Page 1 BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BILL BURKMIRE, Claimant, File Nos. 886779 vs. 967334 974055 NATIONAL BY-PRODUCTS, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. ____________________________________________________________ STATEMENT OF THE CASE Defendants appeal from an arbitration decision awarding claimant medical care for his right knee and 11 percent permanent partial disability benefits relative to his left leg. The record on appeal consists of the transcript of the arbitration hearing of November 1, 1991; and of joint exhibits A through F. Both parties filed briefs on appeal. ISSUES Defendants state the issues on appeal as: 1. Whether the deputy erred in awarding medical benefits for future medical care for the right knee; 2. Whether claimant sustained an injury to his left knee arising out of and in the course of his employment; and 3. Whether the deputy erred in awarding claimant permanent partial disability benefits for an injury to the left knee. FINDINGS OF FACT Claimant was 43 years old at time of hearing. Claimant had begun work for defendant employer on August 25, 1978, as a maintenance worker who maintained boilers, rebuilt transmissions, wired high voltage motors, welded steam fittings and ran machinery. In the course of an average work day, claimant might kneel on the floor, lift 50 to 200 pounds, climb stairs or ladders as well as perform other functions. Claimant is 5 feet 10 inches tall and weighed between 240 and 245 pounds at time of hearing. He weighed 257 pounds in 1988. Claimant had a work injury to his right knee on June Page 2 17, 1987. At that time he hurt his right knee in the front below the kneecap. Scott Neff, D.O., an orthopaedic surgeon, treated claimant conservatively and diagnosed tibial tubercle fracture of the knee secondary to old Osgood-Schlatter's disease. Dr. Neff returned claimant to work without restrictions in 1987. Claimant underwent no further medical treatment for the right knee until subsequent to May 28, 1988. On May 28, 1988, claimant, at work, stepped into a drain hole, fell and twisted his right knee. He experienced pain inside his right knee at the knee joint. He returned to Dr. Neff for treatment on June 8, 1988. Dr. Neff, in medical note of that date, stated that claimant's pain was not in the area of the loose piece of bone at the tibial tubercle but was at the medial joint line. A note, of apparently late June 1988, states that claimant's symptoms are not in the posterior medial joint line but are at the patellar insertion on the tibial tubercle where claimant "has a large piece of bone" that needs to be removed. Dr. Neff opined he could not justify a menisectomy at that time since claimant's symptoms were not consistent with a meniscus tear or with medial jointline tenderness. On May 5, 1988, Dr. Neff performed a right knee arthrotomy with excision of Osgood-Schlatter's ossicle, that is, with removal of two bone chips in the right knee. On August 3, 1988, Dr. Neff recorded a patient history of claimant experiencing pain at the medial joint line with immediate swelling after popping the inside of the right knee while walking along an incline at work. The knee area was not infected and Dr. Neff opined that claimant may have a degenerative cartilage tear in the medial aspect of the knee. Dr. Neff described claimant as a "heavyset (sic) [,] hard-working" gentleman who was certainly prone to degenerative meniscal disease of the knee. Dr. Neff released claimant to return to normal activities but for climbing ladders on August 15, 1988. On October 24, 1988, Dr. Neff stated claimant had a Baker's cyst on the posterior [right] knee. Neff indicated that a Baker's cyst is always associated with cartilage disease in the knee. Neff further opined that claimant was "setup" for medial meniscal disease given claimant's age, weight, muscle size and occupation. On November 11, 1988, Dr. Neff diagnosed claimant's condition as proved medial and lateral meniscus tear with intra-articular degenerative changes. Dr. Neff then stated that arthoscopic examination of the right knee was warranted, and if degenerative and torn cartilage was found, that such should be trimmed and partially removed. On February 24, 1989, Dr. Neff reported that claimant had full right knee range of motion. Dr. Neff further stated that claimant's knee would continue to wear out as claimant got older. He described claimant as a large gentleman who does fairly repetitive and heavy work and opined that claimant would need knee replacement surgery in the future as his knee continued to wear out. Page 3 On May 14, 1989, Dr. Neff reported that claimant had excellent range of motion of the right knee with minimal crepitus. Claimant returned to Dr. Neff's office at some point in 1990 complaining of increasing right knee pain. His right knee range of motion was from eight degrees to 130 degrees. The knee was unstable as to varus and valgus stress. A mild Lachman or anterior draw sign was present as was definite crepitus and lateral joint line tenderness. A subsequent 1990 bone scan revealed significant uptake consistent with inflammatory arthritis and degenerative changes in both the right and left knee. Dr. Neff felt arthroscopy was warranted to delay total knee replacement surgery. Dr. Neff opined that the bone scan revealed definite osteoarthritis, a meniscus tear and increased uptake. On December 10, 1990, Dr. Neff stated that the majority of claimant's symptoms were related to arthritic degenerative changes in both knees associated with aging, a degenerative predisposition to arthritis, and wear and tear changes of normal everyday activity. He stated, however, that if acute meniscal tear or chondral fracture found, then claimant's symptoms were partially attributable to his 1988 work injury. Dr. Neff further opined that claimant's symptoms could be expected to worsen with time given his degenerative arthritis in both knees. He opined that if permanent impairment resulted, five percent of the impairment would relate directly to the 1988 work injury given that claimant's symptoms of cartilage tear or chondral fracture or both occurred then. Dr. Neff, again recommended that claimant undergo a diagnostic arthroscopy with joint lavage and probable partial medial menisectomy. Dr. Neff reported that given claimant's history, the then recommended arthroscopy did not relate to claimant's 1988 work injury. On May 1, 1991, Dr. Neff stated that the arthroscopy surgery recommended related to the degenerative meniscal tear claimant had as a result of work activity. Dr. Neff agreed that claimant's degenerative knee changes also resulted from genetics, aging, and other body activities. On June 12, 1991, Dr. Neff opined that claimant's work and activity history were a substantial contributing factor in claimant's degenerative knee changes which changes eventually produced claimant's degenerative meniscal tearing and his arthritic knee changes. Dr. Neff further stated that he believed claimant's changes would be bilateral if these resulted totally from aging and genetics. On October 31, 1988, Dr. Neff and Thomas W. Bower, L.P.T., opined that claimant had an 11 percent impairment to his right lower extremity under the AMA Guides subsequent to his May 1988 work incident. On May 22, 1988, Mr. Bower and Dr. Neff affirmed that opinion and stated that if claimant had continuing problems, claimant would need a total knee replacement in three to five years which total knee replacement would result in a 50 percent impairment of the right lower extremity. Defendants have paid claimant permanent partial disability benefits equaling those Page 4 available for an 11 percent impairment as to the right knee. Camilla Frederick, M.D., opined on October 15, 1990, that approximately one month earlier that claimant had injured his left knee when he bent in a valgus position while crawling across scaffolding. Patrick M. Sullivan, M.D., noted on October 29, 1990, an impression that claimant had a left medial meniscal tear after suffering a pop and twist in his left knee at work approximately 78 "weeks" ago. May 28, 1988 would have been substantially more than 78 weeks prior to October 29, 1990. August 23, 1990 would have been 68 days prior to October 29, 1990. Given that and given that Dr. Sullivan saw claimant on referral of Dr. Frederick and given that Dr. Sullivan's October 29, 1990 date refers to left knee symptoms, it is found that Dr. Sullivan's note refers to claimant's left knee symptoms dating from on or about August 23, 1990. It is also found that no separate injury occurred on or about September 17, 1990. Dr. Sullivan noted claimant had reduced claimant's work capacity because of his work related injury and that claimant gave a history of having significant pain and a markedly swollen knee whenever claimant worked a full day. Claimant complained of pain in the posterior of the left knee and of snapping and locking in the knee. Claimant walked with a slight left-sided limp; had a positive median McMurray sign; had slight effusion and had full knee range of motion. The previously performed MRI suggested a complex tear of the posterior horn of the medial meniscus [on the left]. On November 2, 1990, Dr. Sullivan performed a left partial medial meniscectomy. Dr. Sullivan last saw claimant on December 5, 1990. Claimant then was walking well without crutches; had no effusion; and had full range of motion of the knee. Dr. Sullivan released claimant to return to Dr. Frederick's care and to see Dr. Sullivan on a PRN basis and to perform activities as tolerated. Dr. Frederick, on December 19, 1990, released claimant to light duty work with restrictions on lifting greater than 20 pounds, on squatting, on climbing and working outside his own "pace." On March 13, 1991, Dr. Frederick returned claimant to light duty work with restrictions of no ladder climbing and no overtime work. The record does not indicate that those restrictions have been removed. Page 5 CONCLUSIONS OF LAW Our first concern is whether the deputy erred in awarding medical benefits for future medical care for the right knee. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopening 1975). