured functionally, not industrially. Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983). A close examination of the examinations performed by the three physicians shows that the range of motion found by Dr. Kelley with regard to claimant's left ankle is identical to the range of motion found by Dr. Paulus. The only difference in their ratings is that Dr. Paulus rated for lost motion of claimant's toes while Dr. Kelley did not. Since the injury involved a crushing of the left foot, as well as the left ankle, it would seem reasonable that the foot and toes would have been affected as well as the ankle. Dr. Paulson also found claimant's foot to be impaired in addition to his ankle. Dr. Paulson's range of motion for the ankle is different, however, from that found by Drs. Paulus and Kelley. Dr. Paulus was the treating physician and is presumably most familiar with the condition of claimant's left foot and ankle. The range of motion upon which her impairment rating is based is corroborated by the range of motion found by Dr. Kelley with regard to the ankle and by Dr. Paulson with regard to the toes. The rating made by Dr. Paulus in the amount of 18 percent is adopted as being correct in this case. Pain and suffering is not an element of damages in a workers' compensation proceeding. The scheduled member disability system which has been provided by the legislature provides compensation for loss of use of a scheduled member, not for pain and suffering. Claimant is therefore entitled to recover for an 18 percent permanent partial disability of his left leg under the provisions of Iowa Code section 85.34(2)(o). This entitles claimant to recover 39.6 weeks of compensation for permanent partial disability. FINDINGS OF FACT 1. The physical impairment determined by Dr. Paulus affecting claimant's left leg is correct. 2. Claimant has an 18 percent loss of the use of his left leg as a result of the injury that occurred on February 15, 1988. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. Claimant is entitled to recover 39.6 weeks of compensation for permanent partial disability under the provisions of Iowa Code section 85.34(2)(o) representing an 18 percent permanent partial disability of his left leg. 3. Claimant has been paid all compensation for permanent partial disability which he is legally entitled to receive under the controlling statutes and nothing further is payable. ORDER IT IS THEREFORE ORDERED that claimant take nothing from this proceeding. IT IS FURTHER ORDERED that claimant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 31st day of August 1989. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. John C. Werden, Jr. Attorney at Law P.O. Box 486 Carroll, Iowa 51401 Mr. Paul C. Thune Mr. Joseph M. Barron Attorneys at Law Suite 300, Fleming Building P.O. Box 9130 Des Moines, Iowa 50306-9130 51803 Filed August 31, 1989 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER GENE BOSS, Claimant, vs. File No. 876455 RASCH CONSTRUCTION CO., A R B I T R A T I O N Employer, D E C I S I O N and ROYAL INSURANCE COMPANY, Insurance Carrier, Defendants. 51803 Claimant awarded 18 percent permanent partial disability of left leg in accordance with treating orthopaedic surgeon's rating. Permanent partial disability compensation was not allowed for the portion of the rating which the doctor gave for pain and suffering. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALLEN DELAINE MENDENHALL, Claimant, File Nos. 876483 & 878900 VS. A R B I T R A T I 0 N CARNATION CO., PET FOODS D E C I S I 0 N DIVISION, Employer, and TRAVELERS INSURANCE CO. and FEDERAL KEMPER INSURANCE CO., Insurance Carriers, Defendants. INTRODUCTION These are arbitration proceedings brought by Allen D. Mendenhall, claimant, against Carnation Company, Pet Foods Division, employer, and Federal Kemper Insurance Company and Travelers Insurance Company, insurance carriers, defendants. These cases were heard by the undersigned on October 11, 1989 in Fort Dodge, Iowa. The record consists of the testimony of claimant. The record also consists of the testimonies of Richard Oleson and William Ondrejka. The record additionally consists of claimant's exhibits 1-21, joint exhibits 1-8, defendant-Travelers' exhibits A-E and AA, and defendant-Kemper's exhibits A-G. ISSUES As a result of the prehearing report and order submitted and approved on October 11, 1989, the issues presented by the parties are: 1. Whether claimant sustained injuries on August 3, 1987 or January 4, 1988, which arose out of and in the course of employment with employer; MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 2 2. Whether there are causal relationships between the alleged injuries and the disability; 3. Whether claimant is entitled to temporary disability/healing period benefits or permanent partial or total disability benefits; 4. Whether claimant is entitled to medical benefits under Iowa Code section 85.27 (and/or medical evaluation under section 85.39); and, 5. Whether claimant provided adequate notice under section 85.23. STIPULATIONS Prior to the hearing, the parties entered into a number of stipulations. The stipulations are as follows: 1. The existence of an employer-employee relationship between claimant and employer at the time of the alleged injury; 2. That the time off work for which claimant now seeks either temporary total disability or healing period benefits is stipulated to be from January 21, 1988 to October 14, 1988; 3. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is stipulated to be an industrial disability to the body as a whole; 4. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $274.90; and, 5. Defendants have credit under section 85.38(2) for previous payment of medical/hospitalization expenses in the amount of $5,697.44 and Kemper paid additional medical expenses of $1,153.05 and defendants paid claimant 32.429 weeks of compensation at the rate of $274.90 (Kemper) per week prior to hearing. FACTS PRESENTED Claimant was 39 years old at the time of the hearing. He commenced his employment with defendant on March 13, 1976. For the first nine years, claimant worked with the finished product. He took pallets of canned goods from the line, brought them to the loading bays and loaded the cans onto railroad cars. In year ten of his employment, claimant was performing a bright stacking job. Then claimant testified, he was assigned the position of fork truck driver. MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 3 Claimant stated that on Monday, August 3, 1987, there were problems with the meat freezer. As a result, defrosted meat had fallen onto the floor of the freezer in piles nearly nine feet high. Claimant related that he was responsible for restacking the fallen meat and that he had to stack approximately 30 pallets. Claimant maintained he had never experienced prior back problems but that after the meat stacking incident, he experienced low back pain for approximately one week. Then on Monday, August 10, 1987, claimant testified he could no longer continue working. The claimant maintained he went to his supervisor, Bill Ondrejka, and told him his back was hurting. Claimant stated he returned to work on August 17, 1987, but that his condition progressively worsened. Claimant testified that after a plant shut down in December of 1987, he returned to work on January 4, 1988. Claimant stated he was assigned to the same position as a fork truck driver where he was also required to maintain the freezer. Claimant described the condition of the freezer. He indicated he attempted to pick up meat from the floor. However, he indicated he again felt sharp pains in his back. Claimant stated he reported the incident to his supervisor, who sent claimant to Hoyt H. Allen, M.D. Claimant was then referred to Samir R. Wahby, M.D. Claimant testified a laminectomy at L4/L5 was performed on July 20, 1988. The record establishes claimant returned to work on October 14, 1988 at his same position. Richard Oleson testified he is the union steward and that he is acquainted with claimant. The witness testified he is aware claimant returned to work in October of 1988, that claimant was having financial difficulties and that claimant obtained a release to return to work. William Ondrejka testified he is the receiving supervisor and he supervises the fork truck drivers. The witness reported there is mobility in the position of fork truck operator as the employee is capable of deciding when to perform a duty in the freezer area. Mr. Ondrejka testified claimant would complain about back pain from August through December 1987. The witness reported he asked claimant if the back pain was the result of an industrial accident, but claimant replied the pain was due to a personal reoccurrence of back problems. Mr. Ondrejka maintained claimant was able to perform his assigned tasks from August of 1987 through January of 1988. MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 4 Mr. Ondrejka additionally testified during the latter part of January of 1988, claimant, after a visit with Dr. Wahby, wanted to fill out a first report of injury. According to the witness, he wrote down the information on the form. However, claimant supplied all of the information. Mr. Ondrejka testified that currently claimant has a stable position, that the job is open to claimant as long as he enjoys it and that claimant has not missed any raises. Also, Mr. Ondrejka testified that since October of 1988, claimant has lost no work time because of back complaints. The supervisor reported claimant has never complained he is incapable of performing job duties. APPLICABLE LAW Claimant has the burden of proving by a preponderance of the evidence that he received injuries on August 3, 1987 and January 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976) ; Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 5 the definition of personal injury in workers, compensation cases as follows: While a personal injury does not include an occupa- tional disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury in- cludes a disease resulting from an injury...The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an em- ployee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or other- wise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injuries of August 3, 1987 and January 1988 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist.Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v..Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 6 the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of per- centages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 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 disability. This is so as impairment and disability are not synonymous. 