before the iowa industrial commissioner ____________________________________________________________ : DENNIS HILL, : : Claimant, : : File Nos. 881074/842646 vs. : : A P P E A L OSCAR MAYER FOODS CORP., : : 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 September 12, 1989 is affirmed and is adopted as the final agency action in this case. Defendant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of June, 1991. ________________________________ CLAIR R. CRAMER ACTING INDUSTRIAL COMMISSIONER Copies To: Mr. Wayne H. McKinney, Jr. Attorney at Law P.O. Box 209 Waukee, Iowa 50263-0209 Mr. Harry W. Dahl Attorney at Law 974 73rd St., Suite 16 Des Moines, Iowa 50312 9998 Filed June 28, 1991 Clair R. Cramer BJO before the iowa industrial commissioner ____________________________________________________________ : DENNIS HILL, : : Claimant, : : File Nos. 881074/842646 vs. : : A P P E A L OSCAR MAYER FOODS CORP., : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 9998 Summary affirmance of deputy's decision filed September 12, 1989. BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS HILL, File Nos. 881074 Claimant, 842646 vs. A R B I T R A T I O N OSCAR MAYER FOODS CORP., D E C I S I O N Employer, F I L E D Self-Insured, Defendant. SEP 12 1989 IOWA INDUSTRIAL COMMISSIONER INTRODUCTION This is a proceeding in arbitration brought by the claimant, Dennis Hill, against Oscar Mayer Foods Corp., self-insured employer, to recover benefits as a result of alleged injuries sustained on August 19, 1986 and September 30, 1986. This matter came on for hearing before the deputy industrial commissioner in Des Moines, Iowa, on July 10, 1989. The record consists of the testimony of claimant and Arthur Sorenson; claimant's exhibits A through F; and defendant's exhibits 1 through 9 and 11 through 14. ISSUES The issues for resolution are the same for both injuries, namely: 1. Whether claimant is barred by the notice requirements of Iowa Code section 85.23; 2. Whether claimant's alleged injuries on August 19, 1986 and September 30, 1986 arose out of and in the course of his employment; 3. The nature and extent of claimant's disability; and 4. Claimant's entitlement to 85.27 and 85.39 medical benefits. REVIEW OF THE EVIDENCE Dennis Hill testified that he graduated from high school in 1973. He said that after a couple of manual labor jobs, he began working for defendant employer in July 1974. Claimant stated he was laid off after five months. Claimant said that after a couple of manual labor jobs, he was rehired by defendant employer in September 1986 and worked until the employer closed its plant in February 1989. Claimant testified he had no injuries prior to August 19, 1986 except for an automobile accident in 1972. Defendant later acknowledged that he slipped and fell in December 1985 in the company's parking lot but that he had no leg or hip problems until August 19, 1986. Claimant stated that he had bruised his hip and had missed no work from this fall. Claimant said this automobile accident resulted in two broken legs, a broken jaw and skull fractures. Claimant emphasized that these injuries healed soon thereafter and that he did not injure his back. Claimant said he passed his Oscar Mayer physical in 1976. Claimant stated he began his work in 1976 as a night cleanup person and then as a lard scraper until he started cutting cheek meat off of hog heads in 1977 until February 1989. Claimant described his cheek meat job. Claimant said he processed approximately 1000 heads per day from 1976 to August 1986. Claimant said the hog heads weighed 10 pounds and he was required to reach, twist, lift and bend while doing his job. Claimant stated that every break, three times a day, he was required to lift a barrel of meat. Claimant indicated that if the barrel was full, it weighed up to 250 pounds. Claimant contends a pole at every work station made his job harder because he had to work around it at times when reaching for the hog heads. Claimant testified that the conveyor belt would break down or shut down at times resulting in an increase in reaching to process the hog heads. Claimant said he reported pain in his hip and low back to the company nurse on August 19, 1986. Claimant said he told the nurse he did not have any specific accident. Claimant stated he continued to do this same job until September 1986, at which time he called the company nurse because of the pain in his low back and leg. Claimant stated he went to the company doctor, Kurt Klise, M.D., on September 24, 1986, who indicated that claimant's condition was not work related. Claimant said the company nurse also told him it was not work related since there actually was not an accident. Claimant testified he did not work on September 30, 1986 because his leg and back pain were so bad he could not stand. Claimant emphasized he never experienced pain or problems to this extent before that date. Claimant indicated he returned to work one hour on October 24, 1986, but was unable to continue working because of his pain. Claimant stated he saw Douglas A. Sande, D.C., and Marvin Dubansky, M.D., several times and returned to work November 17, 1986 with no restrictions. Claimant stated he was able to perform his job but that his back still bothered him. Claimant continued to work until February 1989 when the plant closed. Claimant stated he had a workers' compensation complaint one time prior to the 1986 incident but gave no date. Claimant indicated that Oscar Mayer modified his job which resulted in the conveyor felt running more smoothly, the barrel lid being lighter, and the heavy barrel running on its own conveyor belt. Claimant said he has not taken any medications for his problems since 1986. Claimant emphasized he has had no other injuries since the August or September 1986 incidents. Claimant admitted he told the company nurse on February 4, 1987 that he wanted to report his injury from the prior fall as a gradual injury. He said he had talked to the union representative at that time but had not yet talked to an attorney. Claimant also acknowledged that he told the company nurse on February 9, 1987 that he did not know what caused his problem, but felt it came on gradually. Claimant testified that he received retraining and 39 weeks of unemployment benefits due to Oscar Mayer's closing, in addition to pension money and "stay-pay bonus," since he stayed until the plant's closing. Claimant said he is being trained under a United Way program and with Job Service help. Claimant stated he enrolled for a 21 month computer electronics course. Arthur Sorenson testified that he was the assistant personnel manager at Oscar Mayer from June 1986 to April 1988 and personnel manager in Perry, Iowa, from April 1988 to March 1989. He stated he was also the safety manager. Sorenson said the video film shown (defendant's exhibit 2) represents the cheek meat line in 1986 and after the return from the earlier shutdown except for the third conveyor belt. He said there were only two conveyor belts in 1986. Sorenson emphasized that there were no union safety complaints about reaching around the pole when processing the hog heads. He emphasized there are 12 to 13 union members on the committee handling any safety complaints. Sorenson did not dispute the claimant had to reach around a pole at times and lift hog heads. On February 24, 1972, claimant was in an automobile accident and his admission record reflects: This 17-year-old Caucasian male was admitted via an ambulance after allegedly being involved in an accident at an intersection on a rural road sometime the afternoon f admission. In that accident he sustained severe multiple trauma. He sustained a skull fracture with a contusion to the right orbit and eye, a large transverse laceration of his forehead, bilateral fractured femurs with the left fractured femur being open medially, and fractured facial bones including a floating mandible. (Defendant's Exhibit 7, page 1) Claimant had additional surgery on March 13, 1972 involving "Open reduction and internal fixation with ASIF compression plate and screw." On June 26, 1972, claimant was admitted to the hospital and his medical records reflect: This 17-year-old boy was admitted with bilateral hip spica case on for healing fractures of his femurs sustained in a auto accident several months ago. He was taken out of his casts and x-rays show the fractures to be healing in fairly good position and he has gone on physical therapy. He had a moderate amount of knee restriction motion. (Def. Ex. 7, p. 4) In June 1976, claimant's medical records reflect he incurred a left thumb fracture resulting in a 50 percent impairment to claimant's thumb, as opined by Sinesio Misol, M.D. The office notes of Marvin H. Dubansky, M.D., an