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Defendants argue that claimant is not entitled to payment for the arthoscopic surgery Dr. Neff recommends in that the recommended surgery is not causally related to the May 28, 1988 work injury but rather relates to claimant's underlying degenerative arthritis in his knees. We disagree. While the deputy erred in stating that claimant experienced pain inside his knee joint where claimant had pain in 1985 when claimant injured his knee in May 1988, the record is clear that claimant had complaints of pain in the medial jointline when he saw Dr. Neff on June 8, 1988. Claimant has had complaints consistent with a medial meniscal tear intermittently but consistently from that point onward. The record does not reflect complaints consistent with a right medial meniscal tear prior to the May 28, 1988 injury. Dr. Neff's opinions of May and June 1991 relate his recommendation for the diagnostic arthroscopy to the May 1988 work injury. Additionally, Dr. Page 6 Neff's notes are replete with references to claimant's occupation being a factor in claimant's being "setup" for medial meniscal disease. While it is true that Dr. Neff believes that other factors such as claimant's age, weight, and muscle size are also involved, it is also true that the specific work incident of May 1988 and claimant's overall work duties have been substantial factors in bringing about claimant's need for the diagnostic arthroscopy that Dr. Neff recommends. Given such, the deputy correctly concluded that claimant should be awarded benefits for future medical care associated with claimant's undergoing the diagnostic right knee arthroscopy which Dr. Neff recommends. The deputy also correctly concluded that defendants shall provide any healing period benefits for which defendants are liable as result of such surgery and a period of recovery. We next consider whether the deputy erred in finding claimant sustained an injury to his left knee arising out of and in the course of claimant's employment. The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The deputy correctly found that claimant sustained an injury to his left knee arising out of and in the course of his employment on August 23, 1990, when claimant experienced left knee complaints upon standing up on a 2 x 12 board. Page 7 Claimant's medical history both with Dr. Frederick and Dr. Sullivan is consistent with that finding. Dr. Sullivan's October 29, 1990 note clearly reflects Dr. Sullivan's belief that a work relationship exists between claimant's then present left knee complaints and claimant's incident in August 1990. Further, the record contains no medical history suggesting that claimant had left knee complaints prior to the August 1990 incident. Hence, even while it appears claimant has bilateral degenerative arthritis of his knees, it equally appears that such problems were largely asymptomatic on the right until claimant's May 1988 work incident and were largely asymptomatic on the left until claimant's August 1990 work incident. Given that finding, as to the left knee condition, the August 1990 work incident must be considered a material aggravation that resulted in disability such that claimant is entitled to recover for any resulting disability. See Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962); Yeager v. Firestone Tire and Rubber Co., 253 Iowa 369, 373-74, 112 N.W.2d 299, 301 (1961). It is further expressly found that any symptoms claimant experienced on September 17, 1990 as to the left knee related to claimant's aggravation of his previously asymptomatic left knee condition on August 23, 1990 and do not constitute a separate and specific left knee injury arising out of and in the course of claimant's employment on September 17, 1990. It is further expressly found that claimant is entitled to payment of medical costs and medical mileage costs as set forth in joint exhibit E as a result of the August 1988 material aggravation of his previously a asymptomatic left knee condition. We last consider whether the deputy erred in awarding claimant permanent partial disability benefits on account of the injury and any resulting permanent disability to the left knee. The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). Section 85.34(2)(o) provides that compensation is payable during 220 weeks for loss of the leg. The final unnumbered paragraph of that subsection also provides that where an injury has produced a disability less than that Page 8 specifically described in the schedule, compensation is to be paid during the lesser number of weeks of disability determined, as will not exceed a total amount equal to the same percentage proportion of the scheduled maximum compensation. A medical evaluator's finding of impairment references to an anatomical or functional abnormality or loss to the body as whole or to the rated scheduled member. Defendants here argue that in the absence of a medical evaluator's finding of permanent physical impairment, proportioned loss of use under section 85.34(2) is not possible. Theirs is too narrow a reading of the law. A medical evaluator's opinion as to functional impairment carries great weight in assessing impairment for permanent disabilities. This is especially so where the case involves an alleged scheduled member disability. The absence of an evaluator's impairment rating is not an absolute bar to recovery of permanency benefits, however. The commissioner may use other relevant evidence in the record to either deviate from the medical evaluator's rating of functional loss in assessing scheduled member disability or may use other relevant evidence in the record to make an assessment of scheduled disability where no evaluator's rating is in the record. Permanent restrictions related to the work injury and its sequela as well as information regarding the assessment of scheduled loss generally associated with the claimant's condition may, in appropriate circumstances, be used to determine scheduled member disability benefits due claimant. In this case, claimant has permanent restrictions from climbing ladders and from working overtime which restrictions relate to his left knee condition. Claimant has undergone partial left medial menisectomy. This surgical procedure is substantially similar to the surgical procedure which Dr. Neff has indicated will probably need to be performed on claimant's right knee. Further, the record overall suggests that claimant's symptoms in the left knee are quite similar to claimant's symptoms in the right knee. Dr. Neff and Physical Therapist Thomas Bower have previously opined that claimant has an 11 percent permanent partial impairment of the right lower extremity on account of the right knee condition. Given the presence of permanent restrictions relative to the left knee and given the evidence that claimant has an 11 percent permanent partial disability to the right knee on account of a substantially similar condition, the deputy correctly concluded that claimant was entitled to permanent partial disability equal to 11 percent of the left leg on account of claimant's work related left knee condition. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, IT IS ORDERED: Defendants shall provide the surgery claimant's Page 9 authorized treating specialist recommends for claimant's right knee as soon as necessary. Defendants shall pay any healing period benefits related to such surgery and recovery as section 85.34(1) provides. Defendants shall pay claimant twenty-four point two (24.2) weeks of permanent partial disability benefits at the rate of two hundred forty-two and 42/100 dollars ($242.42) per week with such benefits to commence on December 12, 1990. Defendants shall pay claimant medical costs and medical mileage expenses as set forth in joint exhibit E. Claimant shall take nothing from these proceedings regarding claimant's alleged September 17, 1990 left knee injury. Defendants shall pay any accrued weekly benefits in a lump sum. Defendants, if applicable, shall receive credit against the award for any weekly benefits previously paid relative to the left knee condition. Defendants shall pay interest on benefits awarded as provided in section 85.30. Defendants shall pay costs of the action and the appeal, including the cost of transcription of the arbitration hearing. Defendants shall file claim activity reports pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of March, 1993. ______________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies to: Mr. Tom L. Drew Attorney at Law West Towers Office Complex 1200 35th Street, Suite 500 West Des Moines, IA 50265 Mr. Joseph A. Happe Attorney at Law 500 Liberty Bldg. 418 6th Ave., Suite 500 Des Moines, IA 50309-4148 1100; 1108; 2206; 2501; 1803 Filed March 30, 1993 Byron K. Orton BJO BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BILL BURKMIRE, Claimant, File Nos. 886779 vs. 967334 974055 NATIONAL BY-PRODUCTS, INC., A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL, Insurance Carrier, Defendants. ____________________________________________________________ 1100; 1108; 2206; 2501; 1803 Deputy affirmed. Defendants were required to provide arthroscopic surgery for claimant's right knee that claimant's authorized treating physician recommended. While claimant apparently had degenerative arthritic condition in both knees, the greater weight of evidence demonstrated that claimant's work incidents and claimant's occupation overall was a substantial contributing factor in the aggravation of claimant's right knee condition such that the condition became symptomatic. A similar finding was made relative to claimant's left knee condition. Found that the deputy properly concluded claimant had an 11 percent permanent partial disability to the left leg even though an evaluator's rating of permanent partial impairment to the leg was not in the record. Claimant had permanent restrictions against working overtime and against climbing ladders as a result of his left knee condition. Claimant's left knee condition was substantially similar to claimant's right knee condition for which claimant had received a permanent partial impairment rating of 11 percent of the lower extremity which defendant had voluntarily paid. Page 1 before the iowa industrial commissioner ____________________________________________________________ : BILL BURKMIRE, : : Claimant, : File Nos. 886779 : 967334 vs. : 974055 : NATIONAL BY-PRODUCTS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This case came on for hearing on November 1, 1991, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of three alleged injuries occurring on May 28, 1988 (right knee), August 23, 1990 (left knee), and September 17, 1990 (left knee). The record in the proceeding consists of the testimony of the claimant and Joyce Jensen; and joint exhibits A through F. On October 30, 1991, the claimant filed a dismissal without prejudice, dismissing the Second Injury Fund of Iowa as to files 974055 and 967334. The Second Injury Fund was not involved in the remaining case (886779). Said motion was sustained at the hearing and there were no costs assessed as there was no evidence of any additional expense on behalf of the Second Injury Fund because of this dismissal. ISSUES As to the May 28, 1988 injury represented by file 886779, the only issue is whether claimant is entitled to have right knee surgery, recommended by Scott B. Neff, D.O., and, consequently if allowed, any ensuing healing period or any increase in claimant's 11 percent permanent impairment which would result in any increase in claimant's permanent disability. Page 2 As to the other two injuries, August 23, 1990, file 967334, and September 17, 1990, file 974055: 1. Whether an injury arose out of and in the course of claimant's employment on the respective dates; 2. Whether there is any causal connection between claimant's alleged disability and the alleged respective injury dates; 3. The extent of permanent disability and claimant's entitlement to disability benefits. As to these injuries, any disability would be to the left lower extremity and benefits would commence on December 12, 1990. and, 4. Claimant's entitlement to 85.27 medical benefits, said dispute within this being causal connection and authorization. findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 46-year-old who began working for defendant employer on August 25, 1978, and was hired pursuant to a 30 day training period as a maintenance man working on boilers, rebuilding transmissions, wiring high voltage motors, welding steam fittings, and running machinery. Claimant explained that a normal day involves kneeling on the floor lifting 50 to 200 pounds, climbing stairs, climbing ladders to various platforms, and other functions. Claimant also testified by way of his deposition taken September 9, 1991 (Joint Exhibit B). Claimant related a June 17, 1985 work injury to his right knee below the knee cap and no surgery was involved. Dr. Neff was the doctor. Claimant did not need treatment between 1985 and 1988 due to this incident. On May 28, 1988, claimant stepped into a drain hole and twisted and injured his right knee again. He fell and experienced pain inside his knee