Page 1 before the iowa industrial commissioner ____________________________________________________________ : MANUAL BALDERAS, : : Claimant, : : vs. : : File No. 877052 LAND O'LAKES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : KEMPER INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration upon the petition of claimant, Manual Balderas, against Land O'Lakes, employer and its insurance carrier, Kemper Insurance Company, defendants. The case was heard on October 10, 1989, in Fort Dodge, Iowa at the Webster County Courthouse. The record consists of the testimony of claimant, the testimony of Guadalupe R. Balderas Garbes, daughter of claimant, Manuel R. Balderas, son of claimant, Marcy Rau, human resources representative, and Steve Rasmussen, supervisor at Land O'Lakes. Additionally, the record consists of joint exhibits A-K, claimant's exhibit J and defendants' exhibits L, M and 1-9. issues The issues to be determined are: 1) whether claimant received an injury which arose out of and in the course of employment; 2) whether there is a causal relationship between the alleged injury and the disability; 3) whether claimant is entitled to temporary disability/healing period benefits or permanent partial disability benefits; 4) the appropriate rate of weekly compensation to use in calculating benefits, if any; and, 5) whether claimant is entitled to medical expenses under section 85.27. Page 2 findings of fact The deputy, having heard the testimony and considered all the evidence, finds: At the time of the hearing, claimant was 56 years old. He is married and two of his six children live with him. Claimant does not speak, read or write English. Spanish is his native language, as claimant was born in Mexico. He moved to the United States in 1955. Claimant completed 5 years of schooling in Mexico. Claimant first started working for defendant-employer in 1969. He held numerous positions. For four years, claimant worked on the turkey line. He worked at a table which was waist high. He was required to pick turkeys from the floor and place them on hooks. The hooks were approximately head high and claimant used his right hand to hook the turkeys. He was required to hook approximately 35/40 turkeys per minute. Claimant testified he experienced problems with his back in December of 1987. When he would bend over to pick up turkeys, he indicated he had pain at the back, waist and down the legs to the knee. Claimant reported the matter to his supervisors. Claimant left work on March 4, 1988. This was the last day he worked. He had not returned to any position since that date. Claimant was initially treated by John M. Koester, D.O. The diagnosis was given as lumbosacral strain and claimant was advised to rest. Several months later a CAT scan and a MRI were performed. The CAT scan exhibited a bulging intervertebral disc but no herniation. The MRI showed an intervertebral herniated disk at the L4 to L5 level. Claimant started physical therapy. He was referred to Robert Gitchell, M.D., an orthopedic surgeon. Dr. Gitchell placed claimant in Mary Greeley Hospital where he was diagnosed as having sciatica of the left leg. Dr. Gitchell referred claimant to Michael Kitchell, M.D., a neurologist because claimant's bulging disc did not explain claimant's symptoms. Dr. Kitchell opined claimant's nerve damage was due to an inflammatory or diabetic type of lumbar root damage (Claimant's Exhibit B, page 11, lines 3-5). After Dr. Kitchell checked claimant's blood sugar, the physician found the blood sugar was elevated. As a result, Dr. Kitchell opined claimant suffered from diabetic lumbar root damage. Dr. Kitchell, in his deposition, testified as to the effect of diabetes on nerve damage: A. Most of the patients that I see with this type of nerve damage in the proximal muscles of the leg, that is the muscles that I noted were weak in Mr. Balderas' condition, who have a painful complaint of numbness, weakness, and Page 3 backache and leg ache, most of the patients that I see do not have a bulging or a ruptured disc. Most of the patients that I see have it on the basis of either inflammation, that is a neuritis, or a diabetic condition. And just statistically speaking, most of these patients turn out to be diabetic. Now, the diabetes is felt to cause deposits in some of the smaller blood vessels in the back. Those deposits in the smaller blood vessels will interfere with the blood supply to the nerves that come out of the back and go down into the leg. They have a propensity, or people with diabetes have a great tendency to have a damage to those particular nerve roots that go to the muscles around the hip and the knee. That nerve damage, therefore, is due to a build-up of