orthopedic surgeon, reflect on August 19, 1987: At this time, I feel that the patient probably had a herniated disc, which has mostly resolved. He still has some residual impairment as a result, however, at this particular time, I do not feel any other treatment would be necessary. As it's well known, there could be further problems or he could stay the same or could cure up completely but I have no way of 100% predicting what the future may bring but he has done very well at this time and I would hope that he continues the same way. (Def. Ex. 3, p. 14) On October 29, 1987, Dr. Dubansky opined: "Basically, using the AMA Guide to Physical Impairment, I feel that Mr. Hill has approximately 5% impairment of the back due to limited motion and the pain when he stands long periods of time and has to work overtime." (Def. Ex. 3, p. 3) On December 14, 1987, Dr. Dubansky opined: I feel that he does have some permanent impairment as a result of probably having a herniated disc. I would estimate this at about 5% or less. Whether this is due to his auto accident, hormone changes, or what, I cannot say definitely as he does not give history of any new instigating cause at the time he started having trouble. He said he just started hurting. (Def. Ex. 3, p. 4) Jerome G. Bashara, M.D., evaluated claimant on March 15, 1988 at the request of claimant's attorney. His evaluation reflects the following: X-RAYS: .... CT Scan dated 10-11-86, he has a herniated lumbar disc at L5-S1 central and to the left. DIAGNOSIS: Herniated lumbar disc, related to his work at Oscar Meyer [sic] in the fall of 1986, secondary to repetitive bending, twisting, and lifting. I would give this patient 10% permanent partial physical impairment of his body as a whole related to his disc injury with some mild persistent restriction of motion and absent left ankle jerks. (Claimant's Exhibit D, page 3) Dr. Dubansky testified in a deposition on August 17, 1988 that claimant's left leg was shortened one-half inch as a result of claimant's 1972 auto accident. Dr. Dubansky said an inch or so is an acceptable variance and probably may not give claimant back symptoms. Dr. Dubansky referred to the history discrepancy claimant gave him. The doctor had the impression that claimant had to lift the hog heads on the belt and put them down and trim them. Dr. Dubansky noticed in the video (def. ex. 2) that claimant did not have to lift the heads, but just slide the heads around to make the cuts. The doctor said: "Well, just sliding the heads around, to me it sounds like it's no load, no stress, no nothing. It's just a matter of an individual standing. (Def. Ex. 4, p. 16) Dr. Dubansky was asked: Q. And it appears that also you estimated that he has five percent permanent physical impairment of the body as a whole as rated by physicians; is that correct? A. The point is, if somebody has had a herniated disc and has basically no difficulty as a result and they recovered, I feel that is probably a five percent impairment of the body as a whole. Q. Are you relating the five percent permanent physical impairment of the body to any specific episode, or is this just what you found to exist based upon your examination and knowledge that he had apparently this disc problem? A. I feel he probably had a ruptured disc and he recovered without symptoms at the last time I saw him, and based upon that fact, the relationship that he probably had one even though now he has no symptoms, that it is not a normal back. Now, what caused the ruptured disc or the herniated disc, that I'm not prepared to say because I really don't know. (Dubansky Deposition, pp. 18-19) Dr. Dubansky later commented: Now, not everybody who -- in fact, the majority of people that have herniated or ruptured discs do not give a history of a specific episode. It's just something that comes on as an aging type thing, so I don't know whether his job had anything to do with it, and I don't think anybody can prove one way or the other whether his job had anything to do with it because, as I say, a disc that ruptures is a degenerated disc. I've seen people wake up with it, coughing, going to the toilet, and just getting in the car and pushing on the gas, regular activities. Now, when I saw this man, at no time did he give me anything out of the ordinary or unusual. He had been doing this job fourteen years and he had a problem and he went back to it. So to me, I don't know whether this was an episode in his life, and the relationship to his job I don't think had very much to do with it. (Dubansky Dep., Def. Ex. 4, pp. 28-29) APPLICABLE LAW AND ANALYSIS Iowa Code section 85.23 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. Claimant has the burden of proving by a preponderance of the evidence that he received injuries on August 19, 1986 and September 30, 1986 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injuries of August 19, 1986 and September 30, 1986 are causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, (1962). 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, (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 section 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 v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital 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; Ziegler v. United States Gypsum Co., 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, and cases cited. As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." It is not necessary that claimant prove his disability results from a sudden unexpected traumatic event. It is sufficient to show that a disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever court also held that the date of injury in a gradual injury case is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincides with the time claimant was finally compelled to give up his job. This date was then utilized in determining rate and the timeliness of the claimant's claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. Claimant is a 34 year old high school graduate. He worked for defendant approximately 13 years until defendant closed its plant in February 1989. Claimant was involved in a serious automobile accident in 1972 which did not affect claimant's back. The accident resulted in claimant's left leg being one-half inch shorter than his right leg. Dr. Dubansky said a one-half inch or so difference is acceptable and probably may not give difficulty. Claimant passed a pre-employment physical in 1976. Defendant hired claimant thereafter. Claimant has performed the same type of work on the hog cheek meat line for approximately twelve years. The evidence shows claimant has had no specific traumatic injury since 1976 to the present except in December 1985 when he slipped in defendant's parking lot. It appears claimant sustained a bruised thigh and missed no work. Claimant alleges two repetitive injuries on August 19, 1986 and September 30, 1986 which involved basically the same area of claimant's body. The greater weight of evidence shows that if claimant incurred a repetitive injury, there is only one. It appears claimant filed two petitions to cover himself from a technicality. Claimant filed pro se initially alleging a September 30, 1986 injury. Claimant's attorney later filed a petition on behalf of claimant alleging an August 19, 1986 injury. Under the McKeever case, the court held that the date of injury in a gradual injury case is the time when pain prevents the employee from continuing to work. The parties stipulated claimant was off work from September 30, 1986 up to and not including November 17, 1986. Claimant saw Dr. Klise on September 24, 1986. Dr. Klise referred claimant to Dr. Dubansky on October 14, 1986. Dr. Klise indicated claimant did not think on September 24, 1986 that his condition was work related. Obviously, claimant knew he had a medical problem. That is why he went to a doctor. Claimant is not expected to know the particulars of a law as to what a cumulative injury is. Claimant did not receive a specific trauma and therefore obviously could not pinpoint any one particular event. The employer obviously did not want to acknowledge a work-related incident. Claimant notified the company nurse in August 1986 of his pain. Since he could not determine an exact injury date, defendant determined for the claimant that he did not have a workers' compensation injury. The undersigned determines that claimant's repetitive trauma over the years began surfacing through increased pain in August 1986. On September 30, 1986, claimant's pain became so severe he was not able to work. The undersigned finds that defendant had actual notice of claimant's September 30, 1986 alleged injury. Claimant had talked to the company nurse on September 24, 