joint in the same place he did in 1985. Prior to this incident, claimant was having no knee pain. Claimant said he could hardly work the next day and was sent to a doctor who then sent him to Dr. Neff. Claimant said his knee had a grinding feel to it and it would pop in and out. He never had that feeling before. As a result of these doctor visits on or about July 5, 1988, Dr. Neff performed surgery and removed two bone chips (Jt. Ex. F, p. 13A). The surgery was referred to as a right knee arthrotomy. Claimant related that additional surgery was set up to take place in 1990 and the insurance called the night before and denied surgery. Claimant emphasized that it is this surgery he wants today. It would appear that the particular incident that claimant is referring to may have been around September 26, 1990. Joint exhibit F, page 103, reflects a letter from the defendant insurance company in which they refer to the fact that Page 3 claimant was scheduled for a microscopic knee surgery on September 27 and further possibilities are for a knee replacement. On page 105 of that same exhibit, there is a letter dated August 27, 1990, from Dr. Neff wherein he suggests possibly more surgery to the claimant's knee (Jt. Ex. F, p. 105). This is obviously in reference to claimant's right knee. Claimant described his current symptoms in his right knee as pain and swelling inside the knee; unstable; more snapping and cracking; and at times inability to get up. Claimant said his left knee began hurting August 23, 1990, while working on a feed bin. He said he stood up on a board and his left knee popped like a knuckle would pop and he had a pain in his left knee. Claimant told his foreman, who said claimant is to be a big boy and keep on working. Claimant related his knee began swelling and he could hardly climb. Claimant went home and related the difficulty getting an okay to go to the doctor, which okay he finally received ten days later. Patrick M. Sullivan, M.D., had x- rays and an MRI done on the left knee and surgery was performed on November 2, 1990. Claimant said this helped the swelling. This particular surgery was referred to as arthroscopy with meniscectomy (Jt. Ex. D, p. 7). Claimant said each knee has popped at times. Claimant acknowledged the insurance company paid for his time off as to his May 28, 1988 injury and the August 23, 1990 injury, but only paid permanency as to the May 28, 1988 injury. Claimant said he has no right knee restrictions currently and his left knee restriction is "no ladder climbing, no overtime." Claimant is making $9.00 per hour now compared to $8.90 on the date of his May 28, 1988 injury. Claimant emphasized he never injured his left or right knee outside of work. Claimant indicated he has not worked any overtime since his left knee injury (Jt. Ex. B, p. 30). Claimant said he has no functional disability rating for the left knee and hasn't asked for one. The doctor opined the 11 percent permanent impairment as to claimant's right knee. Claimant emphasized he never had left knee pain prior to August 23, 1990. Claimant related a June 1985 incident in which he broke his knee cap, but it appears this completely healed and between June 1985 and May 1988 he was a very active person and worked without any problems (Jt. Ex. B, pp. 39-41). Claimant contends he cannot squat or lift as much as he used to. Claimant related his September 17, 1990 injury to his left knee occurred when he was walking down an incline or slope and his left knee popped. The undersigned notes that he heard the claimant's knee crack when claimant stood up after his testimony. Joyce Jensen, the office manager for defendant employer, testified that she has worked for defendant employer for the last thirteen years and has handled the Page 4 group and workers' compensation insurance. From her testimony, it appears we really don't have an 85.27 issue if liability is found. She indicated claimant's medical bills are being paid when submitted under claimant's health insurance policy on a 80-20 basis and that workers' compensation denied paying the bills. It further appears that if liability is found by the undersigned, then all bills will be paid by the workers' compensation carrier or defendant corporation. Dr. Neff's notes on November 1988 reflect that he thought an arthroscopic examination of claimant's right knee was warranted. He thought this would decrease some of claimant's symptoms but would not give him a new knee. He indicated claimant's prior right knee surgery did not involve entering the knee (Jt. Ex. C, p. 6). The prior surgery the doctor referred to was the July 5, 1988 right knee arthrotomy (Jt. Ex. D, p. 13A). An arthrogram was taken of the right knee, it appears, on June 9, 1988 (Jt. Ex. F, p. 26). In February of 1989, Dr. Neff was more optimistic depending on certain more conservative treatment, but still indicated "hopefully, minimal surgery can be required." He predicted somewhere in the future claimant would need a knee replacement (Jt. Ex. A, p. 7). Dr. Neff's notes in 1990 (date cut off) reflect an arthroscopy is warranted and would be designed to delay the necessity of a right knee replacement. Dr. Neff anticipated claimant would be off eight weeks due to the significant and heavy work that claimant does. He indicated claimant was having degenerative changes in both knees (Jt. Ex. C, p. 11- 13). On December 10, 1990, Dr. Neff said most of claimant's symptoms are degenerative and are associated with age, degeneration, predisposition to arthritis, and everyday normal activity. He opined claimant had a 5 percent permanent impairment directly related to his 1988 injury and the doctor presumed at that time that claimant incurred a small cartilage tear and chondral fracture. The doctor indicated he had not seen claimant between May 1989 and August 1990 and had released claimant to essentially normal activity in May 1989. The undersigned notes the doctor has consistently referred to an August 1988 incident walking down an incline at work and claimant's knee popped. It appears the incident he is actually referring to occurred around May 28, 1988. On May 1, 1991, Dr. Neff said claimant had a meniscal tear based on work activity but that the degenerative changes in his knee are also the result of genetic aging and other body activities (Jt. Ex. C, p. 14). On June 12, 1991, Dr. Neff opined that: In my opinion, the work history and activity history as described to me has been a substantial Page 5 contributing factor in the degenerative changes of this knee which eventually resulted in degenerative meniscal tearing and arthritic changes. Were his changes totally due to aging and genetics, it would be my supposition that they would be bilateral. (Jt. Ex. C, p. 15) It is obvious the doctor was referring in both his May and June notes and letters to claimant's right knee, but in the June letter, it appears he is referring to the left (bilateral), also. It would seem that the doctor is either backtracking or somewhat changing his opinion or adding additional confusion to claimant's medical records, particularly involving his treatment with Dr. Neff. It appears that he is being requested to be clear since his prior letters or medical records are not clear as to what his opinions are in relation to claimant's condition and his injuries. The undersigned believes this June 12, 1991 letter is the more definite and recent letter and which is more supportive of the overall medical record of this claimant. The undersigned might note that joint exhibit D reflects a few other injury reports in which either no loss of time was involved or they were minor incidents. The undersigned sees no relevance of these to claimant's present complaints. The undersigned might note that exhibit F is a good example of the ridiculous, unnecessary, immaterial documents offered in this record as exhibits. The undersigned cannot understand what importance it is to have in the record claimant's payroll change documents, payroll savings authorization, dermatology records, a hand injury, a check- off authorization, etc. Also, the chronological order in spots is deplorable. One example is in a reference to page 77 of said exhibit, a return to work on February 26, 1979, in reference to claimant's right hand. On page 78, there is a November 8, 1989 activity report involving claimant's current May 28, 1988 injury, and then on page 79, there is an October 3, 1978 check-off authorization directing the employer to deduct earnings accumulated to claimant's credit, membership dues, etc. The undersigned does not appreciate parties cleaning out their files and dumping immaterial stuff to this agency and requesting the deputy to sift through immaterial exhibits. Joint exhibit F, page 78, reflects that defendants paid 11 percent permanent disability benefits for claimant's right leg, which amounted to 24.2 weeks of benefits. Joint exhibit F, page 179, reflects a report by David T. Berg, M.D., on July 17, 1988, in which he was referring claimant to Dr. Neff or Patrick M. Sullivan, M.D. The document also indicates anticipated surgery on July 5, 1988, and also supports the claimant's contention and other Page 6 medical records as to the desire for a second opinion from orthopedic specialists. Dr. Berg's diagnosis at that time was an avulsion fracture right tibial tubercle. On October 24, 1988, Dr. Neff's recommended an MRI scan of claimant's right knee. The doctor indicated that if the scan shows a cartilage tear, then an arthroscopic removal of the cartilage would be warranted. He also made a comment that claimant certainly is set up for this type of problem because of his age, body weight, muscle size and occupation. He additionally refers in the letter that "certainly he has a good reason to have degenerative meniscal disease in his knee because of his squatting type occupation." (Jt. Ex. F, p. 190) On November 6, 1990, Dr. Sullivan wrote that claimant underwent an arthroscopy on November 2, 1990, and that the claimant was in a knee immobilizer (Jt. Ex. F, p. 207). On October 31, 1988, Dr. Neff and Thomas W. Bower, LPT, opined that claimant had an 11 percent impairment to his right lower extremity. It is obvious they causally connected that to the May 1988 injury. They referred to the 27th, but it is obviously referring to May 28, 1988 work injury. On May 22, 1989, Dr. Neff and Thomas Bower wrote that claimant still had an 11 percent impairment to his right lower extremity based on the injury sustained in May of 1988, but also added that the patient has continued to have problems and has been told by Dr. Neff that in a three to five year period, claimant will need a total knee replacement. They indicated that in view of that fact, the replacement would result in a 50 percent impairment to claimant's right lower extremity (Jt. Ex. C, p. 28). It appears that Dr. Sullivan's workers' compensation report of May 27, 1991, still continued claimant's restriction of no ladder climbing, no overtime. This is obviously due to claimant's left knee problem. The doctor indicated follow-up care in six months (Jt. Ex. C, p. 52). The undersigned sees nothing in the record of any impairment rating concerning claimant's left knee. Why one was not requested is unknown and surprising. As to claimant's May 28, 1988 right knee injury, the parties have stipulated that there was an injury that arose out of and in the course of claimant's employment and that there was causal connection to his injury and 11 percent impairment and there is no dispute to the healing period that was incurred, which has been paid. The only real dispute is whether claimant, who desires to have the surgery that has been referred by Dr. Neff on more than one