some blockage in those very small blood vessels that go to supply those nerves. In other words, the nerves will not work, they will have nerve damage, if those very tiny blood vessels become plugged up due to the diabetes. Q. And the areas that would most likely be effected due to a diabetic lumbar root problem would be the areas around the hip and the knee? A. Yes. The nerves that go to the muscles control the movements of the hip and the knee. Q. And if I understand your previous testimony correctly, those are the two areas that you found abnormalities with regard to the muscles in Mr. Balderas? A. That's correct. Dr. Kitchell further testified that claimant's left ulnar neuropathy and his left leg nerve damage were due to claimant's diabetes. Dr. Kitchell did not believe the condition was due to claimant's bulging disk. Nor did Dr. Kitchell determine claimant's condition was work related. Subsequently, claimant obtained a second opinion in the neurology department at the University of Iowa. E. Peter Bosch, M.D., examined and evaluated claimant. In his report of October 20, 1988, Dr. Bosch opined: In summary, Mr. Balderas is most likely suffering from a diabetic amyotrophy of his left lower extremity, or proximal motor polyradicular neuropathy. Although the patient's glucose is currently well controlled, we assume that type 2 diabetes was present at the time of him developing the neurological deficits. We feel that the patient's prognosis is good, but it should take him approximately one year to recover. We Page 4 recommend that he be placed back on Elavil, and use abstinence from alcohol beverages. Dr. Gitchell, in his report of May 31, 1989, later agreed with the earlier findings of Dr. Kitchell and Dr. Bosch of diabetic neuropathy or plexopathy. Claimant, in anticipation of this hearing, obtained an independent medical examination and evaluation from Paul From, M.D., on February 28, 1989. Dr. From diagnosed claimant as having: 1. Amyotrophy, diabetic, or proximal motor poly- radicular neuropathy, especially involving the left lower extremity. 2. Ulnar neurophathy [sic], left. 3. Diabetes mellitus, adult onset type, noninsulin dependent. 4. Hypertension. 5. Sensorineural hearing loss. 6. Hypercholesterolemia. 7. Hypertriglyceridemia. 8. HDL cholesterol not unusually elevated with a definite increase in Cholesterol/HDL ratio. 9. LDL/Cholesterol ratio satisfactory. 10. Nonspecific ECG changes. 11. Osteoarthropathy of various joints, especially dorsal spine. 12. Overweight, polyphagic. Dr. From opined claimant's condition was caused or accelerated by his work activity. Dr. From testified in his deposition: A. I think that that sort of repetitive work, which is at a very rapid pace with a great deal of lifting and stretching and then bending, would certainly bring about some of the conditions that were found in the MRI scans and CT scans of the back. It would certainly produce some of the physical findings I found in the physical examination of Mr. Balderas and may well have accelerated the development of the neuropathy which came about because of his diabetes. ... Page 5 Q. Can you explain how that would affect the conditions you diagnosed? A. The constant twisting, turning, lifting, bending and lifting with weights and tightening up the muscles of the upper arms and back did produce strain against his back, spine and muscles both, which led to his problems. He did complain on a number of occasions of back pain. He had a number of treatments for his back. He had, obviously, complaints referable to the back or he wouldn't have had sophisticated studies as CT scans, MRIs, electromyograms and myelograms. There was no clear-cut history of any one injury. He had a gradual onset of symptomatology while doing this same job five days a week for four years. I believe there is a definite cause or relationship between that activity and his symptomatology and findings. ... Q. With respect to the spinal stenosis condition, could you describe for the industrial commissioner, if you can, how repetitive bending and lifting affects that condition? A. Yes. The repetitive twisting and turning brings about arthritic changes in the spine itself and all the joints in the spine. This causes encroachment of the spinal canal by this bony tissue so that there is a shrinkage of the canal or a closing down or stenosis of that area. That then does bring pressure against the spinal cord itself and against the nerves which emerged from the vertebral column coming from the spinal cord so that the function of the nerves is impaired, usually causing pain and certainly causing impairment of function of muscles supplied by those nerves, and that's all brought about over a gradual period