1986 about his problems and the nurse said it was not work related. The company doctor also knew about claimant's condition. The undersigned finds that claimant did not incur a cumulative injury on August 19, 1986. Any cumulative injury claimant received occurred on September 30, 1986. The undersigned's finding of no injury on August 19, 1986 makes moot any further issue involving that date. Hereafter, in this analysis, the undersigned will be discussing the remaining issues as to the alleged September 30, 1986 cumulative injury. Claimant performed his job for many years without physical interruption until his present symptoms began surfacing in August 1986 and became severe in September 1986. A video tape was shown by defendant attempting to depict the nature of claimant's job. On the surface, it did not appear to be heavy duty work, but it was obviously repetitious for several hours each day. Claimant contends that it did not accurately depict claimant's entire daily duties, particularly the lifting required. Defendant devoted 99.9 percent of the video in the actual cutting of the cheek meat and the sliding or pushing or throwing the cut meat into a plastic barrel. Only a brief diversion shows the large plastic barrel into which the meat was placed. It is obvious some person ultimately must lift and move this barrel of meat. It would have helped if defendant had presented the whole picture on tape. Claimant said he had to move this barrel three times a day. Claimant said the barrel weighed up to 250 pounds when full. The undersigned believes the claimant. Claimant has a herniated disc. This condition appears to have been in part due to claimant's preexisting degenerative disc condition. Over time, a person's body naturally degenerates. The older one gets, the more evidence of this degenerative process. Obviously, in claimant it began early. This process can be aggravated and accelerated by repetitive traumas. Claimant's occupation is one in which cumulative traumas are prone to occur. Some people are more susceptible than others. Defendant takes an employee as they are. Claimant passed his company physical in 1976. Dr. Dubansky opined that claimant probably has a herniated disc and a 5 percent or less impairment to his body as a whole. He could not causally connect claimant's impairment to his injury of September 30, 1986. Dr. Dubansky saw the video that has been marked defendant's exhibit 2. He saw no lifting and concluded claimant does no lifting. The undersigned believes this video distorted the true picture of claimant's work activity. Dr. Dubansky also stated that "[a]ny time I say that somebody has a herniated disc, I don't think it's due as a result of their occupation." (Def. Ex. 4, p. 42) The undersigned does not accept that statement as accurate. It is obvious that Dr. Dubansky is not familiar with the cumulative injury under workers' compensation law. Dr. Dubansky did say "that people that do this type of work; twisting, standing and lifting may be ore prone to develop these problems." (Def. Ex. 3, p. 12) Dr. Bashara opined a 10 percent permanent partial impairment to claimant's body as a whole related to claimant's disc injury with some minor persistent restriction of motion and absent left ankle jerks. He causally connected claimant's herniated lumbar disc injury in the fall of 1986 to claimant's work at Oscar Mayer secondary to repetitive bending, twisting and lifting. It appears claimant did not give Dr. Bashara the information concerning his 1972 automobile accident, but the undersigned finds this did not sufficiently flaw the doctor's opinion since the 1972 injury did not involve an injury to claimant's back or any specific disc. Claimant had a degenerative disc condition which was materially and substantially aggravated, accelerated or worsened by his September 30, 1986 cumulative injury, resulting in a herniated disc at L5-S1. The undersigned finds that claimant's cumulative injury on September 30, 1986 arose out of and in the course of claimant's employment and that claimant's current disability is causally connected to his cumulative low back injury on September 30, 1986. The undersigned finds claimant to have an 8 percent permanent partial impairment to his body as a whole. Claimant is entitled to healing period benefits during the period in which the parties stipulated that claimant was off work, namely September 30, 1986 up to and not including November 17, 1986. Claimant went back to work on November 17, 1986 at the same wages and job he was performing on September 30, 1986. Claimant's job was terminated in February 1989 when defendant voluntarily closed its plant. Claimant is being retrained under a program set up to find jobs for those who lost their jobs at this particular plant. Claimant has enrolled in a 21 month electronics course. Claimant's opportunity to return to work in a packing company has been affected by his low back injury on September 30, 1986. There has been no showing of the extent of claimant's loss of income which is only one of the several factors to be considered in determining claimant's industrial disability. Taking into consideration claimant's age and all those other factors in determining claimant's industrial disability, the undersigned finds claimant has a 15 percent industrial disability. Defendant denied liability. Claimant incurred certain medical bills for his treatment and evaluation. Defendant shall pay all of those bills, including the $375 bill of Dr. Bashara who evaluated claimant pursuant to an 85.39 application. Claimant's 85.39 application was ordered in the assignment for this meeting. FINDINGS OF FACT 1. Claimant failed to prove he received a cumulative injury on August 19, 1986. 2. Claimant received a work-related cumulative injury to his low back on September 30, 1986. 3. Claimant incurred an L5-S1 herniated disc as a result of his cumulative injury on September 30, 1986. 4. Claimant's current disability is the result of his cumulative injury on September 30, 1986. 5. Claimant incurred a healing period beginning September 30, 1986 up to and including November 16, 1986, totaling 6.857 weeks. 6. Claimant has an 8 percent permanent partial impairment to his body as a whole as a result of his September 30, 1986 cumulative injury. 7. Claimant has a preexisting degenerative disc condition at L5-S1 which was materially and substantially aggravated, accelerated and worsened as a result of his September 30, 1986 cumulative injury. 8. Claimant has a 15 percent reduction in earning capacity. 9. Claimant is entitled to have his medical bills incurred as a result of his September 30, 1986 cumulative injury paid by defendant. CONCLUSIONS Claimant's injury on August 19, 1986 did not arise out of and in the course of his employment. Claimant's cumulative low back injury on September 30, 1986 arose out of and in the course of his employment. Claimant's disability is causally connected to his cumulative work-related low back injury on September 30, 1986. Claimant is entitled to a healing period beginning September 30, 1986 and up to and including November 16, 1986, totaling 6.857 weeks. Claimant has a preexisting degenerative disc condition at L5-S1 which materially and substantially aggravated, accelerated and worsened as a result of his September 30, 1986 cumulative injury. Claimant has a 15 percent industrial disability. Claimant shall pay claimant's medical bills incurred as a result of claimant's September 30, 1986 cumulative injury. ORDER THEREFORE, it is ordered: That claimant is entitled to seventy-five (75) weeks of permanent partial disability benefits at the weekly rate of two hundred twenty-five and 75/100 dollars ($225.75) beginning November 17, 1986. That defendant shall pay healing period benefits beginning September 30, 1986 up to and including November 16, 1986, totaling six point eight five seven (6.857) weeks at the rate of two hundred twenty-five and 75/100 dollars ($225.75) per week. That defendant shall receive credit for the eight hundred eighty-two dollars ($882.00) sick pay that the parties stipulated claimant received. That defendant shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid, if any. That defendant shall pay the medical bills incurred by claimant as a result of his September 30, 1986 cumulative injury, namely: Dallas County Hospital $ 61.03 Douglas Sande, D.C. 176.00 Orthopaedic Associates 120.00 American Prosthetics 128.00 Heartland Family Health Association 60.00 If claimant paid any of these directly, defendant shall reimburse claimant for same. Any amounts not already paid by claimant shall be paid directly to the particular provider of the services referred to above. Defendant shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. Defendant shall file an activity report upon payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 12th day of September, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Wayne H. McKinney, Jr. Mr. Robert E. McKinney Attorneys at Law 480 6th St. P.O. Box 209 Waukee, IA 50263 Mr. Harry W. Dahl Attorney at Law 974 73rd St. Suite 16 Des Moines, IA 50312 5-1100; 5-1108.50; 5-1400 5-1803; 5-2206 Filed September 12, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER DENNIS HILL, Claimant, File Nos. 881074 vs. 842646 OSCAR MAYER FOODS, CORP., A R B I T R A T I O N Employer, D E C I S I O N Self-Insured, Defendant. 