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 disability 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 MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 7 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 disability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). For example, a defendant employer's refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). Similarly, a claimant's inability to find other suitable work after making bona fide efforts to find such work may indicate that relief would be granted. McSpadden, 388 N.W.2d 181 (Iowa 1980). ANALYSIS The first issue to address is whether claimant has given proper notice of the alleged work injury of August 3, 1987. Section 85.23 of the Iowa Code provides: Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone an the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed. Failure to give notice is an affirmative defense which the employer must prove by a preponderance of the evidence. DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940). Mefferd MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 8 v. Ed Miller & Sons, Inc., Thirty-Third Biennial Report of the Industrial Commissioner 191 (Appeal Decision 1977). The time period contemplated in Iowa Code section 85.23 does not begin to run until the claimant has knowledge of the nature of his disability. Jacques v. Farmers Lbr. & Sup. Co., 242 Iowa 548, 47 N.W.2d 236, 239 (1951). An employer's actual knowledge of occurrence of injury must include some information that the injury is work-connected in order to satisfy the alternative notice of claim requirement. Robinson v. Department of Transp., 296 N.W.2d 809, 812 (Iowa 1980). The interpretation in Robinson was confirmed in Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 435 (Iowa 1984). A claimant's duty to give notice of injury arises when the claimant should recognize the nature, seriousness and probable compensable character of his injury or disease. The reasonableness of claimant's conduct is to be judged in light.of his education and intelligence. Claimant must know enough about the injury or disease to realize that it is both serious and work-connected, but positive medical information is unnecessary if he has infor- mation from any source which puts him on notice of its probable compensability. Robinson, supra. The purpose of the 90 day notice or actual knowledge requirement is to give the employer an opportunity to timely investigate the acts of the injury. Id.: Knipe v. Skelgas Co., 229 Iowa 740, 748, 294 N.W. 880, 884 (1940) ; Hobbs v. Sioux City, 231 Iowa 860, 2 N.W.2d 275 (1942); Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985). Koopmans v. Iowa Electric Light and Power Company, (Appeal Decision dated December 30, 1981) on appeal to Iowa Supreme Court). The word "compensable" in the workers' compensation notice context is not used to connote legal knowledge that a claim is within the workers' compensation act. Rather, "compensable" means that the disabling injury was work connected. Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366 (Miss. 1979). Unless a statute that imposes a period of limitations expressly authorizes exceptions for extenuating circumstances, it must be applied uniformly even though the result may be harsh. Burgess v. Great Plains Bag Corporation, 409 N.W.2d 676, 679 (Iowa 1987). A mistake of law is no more an excuse in connection with a late compensation claim than anywhere else, unless expressly made so by statute. 3 Larson, Workmen's Compensation Law, Section 78.47 at 15-334. MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 9 The initial determination in the instant case, is whether claimant has given notice of his claim to his employer under section 85.23. The statute allows for two types of notice. The first type of notice is actual knowledge of the occurrence of an injury within 90 days. There was no actual knowledge of the alleged injury. There were no witnesses to the alleged incident. Claimant did not report the incident to a proper authority on that date. The second type of notice allowed by statute is notice given to the employer by the injured employee within 90 days from the date of the occurrence of the injury. There is no question on January 21, 1988, claimant verbally notified his supervisor, William Ondrejka, of the alleged work injury of August 3, 1987. Mr. Ondrejka then wrote in his "supervisor's report of incident": This injury is one of those where there is no specific incident that employee can pinpoint as the exact cause of injury. A period of hot weather caused excessive amounts of blocks of meet [sic] to fall on floor areas causing a period of excessive lifting. Claimant also filled out a written report on January 21, 1988. He related the following: Describe in your own words the accident. Strain back lifting several pallets of meat that had fallen to the floor. List possible causes of your accident. Restacked several pallets of meat in the freezer possi- bly not using proper procedures at all times. What could have been done to prevent this accident? Do [sic] to high temperatures cooling units are not able to keep up. Pallets of meat stacked double high were falling to the floor and had to be restacked. Pallets (unreadable) new cooling units. (Unreadable). Claimant pointed to a specific traumatic event which allegedly caused claimant's disability. The event purportedly occurred on August 3, 1987, although company records reflect claimant was vacationing on this date. There were no witnesses who could corroborate claimant's testimony. Claimant stated he mentioned to Bill Ondrejka, as early as August 10, 