of time. It is not a clear-cut, sudden, one-time fracture or acute herniation or anything like that. It is repetition bringing about arthritic or, as we call them, spondylitic changes. However, Dr. From did acknowledge in his deposition: Q. Dr. Kitchell, I think, testified in his deposition that it wasn't unusual for a gentleman such as Mr. Balderas to have a sudden onset of diabetic polyradiculopathy. Would you agree with that? A. I would say that happened, yes, sir. Page 6 Q. So the mere fact that Mr. Balderas suddenly started to have back and lower leg pain would not necessarily mean that those problems were due to nerve root impingement from a work-related injury. That kind of history would also be consistent with diabetic polyradiculopathy? A. That could be, yes, sir. Also, Dr. From admitted: Q. Would it be fair to say that, in your opinion, Mr. Balderas would be disabled if we excluded for the moment any question about whether he suffered a work-related injury? In other words, wouldn't the diabetic polyneuropathy be sufficient enough in itself to disable this gentleman based on the history that you took and the findings that you made? A. It is not impossible that that is true. I mean the footdrop makes it difficult for him to get around. The weakness of the adductor muscles, for example, in his thigh make it difficult for him to move. The pain makes it difficult for him. I just can't separate the fact that he has got that problem from other mechanical problems, though. It is almost impossible to know which is Page 7 which. You know, I mean I think they are both there, and I think they are both-- One is more treatable than the other. Until you can eliminate one, you don't know what the other one is doing all the while. But it is not impossible that he would be impaired just from the diabetes. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on March 4, 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(1). 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 (l963) 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 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 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, Page 8 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 injury of March 4, 1988, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Page 9 Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 Iowa 724, 254 N.W. 35 (1934). In the case at hand, the greater weight of the evidence establishes that claimant's condition is not causally connected to his work activities. Claimant does suffer from a neuropathy. Dr. Kitchell and Dr. Bosch have both diagnosed the condition. Even Dr. From agrees that: I believe most of his pain is secondary to a diabetic poly-radiculopathy. He has considerable motor findings with this and has significant atrophy in the adductor muscles and quadriceps of the left lower extremity. (Ex. 6, p. 5). Dr. Kitchell, a treating physician who is board certified in neurology, does not causally relate claimant's condition to claimant's work activities. More weight is accorded to him as a treating neurologist. He has spent much more time with claimant. Dr. From has examined Page 10 claimant on only one occasion. Dr. From has not treated claimant. Additionally, Dr. Kitchell does not believe claimant's work activities aggravate his condition. In support of this opinion Dr. Kitchell testified: Q. Well, I'll rephrase it. The activity of Mr. Balderas, would it affect the condition at all? A. Okay. Now, let's go back and talk about the condition. He has -- he has both signs and symptoms. His condition is that he has a diabetic type of nerve damage. Whether Mr. Balderas was physically active or inactive would not affect the fact that he has diabetic nerve damage. But the fact that Mr. Balderas was active or inactive would certainly make a difference as to how comfortable he felt, how much he would suffer. So that's why I say if he was suffering a lot from pain, or if he was unable to do some physical activity easily, that is if his leg was too weak to do something and it caused him to strain a lot, that made him very uncomfortable, then I would recommend he limit his activity. Q. But you're not saying that the activity itself contributed to the pain and the condition? A. The activity would not make his diabetic nerve damage worse, but it might make his discomfort worse. Q. It would not aggravate it in terms of the ending condition, or the condition as it was? A. Activity would not aggravate the diabetic nerve damage, that's correct. Q. It would aggravate the pain that the person had because of -- A. I would certainly expect so, yes. It is also interesting to note that if claimant's neuropathy had been materially