5-1400 Claimant failed to prove he received a cumulative injury on August 19, 1986. 5-1108.50; 5-1100 Claimant proved he received a work-related cumulative injury on September 30, 1986 resulting in a L5-S1 herniated disc. 5-2206 Claimant had a preexisting degenerative disc condition at L5-S1 which was materially and substantially aggravated, accelerated and worsened by his September 30, 1986 injury. 5-1803 Claimant incurred a 15 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT K. HOWE, Claimant, File No. 881075 vs. A R B I T R A T I O N DES MOINES PUBLIC SCHOOLS, D E C I S I O N Employer F I L E D and AUG 8 1989 EMPLOYERS MUTUAL IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by claimant, Robert K. Howe, against Des Moines Public Schools, employer, and Employers Mutual, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act for an alleged injury on July 31, 1987. This matter was scheduled to come on for hearing at 1:00 p.m. on August 7, 1989, at the industrial commissioner's office in Des Moines, Iowa. The undersigned was present. Neither claimant nor defendants appeared. SUMMARY OF THE EVIDENCE Claimant failed to present any evidence in support of the allegations found in his original notice and petition. At the time of hearing, neither an agreement for settlement nor a request for continuance was on file. Claimant has the burden of proving by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). FINDINGS OF FACT WHEREFORE, it is found: 1. Neither claimant nor defendants appeared at the scheduled time and place of hearing. 2. The undersigned deputy industrial commissioner was present and prepared to proceed to hearing. 3. At the time of the hearing, neither an agreement for settlement nor a request for continuance was on file with the industrial commissioner. 4. Claimant failed to present any evidence to support allegations of a compensable work injury. ORDER THEREFORE, IT IS ORDERED: Claimant has failed to meet his burden of proof that he sustained an injury which arose out of and in the course of his employment. Claimant takes nothing from this hearing. Costs are taxed to the claimant pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 8th day of August, 1989. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Kathleen Nutt Mr. Ross A. Walters Attorneys at Law 1800 Financial Center Des Moines, Iowa 50309 Mr. R. Mark Cory Attorney at Law 100 Court Ave. Des Moines, Iowa 50309 51400; 51402 Filed August 8, 1989 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ROBERT K. HOWE, Claimant, File No. 881075 vs. A R B I T R A T I O N DES MOINES PUBLIC SCHOOLS, D E C I S I O N Employer, and EMPLOYERS MUTUAL, Insurance Carrier, Defendants. 51400; 51402 Neither claimant nor counsel appeared at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GREGORY T. SEYDEL, : : Claimant, : File No. 881083 : vs. : A R B I T R A T I O N : JERRIE ROGERS, : D E C I S I O N : Employer, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon the August 22, 1988 petition of claimant Gregory T. Seydel against his alleged employer, Jerrie Rogers, seeking benefits under the Iowa Workers' Compensation Act as the result of an injury sustained on August 26, 1986. The cause came on for hearing in Cedar Rapids, Iowa, on August 30, 1990. The record consists of claimant's exhibits 1 through 32, defendant's exhibit A and the testimony of the following witnesses: claimant, Margaret Seydel, Charles Clarahan, Dorothy Rogers and Jerry Barnes. issues Issues presented for resolution include: 1. Whether an employment relationship existed between claimant and defendant on August 26, 1986; 2. Whether claimant sustained an injury arising out of and in the course of that employment on August 26, 1986; 3. Whether there exists a causal relationship between the injury and any resulting temporary or permanent disability; 4. The nature and extent of claimant's disability, if any; and, 5. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. Page 2 findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, finds: Gregory T. Seydel, born September 20, 1962, was 27 years of age on the date of hearing. He is a 1981 high school graduate, but has no further education. Claimant worked as a dishwasher for a restaurant in 1981 and as a seasonal laborer during the summers of 1982 and 1983 for a gas and electric utility. During the summers of 1985 and 1986, he was employed by Jerrie Rogers Construction as a carpenter. He has since worked as a laborer for a concrete company, a seasonal laborer for a construction company, a laborer for another concrete business, a production employee for a manufacturing concern, and is now again employed as a carpenter. Claimant commenced a typical employment relationship with Jerrie Rogers Construction in May 1985. Jerrie Rogers for approximately 20 years has been a general contractor on relatively small projects, including kitchen remodeling, house framing and the like. Claimant provided a few hand tools, such as his hammer, but major tools were provided by Rogers. Claimant was supervised by Rogers or his foreman, Jerry Barnes. He was at all times paid an hourly wage. Claimant never held himself out to the public as an independent contractor, did not sub-bid his own work, did not take other work, supervised no one, did not have the right to hire his own employees, did not control the manner in which the work was done or the quality thereof, did not supply working materials and supplies, and in general enjoyed a classic employment relationship as a carpenter. Claimant was rehired for the 1986 summer season on precisely the same conditions. However, some 2-3 weeks later, Jerry Barnes (apparently a close friend of Rogers and a long-time employee) advised him that he was now to be considered an "independent contractor" and that it would be necessary to arrange his own disability insurance. Payroll taxes were no longer withheld. Other than the fact that claimant was now to be called an independent contractor rather than an employee, there was no change whatsoever in the relationship between these parties. On August 26, 1986, a rainy, muddy morning, Jerrie Rogers called claimant and advised him to proceed to a residential construction site to perform certain specified duties. Claimant did so, but was the only worker at that site. Part of his duties included carrying siding down to the basement on a 4- to 5-foot plywood sheet set on an angle as a ramp. While descending, claimant's foot slipped, causing him to fall, striking his head and shoulders on the landing above. Claimant briefly lost consciousness and awoke with sharp pain in the right shoulder and neck. He returned to work, but the condition worsened. A few hours Page 3 later, he presented at Mercy Hospital in Iowa City and came under the care of Richard F. Neiman, M.D. Dr. Neiman is a board-certified neurologist and testified by deposition on August 1, 1990. Claimant was admitted to Mercy Hospital on August 26 and discharged on September 3. Discharge diagnosis was of cervical strain and possible cervical cord contusion and right shoulder contusion with possible stretch injury to the brachial plexus. Michael Durkee, M.D., saw claimant in consultation and concurred with this diagnosis. Claimant returned to work on September 22, 1986. Unfortunately, Mr. Seydel's complaints have continued. He suffers residual soreness in the neck and right shoulder, a loss of strength in the right arm, and frequent occurrences of numbness in the right arm. These episodes range from once a week up to two or even three times per day. As a result, claimant does not enjoy some of his previous recreational activities (for example, he complains that he cannot draw his archery bow) and on one occasion, a hammer slipped from his hand and broke a window when his arm went numb. However, his current wage as a carpenter is slightly higher than his former wage with defendant. He has also shingled roofs on a self-employment basis. There are few objective measures of impairment. A myelogram and magnetic resonance imaging were essentially normal, as have been repeated x-rays. However, an EMG performed on January 