occasion, should have this right knee surgury paid for by defendants. Defendants seem to indicate that the need for this surgery may be related to some other injury or possibly the 1990 alleged injuries or from some other cause not clear from the defendants' physician. The undersigned finds that it was anticipated that claimant would have surgery in the future during his various prolonged treatment with Dr. Neff. The greater weight of medical evidence shows that there is a Page 7 need for surgery to claimant's right knee or lower extremity and that this surgery is the result of claimant's May 28, 1988 work injury, and that the claimant is entitled to have that surgery and that defendants shall pay for the same, in addition to paying for any healing period that might be incurred resulting therefrom. Dr. Neff indicated that with the anticipated surgery which appears to be at this time a possible knee replacement, it would leave claimant with a 50 percent impairment. The undersigned cannot or will not speculate as to what claimant's future permanent impairment may be. In other words, whether it would in fact be 50 percent or less or even more. It would be hoped in light of this decision that the parties can address that amicably in the future and not get this agency involved. It is obvious from the record that, even though the claimant alleges two additional injuries to the right knee, one on August 23, 1990 and one on September 17, 1990, there is in fact only, if liability is found, to be one injury. It is obvious from the comments of the parties and from the record that the claimant is attempting to cover all possible positions as to the exact injury date, particularly since there is included within alleged trauma to the left knee that there is also repetitive trauma based on claimant's nature of his work. Claimant did have surgery on his left knee on November 2, 1990, which resulted in an arthroscopy with meniscectomy to repair a left meniscal tear. This was performed by Dr. Sullivan. Again, as indicated earlier, why a rating wasn't asked from Dr. Sullivan is unknown. Also, why Dr. Sullivan was not specifically asked as to causally connecting this to a particular injury is unknown. The undersigned does find that Dr. Neff, who has not been as clear as he should, wrote on June 12, 1991, that in his opinion the work history and activity history as described to him has been a substantial contributing factor in the degenerative changes in claimant's knee which eventually resulted in degenerative meniscal tearing and arthritic changes. It would appear that he may be only referring to claimant's right knee even though he does not say, but this letter was written in 1991. He doesn't use a plural for knees. He then goes on and indicates that were these changes totally due to aging and genetics, it would be his supposition that they would be bilateral. He seems to indicate or at least infer we have two separate situations here, a right knee and a left knee. His previous reports seem to refer to degenerative changes. There is also reference in the medical record as to the nature of claimant's occupation, which involves squatting and climbing that this is hard on an individual's knees. The undersigned finds that the greater weight of medical evidence shows claimant did incur a work injury on August 23, 1990, to his right knee while he was working and climbing on a feed bin and that this was further aggravated on September 19, 1990, but that the actual injury was on August 23, 1990. The undersigned further finds that this injury was not only a traumatic injury as to an incident on that particular day, but likewise the knee condition was affected by the repetitive traumas occurring to claimant's Page 8 knee in connection with his occupation. The undersigned also finds that this repetitive trauma was increased as a result of the fact that claimant incurred a serious injury to his right knee and that this resulted in additional weight and favoring his left knee, bringing about claimant's ultimate condition and further causing his November 2, 1990 surgery. The undersigned finds that any degenerative disease or condition in claimant's left knee was substantially and materially aggravated and lighted up by claimant's August 23, 1990 work injury. It appears claimant was working even though it appeared he needed or was going to need surgery due to his right knee condition and, that he did continue to work until he had his August 23, 1990 left knee injury. There is no dispute in regards to healing period as to any alleged injury. The question comes, what is the extent of claimant's permanent disability to his left lower extremity? It is obvious claimant had a surgery in November of 1990 and that he has restrictions of no climbing. He has had similar problems that he has currently with his right knee. Although a rating would be helpful, the undersigned finds that taking into consideration agency precedence and expertise, a rating is not mandatory to determine a scheduled member permanent disability, nor does a permanent impairment rating necessarily limit a person's disability to that percent. The undersigned finds that claimant has, based on agency expertise and experience and taking the evidence as a whole, an 11 percent impairment also to his left lower extremity which was caused by his August 23, 1990 injury. The undersigned finds that there was no injury incurred as previously discussed concerning a September 17, 1990 alleged injury. As to the 85.27 issue, the parties commented during these proceedings and it was obvious from the prehearing report and other facts that if the undersigned found liability, all the medical bills in dispute would be paid by defendant insurance carrier or the employer. Without going into any further detail, the undersigned finds that since liability has been found, defendants are to pay all the medical expenses at issue herein, including all physical therapy, doctor appointments, surgery, and mileage to the doctors as set out in claimant's mileage exhibit. The undersigned not only finds causal connection as to the 85.27 issue, but also that the defendants denied liability for the most part as to that injury, therefore, authorization is not an issue. If it is still an issue in light of this decision and the undersigned finds that claimant was not only getting help by the additional services, but likewise he went to the doctor actually through referral from an original company authorized doctor. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on August 23, 1990 and September 17, 1990, which arose out of and in the Page 9 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 injury of August 23, 1990 and September 17, 1990, 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. It is further concluded that: Claimant incurred a work injury to his right knee on May 28, 1988, which has caused claimant to have an authorized doctor recommend surgery. Defendants shall provide for and pay for claimant's right knee surgery and any healing period connected therewith. Claimant incurred a left knee injury on August 23, 1990, which arose out of and in the course of his employment. This injury caused claimant to have a November 1990 left knee surgery, incurring a restriction of no climbing and resulting in a 11 percent permanent impairment to claimant's left lower extremity. Claimant is entitled to have all his medical bills paid by defendants, including medical mileage. Claimant did not incur a specific injury on September 17, 1990, which arose out of and in the course of his employment, but incurred and incident resulting from and effected by claimant's August 23, 1990 work injury. order THEREFORE, it is ordered: Page 10 Regarding the May 28, 1988 injury (File No. 886779): Defendants shall provide for the necessary surgery to claimant's right knee, as recommended by claimant's authorized treating specialist, as soon as necessary and pay for any healing period connected therewith until the doctor releases claimant to return to work, as provided by Iowa Code section 85.34(1). Regarding the August 23, 1990 injury (File No. 967334): Defendants shall pay claimant twenty-four point two (24.2) weeks of permanent partial disability benefits at the rate of two hundred forty-two and 42/100 dollars ($242.42) per week beginning December 12, 1990. Defendants shall pay claimant's medical bills and medical mileage (Jt. Ex. E). Regarding the alleged September 17, 1990 injury (File No. 974055): Claimant takes nothing from the proceedings regarding this file. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 32.1. Signed and filed this ____ day of December, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Tom L Drew Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines IA 50265 Mr Joseph A. Happe Attorney at Law 500 Liberty Bldg Des Moines IA 50309 Page 11 Mr Dean A Lerner Assistant Attorney General Hoover State Office Building LOCAL Page 1 before the iowa industrial commissioner ____________________________________________________________ : JERRY L. CHAPMAN, : : Claimant, : File No. 887549 : vs. : A R B I T R A T I O N : UMTHUN TRUCKING COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ This is a proceeding in arbitration brought by Jerry Chapman (claimant) commenced with the filing of a petition on December 21, 1989 against Umthun Trucking Company (Umthun), employer and self insured,(defendant) as a result of an alleged injury to claimant's back, occurring on May 23, 1988. On February 14, 1991, the matter came on for hearing in Fort Dodge, Iowa. The parties appeared as follows: the claimant in person and by his counsel Robert Kinsey, III of Mason City, Iowa and Umthun by its counsel Stephen Spencer of Des Moines, Iowa. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Starla Chapman, Judy Ramsey and Ron Berg. 2. Claimant's exhibits 1-28 3. Defendants' exhibits A-I. Since some of the exhibits were duplicated, the parties marked the duplicated material for ease of review. At the close of all evidence, the case was deemed to be fully submitted. stipulations The parties stipulated to the following matters at the time of the hearing: An employer-employee relationship existed between claimant and employer at the time of the alleged injury. The claimant sustained an injury on May 23, 1988, which arose out of and in the course of employment. The alleged injury is a cause of temporary disability. Page 2 The alleged injury caused a permanent disability. The extent of entitlement to weekly compensation for temporary total disability or healing period, is stipulated to be as follows: a. Temporary Total Disability: May 23, 1988 to March 36, 1989. b. Temporary Partial Disability: March 2, 1989 to September 11, 1989. The type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. The commencement date for permanent partial disability, is September 12, 1989. The rate of compensation, in the event of an award, is $286.54 per week based on a gross wage of $453 per week. Claimant is married and has one child. He is entitled to three exemptions. All requested medical benefits have been paid or will be paid by the defendant and are not in dispute. Defendant paid the following amounts to claimant prior to the hearing at the rate of $286.54 per week: Temporary Total Disability: $12,607.76 Temporary Partial Disability: $ 5,052.88 Permanent Partial Disability: $21,490.50 TOTAL: $39,151.14 That there are no bifurcated claims. Issues The only issue for resolution is the extent of claimant's entitlement to industrial disability. Page 3 FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 33 years old. At the time of his injury, he was 30 years old at the time of his injury. Claimant completed the 11th grade at Clarion High School. Claimant was not a good student while he was in high school. He enjoyed English and history but he did not do well in mathematics or science. After claimant left school, he was employed at Palco Manufacturing in Clarion (Ex. G, p. 5). He was laid off in 1977 and he joined the Army. Claimant was a track and truck mechanic while in the service. He also obtained his GED while he was in the Army. Claimant received an honorable discharge in 1980 and returned to Clarion. 