aggravated by his work condition, his removal from the work setting should have lessened claimant's condition. However, even after claimant left the work site on March 2, 1988, his condition worsened. This factor bears upon the decision of the undersigned. Even claimant's medical expert, Dr. From, acknowledged, "But it is not impossible that he would be impaired just from the diabetes." Dr. From did not entirely rule out claimant's preexisting diabetes as the sole cause of his condition. In light of the foregoing, it is the decision of the undersigned that claimant has not proven the requisite causal connection. Claimant's current condition is Page 11 unrelated to his work environment. order THEREFORE, IT IS ORDERED: Claimant takes nothing further from these proceedings. Each party shall pay its own costs. Signed and filed this ____ day of November, 1990. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Page 12 Copies To: Mr. Charles Deppe Attorney at Law P O Box 86 Jewell IA 50130 Mr. Marvin E. Duckworth Attorney at Law Suite 111, Terrace Center 2700 Grand Ave Des Moines IA 50312 Mr. Paul C. Thune Attorney at Law 218 6th Ave STE 300 P O Box 9130 Des Moines IA 50306 5-1108 Filed November 14, 1990 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : MANUAL BALDERAS, : : Claimant, : : vs. : : File No. 877052 LAND O'LAKES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : KEMPER INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108 Claimant did not prove by a preponderance of the evidence the requisite causal connection. BEFORE THE IOWA INDUSTRIAL COMMISSIONER VIRGIL DALE LANDERS, Claimant, VS. File No. 877053 BILL'S TRUCK LINE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and EMPLOYERS MUTUAL, Insurance Carrier, Defendants. INTRODUCTION This is an arbitration proceeding brought by Virgil Dean Landers, claimant, against Bill's Truck Lines, employer, and its insurance carrier, Employers Mutual, defendants. The case was heard by the undersigned in Des Moines, Iowa on September 1, 1989. The record consists of the testimony of claimant. The record also consists of the testimony of William E. (Bill) Snakenberg, owner of Bill's Truck Lines. Additionally, the record consists of joint exhibits A-L. 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. The extent of entitlement to weekly compensation for temporary total disability or healing period, if defendants are liable for the injury, is stipulated to be from June 3, 1987 to December 4, 1987. LANDERS V. BILL'S TRUCK LINE Page 2 3. That the commencement date for permanent partial disability, in the event such benefits are awarded, is stipulated to be the 4th day of December, 1987; and, 4. In the event of an award of weekly benefits, the rate of weekly compensation is stipulated to be $352.03. ISSUES As a result of the prehearing report and order submitted and approved on September 1, 1989, the issues presented by the parties are: 1. Whether claimant received an injury which arose out of and in the course of employment; 2. Whether there is a casual relationship between the alleged injury 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 section 85.27; and, 5. Whether claimant provided notice under section 85.23 of the Iowa Code. FACTS PRESENTED Claimant is 42 years old. He graduated from high school in 1966. Claimant had been employed by defendant-employer in 1985. He was hired as an over-the-road truck driver. Often, claimant testified, he would be required to drive in excess of DOT regulations. Claimant testified he hauled livestock as far as Montana and that he was expected to load his own trailer as well as to clean it. During direct examination, claimant indicated the usual height of a trailer was five feet seven inches high. Claimant stated he was six feet two inches in height and that whenever he was required to clean the trailer, he was forced to stoop. Claimant testified the cleaning process took from 20 minutes to one hour to complete. Claimant also testified his back began bothering him in October or November of 1986 and it was difficult for him to stand up straight. He stated the condition gradually worsened and he sought the professional services of Phillip D. Zickefoose, D.C., on November 17, 1986. LANDERS V. BILL'S TRUCK LINE Page 3 Claimant reported he continued to work but he did take one week off at Christmas in order to "rest his back." Claimant also testified that his driver's license was suspended for 90 days as of February 14, 1987. At that time, claimant left the employ of defendant. Claimant testified he became employed with Precision Pulley in Pella on February 28, 1987 or March 28, 1987. Claimant stated he informed Precision Pulley of his back condition and