4, 1989 was abnormal with mild to moderate denervating changes involving the nerve roots at C7 and C8. Dr. Neiman considered this consistent with a contusion to the spinal cord. Mark Ross, M.D., of the University of Iowa Hospitals and Clinics (Department of Neurology) found EMG studies normal on August 16, 1990 and concluded that there was no objective evidence of neurologic dysfunction. Dr. Ross found no explanation for complaints of episodic right arm weakness and numbness. However, Dr. Neiman is the treating physician and has been shown to be board certified; his opinion is found more persuasive. Dr. Neiman believes that claimant has sustained approximately a 20 percent loss of strength to the right upper extremity. He attributes this to the subject work injury. His current diagnosis is of central cervical cord contusion with resultant weakness involving the C7 and C8 nerve roots, causally related to the work injury. He believed at the time of his deposition that claimant would suffer his current level of impairment on a permanent basis and that his loss of function to the body as a whole is between 20-25 percent. Dr. Neiman used both the American Medical Association Guides to the Evaluation of Permanent Impairment and the Manual for Orthopaedic Surgeons in evaluating functional impairment. As to restrictions, Dr. Neiman testified: Q. Do you have an opinion to a reasonable degree of medical certainty as to what limitations Greg Seydel has because of the impairment, the Page 4 permanent impairment, caused by the fall of August 26, 1986? A. He's not as strong as far as the right upper extremity. He mentions if he uses the hand repetitively, he gets some numbness involving the right hand. I would think it would be very difficult for him to be in work which he is required to work above his neck level. If he hyperextends the neck, if he has to work in things up above his neck level, if he has to hyperextend the neck, raise the arm upwards, he has difficulties using the arm. He mentioned the fact that the hammer will fly out of his hand in uncontrolled fashion. So I think he is restricted to some degree as far as the previous construction work that he was doing. I certainly think he can certainly continue to do his work as a supervisor and do some moderately heavy work. At the time I think if he probably exceeds what he should do, he'll probably pay for it with some increasing discomfort. (Dr. Neiman deposition, page 35, line 24 through page 36, line 23) Claimant appeared to be of at least average intelligence, and certainly seems well suited to potential retraining. Page 5 conclusions of law It is first necessary to consider whether claimant has established an employment relationship with Jerrie Rogers. This is his burden of proof. Nelson v. Cities Serv. Oil Co., 259 Iowa 1209, 146 N.W.2d 261 (1967). Five factors should be considered in determining whether there is an employment relationship in existence: 1. The right of selection or to employ at will; 2. Responsibility for the payment of wages by the employer; 3. The right to discharge or terminate the relationship; 4. The right to control the work; and, 5. Is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed? Hjerleid v. State, 229 Iowa 818, 295 N.W. 139 (1940); Funk v. Beacons Van Lines Co., I Iowa Industrial Commissioner Report 82 (App. Decn. 1980). The overriding issue is the intention of the parties. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981); Augustine v. Bullocks, Inc., I-3 Iowa Industrial Commissioner Decisions 502 (1985). In Mallinger v. Webster City Oil Co., 211 Iowa 847, 234 N.W. 254 (1929), the court set forth an eight-part test to determine whether an independent contractor relationship existed: An independent contractor, under the quite universal rule, may be defined as one who carries on an independent business, and contracts to do a piece of work according to his own methods, subject to the employer's control only as to results. The commonly recognized tests of such a relationship are, although not necessarily concurrent, or each in itself controlling: (1) the existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or of his distinct calling; (3) his employment of assistants, with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work, except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer. If the workman is using the tools or equipment of the employer, it is understood and generally held that the one using them, especially Page 6 if they are of substantial value, is a servant. Id. at 851. Although no one factor is controlling in the test of whether the relationship is that of employer-employee or that of an independent contractor, the first inquiry is to which party has the right to control the physical conduct of the service being performed. D & C Express, Inc. v. Sperry, 450 N.W.2d 842 (Iowa 1990). Other factors may include responsibility for payment of the wages, intention of the parties and such things as withholding of federal, income and Social Security taxes. A review of the Mallinger and Nelson standards convincingly demonstrates that an employment relationship existed between claimant and Jerrie Rogers on August 26, 1986. There are, of course, significant financial advantages to a putative employer if the relationship actually be that of independent contractor and principal. In fact, Rogers (in his deposition) and Dorothy Rogers forthrightly conceded that tax and insurance advantages were the motivating factor in changing the name of the relationship between the business and claimant. However, if an employment relationship could be magically transformed into an independent contractor/principal relationship merely by calling it that, the Iowa work force would be peopled primarily by independent contractors with perhaps only a smattering of admitted employees here and there. The assertion that claimant was an independent contractor is ludicrous; the purported change to an independent contractor arrangement in 1986 was purely a sham. Claimant has overwhelmingly met his burden of proof in establishing the existence of an employment relationship. Defendant concedes that claimant suffered an incident such as he claims in a fall on August 26, 1986. However, causal connection to temporary or permanent disability is disputed. The claimant has the burden of proving by a preponderance of the evidence that the injury of August 26, 1986 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 Hosp., 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 Page 7 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The chronology of events and Dr. Neiman's testimony establish a causal nexus between the injury and resultant disability. Under Iowa Code section 85.34(1), healing period is compensable beginning on the date of injury and until the employee has returned to work, 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. Claimant returned to work on September 22 following his injury. He is therefore entitled to healing period benefits from August 26 through September 21, 1986, totalling three weeks, six days. The parties have stipulated that, if permanent disability was caused by the subject injury, claimant has sustained an industrial disability to the body as a whole. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the Page 8 determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985). Claimant has some limitation of function, particularly in that he has lost strength in his dominant right arm and suffers periodic episodes of numbness. Fortunately, these episodes do not appear to date to have interfered substantially with his earning capacity. Witness that his hourly wage is now higher (although inflationary pressures during the interim no doubt account for much of the increase). Dr. Neiman finds that he has sustained between a 20-25 percent functional impairment of the body as a whole. However, the medical restrictions imposed by Dr. Neiman are somewhat imprecise. It would be "difficult" for claimant to work above neck level and claimant must be "restricted to some degree" as far as his previous construction work. Dr. Neiman does not set forth what specific activities are so restricted, except noting that claimant may have increased discomfort if he exceeds his physiologic capacity. Claimant continues to work as a carpenter, but it is foreseeable that he may be less attractive as a prospective employee to at least some potential employers by reason of the work injury, particularly if he continues to let hammers fly when his arm goes numb. Working above neck level is also to be expected of a carpenter. Nonetheless, claimant appears bright and is suitable for retraining should he elect to leave his present occupation. Considering