Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : CONNIE GARRETT, : : Claimant, : : vs. : : File No. 877007 ROCHESTER PRODUCTS, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding permanent partial disability benefits as the result of an alleged injury on April 7, 1986. The record on appeal consists of the transcript of the arbitration proceeding; joint exhibits 1 through 20 (volume 1), 1 through 11 (volume II), and claimant's exhibits A through I; and claimant's A through I. Defendants failed to timely serve or file an appeal brief. Claimant was prohibited from filing a brief pursuant to an order filed June 28, 1991. ISSUES Defendants failed to timely file an appeal brief. Therefore, the appeal will be considered generally and without regard to specific issues. FINDINGS OF FACT The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be set forth herein. However, the deputy's findings as to claimant's credibility are not adopted herein. CONCLUSIONS OF LAW Claimant alleges she injured her back while lifting a bucket of heavy parts above her head at work on April 7, 1986. One of claimant's physicians, Nino R. Lentini, M.D., an orthopedic surgeon, diagnosed lumbosacral strain or sprain. Dr. Lentini opined that claimant possibly had a two percent permanent partial impairment, but added that it was too early to offer an impairment rating. Another of claimant's physicians, Robert Durnin, M.D., stated that claimant's pain was inconsistent and that claimant exaggerated her pain complaints. Dr. Durnin could Page 2 find no objective evidence of back injury. Dr. Durnin refused to provide a rating of impairment based on subjective complaints. Michael Morrison, M.D., an orthopedic surgeon, also found no objective evidence of back injury. Dr. Morrison predicted claimant would be able to return to work without restrictions. Claimant was also evaluated by a clinical psychologist, who concluded that claimant was "hypochondriacal" and attributed claimant's pain complaints to psychogenic causes. Claimant was also examined by J. M. Duggan, D.O., a psychiatrist, who found claimant to be suffering from an affective disorder. Leonard E. Weber, M.D., a neurologist, diagnosed claimant as suffering from chronic pain disorder with possible exaggerated symptoms due to psychiatric problems. Dr. Weber found no objective evidence of back injury, and gave claimant a rating of zero percent permanent impairment, but did assign five percent impairment based strictly on subjective pain. A functional capabilities evaluation in 1987 concluded that claimant suffered from symptom magnification. Claimant was also evaluated in Indiana by Robert K. Silbert, M.D., and the Indiana Center for Rehabilitation Medicine. The conclusion of the center was that claimant had psychogenic problems with secondary gain factors. Thus, claimant has seen numerous physicians, but none have given claimant a rating of permanent physical impairment. Most of claimant's physicians state that the pain she reports has a psychological, rather than physical, origin. There is no medical evidence in the record indicating that claimant's psychological condition is itself caused by her injury. Claimant bears the burden of proof to show that she has permanent disability causally related to her work injury. Claimant has failed to carry her burden. Taking the medical evidence as a whole, it is found that claimant has not shown any evidence of permanent physical disability. Claimant's reported symptoms are exaggerated, and there is no objective finding of permanent impairment to claimant's back. Although claimant has shown an injury arising out of and in the course of her employment, she has not shown that the injury resulted in any permanent disability. Claimant injured her back on April 7, 1986. Claimant has been paid temporary total disability benefits or temporary partial disability benefits through March 17, 1987. Claimant has been off work since March 17, 1987. Claimant seeks additional temporary total disability benefits or healing period benefits from March 17, 1987. Following her April 7, 1986 injury, claimant was released to return to work in August of 1986 by Dr. Lentini. Claimant was also released to return to part-time work by Dr. Durnin in August of 1987. There is no medical evidence that claimant was prohibited from working after March 17, 1987, other than claimant's own testimony that she was unable to Page 3 do so. It has already been determined that much of claimant's perception of pain is psychological in origin. After leaving work in March 1987, claimant was evaluated by Dr. Durnin, who reiterated Dr. Lentini's conclusion that claimant should return to work. In that claimant has failed to establish permanent disability, claimant is not entitled to healing period benefits. Claimant has also failed to carry her burden to show that she is entitled to temporary total disability benefits beyond March 17, 1987. Claimant seeks medical benefits. Claimant did suffer an injury arising out of and in the course of her employment. Although her condition may be exaggerated, nevertheless the medical services provided were related to the effects of the work injury. Claimant is entitled to the medical benefits sought. WHEREFORE, the decision of the deputy is reversed in part and affirmed in part. ORDER THEREFORE, it is ordered: That defendants shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by her. Otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. That defendants shall receive credit for previous payment of benefits under a non-occupational group insurance plan under Iowa Code section 85.38(2) plus any tax deductions from those payments, as set forth in the prehearing report. That defendants are to pay all costs of the arbitration proceeding including the cost of transcription of the hearing. That defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of August, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Ms. Judith Ann Higgs Attorney at Law 701 Pierce St., Suite 200 P.O. Box 3086 Sioux City, Iowa 51102 Mr. Paul C. Thune Mr. Fred L. Morris Attorneys at Law 218 6th Ave., Suite 300 Page 4 P.O. Box 9130 Des Moines, Iowa 50306 1803, 1402.40 Filed August 30, 1991 Byron K. Orton LPW before the iowa industrial commissioner ____________________________________________________________ _____ : CONNIE GARRETT, : : Claimant, : : vs. : : File No. 877007 ROCHESTER PRODUCTS, : : A P P E A L Employer, : : D E C I S I O N and : : ROYAL INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ 1803, 1402.40 Claimant injured her back lifting a heavy bucket. None of the many physicians assigned claimant any permanent impairment, but several of them diagnosed psychological overlay and symptom magnification. Claimant failed to carry her burden to prove permanent disability, but did show an injury arising out of and in the course of her employment. Medical benefits only awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CONNIE GARRETT, Claimant, VS. File No. 877007 ROCHESTER PRODUCTS, 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. STATEMENT OF THE CASE This is a proceeding in arbitration brought by Connie Garrett, claimant, against Rochester Products, employer (hereinafter referred to as Rochester) , and Royal Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on April 7, 1986. On August 6, 1990, 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. The testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. An employee - employer relationship existed between claimant and Rochester at the time of the alleged injury. 2..Except for two periods of time from August 10, 1987 through September 10, 1987 (working part-time), and from May 14, 1990 through May 15, 1990, claimant has been off work since March 17, 1987. Claimant agrees that she has been paid her entitlement to temporary total disability or healing period benefits through March 17, 1987, and the temporary partial disability entitlement for the part-time work. Claimant is seeking additional benefits from March 18, 1987. GARRETT V. ROCHESTER PRODUCTS Page 2 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits from this proceeding shall be $316.91. 5. The medical bills submitted by claimant at hearing were fair and reasonable and causally connected to the medical condition upon which claimant herein is based but the issue of the causal connection of this condition to a work injury remains at issue. 6. Defendants are entitled to a credit under Iowa Code section 85.38(2) for the amount of extended disability payments less taxes paid as set forth in the prehearing report. 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. The extent of claimant's entitlement to disability benefits; and, III. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants place claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From her demeanor while testifying, claimant is found credible. From their demeanor while testifying, claimant's witnesses, as well as defense witnesses, were found credible as well. Defendants unsuccessfully attacked claimant's credibility by evidence showing that she suffers from chronic pain syndrome and histrionic or exaggerated pain. Defendants also unsuccessfully attacked claimant's credibility by the use of a private investigator. As will be explained below, the development of chronic pain syndrome and the related psychological difficulties is not an unusual development in extended disability cases in the experience of this deputy commissioner and this fact does not effect claimant's truth telling ability. Also, the investigative tapes and reports failed to show anything sig- GARRETT V. ROCHESTER PRODUCTS Page 3 nificant with reference to claimant's extended disability. Claimant never contended that she was unable to move about or conduct the usual activities of life. She is only very limited in what she can do and the investigative reports failed to show otherwise. Little weight could be given to the investigator's statements that claimant moved about freely without disability when the investigator had little or no medical training and had been hired for the purpose of discrediting claimant. On the other hand, claimant's primary treating physician in this case believes claimant's pain to be real and has imposed very severe restrictions upon her ability to return to gainful employment. Claimant worked for Rochester from August 1984 until March 1987, at which time she left work upon the advice of her physicians. Claimant has unsuccessfully attempted to return to work twice since that time. Claimant worked as a laborer/assembler in the manufacture and assembly of automotive fuel injectors. This required claimant to lift up to 30 to 35 pounds with prolonged sitting and standing, stooping and repetitive bending along with the use of outstretched arms both below and above the shoulders. Claimant earned over $12.00 per hour in her job at the time of the alleged injury along with a lucrative fringe benefit program including life, health and dental insurance; retirement benefits; profit sharing; vacation pay; and, bonus or incentive pay. She also was able to increase her income from working overtime. Claimant indicated that she enjoyed her work at Rochester due to the plant's, family atmosphere and clean working conditions. Claimant has not returned to work at Rochester because of her disability. Defendants contend that she was primarily interested in returning to her home state of Indiana and that it was her decision to leave the employment of Rochester. This is not supported by the evidence as her inability to continue working at Rochester is verified by her primary treating orthopedic surgeon, Nino R. Lentini, M.D. On or about April 7, 1986, claimant suffered an injury arising out of and in the course of her employment at Rochester. Claimant injured her mid and lower back while lifting a bucket of parts weighing approximately 30 pounds above her shoulders. After reporting her injury to her supervisors, claimant sought treatment for back and shoulder pain along with general muscle spasms in the back from John Redwine, D.O. Dr. Redwine treated claimant over the next several weeks with physical therapy and medication. When this treatment proved unsuccessful in relieving claimant's pain, claimant was referred to an orthopedic surgeon, Dr. Lentini, who diagnosed lumbosacral strain/sprain and continued conservative care. In August 1986, Dr. Lentini released claimant to return to work and stated that her permanent partial impairment was possibly two percent but he stated that it was premature to provide such an impairment rating. GARRETT V. ROCHESTER PRODUCTS Page 4 Claimant returned to her job at Rochester between August 1986 and March 1987 but stated she continued to experience difficulties with her back. She continued taking medications for pain on a daily basis and the pain continued despite performing lighter duty work. In March 1987, claimant stated that her back worsened and she could no longer work. The pain also began radiating into her buttocks and down her left leg. Claimant stated that she began to walk with a limp. As Dr. Lentini had moved to Indiana, claimant was referred for additional treatment to Robert Durnin, M.D., a specialist in physical medicine and rehabilitation. After his testing of claimant, Dr. Durnin's only explanation for claimant's pain was a possible degenerative disc. He released claimant for part-time work in August 1987. However, claimant was only able to continue for approximately one month. Dr. Durnin felt that claimant's pain was inconsistent and that she exaggerated her pain complaints when he could find no organic cause for the pain. Dr. Durnin also indicates that he could not find any objective evidence to support a rating of permanent partial impairment. He refused to provide a rating based only upon claimant's subject complaints in his attempts to further diagnose claimant's condition and treat claimant in March 1988. Michael Morrison, M.D., another orthopedic surgeon, examined claimant in July 1987 and likewise found no objective evidence of abnormality. He stated that with physical therapy and exercise, claimant should be able to return to work without restrictions. In September 1987, upon the recommendation of Dr. Durnin, claimant was evaluated by a clinical psychologist who found claimant ' to be "hypochondriacal" and that her pain complaints have psychogenic causes. However, he stated that an organic cause of claimant's pain could not be ruled out. Dr. Durnin, in his deposition, likewise stated he could find no evidence to suggest that claimant suffers pain. However, he could also find no evidence to suggest that she did not suffer pain. Claimant had been examined in April of 1987 by a psychiatrist, J. M. Duggan, D.O., who stated that claimant suffers from an affective disorder in response to her disability. In July 1987, claimant was evaluated by Leonard E. Weber, M.D., a neurologist, who found that claimant was suffering from chronic pain disorder with possible exaggerated symptoms due to psychiatric problems. He also could find no objective cause of claimant's symptoms and rated claimant as having no permanent partial impairment on an objective basis but a zero to five percent permanent partial impairment due to subject pain. In November 1987, claimant's functional capabilities were evaluated. According to therapists conducting the evaluation, claimant is able to perform sedentary work but the claimant has symptom magnification and is very fearful of reinjury. The evaluator recommended that a GARRETT V. ROCHESTER PRODUCTS Page 5 work hardening program be provided to claimant to increase her physical capabilities. In March 1988, claimant moved back to her home in Muncie, Indiana. She had moved from Muncie when she began her employment at Rochester. Claimant stated that she left because she wanted a specialist due to the fact that only a general practitioner was providing care for her in March of 1988. She immediately sought treatment from her former physician, Dr. Lentini, when she arrived in Muncie. Claimant also stated that one of the reasons she moved back to Indiana was that she needed the assistance from her family to care for herself. After his initial examination of claimant in Indiana, Dr. Lentini stated that claimant should resume physical therapy but this was later discontinued because claimant failed to improve. Dr. Lentini has not actively treated claimant since that time, but referred claimant for evaluation and treatment by Robert K. Silbert, M.D., and the staff of the Indiana Center for Rehabilitation Medicine. Both Dr. Silbert and the staff at the Indiana Center diagnosed that claimant has psychogenic problems coping with her pain and recommended aggressive treatment to correct this problem. Psychologists at the Center recognized that it is quite likely that there is some secondary gain factors involved but this did not alter their recommendation that claimant would benefit from participation in the rehabilitation program offered at the Indiana Center. Dr. Lentini continued to see claimant and in his deposition testified that he believes claimant's pain is real from his clinical evaluation of claimant. He also has imposed activity restrictions on claimant's behavior of no lifting over 15 pounds; no stooping, repetitive bending, crouching or reaching; or, work with arms extended forward over head. He released claimant to try a light duty job at Rochester in May of 1990 called