1987, that his back was hurting. At the hearing, MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 10 claimant could not recall whether he just said his back was hurting or whether he said the injury was work related. Bill,Ondrejka denied he was told prior to January 21, 1988, that claimant's alleged back injury was work related. Mr. Ondrejka testified that claimant told him on several occasions the back pain was due to a reoccurrence of personal back problems and the pain was not work related. It is the determination of the undersigned there was no actual knowledge of the alleged injury and claimant did not tender notice to his employer of the alleged injury date of August 3, 1987 until January 21, 1988. The notice was given more than 90 days after the date of the alleged injury. Claimant did not comply with the 90 day rule of section 85.23. As of August 3, 1987, it would have been reasonable for claimant to assume his back condition was or could have been work connected. Given the fact claimant had some college education and he was of seemingly average intelligence, he should have realized the disability could have been work related. Claimant did not comply with the provisions of section 85.23. Therefore, compensation is not allowed for the alleged injury date of August 3, 1987. Further discussion of other issues is not required. The next issue to address is whether claimant's alleged injury of January 4, 1988 arose out of and in the course of his employment with defendant. It is the determination of the undersigned that claimant has not sustained his burden of proof. There was almost no evidence which described a work related incident on January 4, 1988. In fact, claimant testified he had just returned to work on the fourth from a two week plant shutdown. The only testimony claimant presented was that the freezer was in a terrible condition and claimant felt sharp pains in his back when he tried to pick up meat. Claimant also stated he was told by his supervisor to see the company doctor, Dr. Allen. Mr. Ondrejka, the supervisor maintained claimant went to see Dr. Allen on January 11, 1988, and not on January 4, 1988. Moreover, on the eleventh, Mr. Ondrejka testified claimant denied the injury was work related. Mr. Ondrejka was aware of no work related incident on January 4, 1988. Additionally, records for Hoyt H. Allen, M.D., reveal claimant saw him on January 11, 1988, not on January 4, 1988. No incident on January 4, 1988, is described in Dr. Allen's medical notes. Nor does claimant describe any incident occurring on January 4, 1988. Only the alleged August incident is described in claimant's employee accident report. If an incident had occurred on January 4, 1988, it stands to reason claimant would have included it in his report of January 21, 1988. Claimant did not describe any incidents in January. Claimant is less than credible. Claimant has not sustained his burden of proof. MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 11 Claimant takes nothing as a result of the alleged injury on January 4, 1988. FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based on the evidence presented and the principles of law previously stated, the following findings of fact and conclusions of law are made: FINDING 1. Claimant tendered notice on January 21, 1988, of the alleged injury of August 3, 1987. FINDING 2. January 21, 1988, was more than 90 days after the alleged injury date of August 3, 1987. FINDING 3. It would have been reasonable for claimant to assume his alleged injury date of August 3, 1987, could have been work related. FINDING 4. Defendants had no actual knowledge of claimant's alleged injury on August 3, 1987. CONCLUSION A. Claimant did not give notice pursuant to section 85.23 of the code. CONCLUSION B. Claimant takes nothing as a result of the alleged injury of August 3, 1987. FINDING 5. Claimant did not sustain an injury on January 4, 1988, which arose out of and in the course of his employment. FINDING 6. Claimant was less than credible. CONCLUSION C. Because claimant did not sustain an injury on January 4, 1988, which arose out of and in the course of his employment, claimant takes nothing from these proceedings. ORDER Claimant takes nothing from these proceedings. Claimant and defendants pay their own costs of these proceedings pursuant to Division of Industrial Services Rule 343-4.33. MENDENHALL V. CARNATION CO., PET FOODS DIVISION Page 12 Signed and filed this 15th day of March, 1990. MICHELLE A McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert L. Ulstad Attorney at Law P 0 Box 1678 Fort Dodge IA 50501 Mr. Jerry L. Schnurr, III Attorney at Law 142 N 9th St. P 0 Box 817 Fort Dodge IA 50501 Ms. Patricia J. Martin Attorney at Law 100 Court Ave Des Moines IA 50309 1600; 5-1100 Filed March 15, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ALLEN DELAINE MENDENHALL, Claimant, File Nos. 876483 878900 VS. A R B I T R A T I O N CARNATION CO., PET FOODS DIVISION, D E C I S I O N Employer, and TRAVELERS INSURANCE CO. and FEDERAL KEMPER INSURANCE CO., Insurance Carriers, Defendants. 1600 - Notice Claimant failed to comply with section 85.23 when defendant had no actual knowledge that a claimed back condition was alleged to be a work related injury and where claimant failed to give notice to defendant within 90 days of the alleged injury date. 5-1100 Claimant did not meet his burden of proving he sustained an injury which arose out of and in the course of his employment.