then these factors in specific and the record otherwise in general, it is held that claimant has sustained an industrial disability equivalent to 15 percent of the body as a whole, or 75 weeks. The parties have stipulated to a weekly rate of $131.70. Claimant set forth certain medical expenses totalling $6,435.07 in an attachment to the prehearing report. Defendant stipulates that the fees charged were fair and reasonable and incurred for reasonable and necessary treatment, but disputes causal connection to the work injury. Causal connection has been established pursuant to the foregoing analysis. Claimant shall be awarded those expenses under Iowa Code section 85.27. Page 9 order THEREFORE, IT IS ORDERED: Defendant shall pay unto claimant three point eight five seven (3.857) weeks of healing period benefits at the stipulated rate of one hundred thirty-one and 70/100 dollars ($131.70) per week commencing August 26, 1986 and totalling five hundred seven and 97/100 dollars ($507.97). Defendant shall pay unto claimant seventy-five (75) weeks of permanent partial disability benefits at the stipulated rate of one hundred thirty-one and 70/100 dollars ($131.70) per week commencing September 22, 1986 and totalling nine thousand eight hundred seventy-seven and 50/100 dollars ($9,877.50). All accrued weekly benefits shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30. Defendant shall pay medical expenses totalling six thousand four hundred thirty-five and 07/100 dollars ($6,435.07) pursuant to the attachment to the prehearing report directly to those medical service providers, except that claimant shall be reimbursed directly to the extent he has actually paid those expenses out of pocket. Defendant shall file a first report of injury within thirty (30) days of the filing of this decision. Defendant shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. The costs of this action are assessed to defendant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Paul J. McAndrew Jr. Attorney at Law 122 South Linn Street Iowa City, Iowa 52240 Mr. J. Patrick White Attorney at Law 150 East Court Street Iowa City, Iowa 52240 1402.10; 1504; 2002 Filed February 27, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : GREGORY T. SEYDEL, : : Claimant, : File No. 881083 : vs. : A R B I T R A T I O N : JERRIE ROGERS, : D E C I S I O N : Employer, : Defendant. : ____________________________________________________________ 1402.10; 1504; 2002 Claimant was seasonally employed as a carpenter. He was informed by defendant that from now on he would be an independent contractor, but all other facets of a classic employment relationship remained unchanged. Claimant was found to be an employee. Page 1 before the iowa industrial commissioner ____________________________________________________________ : HARVEY REYNOLDS, : : Claimant, : : vs. : : File No. 881142 PRAIRIE FARMS DAIRY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Harvey Reynolds against his employer, Prairie Farms Dairy, based upon a stipulated injury of March 18, 1988. Claimant seeks compensation for healing period, permanent partial disability and payment of medical expenses. The primary issues to be determined are the extent of claimant's entitlement to healing period, temporary total and permanent partial disability compensation; whether the medical expenses the claimant seeks to recover were fair and reasonable, incurred for reasonable treatment and whether their payment is barred by lack of authorization. The case was heard at Des Moines, Iowa, on August 23, 1991. The evidence consists of testimony from Harvey Reynolds and Arthur H. Wilson. The record also contains joint exhibits 1 through 19 and claimant's exhibit A. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Harvey Reynolds is a 51-year-old man who lives at Ankeny, Iowa. He is a high school graduate, but was not a particularly good student. The bulk of his work life has been spent in the occupation of truck driving. He commenced his employment with Prairie Farms Dairy in 1975 as a transport driver. He remained in that same work at the time of hearing. Harvey's prior medical history is remarkable for a 1971 accident in which he fractured his left hip. Though he testified at hearing that he had no residual problems from Page 2 that accident, the medical records in evidence show some muscle atrophy and neurological abnormalities in his left leg. In 1981, he fell from the back of a trailer, injured his back and was off work for approximately one week (exhibit 3, page 43). In 1985, he was severely injured in a boating accident, though it does not appear that the injuries affected his lower back (exhibit 4, pages 45 and 45; exhibit 10, page 100). On March 18, 1988, Harvey was unloading milk at the Hy-Vee Store in Chariton, Iowa, when he felt something give in his back. He completed his route, but sought medical treatment at the Kirksville, Missouri hospital while in the course of making his deliveries. Harvey returned to Des Moines, saw his family physician Lawrence R. Gray, M.D., and was taken off work. Dr. Gray referred Harvey to neurosurgeon S. Randy Winston, M.D., who felt that claimant had a mechanical back problem with underlying spinal stenosis. He recommended that Harvey lose weight, obtain a lumbosacral support and participate in an ongoing wellness program (exhibit 2, page 42; exhibit 9, page 91). When Harvey did not improve, he was referred to orthopaedic surgeon William R. Boulden, M.D., and advised that Dr. Boulden was the only source of authorized medical treatment (exhibit 18, page 255). Dr. Boulden initially provided conservative treatment and also an epidural injection which considerably improved Harvey's leg pain and somewhat improved his back pain (exhibit 10, page 94). Harvey participated in therapy and, in October 1988, started a work conditioning program. The program was discontinued due to his pain complaints (exhibit 10, page 96). Harvey was then placed in a water therapy program (exhibit 10, page 97). By February 27, 1989, it was reported that Harvey had plateaued in his work hardening effort, that he had reached maximum medical improvement, and that his healing period had ended. On March 6, 1989, Dr. Boulden assigned a ten percent permanent impairment rating due to degenerative changes. He restricted claimant against bending, twisting or lifting with his back. He advised that he avoid prolonged sitting or standing in one position for a duration of more than 45 minutes (exhibit 10, pages 98 and 99). On March 30, 1989, Dr. Boulden reported that claimant did not put forth a good effort in the work hardening program and also that the cause of the degenerative condition is a gradual cumulative effect, due in part to his job (exhibit 10, page 100). While being treated by Dr. Boulden, Harvey chose to seek other treatment at the Minneapolis Clinic of Neurology, Ltd. He was first seen there on November 17, 1988. The reports indicate that he had excellent treatment in the past, but that it was discontinued too soon. It was recommended that he continue water exercise for three months and continue with mobilization therapy and home traction. Page 3 It was also recommended that he lose weight and exercise (exhibit 12, pages 115 and 116). Claimant's second visit to the clinic was on January 23, 1989, at which point he reported no change in his condition. He was diagnosed as having mechanical low back pain with a stable neurologic examination (exhibit 12, page 124). Claimant's physical performance for a functional capacity evaluation conducted on January 23, 1989, was characterized submaximal and further recommended that he could be released to return to work with restrictions (exhibit 14, pages 148 and 149). The restrictions recommended were to avoid deep bending, overhead work, frequent bending and twisting. He was authorized to perform occasional weight lifting of up to 30 pounds. On March 14, 1989, Harvey attended the Mayo Clinic for an examination and evaluation. The initial impression was that he had right peroneal nerve irritation (exhibit 13, pages 135 and 136). In April 1989, the impression was changed to chronic low back strain without evidence of radiculopathy (exhibit 13, page 136). In May, facet injections were performed, but they did not provide any benefit and indicated that Harvey's problem probably did not have its basis in his facet joints (exhibit 12, pages 139 and 141). On June 27, 1989, the notes indicate that claimant had slowly resolving back pain across his low lumbar area. He was diagnosed as having chronic lumbar strain without radiculopathy, chronic right calf pain and musculoskeletal deconditioning (exhibit 13, page 143). When seen on December 12, 1989, a functional capacity evaluation was