he was still hired to run a lathe. Claimant, at the time of the hearing, was still employed at Precision Pulley. Claimant indicated he had surgery for a herniated disk on June 3, 1987. The surgery was performed by E. A. Dykstra, M.D., in Iowa City. Claimant stated he last saw Dr. Dykstra in December of 1987. At the time of the hearing, claimant was not taking any medication. William E. Snakenberg testified for defendants. He reported he is the owner and operator of Bill's Truck Line. Mr. Snakenberg indicated claimant voluntarily terminated his employment in February of 1987 when he lost his driver's license. Mr. Snakenberg also testified that he first learned of claimant's back problems on June 3, 1988. That was the date, Mr. Snakenberg testified, on which he received a copy of the original notice and petition. He stated claimant never informed him of any type of workers' compensation claim. APPLICABLE LAW AND ANALYSIS 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 on 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 provide by a preponderance of the evidence. DeLong v. Highway Commission, 229 Iowa 700, 295 N.W. 91 (1940). Mefferd 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 LANDERS V. BILL'S TRUCK LINE Page 4 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 information 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. 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. LANDERS V. BILL'S TRUCK LINE Page 5 The first type of notice is actual knowledge of the occurrence of an injury within 90 days. 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. Claimant admits no formal written notice was tendered to employer. It is undisputed claimant's attorney did tender a letter dated June 23, 1987, to defendant insurance carrier informing defendant carrier of claimant's claim. Claimant alleges an injury date of November 15, 1986. He testified at his hearing he noticed problems in October or November and that he sought the services of a chiropractor. Mr. Snakenberg knew claimant was seeing a chiropractor for a back condition because Snakenberg assisted claimant with the submission of various medical bills to the health insurance carrier. However, Mr. Snakenberg stated claimant never mentioned that the back condition was a work related injury. Claimant, in his deposition, did not dispute Snakenberg's statement. Claimant stated: Q. Let me ask you this. When is -- Back up one second and strike that. Did you ever tell your supervisor, or whoever it was in charge of you at Bill's Trucking, that you were having back problems due to the truck driving? A. I don't think I really told anybody that I was really having that much back trouble. I mean Bill knew I was having trouble, and he knew I was going to the chiropractor. And he knew I was having trouble clean- ing out trailers and stuff, too. Q. Do you -- In your own mind, during that period of time did you associate your back complaints with the driving and with the bending over and that stuff? A. It's the only thing it could have been. Q. Okay. When is the first time -- and I know this is a hard question -- But when is the first time, in your judgment, that you ever told your employer, Bill's Truck Line, Bill or whoever it was that would be the owner of Bill's, that my back hurts because of the work I'm doing, because of the sweeping out of the trucks or the lifting or the driving or whatever it is? When is the first time you ever told him, if you know, if you ever did? I don't know. LANDERS V. BILL'S TRUCK LINE Page 6 A. I don't know. He'd be out there helping once in a while cleaning out trailers, and -- you know, because we'd get out of the trailer and I couldn't hardly stand -- you know, straighten up, because the decks in there is lower than I am tall and you've got to bend over all the time. Q. Again, do you recall when the first time was that you would have ever told him that you were having back complaints because -- you think it's because of your work, if you know? A. I can't remember. Q. Do you think you ever did? A. I don't know. Q. Okay. Might you not have told him? A. I might not have. I don't know. (Joint Exhibit A, pages 39 to 40) Claimant had a duty to notify his employer that his injury was work connected. On November 17, 1986, claimant saw Dr. Zickefoose, D.C. The medical records indicate claimant had had problems with his back for three weeks prior to that office call. At that point in time, it would be reasonable for claimant to assume his back condition was or could have been work connected. Claimant testified he had to stoop when he cleaned his trailer. Claimant also testified it was increasingly more difficult for him to straighten up when standing. Additionally, during