2. Claimant's first employment after his tour of duty was with Tom's Knotty Pine Bar and Lounge. Claimant was a bartender and was paid $120.00 per week. Claimant left that employment in 1983 for higher pay. Claimant then worked for the Enterprise Lounge in Webster City. Claimant earned $220.00 per week in this employment. In this capacity, claimant helped manage the bar. He was responsible for ordering, scheduling, a little hiring, keeping the books and bartending. Claimant left this employment for more money and because the bar closed. Both of these jobs involved lifting kegs of beer, cases of pop and beer. Claimant lifted these items a few times a week. A keg of beer weighs between 80 to 90 pounds and a case of pop or beer weighs about 15 pounds. 3. In 1985, claimant took a truck driving course for five weeks to learn how to drive a truck. After the successful completion of this course, claimant was hired by Umthun to drive over the road tractor-trailer units. Claimant drove primarily Kenworth or Freighliner cab over tractors and pulled flatbed trailers. Claimant occasionally drove dry vans. Claimant did not have a regular route but the majority of his driving was between Canada and the Southern United States. Claimant, at times, was required to assist with the loading and unloading of his trailer. Claimant was also required to lift the tarp that covered loads. The tarp was very heavy. Claimant estimated the weight of the tarp at 200 pounds. At times the tarp had to be moved twice a day by claimant. 4. Prior to working for Umthun, claimant had an largely unremarkable medical and social history. He grew up in a large family. His mother died in 1968 when claimant was aged 9. Claimant has a heart murmur. Claimant suffered from gastrointestinal problems as a child and young man, but those problems seemed resolve themselves. Claimant was in a motorcycle accident in 1980 where he suffered lacerations to the face and a minimal concussion. Claimant also suffered a knee injury in 1982. 5. After claimant began working for Umthun, he Page 4 suffered an injury to his lower back in 1986 when he rearended another truck. He was placed on light duty and then later returned to full duty. Claimant was also injured in October of 1987 when he fell against a trailer and injured his ribs. Claimant did not see a medical professional for his back in 1986. He was examined by his family doctor for the injury to his ribs. 6. Prior to claimant's injury, Claimant was a satisfactory driver for Umthun. He had disciplininary timeoff in 1986, and 1988. Claimant was penalized for damaged cargo and damaged equipment. He also had problems from time to time keeping an accurate log. Claimant received a safe driving award in 1987 and was given several commendations for keeping his fuel consumption down. 7. On May 23, 1988, while claimant was traveling on Interstate 80 just west of Iowa City, claimant attempted to avoid hitting a deer on the interstate. The deer was in the right hand lane. Claimant moved to the left lane and the deer moved in that direction too. Claimant could not move back to the right lane to avoid the deer. The tractor hit the deer. As a result of the impact, the tractor and trailer overturned in the median. Claimant was eventually removed from the tractor and taken to University of Iowa hospitals for treatment. Claimant was diagnosed as having a burst fracture at L2, fractures of the superior end plates of L1 and L3, and transverse process fracture of L1, L2 and L3. Additionally, claimant had a left sided pneumothorax and fractures of ribs 3, 4, 6, 7, 9 and 10. Claimant also had multiple partial extensor tendon lacerations on his left hand. Claimant was treated by Patrick W. Hitchon, M.D., a neurosurgeon. 8. Claimant left University Hospitals for Trinity Regional Hospital after he had been on absolute bedrest in Iowa City from the date of the injury until June 17, 1988. Claimant remained at Trinity Regional until his discharge on July 2, 1988. Claimant was treated by D. A. Dethmers, M.D., during his stay at Trinity Regional Hospital. Thereafter, claimant was seen by Dr. Hitchon in July, August and October. Over the course of these examinations, Dr. Hitchon found that claimant was suffering from minimal pain. He did note that claimant had developed a gibbous over the lumbar commensurate with the fracture of L2. At the conclusion of the October visit, Dr. Hitchon found that the L2 fracture was healing slowly. Dr. Hitchon released claimant to return to work at the beginning of December 1988. Claimant was assigned a lifting restriction of 30 pounds. Dr. Hitchon believed that this restriction could be lifted in six months. Dr. Hitchon indicated in December of 1988 that because of the fracture to claimant's spine, he would always have a limitation as far as lifting weight. Dr. Hitchon gave a permanent lifting restriction of 50 pounds. Claimant did not return to see Dr. Hitchon after his last visit in October of 1988. In 1990, Dr. Hitchon reiterated his initial lifting restriction. Claimant should not lift any Page 5 more than 30 pounds initially. However, if heavier weights are tolerated, then this lifting restriction would be lifted. 9. Claimant was not satisfied with the October report from Dr. Hitchon and wanted a second opinion. Claimant went to see his family physician, Michael J. Whitters, M.D. Dr. Witters referred claimant to David W. Beck, M.D., a neurosurgeon located in Mason City. After Dr. Beck examined claimant, he concluded that claimant could not do a job that required alot of lifting and bending. He also placed a 50 pound weight restriction on claimant. At this point, Dr. Beck became claimant's primary treating physician. 10. Umthun retained Management Consulting & Rehabilitation Services Inc., to assist claimant in his rehabilitation program and also to assist him in his return to work. During the initial evaluation period the rehabilitation consultant, Clark Williams, suggested that claimant enroll in a work hardening program. Claimant began this program in April of 1989. In May of 1989, claimant indicated to Dr. Beck that his back got stiff from the work hardening therapy but otherwise he was tolerating the program pretty well. Dr. Beck concluded after the May examination, that claimant should get a corset type low back support to help him do more activities. As far as returning to work, Dr. Beck thought that claimant could push himself as far as he wanted to but that it was unrealistic to think that claimant could go back to a job where he had to move 200 pound items. 11. Upon examination of claimant in August of 1989, Dr. Beck concluded that claimant has intermittent back pain around the site of the fracture. Claimant had a limited range of motion in his back because of stiffness from the injury. He had negative straight leg raising tests. Dr. Beck also found a significant gibbous in claimant's back. Based on these findings and the AMA Guides to the Evaluation of Permanent Impairment, edition unknown, Dr. Beck rated claimant's functional impairment at 15 percent with a 25 pound repetitive lifting restriction because of the fracture to claimant's back. 12. Before claimant began his work hardening program, he was evaluated by the Iowa State Division of Vocational Rehabilitation. The results of the vocational rehabilitation evaluation indicate that claimant was best suited for positions such as a tallier, a mail room clerk, a microphotographer, production assembler or small parts assembler. Claimant performed best when he was given tasks of a hands-on nature requiring accuracy. The results of his psychological tests did not support any further formal academic training for claimant. Claimant had the most success on simple record keeping tasks. 13. On March 30, 1989, claimant began working for Umthun again as a part-time night dispatcher. Claimant worked 28 hours a week. Claimant became a full-time dispatcher on October 12, 1989. Claimant's rate of pay was Page 6 $7.00 per hour. At the time of the hearing, claimant was earning $7.50 per hour. Claimant generally works between 40 and 45 hours per week. Claimant has applied for two salaried dispatcher positions with Umthun where the pay is somewhat higher than his current earnings, but he has not been given those jobs. During claimant's last year of employment as a truck driver, claimant earned $27,350.91 in gross wages. Claimant had social security wages of $23,056.27 and a net income of $23,641.00. In 1990, claimant's gross wage totaled $16,590.62 as an hourly dispatcher. Claimant's supervisor believes that with time and experience, claimant may work into the salaried dispatcher positions. Claimant is a good worker. Currently, Umthun believes that claimant is working at his capacity in the position of hourly dispatcher. 14. In April of 1989, claimant slipped on some ice. His back twisted in the fall and claimant had significant pain that lasted for at least a week. Otherwise, claimant has not aggravated his back since the injury. 15. On November 17, 1989, claimant was evaluated by John Walker, M.D., for the purpose of obtaining a functional impairment rating. After an examination, Dr. Walker gave claimant a 28 percent functional impairment rating. Dr. Walker diagnosed claimant as having a moderate compression fracture of the body of T 12, a compression fracture of L1, a very marked compression fracture of L2, and painful sprains of L2, L3, L4, L5, and S1. There is no indication that Dr. Walker used the AMA Guides to the Evaluation of Permanent Impairment, to arrive at his rating. 16. As far as recreational activities are concerned, claimant has not participated in many of the things he did formerly. However, claimant did sign up for a compound bow and arrow league with his wife. Claimant has participated a couple of times in the league. 17. Claimant still experiences pain in his back daily. Claimant has self limited his lifting restriction to 20 pounds even though his treating physicians have indicated that he can lift between 25 and 50 pounds. Claimant and his wife have limited his activities. Claimant cannot return to truck driving because of the jarring, lifting, bending and stooping required by that type of work. Page 7 CONCLUSIONS OF LAW The only issue for resolution is the extent of claimant's entitlement to industrial disability. Claimant is urging that he is entitled to substantially more industrial disability than Umthun has previously paid. Umthun contends that claimant has been fully compensated industrially for the injury he suffered. Where 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., 258 N.W.2d 899, 902 (Iowa 1935), as 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 person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within the claimant's restrictions, if any restrictions have been imposed, has caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christening v. Hague, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). 