performed which showed that he could perform light to medium work. It was recommended that he participate in six more weeks of weight loss and exercise therapy and was then released to return to full-duty work effective January 22, 1990. It was reported that he had reached maximum medical improvement and had a five percent permanent impairment of the whole body (exhibit 13, page 146). While Harvey was off work, he was provided services from Rehabilitation Professionals, Inc., with rehabilitation consultant Karen L. Stricklett being assigned to his case. The general aptitude test battery showed claimant to be average for spatial, clerical, motor coordination and manual dexterity skills, but below average for general learning, verbal aptitude, numerical aptitude, reading and spelling. His test results were not above average in any category. It was recommended that he perform bench work or repair activities (exhibit 15). A labor market survey showed small engine repair as a potential field of work. The starting wages were shown to range from $4.00 to $4.50 per hour. Wages for an experienced person could range from $7.00 to $9.00 per hour (exhibit 15, pages 165-167). Harvey was not interested in small engine repair and declined an opportunity to commence work in that field. It had been Page 4 arranged for him to start on November 6, 1989 (exhibit 15, pages 168-174). Claimant chose to attempt to return to truck driving rather than move into the lower paying field of small engine repair. In a report dated March 16, 1990, Joshua D. Kimelman, D.O., an orthopaedic surgeon, reported that he had examined Harvey on June 20, 1989, found complete sacralization of the L5-S1 joint, significant degenerative changes with stenosis at the L3-4 level of his spine with possible disc protrusion. He assigned a ten percent permanent impairment rating (exhibit 16). In a report dated January 30, 1990, Dr. Boulden reported that truck driving would definitely aggravate claimant's underlying degenerative condition and symptoms. He recommended that claimant not return to work as a truck driver (exhibit 10, page 101). There was some delay in accomplishing claimant's return to work. The actual return was on February 15, 1990, due to obtaining a DOT physical examination from the company physician. Claimant now earns $11.06 per hour and has the full range of Teamster Union contract fringe benefits. His rate of pay is the same as it would be if he had not been injured. Claimant reported that he still has pain while working and is never free from pain. He wears an elastic belt at night and exercises regularly. He described his physical problems as being stable and reportedly uses better body mechanics when lifting than he had practiced prior to the injury. He apparently suffered a minor back injury on August 5, 1991, but has not missed any work as a result of that incident and does not expect to. He has undergone surgery on his hands and elbows since returning to work. This case presents a perplexing, convoluted factual situation with regard to determining which physician's assessment of the case is correct. The assessment of the physician from the Mayo Clinic is strongly corroborated by the fact that the claimant has been able to resume his former employment as a truck driver. The assessment from Dr. Boulden regarding the issue of maximum medical improvement is corroborated by Dr. Kimelman and the functional capacity evaluation performed January 23, 1989. It is found that Harvey Reynolds does have a degenerative condition and spinal stenosis in his spine which was partly caused by his employment and that, on March 18, 1988, his work activities caused a flare-up of the symptoms of that underlying condition. Those symptoms were sufficiently severe to temporarily disable Harvey from performing the normal duties of his employment as a truck driver. The symptoms were slow to resolve and required extensive ongoing therapy and exercises. It is found that the assessment of the case made by the physician from the Mayo Clinic is correct. The fact that Harvey was able to resume his former occupation as a truck driver convinces the Page 5 undersigned that the treatment provided was reasonable and effective. It is found that the condition was one which required an unusually long amount of time within which to resolve. The record does not disclose any permanent activity restrictions having been imposed by the Mayo Clinic physician. The treatment provided by the Mayo Clinic was provided at a time subsequent to the time when Dr. Boulden released claimant and offered no further treatment. As previously indicated, that treatment is found to have been successful in resolving the claimant's complaints and has reduced the degree of his disability. The treatment at the Minneapolis Clinic of Neurology, Ltd., appears to duplicate that which was being performed by Dr. Boulden. It is not reasonable to obtain the same treatment from two separate sources. The charge of $105 from McFarland Clinic dated January 5, 1990, was not incurred in obtaining treatment of the injury. It was a charge for a DOT physical, a charge which professional truck drivers are periodically subjected to paying regardless of whether or not they have been injured. The record does not establish, by a preponderance of the evidence, that any permanent industrial disability has resulted from the March 18, 1988 injury, even though there is some permanent impairment. conclusions of law Since it has been found that the injury did not produce any permanent disability, claimant is entitled to recover temporary total disability pursuant to section 85.33 of The Code. That temporary disability entitlement commences March 18, 1988, and runs through January 22, 1990, a span of 96 weeks, 4 days. The record in this case does not show Harvey Reynolds to be disabled from working in his normal occupation of a truck driver. Though he has a five percent permanent impairment, it appears as though that rating is due to the degenerative condition rather than the injury itself. He has no work or activity restrictions and has not experienced any reduction in his actual rate of earnings. It is concluded that he is not entitled to recover any compensation for permanent partial disability. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991). While the claimant's subjective complaints were sufficient to warrant an extension of temporary total disability compensation to the extent that they were corroborated by the physician from the Mayo Clinic in providing continued treatment, his complaints of continuing pain and discomfort are not sufficient, absent medical corroboration in the nature of activity restrictions, to establish the existence of permanent disability. The appearance and demeanor of the claimant is a factor in reaching this determination. While claimant's treatment at the Mayo Clinic was not Page 6 authorized, it was provided at a time when the authorized physician was recommending no further treatment and the treatment was successful in enabling the claimant to return to work. Under those circumstances, the claimant is entitled to recover the expenses of that treatment. Richards v. Dep't of Gen. Services, 1-3 State of Iowa Industrial Commissioner Reports 684 (App. 1985); 2 Larson Workmen's Compensation Law, section 61.12(a) and (e). The Mayo Clinic is a well-known, well-regarded facility with an excellent reputation. Based upon agency expertise and familiarity with the Mayo Clinic, the treatment which was rendered there is found to be reasonable and its charges are likewise determined to be reasonable. There is an inference that, whenever treatment is provided by a licensed physician, the treatment is reasonable for the condition being treated. Simpson v. Burlington Basket Co., File No. 921025 (Arb. May 10, 1991); Brown v. Spurlin, File No. 916776 (Arb. April 1, 1991). It is a manifestation of the physician's professional opinion of what treatment is appropriate. Claimant is therefore entitled to recover his expenses with the Mayo Clinic in the total amount of $3,649.20. He is also entitled to recover his travel expense to the Mayo Clinic in the amount of $554.40. He is entitled to recover his motel expenses while at the Mayo Clinic in the amount of $266.17 and meal expenses as requested at the rate of $4.00 per meal for $96.00. The total recovery for medical and transportation expenses is $4,565.77. Claimant's claim for other expenses as shown in exhibit A is denied. The charges from the Minneapolis Clinic of Neurology and Fitness Associates are unauthorized and duplicate those being provided by the authorized physician at that time. The McFarland Clinic charge for a DOT physical does not constitute treatment of the work injury in