a "dial" job but claimant reported that she could not tolerate the arm reaching. This work was discontinued after two days. The plant nurse and benefit administrator at Rochester, Shirley Patch, testified at hearing that claimant did receive ice packs during her attempts to return to work. She also stated that in May 1990, while performing the dial job, claimant was willing to try the job but appeared uncomfortable doing so. It is found that claimant reached maximum healing and suffers from a significant permanent partial impairment due to the April 7, 1986 injury. Claimant most likely reached maximum healing when Dr. Durnin ended his care on March 18, 1988. Since that time, physicians have not made any further effort to diagnose her back condition and any treatment she has received has been maintenance in nature. GARRETT V. ROCHESTER PRODUCTS Page 6 The permanent partial impairment finding is based upon the views of Dr. Lentini. His views are given greater weight than those of Dr. Durnin. Although Dr. Durnin could give no permanent partial impairment opinion, this is based upon a failure to find objective evidence of disease. Dr. Lentini has a longer clinical involvement with claimant and appeared to have a specialty more clearly associated with the diagnosis and treatment of specific low back problems. Dr. Lentini clearly stated that claimant has permanent partial impairment even based upon loss of range of motion. The doctor stated in his deposition that he would be willing to opine what that percentage was if asked to do so. No one at the time of the deposition asked him to do so. However, this is an industrial disability case and the work restrictions Dr. Lentini imposed are more important in the permanent disability analysis than a specific percentage of impairment. It is found that claimant had no back problems prior to April 7, 1986. It is found that to the extent any of the permanent partial impairment is due to claimant's psychogenic chronic pain syndrome, that condition was also caused by the April 7, 1986 injury. Claimant had no emotional or depression problems before the work injury. This is again based upon the views of Dr. Lentini and the diagnosis of the clinical psychologist and psychiatrist involved in this case. It is the experience of this deputy commissioner that the development of histrionic symptomatology and chronic pain syndrome is not unusual in long term disability cases. A claim for permanent partial disability benefits should not be denied because of an emotional problem caused by the work injury. It is found that only aggressive pain therapy, as recommended by the Indiana Center for Rehabilitation Medicine, will break the cycle of chronic pain syndrome. This treatment also recommended by Dr. Lentini and Dr. Silbert, is in claimant's best interest as it appears to be the most logical course of action in any further attempt to increase her physical capabilities. Claimant has not shown by the evidence that she is permanently totally disabled or that she has no earning capacity. Although her physical and mental problems are all work related, a portion of her problems are exaggerated or histrionic due to her chronic pain syndrome problems. Furthermore, no physician in this case has stated that claimant is unable to work in any capacity. It is found that the work injury of April 7, 1986, is a cause of a 50 percent loss of earning capacity. Claimant is relatively young at age 34 and suitable for retraining. Her primary work history involves factory work in automotive plants and due to her work injury, this is no longer possible. This will result in a substantial loss of earnings. Claimant earned $37,249.00 in wages during the year prior to her injury in addition to lucrative fringe benefits. On the other hand, claimant is a high' school graduate and was on the honor roll in school. Her work history includes auto GARRETT V. ROCHESTER PRODUCTS Page 7 sales while working in her father's automobile business. Claimant has not shown that she has searched for suitable employment in the geographical area of her current residence. The only functional capability assessment performed on the claimant indicates that she is suitable for sedentary work. The fact that claimant moved her residence to the state of Indiana had no effect on her loss of earning capacity. Due to the restrictions imposed by Dr. Lentini, claimant is unable to perform any of the jobs at Rochester offered by defendants in Sioux City, Iowa. In light of the finding of permanent partial disability in this case, the medical expenses listed in the prehearing report are likewise found causally connected to the injury of April 7, 1986. It is also found that defendants have denied liability for this injury. CONCLUSIONS OF LAW 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. In the case sub judice, there was little dispute in the record that claimant suffered a work injury on April 7, 1986. The fighting issue was the nature and extent of this injury. II. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u) . However, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa .587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or GARRETT V. ROCHESTER PRODUCTS Page 8 may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) . See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). In the case sub judice, it was found that claimant has suffered a 50 percent loss of earning capacity as a result of the work injury. Based upon such a finding, claimant is entitled as a matter of law to 250 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 50 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. Further treatment of claimant's pain syndrome will be ordered herein. If indeed this results in increased capabilities and a change of condition increasing her earning capacity, this agency is available upon application to review this award at a later date. III. As claimant has established entitlement to permanent partial disability benefits, claimant is entitled to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until she returns to work; until she is medically capable of returning to substantially similar work to the work she was performing at the time of injury; or, until it is indicated that significant permanent injury is not anticipated, whichever occurs first. It was found that claimant has reached maximum healing on March 18, 1988. Healing period benefits will be awarded from March 18, 1987 through March 18, 1988, except for the period of time claimant worked from August 10, 1987 through September 10, 1987, as stipulated by the parties. IV. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. In the case at bar, it is found that the requested medical expenses were causally connected to the injury. Also, defendants have denied liability for the injury and did not have the right to choose the care. Kindhart v. Fort Des Moines Hotel, I Iowa Industrial GARRETT V. ROCHESTER PRODUCTS Page 9 Commissioner Decisions 3, 611 (Appeal Decision 1985); Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner Report 16 (Appeal Decision 1981). As the parties have stipulated as to the reasonableness of the requested expenses, all of the requested expenses will be awarded. Also, claimant has shown that it is in her best interests to have further treatment of her pain syndrome recommended by Dr. Lentini and such will be ordered. ORDER 1. Defendants shall pay to claimant two hundred fifty (250) weeks of permanent partial disability benefits at the rate of three hundred sixteen and 91/100 dollars ($316.91) per week from March 19, 1988. 2. Defendants shall pay to claimant healing period benefits from March 18, 1987 through March 18, 1988, at the rate of three hundred sixteen and 91/100 dollars ($316.91) per week. 3. Defendants shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by her otherwise, defendants shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. 4. Henceforth, claimant's authorized physician shall be Nino R. Lentini, M.D., and Robert K. Silbert, M.D., and the defendants are ordered to provide the care these physicians recommend including treatment of her pain syndrome by the Indiana Center for Rehabilitation Medicine. 5. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for benefits previously paid as set forth in the prehearing report. 6. Defendants shall receive credit for previous payment of benefits under a non-occupational group insurance plan under Iowa Code section 85.38(2) plus any tax deductions from those payments, as set forth in the prehearing report. 7. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 8. Defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343 IAC 4.33 including reimbursement to claimant for any filing fee paid in this matter as set forth in the prehearing report. GARRETT V. ROCHESTER PRODUCTS Page 10 9. Defendants shall file activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343 IAC 3.1. Signed and filed this 12th day of December, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Judith Ann Higgs Attorney at Law 701 Pierce St STE 200 P 0 Box 3086 Sioux City IA 51102. Mr. Paul C. Thune Mr. Fred L. Morris Attorneys at Law 218 6th Ave STE 300 P 0 Box 9130 Des Moines IA 50306 5-1803 Filed December 12, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER CONNIE GARRETT, Claimant, VS. ROCHESTER PRODUCTS, File No. 877007 Employer, A R B I T R A T I O N and D E C I S I O N ROYAL INSURANCE COMPANY, Insurance Carrier, Defendants. 5-1803 Extent of permanent disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ CONNIE S. GARRETT, Claimant, vs. File No. 877007 ROCHESTER PRODUCTS, R E M A N D Employer, D E C I S I O N and ROYAL INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ This case is on remand from the Iowa Court of Appeals. Claimant originally injured her back on April 7, 1986. Claimant sought benefits from her employer, and an arbitration hearing resulted in an award of benefits for permanent partial disability and medical benefits. On appeal to the industrial commissioner, medical benefits only were awarded to claimant. Claimant was found not entitled to permanent disability benefits. On judicial review, the decision of the industrial commissioner was reversed. On appeal to the Iowa Court of Appeals, the decision of the district court was affirmed and this case was remanded to the industrial commissioner. The remand decision of the Iowa Court of Appeals states: This case must be reversed and remanded for the industrial commissioner to make the determination as to disability and its cause and extent after considering all the evidence and applying the law, including the principles discussed below which, as far as the commissioner's appeal decision indicates, were not considered in the commissioner's decision. The principles referred to above were precedents dealing with workers injured on the job who, as a result of their physical injury, suffered a psychological or mental condition or disorder. The court of appeals cited Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969); and Mortimer v. Fruehauf Corp., 502 N.W.2d 12 (Iowa 1993). It was previously found that claimant had failed to carry her burden of proof to show that the physical condition she complained of was caused by a physical injury. The appeal decision filed August 30, 1991, found that: [C]laimant has not shown any evidence of permanent physical disability. Claimant's reported symptoms are exaggerated, and there is no objective finding of permanent impairment to claimant's back. Although claimant has shown an injury arising out of and in the course of her employment, she has not shown that the injury resulted in any permanent disability. That finding is again adopted in this remand decision. Claimant has not shown that she has suffered permanent physical disability as a result of her injury. In determining whether claimant has established that she suffers from a work-related psychological condition, the precedents referred to by the court of appeals will be considered. Deaver and Mortimer establish that, in Iowa, a claimant may be entitled to benefits for a psychological or mental condition caused by a physical work injury. Mortimer further held that a psychological condition caused or aggravated by a scheduled injury is to be compensated as an unscheduled injury. To establish entitlement to benefits, claimant bears the burden of proof to show that she is disabled by a psychological condition that was caused by her work injury. Both J.M. Duggan, D.O., and Leonard E. Weber, M.D., noted that claimant tended to exaggerate her symptoms. Claimant was found to be "hypochondriacal," and motivated by "secondary gain." Claimant was also treated by Robert Durnin, M.D., who concluded that claimant's pain was inconsistent and that she exaggerated her pain complaints. Dr. Durnin refused to assign a rating of physical impairment based solely on claimant's subjective complaints of pain. A clinical psychologist examined claimant and found her to be "hypochondriacal." Nino R. Lentini, M.D., an orthopedic surgeon, treated claimant and conducted an MMPI test, which revealed a suspect profile suggesting exaggeration of pain complaints and secondary gain. Thomas McConnell, M.D., also diagnosed secondary gain and psychological overlay. A review of the definitions of the terms referred to above is in order. "Secondary gain" is defined as: "The external gain that is derived from any illness, such as personal attention and service, monetary gains, disability benefits, and release from unpleasant responsibility." A Psychiatric Glossary, American Psychiatric Association, Fourth Edition. Two of claimant's physicians described her as "hypochondriacal," which is defined as: "A neurosis characterized by preoccupation with the body and with fear of presumed diseases of various organs. Although the fears are not delusional in quality, they persist despite reassurances." A Psychiatric Glossary, American Psychiatric Association, Fourth Edition. "Hypochondria" is defined as: "extreme depression of mind or spirits often centered on imaginary physical ailments." Webster's Medical Desk Dictionary, Merriam-Webster. The greater weight of the medical testimony establishes that claimant's complaints of pain are due to secondary gain and hypochondria. A distinction must be made between psychological conditions arising from physical injuries that so impair a person's ability to function mentally that their ability to perform work is affected, and preexisting psychological conditions that lead a person to exaggerate their symptoms from a physical injury in order to obtain financial benefits. The medical and lay evidence in this case does not show a worker who suffered a physical injury and, as a result of that injury, now also suffers a psychological injury as well. Rather, the evidence as a whole shows a worker who suffered a nondisabling physical injury and, because of personality traits not shown to be caused by the work injury, now seeks to exaggerate those symptoms in order to obtain benefits. A work injury may indeed cause a worker to suffer from depression, hysteria, or some other mental condition that is disabling. Such workers are entitled to compensation under the workers' compensation system. But references to "psychological overlay," "secondary gain," and "hypochondria" refer instead to a predilection on the part of a patient to maximize their complaints beyond their true extent in order to profit financially. As such, the tendency to engage in such behavior does not constitute a psychological "injury," but rather constitute an attempt to obtain that to which the claimant is not entitled. A physical injury may indeed cause a psychological condition that is disabling and therefore should be compensated. But this fact should not lead to the conclusion that a claimant may subjectively inflate and exaggerate his or her physical condition beyond all verifiable criteria with the intent to maximize an award, and then find that attempt rewarded with a determination that the attempt constitutes a "psychological injury" that should be compensated. Claimant's individual predilection to exaggerate her symptoms in order to obtain financial gain is not a compensable psychological condition such as contemplated by Deaver, Mortimer, and other cases. It is noted that most of the physicians in this case opine that claimant's complaints reflect a tendency to exaggerate symptoms, rather than a genuine psychological condition. No psychiatrist or even a physician specifically opines that claimant has a disabling psychological condition such as depression, anxiety, etc. At most, one physician describes claimant's condition as due to "psychogenic" factors caused by her work injury. The lay testimony of claimant as to her condition is also considered. However, it is noted that a diagnosis of functional overlay necessarily affects the weight to be given a claimant's testimony as to her symptoms. See Terwilliger v. Snap-on Tools Corp., No. 3/94-212, slip op., (Sup. Ct. Feb. 22, 1995). It is therefore determined that the greater weight of the evidence does not establish that claimant suffers from a psychological condition caused by her work injury. Claimant has failed to carry her burden of proof to show that she has suffered a physical injury that has resulted in permanent physical disability; claimant has also failed to show that she has suffered a disabling psychological condition as a result of her injury. As previously determined, claimant has shown entitlement to medical benefits that were awarded in the appeal decision of the industrial commissioner. Signed and filed this ____ day of February, 1995. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Ms. Judith Ann Higgs Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102-3086 Mr. Fred L. Morris Attorney at Law P.O. Box 9130 Des Moines, Iowa 50306-9130 2204 Filed February 28, 1995 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ CONNIE S. GARRETT, Claimant, vs. File No. 877007 ROCHESTER PRODUCTS, R E M A N D Employer, D E C I S I O N and ROYAL INSURANCE, Insurance Carrier, Defendants. ________________________________________________________________ 2204 Claimant was previously held not to have suffered a physical injury. On remand, held that claimant had not suffered a psychological injury either. Diagnoses of "functional overlay," "symptom magnification," "secondary gain," etc., do not constitute compensable psychological conditions caused by the physical injury; rather, these refer to claimant's tendency to exaggerate her symptoms in order to obtain benefits. Claimant awarded medical expenses only. before the iowa industrial commissioner ____________________________________________________________ : DANIEL S. HALL, : : Claimant, : : vs. : : File No. 877031 PST, INC., : : A P P E A L Employer, : : D E C I S I O N and : : FIREMANS FUND 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 March 13, 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 October, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Peter Soble Attorney at Law 505 Plaza Office Bldg. Rock Island, IL 61201 Mr. Allan Hartsock Attorney at Law 4th Floor Rock Island Bldg. PO Box 4298 Rock Island, IL 61204-4298 9998 Filed October 17, 1991 BYRON K. ORTON MDM before the iowa industrial commissioner ____________________________________________________________ : DANIEL S. HALL, : : Claimant, : : vs. : : File No. 877031 PST, INC., : : A P P E A L Employer, : : D E C I S I O N and : : FIREMANS FUND INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed March 13, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DANIEL S. HALL, : : Claimant, : : vs. : : File No. 877031 PST, INC., : : D E C I S I O N Employer, : : O N and : : A T T O R N E Y F E E S FIREMANS FUND INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ This is a proceeding regarding attorney fees brought by attorney Peter Soble against claimant Daniel S. Hall in the above captioned matter. This matter came on for hearing on February 1, 1991, at Davenport, Iowa. The record in the proceeding consists of Peter Soble's exhibits 1 through 57, Daniel Hall's exhibits 1 through 8 and testimony from Peter Soble, Allan Hartsock, Brenda Irwin, Daniel S. Hall and Linda Soble. issues The sole issue is Peter Soble's entitlement to attorney fees and costs. findings of fact Having considered all the evidence received the following findings of fact are made: Daniel S. Hall retained attorney Peter Soble to pursue a workers' compensation action against Pacific States Transport (PST). Soble, on behalf of Hall, filed an original notice and petition on May 23, 1988, alleging that on January 19, 1987, Hall had a heart attack caused by his work for employer. On November 21, 1988, Soble was discharged as attorney in Hall's Iowa workers' compensation case. Hall retained attorney Allan Hartsock to represent his interests. On January 5, 1989, a substitution of parties was filed which revealed that Soble withdrew on November 30, 1988, and Hartsock appeared on December 21, 1988 (exhibit 22). Hall dismissed his Iowa petition on January 7, 1989. However, Soble had filed a petition for fees and costs on November 23, 1988, alleging that $5,925 in fees and $1,312.06 in costs had been expended by him. Peter Soble testified that he has been a practicing Page 2 attorney since 1954. He was hired by Hall in May 1988 to pursue the heart attack claim against Hall's employer. An attorney fee contract was executed that purported to allow Soble to take a one-third contingency fee (ex. 1). Soble testified that he earns $300 per hour on a yearly basis, but that he charges $150 per hour in his fee contract. Soble testified that he filed a petition on behalf of Hall in Iowa due to the admissibility of hearsay evidence in that jurisdiction. Soble stated that he performed an extensive amount of work on Hall's behalf including, writing letters, conducting discovery and preparing for claimant's deposition. Soble testified that the work performed was listed in exhibit 20. It is found that claimant performed 39 1/2 hours of legal work on Hall's behalf through November 21, 1988. It is found that Soble advance costs in the sum of $1,312.06 in Hall's workers' compensation case (ex. 20). Soble testified that Hall refiled his workers' compensation case in Illinois. Hall settled the Illinois case with the assistance of attorneys Allan Hartsock and Theodore Gilbert in May 1989. Soble testified that he was unaware of the Illinois petition or settlement until after it had already occurred. Allan Hartsock testified that he represented Daniel Hall in his Illinois workers' compensation case. Hartsock testified because Soble had made certain allegations that only Hartsock could refute. It is found that Soble's allegations of improper conduct on the part of Hartsock and Gilbert and Hartsock's response are only marginally relevant to the issue in this case. The evidence was considered, but given little weight in that the issue to be decided is whether Soble performed services for which he should be compensated. The issue is not whether Hartsock and Gilbert defrauded Soble of his fee. The Iowa Industrial Commission does not have jurisdiction over settlements executed before the Illinois Industrial Commission. However, the Iowa Industrial Commissioner does have jurisdiction over attorney fee disputes which occur in Iowa cases. Rule 343 IAC 3.1(9); Iowa Code section 86.39. Hartsock testified that he charges $100 per hour when defending workers' compensation cases. Hartsock was of the opinion that the attorney fee contract, marked exhibit 1, was unconscionable and should be declared null and void. Hartsock occasionally accepts legal work on an hourly basis. Brenda Irwin testified that she is Dennis Hall's daughter. She stated that after her father's heart attack, he was unable to communicate with the spoken word. She stated that yes and no were about all he could say. Irwin testified that her father hired Soble to pursue the workers' compensation claim, but that in November 1988, her father became upset with Soble's advice and he discharged Soble. She stated that Soble had recommended that her father accept a $20,000 settlement that would net Page 3 only $7,000. She stated that the case was ultimately settled for $46,000 with her father receiving $35,000 as his net amount under an Illinois settlement. Daniel Hall testified. He was able to communicate through the use of leading questions and interpretations made by his daughter, Brenda Irwin. Hall testified that he did, in fact, retain Soble to pursue the heart attack claim. He testified that Soble gave incorrect facts to examining doctors which resulted in an inaccurate history. He stated that the recommended settlement of $20,000 was the reason he discharged Soble. Hall testified that he has spent all of the money and he now lives on social security and his VA pension. Peter Soble testified in rebuttal that he did not suggest to Hall that a $20,000 settlement was appropriate. Linda Soble testified that she is a paralegal in Soble's firm. She is also Peter Soble's wife. Linda Soble stated that she was present at Hall's deposition in November 1988 when Peter Soble allegedly told Hall to settle for $20,000. She testified that no such conversation took place on that date and time. The sole issue to be decided concerns Peter Soble's entitlement to an attorney fee and costs. The record clearly reveals that costs in the amount of $1,312.06 were advanced by attorney Peter Soble on Hall's behalf. These costs were for necessary services which benefited the prosecution of Hall's workers' compensation case. It is found that Soble is entitled to be reimbursed for costs by Hall in the amount of $1,312.06. The more difficult question concerns Soble's entitlement to attorney fees for work performed on Hall's Iowa workers' compensation case. It is the law in Iowa that all fees are subject to the approval of the industrial commissioner. Iowa Code section 86.39. The amount of the fee is still at issue. That is, the $150 hourly rate was never approved by the commissioner so its reasonableness is in dispute. It is found that an hourly fee of $100 per hour is a reasonable