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 the total, motivation five percent of the total, work experience thirty percent of the total etc. Neither does a rating of functional impairment directly correlate to the 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 to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. See, Peterson, 1 Iowa Industrial Commissioner Decisions No. 3, at 658; Christening, 1 Iowa Industrial Commissioner Decisions No. 3, at 535. In this instance there are several factors which influence the award of industrial disability. Claimant has a functional impairment as a result of the injury to his spine that ranges between 15 percent and 28 percent. Claimant has lifting restrictions that range between 20 pounds and 50 pounds with the greater number of doctors suggesting a 50 pound restriction. Claimant is earning less income now than he was at the time of the injury since he is Page 8 no longer able to drive a truck for Umthun. Claimant is working for the same employer at a different job. Claimant's limited formal education and his mathematical deficits indicate that retraining in a formal educational environment is probably not feasible for claimant. However, his ability level suggests that he can be retrained with on the job training. Retraining is a factor used in determining industrial disability. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Additionally, Claimant was 30 years old at the time of the injury and 33 years old at the time of the hearing. Due to his young age, his industrial disability is not as serious as it would be for an older employee. Becke v. Turner-Busch, Inc., 34 Biennial Report of the Iowa Industrial Commissioner 34 (Appeal 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., File Numbers 782670 & 805200, Slip op. at 6 (Iowa Ind. Comm'r App. April 28, 1989). Finally, claimant's motivation is good. Claimant participated in each rehabilitation program fully and gives good effort to his current employment. Based upon the foregoing factors, all of the factors used to determine industrial disability, and employing agency expertise, it is determined that claimant sustained a 35 percent industrial disability. Order THEREFORE, it is ordered: 1. Umthun shall pay to claimant permanent partial disability benefits in the amount of thirty-five percent (35%) with payment commencing on September 12,1989. As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 2. Umthun shall have a credit in the amount of thirty-nine thousand one hundred fifty-one and 14/100 dollars ($39,151.14) against any amounts owed. 3. The costs of this action shall be assessed to Umthun pursuant to rule 343 IAC 4.33. 4. Umthun shall file claim activity reports as required by rule 343 IAC 3.1. Page 9 Signed and filed this ____ day of June, 1991. ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Robert S Kinsey III Attorney at Law 214 North Adams PO Box 679 Mason City Iowa 50401 Mr Stephen W Spencer Attorney at Law 218 6th Ave Ste 300 PO Box 9130 Des Moines Iowa 50306-9130 5-1803 Filed June 17, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : JERRY L. CHAPMAN, : : Claimant, : File No. 887549 : vs. : A R B I T R A T I O N : UMTHUN TRUCKING COMPANY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ 5-1803 Claimant fractured several ribs and his back in a truck accident. At the time of the injury he was 30 years old. At the time of the hearing he was 33. He is working for the same employer, though he has suffered a 37 percent decrease in income. His functional impairment rating ranges between 15 percent to 28 percent. He is restricted from lifting between 20 and 50 pounds. He is not suited for formal academic retraining, but he can be retrained on the job. He has a GED. Claimant awarded 35 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ MARY ELLEN SMITH, Claimant, vs. File No. 887628 DAHL'S FOOD STORES, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed December 20, 1991 is affirmed and is adopted as the final agency action in this case. That claimant and defendants shall share equally the costs of the appeal including transcription of the hearing. Signed and filed this ____ day of April, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. David D. Drake Attorney at Law West Towers Office Complex 1200 35th St., Ste 500 West Des Moines, Iowa 50265 Mr. D. Brian Scieszinski Attorney at Law 801 Grand Ave., Ste 3700 Des Moines, Iowa 50309 5-1108; 5-1803; 5-2503 Filed April 22, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARY ELLEN SMITH, Claimant, vs. File No. 887628 DAHL'S FOOD STORES, A P P E A L Employer, D E C I S I O N and EMPLOYERS MUTUAL COMPANIES, Insurance Carrier, Defendants. ____________________________________________________________ 5-1108; 5-1803; 5-2503 Claimant awarded 10% industrial and medical benefits, all of which are causally connected to her work injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MARY ELLEN SMITH, : : Claimant, : : vs. : : File No. 887628 DAHL'S FOOD STORES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on November 21, 1991, at Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on June 25, 1988. The record in the proceedings consist of the testimony of the claimant; and joint exhibits 1 through 10. issues The issues for resolution are: 1. Whether there is causal connection between claimant's alleged permanent disability and his June 25, 1988 alleged injury; 2. The extent of claimant's permanent disability and entitlement to disability benefits; and, 3. Claimant's entitlement to 85.27 medical benefits. The dispute within this issue is causal connection and whether expenses were reasonable and necessary. findings of fact The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 39-year-old 1970 high school graduate who has considerable post-high school formal education in three different vocational or community colleges, resulting in a clinical laboratory assistant certificate, September 1971; a medical lab technician certificate, December 1973; and, a medical technician equipment associate science degree in 1975. Claimant took additional continual education courses or programs. She described what her certificates or degrees Page 2 qualify her to do. Claimant is not working in any special field now that basically takes full advantage of the above post-high school education. Claimant explained the job she has had before working for defendant employer beginning in May of 1988. Claimant's job with defendant employer was in the bakery department wrapping buns and placing them in bags, and cake decorating. Claimant had originally applied at Dahl's for the bookkeeping position but she was placed in the bakery with the understanding that if a bookkeeping job opened, she may be considered. On June 25, 1988, while going to the rest room at defendant employer's, an adjoining walk-in cooler door was pushed hard by another employee who was pushing a loaded cart. The door hit claimant in the mid-part of her back and knocked her into the rest room door that she was opening. Claimant said she also hit her head and became confused and felt like her head was exploding. Claimant ultimately continued to work because the employer was short of help. Claimant said that eventually later that day she was stocking shelves and was on all fours and was unable to stand up without help. Claimant sought medical help and was released on July 4, 1988, to return to work. She indicated she was still a little stiff in her neck and her low back still hurt. Claimant said she worked one-half hour on July 9, 1988, and was then fired. She said she was told she was not working fast enough. She then went to Broadlawns and eventually to Dr. Roger D. Nyberg, a chiropractor. She related Dahl's Food Stores declined any medical care or treatment for her and said they were not responsible for her problems. Claimant indicated she would have been able to continue working in July of 1988 with her physical condition but did not know if she could do the work. She said the less work she did, the worse she got. Claimant said defendant employer ultimately sent her to the insurance company in mid-October 1988, and the insurance company set up an appointment for her on November 1, 1988, with Rodney E. Johnson, M.D. Claimant received physical therapy and cortisone injections. Claimant related her continuing aches and pains. Claimant contends she never had any prior low back pain or received any treatment for back pain and never had a stiff neck or symptoms like she had from this injury. Claimant acknowledged a 1970 car accident and she collected ten days of workers' compensation for headache pains in 1980 and 1981. It appears no injury residue exists as to these incidents. Page 3 Claimant discussed her medical, but the medical records will be discussed later. In October 1989, claimant returned to work for Clark- Thompson part time as a computer bookkeeper-manual data type entry. She was hired to work 25 hours in a seven day work week but said she worked 60 to 70 hours. Claimant contends her headaches became more intense and frequent and her right hand did not operate the same as her left. She said she had difficulty holding a pencil or a fork and would drop plates. She related her difficulty in doing her jobs satisfactorily and was spending more time doing less work. Claimant, making $7.50 per hour, quit this employment in August 1990, after approximately eight months. Claimant now has worked for approximately one year at the Des Moines Plasma Center earning $5.00 per hour and hopes to eventually obtain a manager's job which would pay more. Claimant explained her problems as being unable to do certain activities or perform certain functions that she was able to do without difficulty prior to her alleged June 1988 injury. Claimant contends her symptoms today are the same as when Dr. Johnson released her, and she emphasized she could not go back to lab work because of the need to handle glass tubes and slides. She said that if she dropped a slide exhibit, then the data would be lost. Claimant said she could not do manual data entry work now and could not find another bookkeeping job that she was able to do. Claimant related various injuries she has had in the past. She acknowledged that Kent Sahlstrom, M.D., who is also her daughter's doctor, released her on July 5, 1988, with no heavy lifting for one week. Claimant has not seen Dr. Johnson since December of 1989. She indicated he said he could not do anything more for her. Claimant had a functional capacity test and contends she had to go to a chiropractor after this test. Claimant acknowledged she went to Dr. Johnson to get authorization to see a chiropractor. Dr. Johnson indicated he did not care if she went to a chiropractor but said the insurance company would not pay. Dr. Johnson did not want the chiropractor to adjust her neck, but it was okay as to her low back. Claimant acknowledged that Dr. Johnson did not give her any written restrictions and that she then started looking for part-time work. She then only looked for cashier or bookkeeper jobs and never applied in the medical field. Claimant related the various jobs she has held or applied for prior to the current job and since August 1989. Claimant indicated she told the potential employer that she had neck problems and needed more treatments. Claimant was questioned as to getting her master's degree in order to get a lab manager job since claimant had a four year degree and a high grade point average. Claimant basically contends she could not do the required work even if she got the added education. Claimant made it clear she Page 4 cannot adequately use her hands due to this injury so as to be able to do the job she used to do using her educational training. Claimant related that after July 1988, she never went back to Dahl's again to look for work. It is also obvious she never thought this could be a long-term situation, particularly working in