this case. The parties stipulated that 97 and 5/7 weeks of compensation had been paid prior to hearing. This results in an overpayment of 1 and 1/7 weeks. The overpayment cannot be applied toward satisfying the medical expenses awarded to the claimant in this decision. Comingore v. Shenandoah Artificial Ice, Power, Heat & Light Co., 208 Iowa 430, 226 N.W. 124 (1929); Beeler v. Union Elec. Co., III Iowa Industrial Commissioner Report 22 (App. 1983). order IT IS THEREFORE ORDERED that defendants pay Harvey Reynolds ninety-six and four-sevenths (96 4/7) weeks of compensation for temporary total disability payable at the stipulated rate of four hundred five and 75/100 dollars ($405.75) per week commencing March 18, 1988. Defendants are entitled to credit for the ninety-seven and five-sevenths (97 5/7) weeks previously paid. This results in an overpayment and no additional weekly compensation is due. IT IS FURTHER ORDERED that defendants pay claimant Page 7 three thousand six hundred forty-nine and 20/100 dollars ($3,649.20) for the expenses incurred at the Mayo Clinic and nine hundred sixteen and 57/100 dollars ($916.57) for transportation, motel and meal expenses incurred in obtaining treatment at the Mayo Clinic. IT IS FURTHER ORDERED that the costs of this action are assessed against defendants pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis L. Hanssen Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 Page 1 1801; 2501; 2503; 3700 Filed November 12, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : HARVEY REYNOLDS, : : Claimant, : : vs. : : File No. 881142 PRAIRIE FARMS DAIRY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : NATIONAL UNION FIRE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1801; 2501; 2503; 3700 Claimant awarded approximately two years of temporary total disability where he was released to return to work without restrictions with only a five percent permanent impairment rating and no reduction of actual earnings. The injury itself was a chronic strain which eventually resolved after extended conservative treatment. Defendants ordered to pay expenses incurred by physician who was not authorized. The authorized physician had found maximum medical improvement to have ended, imposed restrictions and released the claimant to return to work other than his former occupation. The additional unauthorized treatment was provided at a time when the authorized physician had nothing further to offer and was successful in avoiding what might have otherwise been a quite large disability award. It was recognized that an inference exists that treatment provided by a licensed physician is reasonable for the condition being treated in the absence of any evidence to the contrary. The fact it was provided is a manifestation of expert opinion that it is appropriate. Expenses charged by a major medical facility, in this case the Mayo Clinic, with a good reputation, when combined with agency expertise consisting of having observed charges made by other facilities when treating similar conditions, was held to be sufficient to support a finding that the charges made were reasonable in the absence of any evidence to the contrary. Page 2 Overpaid temporary total disability was not allowed as a credit against section 85.27 benefits. Care provided at the same time as care was being provided by the authorized physician and which duplicated that provided by the authorized physician was found to be unreasonable. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MARY RUCKER, Claimant, vs. File No. 881149 OVERDOORS OF IOWA, INC., A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL INS. CO., 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. Although claimant's credibility was attacked by defendants, claimant's version of his injury is accepted. Claimant's injury was not witnessed, but this alone of course does not mandate a finding that the injury did not occur. Claimant's description of the garage door falling, his resulting back pain, unconsciousness, etc., are credible. The fact that claimant described propping the front garage door open in order to crawl out underneath is not negated by the fact that the garage in question had a side door also. Similarly, claimant's failure to remember how he got home after the injury does not indicate the injury did not occur. The mere fact that claimant's recollection of this traumatic event is less than 100 percent accurate does not necessarily cast doubt on his credibility. This is especially true considering that claimant was unconsciousness for a time, and also in light of the testimony in the record that claimant is otherwise a truthful and honest person. Claimant's version of the event is accepted as true. However, claimant has failed to show that his present condition is causally connected to the work injury. The medical evidence shows that claimant's present back pain is due to a degenerative condition. Dr. Boulden testified that this condition predated claimant's injury, and was a condition that developed over many years. Dr. Boulden specifically opined that claimant's condition was not caused by his injury. Rather, claimant's preexisting degenerative condition was temporarily Page 2 aggravated by the injury. The other physicians in the record also diagnosed degenerative disc disease, and there is no contrary opinion on causation. Claimant has failed to show that his present condition is caused by the work injury instead of the preexisting disc disease. Even if claimant had carried his burden to show a causal connection, claimant has not shown any disability caused by the work injury. Claimant was able to return to his job. He is no longer employed by the employer not because of his work injury, but because he became dissatisfied with the method of compensation. Although claimant has ratings of impairment of seven percent and 23 percent of the body as a whole, there is no showing that these are attributable to his work injury, rather than his degenerative disease. All tests showed the absence of a herniated disc. Dr. Boulden stated claimant had no permanent work restrictions as a result of his work injury. Claimant's loss of income is due to his voluntary decision to leave the employer's employment for reasons unrelated to his injury. The parties, at the time of the prehearing report, stated that the "pink sheet" attached to the prehearing report set forth the times that claimant was off work, that claimant had been paid for these periods, and that these payments would constitute claimant's entitlement to temporary total disability benefits if such were awarded. Thus, claimant is entitled to temporary total disability benefits for the periods indicated in the prehearing report and attachment, and defendants are entitled to a credit for any temporary total disability benefits previously paid. The prehearing report attachment also set forth a total figure for medical expenses, and the transcript contains a statement that all medical expenses as of the date of the hearing had been paid. (Transcript, page 7) Claimant is entitled to the medical expenses related to his temporary aggravation of his back condition. Claimant is not entitled to medical benefits for future treatment of his back condition unless such treatment is shown to be causally connected to claimant's March 9, 1988 aggravation injury and not causally connected to claimant's underlying degenerative condition. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That defendants shall pay to claimant temporary total disability benefits and medical benefits to the extent set forth in the attachment to the prehearing report, at the rate of compensation contained therein. That defendants are to be given credit for benefits previously paid. That defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of May, 1993. Page 3 ------------------------- BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Philip F. Miller Attorney at Law 309 Court Ave., Ste 200 Des Moines, Iowa 50309 Mr. D. Brian Scieszinski Attorney at Law 801 Grand, Ste 3700 Des Moines, Iowa 50309 1108 Filed May 27, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARY RUCKER, Claimant, vs. File No. 881149 OVERDOORS OF IOWA, INC., A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL INS. CO., Insurance Carrier, Defendants. ___________________________________________________________ 1108 Claimant's version of injury accepted as truthful on appeal and an injury was found. However, claimant failed to show that his back condition was caused by the accident, where the medical evidence showed a pre-existing degenerative condition and the only physician expressing an opinion on causal connection stated claimant's condition was not caused by the injury.