fee on the facts of this case to expect when pursuing a workers' compensation case on an hourly basis. Allan Hartsock testified that when pursuing cases on an hourly basis he usually charges $100 per hour. Soble stated that he only does plaintiff's work and usually does not take cases on an hourly basis. Hartsock's hourly rate of $100 is found to be a more accurate reflection of the fees charged within the legal community as he is more familiar with taking cases on an hourly basis. conclusions of law Iowa Code section 86.39 makes all fees for services Page 4 rendered in an Iowa workers' compensation proceeding subject to the approval of this agency. The factors to be considered in arriving at a reasonable fee are the following: (1) the terms of any fee agreement; (2) the time and effort reasonably involved in handling the case; (3) the novelty and difficulty of the questions involved in the case and the skill required to properly perform; (4) the reputation, ability, status and expertise of the attorney; (5) the likelihood that acceptance of employment will preclude the attorney from other employment due to conflicts of interest, unfavorable publicity or antagonism with other clients or other attorneys; (6) the fee customarily charged in the locality for similar services; (7) the amount involved in the controversy, the impact of the result upon the client and the result actually obtained; (8) time limitations, whether imposed by the client or other circumstances; (9) the nature and length of professional relationship between the attorney and client. Kirkpatrick v. Patterson, 172 N.W.2d 259, 261 (Iowa 1969). Disciplinary Rule 2-106(B) Iowa Code of Professional Responsibility of Lawyers. For a contract to be enforceable it must be clear, concise and mutually understood. Carmichael v. Iowa State Highway Commission, 219 N.W.2d 658, 665 (Iowa 1974). A contract which is contrary to public policy may not be enforced. Rowen v. LeMars Mutual Insurance Co., 282 N.W.2d 639, 650 (Iowa 1979). Contingent fee contracts are generally enforceable. Wunsched Law Firm, P.C., V. Claubaugh, 291 N.W.2d 331, 333 (Iowa 1980). Fees ranging from 25 percent to 40 percent of the recovery have been found to be reasonable. Stoebe v. Kittey, 249 N.W.2d 667 (Iowa 1977), Blazek, Continental Casualty Company v. Knowlton, 232 N.W.2d 789, 794-795 (Minn. 1975). It appears from the file that claimant's heart attack case would have presented some difficulty in that connecting the injury to work with employer would routinely result in numerous questions of fact. The record reflects that Soble devoted a fair effort to achieving claimant's goal of establishing a causal connection of the injury to employer's work. Soliciting opinions from medical doctors and attending to discovery matters are an important and necessary part of pursuing an Iowa workers' compensation claim. With respect to the first factor cited above, it has been found that $100 per hour is a reasonable hourly fee for a workers' compensation case. The second factor concerns Soble's time and effort. It has clearly been established that Soble expended 39 1/2 hours of work (ex. 20). This fact was not disputed by offer of contrary evidence. With respect to the skill involved, it is found that there is no showing that Soble should be awarded a higher fee based upon his status, reputation or experience. Page 5 There is no showing that counsel's handling of this case was in any way prejudicial to the rest of his law practice. There is no indication that any particular time limitations, other than ordinary statutory limitations, were involved with this case. The previous dealings between Hall and Soble were not such as to have any effect on the fee to be charged in this proceeding. Hall did allege that Soble gave poor advice concerning the value of his case. However, that fact does not change the number of hours that Soble worked on the case, nor does it indicate that a fee lower than $100 per hour is appropriate. The workers' compensation law in Iowa differs greatly from the law in Illinois. Thus, the value of a factually similar case will vary greatly between the two states. Hall failed to bring forth any evidence to prove that Soble's fee should be less than $100 per hour. Upon considering all the evidence and material factors it is found that Soble is entitled to a fee of $100 per hour for 39 1/2 hours expended in prosecuting claimant's Iowa workers' compensation case for a total of $3,950. Soble is also entitled to be reimbursed for costs advance in the amount of $1,312.06. order THEREFORE, IT IS ORDERED: Peter Soble is entitled to a fee of three thousand nine hundred fifty dollars ($3,950) and to payment of one thousand three hundred twelve and 06/100 dollars ($1,312.06) in costs advanced. Peter Soble is to pay costs for attendance of a court reporter. All other costs are assessed against claimant, Daniel S. Hall pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of March, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Peter Soble Attorney at Law 505 Plaza Office Bldg. Rock Island, Il 61201 Page 6 Mr. Allan Hartsock Attorney at Law 4th Floor Rock Island Bldg. PO Box 4298 Rock Island, Il 61204-4298 5-1000 Filed March 13, 1991 MARLON D. MORMANN before the iowa industrial commissioner ____________________________________________________________ : DANIEL S. HALL, : : Claimant, : : vs. : : File No. 877031 PST, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIREMANS FUND INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1000 Claimant discharged his Iowa attorney, dismissed his Iowa case and refiled in Illinois. Claimant's former Iowa attorney filed a petition for attorney fees and costs. Attorney fees awarded on basis of $100 per hour as opposed to $150 per hour which was requested by petitioning attorney. Costs advanced were also awarded. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANE L. BROWN, Claimant, File No. 877034 vs. A R B I T R A T I O N IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. F I L E D JUL 18 1989 INDUSTRIAL SERVICES STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant Diane L. Brown against self-insured defendant employer IBP, Inc., to recover benefits under the Iowa Workers' Compensation Act as the result of an injury allegedly sustained on January 26, 1987. This matter came on for hearing before the undersigned deputy industrial commissioner in Council Bluffs, Iowa, on June 30, 1989. The matter was considered fully submitted at the close of hearing. The record in the proceeding consists of the testimony of claimant, Gary Jackson, and Lisa Brockway along with claimant's exhibits 1 through 7 and defendant's exhibits A through Q, both inclusive. ISSUES Pursuant to the prehearing report submitted by the parties and approved by the deputy, the parties have stipulated: That if claimant's alleged injury caused permanent disability, it was a scheduled member disability to both upper extremities to be compensated under Iowa Code section 85.34(2)(s); that the commencement date for permanent partial disability benefits is July 12, 1988; that claimant's marital status at the time of the injury was married and she was entitled to six exemptions (the parties also stipulated that claimant's gross average weekly wage be calculated from defendant's exhibit H); that defendant asserted affirmative defenses under Iowa Code sections 85.33(3) and 85.39; that defendant is entitled to credit for 89 weeks of compensation paid prior to hearing at the weekly rate of $166.88; that claimant's claim for penalty benefits remains asserted. The issues to be resolved include: Whether claimant sustained an injury on January 26, 1987 arising out of and in the course of her stipulated employment at that time; whether the injury caused temporary or permanent disability and the extent thereof; calculation of the appropriate rate of compensation; claimant's entitlement to medical benefits; asserted affirmative defenses and the claim for penalty benefits; taxation of costs. REVIEW OF THE EVIDENCE Claimant testified that she was employed by defendant from June, 1986 until February, 1987 (the termination date has been otherwise shown to be February 18, 1987). Claimant worked primarily at two different jobs, as a belly flipper and as a butt wrapper. Belly flipping involved turning pork bellies so that they might be processed by a saw. Butt wrapping involved wrapping six-pound pieces of meat at a fast pace. Claimant worked full time. Claimant testified that she first began developing bilateral upper extremity problems in approximately September, 1986. Her hands became swollen, painful and burning and would go numb at home after work. Claimant indicated that she first complained to a company nurse