Christmas time, claimant took off a week from work so he could rest his back. Obviously, claimant recognized aggravated symptoms after a day of work. Given the fact claimant was a high school graduate and of seemingly average intelligence, he should have realized the disability could have been work related. Therefore., it is the determination of the undersigned that as of November 15, 1986, the 90 day notice period began to run. It is also the determination of the undersigned that proper notice under section 85.23 was not tendered to the employer within the 90 day period. Claimant did not comply with the provisions of section 85.23. Therefore, compensation is not allowed Since section 85.23 disposes of this case, other issues are moot. A detailed discussion is unnecessary. LANDERS V. BILL'S TRUCK LINE Page 7 FINDINGS OF FACT AND CONCLUSIONS OF LAW WHEREFORE, based,on the evidence presented and the principles of law previously cited, the following findings of fact and conclusions of law are made: FINDING 1. Defendants did not have actual knowledge of claimant's alleged injury of November 15, 1986 until June 23, 1987. FINDING 2. Claimant did not tender notice of his alleged injuries to defendants until more than 90 days after the date of the alleged injury. FINDING 3. Claimant had knowledge of his work injury as of November 15, 1986. CONCLUSION A. Claimant did not comply with section 85.23 of the Iowa Code. ORDER Claimant takes nothing from these proceedings. Defendants pay the costs of these proceedings pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 26th day of February, 1990. MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market St Oskaloosa IA 52577 Mr. E. J. Kelly Attorney at Law Suite 111, Terrace Center 2700 Grand Ave Des Moines IA 50312 1600 Filed February 26, 1990 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER VIRGIL DALE LANDERS, Claimant, VS. File No. 877053 BILL'S TRUCK LINE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and EMPLOYERS MUTUAL, Insurance Carrier, 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. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ WILLIAM MATHESON, Claimant, File No. 877064 vs. A P P E A L JOHN DEERE DES MOINES WORKS, D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 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 January 25, 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 August, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David R. Elkin Attorney at Law 315 E. 5th St., Ste 5 Des Moines, Iowa 50309 Mr. Roger L. Ferris Attorney at Law 1900 Hub Tower Des Moines, Iowa 50309 9998 Filed August 26, 1991 Byron K. Orton WRM before the iowa industrial commissioner ____________________________________________________________ : WILLIAM MATHESON, : : Claimant, : File No. 877064 : vs. : A P P E A L : JOHN DEERE DES MOINES WORKS, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed January 25, 1991. Page 1 before the iowa industrial commissioner ____________________________________________________________ : WILLIAM MATHESON, : : File No. 877064 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N JOHN DEERE DES MOINES WORKS, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by William Matheson, claimant, against John Deere Des Moines Works, employer and self-insured defendant for benefits as the result of an alleged injury which occurred on April 3, 1988. A hearing was begun on August 31, 1989 at Des Moines, Iowa. This hearing was resumed and proceeded to its conclusion on January 11, 1991, at Des Moines, Iowa. Claimant was represented by David R. Elkin. Defendant was represented by Roger L. Ferris. The record consists of the testimony of William Matheson, claimant and claimant's exhibits A, G and O. All of claimant's exhibits A through O were excluded at the first segment of this hearing on August 31, 1989, by Deputy Industrial Commissioner Helenjean Walleser ruling on defendant's motion in limine which objected to claimant's exhibits because they were not timely served as required by paragraph six of the hearing assignment order. Claimant filed the original notice and petition pro se and counsel did not appear for him until August 23, 1989, which was only eight days prior to hearing. The witness and exhibit list was served on defendant on the same day, August 23, 1989. At the second segment of this hearing, on January 11, 1991, defendant waived its objection to claimant's exhibits A, G and O and their exclusion by Deputy Industrial Commissioner Walleser because these exhibits had been included on defendant's exhibit list which had been timely served on claimant by defendant. The exhibits not admitted were accepted as an offer of proof. Defendant submitted a description of disputes by employer in which claimant concurred. The deputy ordered a transcript of the hearing. stipulations The parties stipulated to the following matters at the time of the hearing: That an employer-employee relationship existed between claimant and employer at the time of the injury. That the times off work for which claimant now seeks Page 2 temporary disability benefits is stipulated to be from August 16, 1988 to September 23, 1988. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is scheduled member disability to the hand. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is September 24, 1988. That the fees charged for medical services or supplies are fair and reasonable. That the expenses were incurred for reasonable and necessary medical treatment. That the causal connection of the expenses to treatment for a medical condition upon which claimant is now basing his claim is admitted, but that the causal connection of this condition to a work injury remains an issue to be decided in these proceedings. That defendant paid claimant $1,842.40 of income disability payments under an employee nonoccupational group health plan prior to hearing and that defendant is entitled to a credit under Iowa Code section 85.38(2) for this amount in the event of an award of weekly benefits in this decision. That defendant makes no claim for workers' compensation benefits paid to claimant prior to hearing. That there are no bifurcated claims. issues The parties submitted the following issues for determination at the time of the hearing: Whether claimant sustained an injury on April 3, 1988, which arose out of and in the course of employment with employer. Whether the injury was the cause of either temporary or permanent disability. Whether claimant is entitled to either temporary or permanent disability benefits. Whether claimant is entitled to medical benefits. What is the proper rate of compensation in the event of an award. findings of fact injury It is determined that claimant did not sustain the Page 3 burden of proof by a preponderance of the evidence that he sustained an injury on April 3, 1988, which arose out of and in the course of employment with employer. Claimant, born November 25, 1938, was 52 years old at the time of the hearing. He has worked for employer for almost 30 years. Between January of 1988 and May of 1989, he worked as a drill operator. In April of 1988, the fingers on his left hand became numb and painful. The first aid department gave him medications which did not help. Claimant testified that an EMG in May of 1988 disclosed numbness and blocking in his left wrist. The company then sent claimant to see Sinesio Misol, M.D., an orthopedic surgeon. Dr. Misol's medical reports were excluded from evidence because they were not timely served. Claimant was allowed to testify that he understood Dr. Misol to say that he had carpal tunnel syndrome and that it was related to his work even though it was a hearsay statement. [Iowa Administrative Procedure Act 17A.14(1)]. Claimant testified that left carpal tunnel surgery was performed in August of 1988. He missed approximately four days of work off and on prior to the surgery and lost about six weeks of work for the period stipulated to in the stipulations (transcript pages 22-28). Claimant testified that Dr. Misol said he had a permanent impairment of 5 to 7 percent of the left hand (tr. p. 30). Claimant also testified that he was examined by Robert A. Hayne, M.D., a neurosurgeon at the request of defendant. Claimant said that Dr. Hayne examined him, asked him questions, but did not perform any tests. Claimant related that Dr. Hayne said he had a 5 percent permanent impairment, but that it probably was not work related (tr. p. 29). The report of Dr. Hayne states that he examined claimant on June 4, 1989. Dr. Hayne noted that his medical history revealed multiple injuries secondary to motorcycle accidents. Those pertaining to his left upper extremity were a fracture of the left clavicle in 1970 and a dislocation of the left elbow in 1972. He had a laceration of the middle finger of the left hand in May of 1981. Dr. Hayne concluded: There may be a relationship between the carpal tunnel syndrome developing on the left side and the multiple injuries which the patient has had secondary to motorcycle accidents in the past. It seems unlikely that the work in the forepart of 1988 played a significant part in the development of the numbness of the left hand. He has approximately a 5% disability of the left upper extremity. exhibit G-2 Claimant explained that he operated a gang drill which is actually four drills, two of which drill the part, one reams it and the other one