the bakery taking into consideration her education and training. Claimant was making $5.00 per hour at Dahl's. She is currently making similar wages at the Des Moines Plasma Center. Claimant contends the latter job is easier on her body as she can stand rather than sit and file as she did at Clark-Thompson. On March 17, 1989, Rodney E. Johnson, M.D., discussed an anterior cervical fusion of C3-4, but did not anticipate that claimant will make any significant improvement in the future nor that her symptoms would become worse. He left the decision as to any surgery to claimant but did not think surgery would be necessary if claimant was doing well. On January 9, 1990, Dr. Johnson said claimant reached maximum healing and opined a 5 percent permanent impairment. He indicated he did not believe claimant's complaints were related to any gymnastic activities claimant was doing prior to June 25, 1988. He also did not relate claimant's right arm complaints to claimant's cervical complaints (Joint Exhibit 1, page 3). On February 28, 1990, Dr. Johnson said there is support for the fact that claimant has a thoracic outlet impression syndrome in her right arm and he did not feel that this was related to the June 25, 1988 injury (Jt. Ex. 1, p. 2). On June 5, 1991, Dr. Johnson wrote that claimant was last seen by him on December 14, 1989, and that claimant's June 25, 1988 injury at Dahl's is causally connected to her complaints that claimant was rated with a 5 percent permanent impairment for her cervical spine injury at work. He did not specify any restrictions but suggested claimant have a functional capacity test (Jt. Ex. 1, p. 1). Roger D. Nyberg, D.C., wrote on October 11, 1991, that claimant had a 15 percent permanent impairment to her body as a whole and imposed no specific restrictions (Jt. Ex. 1, p. 24). His first examination of the claimant was on July 1, 1988. Thomas W. Bower, L.P.T., saw claimant on various occasions and on September 25, 1991, wrote, after putting claimant through various tests, that there was a great deal of subjectivity to claimant's complaints and there are very few objective findings which remain consistent with those complaints. He indicated some mention has been made of thoracic outlet syndrome but indicated clinical testing does not reveal classic findings. Mr. Bower set out certain restrictions which would place claimant in a light work classification. He referred to Dr. Johnson's previously established 5 percent impairment based on the cervical spine pathology and Mr. Bower said he would add no additional impairment based on the suspicion of thoracic outlet syndrome since he has no consistent objective findings to base an opinion (Jt. Ex. 1, p. 30). Page 5 Alexander Matthew, M.D., upon referral from Dr. Johnson, wrote on December 15, 1989, that claimant should consider surgical decompression of her right thoracic outlet. In June of 1989, he indicated claimant has minimal findings to suggest a right thoracic outlet compression syndrome. The parties stipulated that claimant incurred an injury that arose out of and in the course of her employment on June 25, 1988. They are disputing the extent of claimant's permanent disability and that any permanent disability is causally connected to the June 25, 1988 injury. Claimant has seen various doctors. Claimant has the burden of proof. The greater weight of medical testimony indicates that claimant incurred an injury in her cervical area which resulted in at least a 5 percent permanent impairment to claimant's body as a whole. There is confusing and contrary medical evidence as to whether claimant has or does not have a thoracic outlet syndrome condition. Defendants contend that is what claimant has, if she has anything, and that this was not caused by her June 25, 1988 injury. Claimant takes the position that it is not believed claimant had thoracic outlet syndrome and contends claimant's problems are related to her June 25, 1988 injury. At the time of claimant's June 25, 1988 injury, she was not working in the medical field in which she had extensive training. It is not fully clear to the undersigned why she left that field or did not attempt to pursue her livelihood in that field rather than take the job at the bakery. Claimant indicated that when she took the bakery job with defendant employer, she was hoping to work into the office or bookkeeper job which, of course, would still not be within her field of extensive training. Claimant now seems to contend that she is not able to go back to that field or it would be worthless to get additional training which would earn her more money because she would not now be able to do the work anyway. There is no indication claimant would ever have gone back to that field, particularly based on her past history and the job she had taken outside of the medical field. Claimant is now working at the Des Moines Plasma Center, which can be complimentary to some extent to her medical field education and she hopes to possibly get a manager job, which would pay her more money than she is now earning. Thomas Bower, in his summary, indicated there is a great deal of subjectivity to claimant's complaints. He also indicated that the lifting capacities correlated with lifts suggestive of submaximal work being done (Jt. Ex. 1, p. 30). The undersigned questions the extent of claimant's complaints and alleged inability to do certain work although in claimant's testimony, it appears she at least feels she is a hard worker and did more at her jobs than she was hired for. Claimant's income was decreasing substantially before her June 25, 1988 injury and her 1990 income appears to have gone to a little bit more than claimant was making in 1987. Page 6 The greater weight of medical testimony indicates that the extent of claimant's problems with her right arm is related to something other than claimant's cervical injury on June 25, 1988. In Dr. Johnson's January 9, 1990 report in which he discussed claimant's complaint of increased symptoms in her right arm consistent with thoracic outlet, he had asked Dr. Matthews to re-evaluate her for this condition. He then indicated that he did not feel claimant's right arm complaint was related to claimant's cervical complaint (Jt. Ex. 1, p. 3). Claimant has the burden of proof. As to claimant's right arm complaint, the claimant has failed to causally connect that complaint with her June 25, 1988 injury at defendant employer's. It is not clear as to the extent of any restrictions claimant has that is strictly related to her cervical injury and to what extent her less than maximal efforts had to do with the extent of those restrictions. There is no separation of those restrictions between claimant's right arm complaints and her cervical complaints. It would appear that overhead work would not be recommended due to the cervical injury. The undersigned feels that claimant does have some restriction as a result of the June 25, 1988 injury and that there is a 5 percent impairment based on the cervical spine pathology. It would seem that Mr. Bower agreed with this, also. From claimant's testimony, it would seem that she related her arm condition as being a major factor in her inability to perform the work in the medical field in which she has been trained. She indicated she would be unable to perform the certain tests or hold test tubes, etc., without dropping the same. As set out above, it would seem that this particular condition is not causally connected to claimant's cervical injury if one relies on Dr. Johnson's opinion. The undersigned accepts that as the opinion of a specialist who treated or worked with claimant for the longest period of time. The undersigned also notes that on joint exhibit 6, page 20, the claimant was warned on June 8, 1988, that she was taking twice as long to do a function of her job than it should have taken. This was prior to her June 25, 1988 injury. Although there is no indication why claimant was slow, it would be understandable that to do the particular job involved, namely, slicing bread, claimant would be using her hands and arms. Claimant's job at Clark-Thompson also involved extensive use of her arms and hands and as she indicated, she was working a lot more hours than she was hired to work. Claimant indicated she was working up to 70 hours a week at times. Taking into consideration claimant's age; pre-June 25, 1988 and post-June 25, 1988 medical and work history; intelligence; income prior to and after her injury; severity of her injury; the healing period which is not in dispute; her motivation; education; and functional impairment, the undersigned finds that claimant has a 10 percent industrial disability. The disability benefits begin on March 21, Page 7 1989. As to the 85.27 medical benefits issue, the dispute being whether the medical was causally connected, reasonable and necessary, the undersigned finds that under the total circumstances and evidence in this case, the medical claimant incurred was necessary and reasonable under the circumstances herein. It appears that defendants were denying liability and that claimant was getting treatment for the complaints of which at the time the treatment was sought. It was not clear whether it was because of the cervical complaints only, which claimant contends resulted also in arm complaints, or whether they were strictly because of a complaint arising from something other than claimant's cervical injury of June 25, 1988. Claimant did obtain some relief from this treatment. The undersigned finds that defendants shall pay the medical bills that are in dispute herein. It appears those bills are set out in joint exhibit 2, page 1, totaling $6,804.53. conclusions of law The claimant has the burden of proving by a preponderance of the evidence that the injury of June 25, 1988, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Iowa Code section 85.27 provides, in part: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if Page 8 requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. In an emergency, the employee may choose the employee's care at the employer's expense, provided the employer or the employer's agent cannot be reached immediately. It is further concluded that: Claimant incurred a 5 percent permanent functional impairment to the body as a whole as a result of a June 25, 1988 injury to claimant's cervical C3-4 area. Claimant failed to sustain her burden as to any causal connection between claimant's alleged right arm complaints and her June 25, 1988 work injury. Claimant incurred a 10 percent industrial disability as a result of her June 25, 1988 work injury. Defendants are responsible to pay claimant's medical bills as set out on joint exhibit 2, page 1, in the amount of $6,804.53. order THEREFORE, it is ordered: That claimant is entitled to fifty (50) weeks of permanent partial disability benefits at the stipulated rate of eighty-six and 98/100 dollars ($86.98) per week beginning March 21, 1989. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay claimant's medical bills as set out in joint exhibit 2, page 1, for a total of six thousand eight hundred four and 53/100 dollars ($6,804.53). That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of December, 1991. ______________________________ Page 9 BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr David D Drake Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines IA 50265 Mr D Brian Scieszinski Attorney at Law 801 Grand Ave Ste 3700 Des Moines IA 50309 5-1108; 5-1803; 5-2503 Filed December 20, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : MARY ELLEN SMITH, : : Claimant, : : vs. : : File No. 887628 DAHL'S FOOD STORES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108; 5-1803; 5-2503 Claimant awarded 10% industrial and medical benefits, all of which are causally connected to her work injury. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GLORY L. SPOTTEN, : : Claimant, : : vs. : : File No. 887642 ROLSCREEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Glory L. Spotten, claimant, against Rolscreen Company, employer, and Employers Mutual Companies, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on May 4, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on January 22, 1991, in Des Moines, Iowa. The record was considered fully submitted at that time. Claimant was present and testified at the hearing. Also present and testifying was Marla K. Schiebout. The record in this case consists of joint exhibits A-I, claimant's exhibit J, and defendants' exhibit 1. preliminary matters Claimant's attorney objected to the admission into evidence of claimant's exhibit 1 pertaining to office records of Peter D. Wirtz, M.D., dated January 14, 1991, because such evidence was obtained after the discovery deadline. Defendants argued that claimant had orally waived the discovery deadline and agreed to be examined by Dr. Wirtz. Claimant retorted that the agreement was made for settlement purposes and not for evidence to be used at the hearing. The undersigned is not persuaded by claimant's argument as insurance companies do not ordinarily pay for examination they can only use conditionally. Claimant's argument is without merit and her objection is overruled. issues Pursuant to the prehearing report and order, the parties have stipulated that defendants are entitled to a credit under section 85.38(2) for sick pay/disability income in the amount of $92.43, and that defendants paid claimant 13.714 weeks of compensation at the rate of $45.67 per week Page 2 prior to the hearing. The issues presented for resolution include: 1. Whether claimant sustained an injury which arose out of and in the course of her employment; 2. Whether there is a causal relationship between the injury and the disability on which she now bases her claim; and, 3. Whether claimant is entitled to temporary disability/healing period benefits and permanent partial disability benefits. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made and all the evidence contained in the exhibits and makes the following findings. Claimant was born on May 21, 1964 and left school in the middle of the ninth grade. Two months later she received her GED certificate. She worked at Rolscreen from March 1987 through September 1988. Prior to that time, she worked as a cashier, waitress and corn sorter. During the first six months at Rolscreen, she worked as an electronic press operator and then moved to the third shift where she operated a chop saw. Claimant testified that in the course of performing her job as a chop saw operator, while lifting a plank weighing up to 40 pounds, she felt a tearing sound in her back. This occurred in the early morning on May 4, 1988. At that time, she was working the midnight to 8:00 a.m. shift. She testified that she worked the rest of the day and after sleeping on her back that night she could not get out of bed the next morning. She then called the company nurse and reported that she had hurt her back. On May 5, 1988, she presented herself, without any instructions from the company, to Mater Clinic for evaluation of thoracic back pain. Treatment notes indicate tenderness over the spinal processes T7, T8 with paravertebral muscle spasm. Reflexes in the upper extremities were normal and x-rays were negative. The diagnosis of thoracic strain was made and Indocin Robaxin was prescribed (Joint Exhibit E). Company records indicate that claimant called in sick on May 4, 5 and 6, 1988 (Jt. Ex. I, page 36), and returned to work on May 9, 1988 (Jt. Ex. A, p. 6). An appointment was made for her to see John Kanis, M.D., at Pella Medical Center. On May 9, 1988, Dr. Kanis diagnosed lumbar strain-paravertebral muscle spasm and prescribed Parafon Forte, as needed. He recommended conservative therapy and restricted squatting, lifting and arm movement above shoulder level (Jt. Ex. D., pp. 18-19). Page 3 On May 20, 1988, claimant saw Dr. Kanis for a follow-up evaluation. At this time, claimant complained of soreness in the right lower thoracic region especially with twisting. An examination revealed mild tenderness of the right lower thoracic paravertebral musculature. Dr. Kanis noted poor effort as far as using upper extremity strength. A thoracic and lumbar manipulation was given with good articulation. No restriction in range of motion was evident on examination. A diagnosis of thoracic strain was made and claimant was released to return to work with restrictions of no lifting of greater than 20 pounds and avoidance of any work with hands and arms above shoulder height (Jt. Ex. D, p. 5). On May 24, 1988, the day she was scheduled to return to work, claimant called Pella Medical Center and related to Dr. Kanis that she hurt her back when she lifted her daughter who weighed 20 pounds out of the car and carried her to the house (Jt. Ex. A, p. 7; Jt. Ex. D, p. 5). Claimant saw Scott B. Neff, D.O.., on June 13, 1988. She presented with complaints of aching and pain in her mid back and down into her lower back. There were no signs of acute neurologic abnormality and conservative therapy was recommended. A follow-up examination was conducted on June 27, 1988. At this time, claimant complained of numbness and buckling in her right leg. Dr. Neff recommended a thoracic and lumbar MRI study to rule out a herniated disc. The results were essentially within normal limits. Another examination was conducted on August 1, 1988 and she was much improved. Dr. Neff stated that "I believe she could return to significantly light duty but cannot return to heavy activity." Dr. Neff then referred claimant to Physical Therapy Consultants for an impairment rating. Based on substantial decreased range of motion of the spine, a 12 percent impairment to the body as a whole rating was made. However, an addendum to the report stated as follows: Based on the range of motion loss this rating is in accordance with the American Medical Association guides. We, however, find this to be a highly unusual situation for one to incur this amount of impairment from a lumbar strain. Therefore, we are not completely sure this is a true reflexion [sic] of the patient's impairment. Perhaps further physical therapy is needed to restore the patient's range of motion. (Jt. Ex. B, p. 15) On January 14, 1991, claimant was evaluated by Peter D. Wirtz, M.D. She presented with complaints of right lower back pain with lifting and bending and swelling in the right back area with pain. However, on examination, no neurologic or restriction of function was noted. Dr. Wirtz concluded: "Should there have been an injury in May, 1988, it would have resolved over a 3-4 week period of treatment that was instituted on 5/9/88." He further opined that "The examination reveals full range of motion, no neurologic finding, nor is there any objective changes on diagnostic Page 4 studies to indicate any permanent functional impairment." It was his impression that "There are no specific conditions that would restrict her within her physiologic strength and dexterity." (Defendants' Exhibit 1). Claimant testified that she voluntarily terminated her job at Rolscreen on August 29, 1988. Rolscreen Company personnel records indicate that she was employed there from March 10, 1987 to September 7, 1988 and was dismissed due to the fact that she had not reported to work for three days and it was assumed that she abandoned her job (Jt. Ex. I, p. 1). CONCLUSIONS OF LAW The first issue to be determined in this case is whether claimant received an injury on May 4, 1988, which arose out of and in the course of her employment with Rolscreen Company. Claimant has the burden of proving by a preponderance of the evidence that she received an injury on May 4, 1988, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). 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. 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. "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. 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: Page 5 While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury....The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. .... A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. After carefully reviewing the total evidence in this case, the undersigned concludes that claimant sustained a back strain while lifting wooden planks during the course of her employment with Rolscreen. The claimant has the burden of proving by a preponderance of the evidence that the injury of May 4, 1988 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such Page 6 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. The greater weight of the evidence demonstrates that claimant's injury is causally related to the disability on which she now bases her claim. The work injury was a cause of absence from work and loss earnings during a period of recovery from the injury. Dr. Kanis, the company doctor, recommended rest and physical therapy during a period of recuperation. Claimant is seeking weekly benefits for both temporary and permanent disability. In the case of a claim for temporary disability, the claimant must establish that the work injury was a cause of absence from work and lost earnings during a period of recovery from the injury. Generally, a claim of permanent disability invokes an initial determination of whether the work injury was the cause of permanent physical impairment or permanent limitation in work activity. The evidence in this case clearly establishes that claimant's muscle strain resulted in a temporary absence from work during the period commencing May 4, 1988 and ending May 20, 1988, when Dr. Kanis released her to return to work. Evidence that claimant was performing strenuous and heavy work prior to the work injury was uncontroverted. She was not disabled in any manner until the May 4, 1988 incident. Claimant has not established that the work injury is a cause of permanent disability. Claimant reinjured or aggravated her back the day before she was scheduled to return to work when she was lifting her daughter. She admitted at the hearing that prior to that incident she was ready, willing and able to return to work. No physician who treated and/or examined claimant found her to be permanently disabled as a result of her May 4, 1988 work injury. Therefore, on the whole record, claimant has only established by a preponderance of the evidence that the work injury was the cause of temporary total disability, not permanent disability. Claimant is entitled to 2.429 weeks of temporary total disability benefits at the stipulated rate of $245.67, for the period commencing May 4, 1988 and ending May 20, 1988. Because defendants have voluntarily paid benefits in excess of the award of temporary disability herein, claimant shall take nothing further from these proceedings. order THEREFORE, it is ordered: Claimant shall take nothing further from this proceeding. Page 7 Costs of this action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Harold B Heslinga Attorney at Law 118 N Market St Oskaloosa IA 52577 Mr Cecil L Goettsch Attorney at Law 1100 Des Moines Bldg Des Moines IA 50309-2464 1801 Filed February 6, 1991 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : GLORY L. SPOTTEN, : : Claimant, : : vs. : : File No. 887642 ROLSCREEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1801 Claimant found entitled to temporary total disability benefits due to a work injury but permanency not established.