in approximately September, 1986, and was advised to wrap her hands and to sleep with her hands elevated. Claimant began taking a nonprescription pain medication up to eight doses daily. Claimant usually wrapped her hands for work, but found that her hands suffered from numbness and cold in this meat packing facility. Claimant first sought medical treatment in January, 1987 from a Dr. Romano. Claimant indicated that Dr. Romano diagnosed carpal tunnel syndrome. Thereafter, claimant visited Dr. Miller, who determined on the same diagnosis. Claimant was apparently given work restrictions and provided what the employer considered light-duty work involving sorting meat pieces on a tray. Claimant believed this also bothered her hands. Subsequently, claimant was discharged on February 18, 1987. Claimant underwent surgery to her right hand in March, 1987, and on her left hand in June, 1987. In September, claimant underwent surgery for a cyst on her right upper extremity, and finally underwent another release procedure to the right extremity in January, 1988. Claimant is dissatisfied with the results of her surgical procedures, believing that her condition has not greatly improved and in fact has deteriorated over time. As of today, she complains of pain in the hands, arms and neck, and testified that she did not have any of these problems before her injury. Claimant also testified that she was treated by Brent V. Stromberg, M.D., and was seen for evaluation by Jack A. McCarthy, M.D. She testified that because Dr. McCarthy did not wish to see her further, she subsequently began visiting Dennis R. Green, D.C. She began seeing Dr. Green approximately three times per week for spinal adjustments and other treatments which she believes helped a number of symptoms including headaches and discomfort to the shoulders, arms and hands (hands only a little). Shortly after claimant began seeing Dr. Green, she suffered injuries in a motor vehicle accident on November 28, 1988. Injuries were to her neck and back. Claimant is now involved in litigation concerning those injuries. Gary Jackson testified to defendant's absenteeism policy. He further testified to familiarity with defendant's light-duty program and stated that claimant would have had such work available to her if she had not been discharged for absenteeism. He took issue with claimant's description of her job as butt wrapper, indicating that temperatures were not so cold as claimant believed, that air did not blow on those employees, and that butts were not thrown on wrappers' hands as claimant indicated. Lisa Brockway testified that she was defendant's workers' compensation coordinator in January, 1987. She testified to claimant's refusal to submit to a medical examination as per exhibit O admitted into evidence. She also testified as to defendant's absenteeism policy. The documentary evidence discloses that claimant underwent bilateral carpal tunnel surgery. Treating physician Stromberg last saw claimant in July, 1988. On September 26, 1988, he wrote to claimant's attorney to state that claimant "has sustained a permanent partial impairment in the range of five to eight percent based on her ongoing pain and weakness." The record does not disclose when, if ever, Dr. Stromberg released claimant, nor is there any indication that he has expressed an opinion as to when claimant's healing period ended. Dr. McCarthy wrote a series of letters to defendant from April until September, 1988. On May 11, 1988, Dr. McCarthy indicated that claimant had last been seen on May 2. At that time, he estimated claimant's "deficit" as in the range of two to three percent resulting from her bilateral carpal tunnel surgery. On August 23, Dr. McCarthy wrote of his diagnoses of bilateral arm pain, etiology unclear and bilateral carpal tunnel syndrome, improved, status post-decompression. He assessed her disability as three percent to each upper extremity, which opinion he repeated in a letter of September 9, 1988. Claimant last visited Dr. McCarthy on July 11, 1988. Defendant's exhibit O is a note signed by Lisa Brockway reporting a telephone conversation with Dr. McCarthy on May 26, 1988. Ms. Brockway described Dr. McCarthy as stating he had referred claimant to another physician for a nerve block and had heard nothing from a work hardening program. She reported that Dr. McCarthy felt he had lost contact with claimant, although the records show that claimant was seen at least once more by this physician. Claimant's exhibit 6 is a ledger card prepared by Dr. Green's office, showing some 60 procedures from October 10, 1988 through May 23, 1989. The total billing was $4,046.00. Dr. Green wrote to claimant's attorney on June 14, 1989 noting claimant had first presented with complaints of pain in the forearms and hands, weakness of grip, pain in the cervicodorsal area, predominating on the right, and frequent headache. He referred to claimant's history of bilateral carpal tunnel syndrome and diagnosed as "cumulative work related injuries" bilateral carpal tunnel syndrome and cervicodorsal and brachial myofascial pain disorders. He also noted claimant's involvement in a motor vehicle accident on November 28, 1988, and believed it caused an acute strain/sprain complex of the lumbosacral spine with sciatic neuropathy and acute strain/sprain complex of the cervical spine and exacerbation of the cervicodorsal myofascial pain disorders. Dr. Green reported that claimant had reached a point of maximum medical improvement, but did not express an opinion as to when that point had been reached. He did not express an opinion as to the degree of claimant's permanent impairment resulting from the carpal tunnel disorders. Claimant's exhibit 7 is a billing from Bluffs Neurological Associates in the sum of $85.00. The billing does not disclose what services were rendered. APPLICABLE LAW AND ANALYSIS An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that she received an injury which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the workmen's Compensation Act, yet an injury to the health may be a personal injury [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the alleged injury 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). Although claimant has had complaints of other physical ailments such as neck pain, headaches and the like, her petition and the prehearing report make clear that the injuries before the agency at this time are only the injuries to claimant's upper extremities. Claimant's bilateral carpal tunnel syndrome is a typical example of a cumulative injury under Almquist. Claimant credibly testified that she had no arm problems before beginning work with defendant, and developed them during the course of that employment. Only one physician has expressed an opinion as to whether these problems are work related, that being Dr. Green. Dr. Green has expressed the view that claimant's bilateral carpal tunnel syndrome was caused by her employment. It is held on the basis of these facts that claimant has met her burden of proof in establishing that her bilateral carpal tunnel syndrome arose out of and in the course of her employment and that disability resulted. Although the evidence is sparse, it is held that claimant sought medical attention and was disabled from her work on January 26, 1987. Because it is found infra that claimant suffered a permanent disability from her injury, it is necessary to determine her healing period under Iowa Code section 85.34(1). Healing period begins on the date of injury and continues until the employee is returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to substantially similar employment, whichever first occurs. The record in this case shows that claimant has not returned to work. There is no evidence as to when, if at all, claimant became capable of returning to substantially similar employment. Therefore, healing period must be determined by the date when significant improvement from the injury was no longer anticipated. The only physicians to express an opinion as to this issue are Drs. Green and McCarthy. Dr. Green wrote on June 14, 1989 that claimant "has reached a point of maximum medical improvement" with regard to her neuromusculoskeletal injuries. However, Dr. Green does not indicate any opinion as to when that point may have been reached. On the other hand, Dr. McCarthy first expressed an opinion as to claimant's permanent disability on May 11, 1988. In the absence of any more satisfactory evidence, it is held that the willingness of a physician to assess permanent impairment implies that maximum medical improvement has been attained. While this record would support a finding that claimant has failed to meet her burden of proof in establishing the