deburs it. The part drilled is a three-foot long piece of steel which weighs 18 pounds. He drilled approximately 500 of these per day. He removed the Page 4 part from one skid, drilled it and placed it on another skid. The manual maneuver was the pick up the part, slide it in the machine, move a lever to hold it in, pull down to lock it in, drill it, ream it, debur it and place it back on the other skid (tr. pp. 32-34). Claimant observed the video (exhibit O) and said it is a fair and accurate depiction of the job that he performed (tr. p. 35). Although remarks of counsel are not considered evidence, defendants' counsel did state that Dr. Hayne also viewed the video and claimant had no objection to this remark (tr. pp. 55 & 56). It is granted that claimant's work required a repetitive use of his hands and wrists. It is also granted that claimant was credible when he stated the Dr. Misol diagnosed carpal tunnel syndrome which was work related. Unfortunately, however, we do not have Dr. Misol's own personal signed statement to this effect. On the other hand, we do have the signed personal statement of Dr. Hayne who stated, "It seems unlikely that the work in the forepart of 1988 played a significant part in the development of the numbness of the left hand." (ex. G-2). As defendant's counsel pointed out the question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2nd 167 (1960). In weighing the evidence, the written and signed statement of Dr. Hayne, a neurosurgeon, is determined to carry more weight than claimant's testimony which described a repetitive hand job and the hearsay statement of the treating physician Dr. Misol. Claimant's testimony is sincere, honest and credible. However, the casual connection between employment and an injury is within the domain of expert testimony. The signed expert testimony of a neurosurgeon of necessity must take precedence over the hearsay testimony of the claimant who is a layman. In the hierarchy of evidence, the signed statement of a neurosurgeon must prevail over the testimony of the claimant in the area of causal connection which looks primarily to medical expertise. Wherefore, based upon the foregoing evidence, it is determined that claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury which arose out of and in the course of employment on April 3, 1988. The greater weight of the evidence is the testimony of the neurosurgeon that claimant's employment probably did not cause this injury. conclusion of law Wherefore, based upon the evidence presented and the foregoing principles this conclusion of law is made. That claimant did not sustain the burden of proof by a preponderance of the evidence that he sustained an injury on April 3, 1988 which arose out of and in the course of employment with employer. In view of this finding of fact and finding of law all of the other issues in this case become moot. Page 5 order THEREFORE, IT IS ORDERED: That no amounts are due from defendant to claimant. That each party is to pay their own respective costs of this action. Defendant is ordered to pay the cost of the attendance of the court reporter at both hearings and the transcripts of the hearings. Rule 343 IAC 4.33. Signed and filed this ____ day of January, 1991. ______________________________ WALTER R. MCMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Mr. David R. Elkin Attorney at Law 315 E. 5th St. STE 5 Des Moines, Iowa 50309 Mr. Roger L. Ferris Attorney at Law 699 Walnut, STE 1900 Des Moines, Iowa 50309 Page 1 52906 53700 51106 51402.20 51402.30 52209 52902 Filed January 25, 1991 Walter R. McManus, Jr. before the iowa industrial commissioner ____________________________________________________________ : WILLIAM MATHESON, : : File No. 877064 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N JOHN DEERE DES MOINES WORKS, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 52906 53700 Claimant, originally pro se, failed to timely serve a witness and exhibit list 15 days prior to hearing as required by paragraph six of the hearing assignment order and his exhibits were excluded from evidence. Defendant did consent to claimant introducing three exhibits which appeared on defendant's timely served witness and exhibit list on claimant. 51106 51402.20 51402.30 52209 52902 Claimant's hearsay statement of his treating physician that he had carpal tunnel syndrome and that it was work related was outweighed by the written and signed report of a neurosurgeon, who was defendant's independent evaluator, that it was unlikely that his work caused his injury in as much as claimant had been injured in three previous motorcycle accidents. Claimant did not prove an injury arising out of and in the course of employment.