extent of her healing period, it is nonetheless held that Dr. McCarthy's opinion on May 11, 1988 ended the healing period on that date. Therefore, claimant had a healing period of 67 weeks, 3 days. Next, it is appropriate to consider the extent of claimant's permanent disability. Again, two physicians have expressed a view as to this issue: Drs. Stromberg and McCarthy. On September 26, 1988, Dr. Stromberg felt that claimant "has sustained a permanent partial impairment in the range of five to eight percent based on her ongoing pain and weakness." Unfortunately, Dr. Stromberg did not indicate what he was measuring. It could well be he intended five to eight percent of the right hand, left hand, both hands, right arm, left arm, both arms, or body as a whole. There is simply no way to be certain from a review of his letter, claimant's exhibit 1. Dr. McCarthy has opined that claimant sustained a three percent impairment to each upper extremity (arm). Although Dr. Stromberg was the treating physician, it is held that Dr. McCarthy's opinion establishes claimant's impairment because of the uncertainty resulting from Dr. Stromberg's vagueness. The parties have stipulated that claimant's disability is a scheduled member disability to both arms under Iowa Code section 85.34(2)(s). Under the statute, claimant's two scheduled member disabilities should be converted to a body as a whole rating on the basis of 500 weeks. As the parties have stipulated that claimant's disability is to each upper extremity, and given further that claimant testified to continuing pain throughout each arm, and given further that Dr. McCarthy expressed his opinion as a disability or impairment to the arm, it is held that this injury should be considered as bilateral arm disability, rather than hand disability. Compare, Streeter v. Iowa Meat Processing Co., file number 809945, (App. Decn. March 31, 1989). A review of the American Medical Association's Guides to the Evaluation of Permanent Impairment, discloses that impairment of three percent to the arm converts to two percent of the body as a whole. Two separate two percent impairments to the body as a whole convert to a four percent impairment of the body as a whole, or 20 weeks. Therefore, claimant is entitled to 20 weeks of permanent partial disability based upon a four percent body as a whole impairment. Based on the foregoing, claimant's entire award for healing period and permanent disability is 87.429 weeks. It has been stipulated that defendant has already paid 89 weeks. Therefore it is unnecessary to consider the affirmative defenses. In any event, the allegation that claimant refused treatment under Iowa Code section 85.39 relates to a time after the healing period had already ended. Pursuant to defendant's exhibit H, in the 13 weeks before January 26, 1987, claimant worked 356 hours at $5:35 per hour and 214 hours at $5.70 per hour. Pursuant to Division of Industrial Services Rule 343-8.2, amounts paid in excess of the straight time rate for overtime are not considered in determining gross weekly wages, but overtime hours at the straight time rate are included. Therefore, claimant earned $3,124.40 on that basis, or an average of $240.34 per week. See, Iowa Code section 85.36(6). A review of the Guide to Iowa Workers' Compensation Claim Handling, published by this division and effective July 1, 1986, discloses that the proper rate for a claimant with such earnings who is married with six exemptions is $166.88. Dr. Green's medical billings involve treatment to the back as well as claimant's hands or arms. It is impossible to determine the extent to which his bills relate strictly to this injury, rather than other physical problems and the injuries resulting from claimant's automobile accident. Because claimant has failed to establish the extent to which she is entitled to compensation, any award would be speculative. In addition, there is insufficient evidence for a determination as to whether the billings from Bluffs Neurological Associates are causally connected to the injury or whether the charges were for reasonable and necessary medical services, or even whether the charges are themselves reasonable. Therefore, no award shall be made as to claimant's medical expenses. Claimant has also alleged entitlement to penalty benefits under Iowa Code section 86.13. Because defendant has paid claimant weekly benefits in excess of her entitlement, penalty benefits are not appropriate. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following ultimate facts are found: 1. Claimant was employed by IBP, Inc., on January 26, 1987, when she was taken off work by her physician by reason of bilateral carpal tunnel syndrome. 2. Claimant underwent surgery to her right hand in March, 1987 and January, 1988 and to her left hand in June, 1987. 3. Claimant's bilateral carpal tunnel syndrome was caused by her employment with IBP, Inc. 4. Dr. McCarthy estimated claimant's "deficit" as in the range of two to three percent on May 11, 1988. 5. Dr. McCarthy eventually assessed claimant's impairment as three percent to each upper extremity. 6. Claimant received extensive treatment from Dr. Green, but his total billing does not differentiate treatment directed to her carpal tunnel syndrome as opposed to other and unrelated problems. 7. Claimant's billing from Bluffs Neurological Associates does not disclose what services were rendered. 8. Claimant's gross average weekly wage at the time of her injury was $240.34; she was at that time married with six exemptions. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusions of law are made: 1. Claimant suffered an injury arising out of and in the course of her employment on January 26, 1987: Bilateral carpal tunnel syndrome. 2. Claimant's injury was an injury to two scheduled members under Iowa Code section 85.34(2)(s). 3. Claimant's injury directly caused a healing period from January 26, 1987 through May 11, 1988 (67 weeks, 3 days). 4. Claimant has established a permanent partial disability of four percent of the body as a whole. 5. Claimant's appropriate rate of weekly compensation is $166.88. 6. Claimant failed to establish entitlement to medical benefits as regards Dr. Green's bill, because assessment of liability would be speculative. 7. Claimant has failed to establish entitlement to medical benefits for the Bluffs Neurological Associates bill because she has failed to establish causal connection to her injury or whether the charges were reasonable and necessary and incurred for reasonable and necessary medical services. 8. Because defendant voluntarily paid claimant weekly benefits in excess of her healing period and permanent partial disability entitlement, penalty benefits under Iowa Code section 86.13 shall not be awarded. ORDER THEREFORE, IT IS ORDERED: Claimant is entitled to healing period benefits of sixty-seven point four two nine (67.429) weeks at the rate of one hundred sixty-six and 88/100 dollars ($166.88) per week totalling eleven thousand two hundred fifty-two and 55/100 dollars ($11,252.55). Claimant is entitled to permanent partial disability benefits of twenty (20) weeks at the rate of one hundred sixty-six and 88/100 dollars ($166.88) per week totalling three thousand three hundred thirty-seven and 60/100 dollars ($3,337.60). Because defendant has paid eighty-nine (89) weeks of compensation at the rate of one hundred sixty-six and 88/100 dollars ($166.88) per week totalling fourteen thousand eight hundred fifty-three and 21/100 dollars ($14,853.21), which is in excess of claimant's entitlement, no further benefits shall be awarded and claimant shall take nothing in excess of those benefits which have been voluntarily paid to her. Costs of this action are assessed to defendant pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 18th day of July, 1989. DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dean T. Jennings Mr. William F. McGinn Attorneys at Law Third Floor Executive Suite Council Bluffs Savings Bank Building Council Bluffs, Iowa 51501 Mr. Marlon D. Mormann Attorney at Law P.O. Box 515 Dakota City, Nebraska 68731 1802, 51803, 53001, 4000.1 Filed July 18, 1989 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER DIANE L. BROWN, Claimant, File No. 877034 vs. A R B I T R A T I O N IBP, INC., D E C I S I O N Employer, Self-Insured, Defendant. 53001 Overtime hours were calculated at straight time rate in determining gross weekly wage. 1802 Healing period held to end when physician issued rating of "deficit." 51803 Claimant granted award of four percent body as a whole under 85.34(2)(s) for bilateral carpal tunnel syndrome. 4000.1 Penalty benefits were not awarded where defendant's voluntary payments were in excess of claimant's entitlement.