BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ DONNA HALL, Claimant, vs. File Nos. 887987/936087 DES MOINES REGISTER, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed March 18, 1994 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of July, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Mark S. Pennington Attorney at Law 620 Fleming Bldg. Des Moines, Iowa 50309 Mr. James C. Huber Attorney at Law 500 Liberty Bldg. 418 6th Ave. Des Moines, Iowa 50309 5-1803 Filed July 21, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DONNA HALL, Claimant, vs. File Nos. 887987/936087 DES MOINES REGISTER, A P P E A L Employer, D E C I S I O N and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Industrial disability determined. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DONNA HALL, : : Claimant, : File Nos. 887987 : 936087 vs. : 1018232 : DES MOINES REGISTER, A R B I T R A T I O N : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ STATEMENT OF THE CASE This consolidated contested case proceeding is upon petitions in arbitration filed by claimant Donna Hall against her employer, The Des Moines Register, and its insurance carrier, Liberty Mutual Insurance Company. In file number 887987, claimant alleges a work injury to the neck, shoulder and right upper extremity on July 26, 1988. In file number 936087, she alleges a work related back injury on November 21, 1989. File number 1018232 alleged a work related hernia suffered on February 4, 1992. A hearing was accordingly held in Des Moines, Iowa on September 20, 1993. The record consists of the testimony of claimant, Marge Hanlin and William Haynes along with joint exhibits 1-7. Defendants' exhibit 1 was excluded. During the course of hearing, claimant dismissed her petition in file number 1018232 (the 1992 hernia claim) without prejudice. Permission was granted. issues In file number 887987, the parties entered into the following stipulations: 1. Claimant sustained injury arising out of and in the course of employment on July 26, 1988; 2. The injury caused temporary disability, the extent of which is no longer in dispute; 3. The correct weekly compensation rate is $300.06; Page 2 4. Affirmative defenses have not been raised; 5. Medical benefits are no longer in dispute; and, 6. Defendants voluntarily paid certain benefits prior to hearing. Issues presented for resolution in file number 887987 include: 1. Whether the injury caused permanent disability; and, 2. The nature and extent of permanent disability, if any. In file number 936087, the parties entered into the following stipulations: 1. Claimant sustained a back injury arising out of and in the course of employment on November 21, 1989; 2. Entitlement to temporary total disability or healing period is no longer in dispute; 3. Permanent disability, if any, should be compensated industrially as an injury to the body as a whole; 4. The appropriate commencement date for permanent disability benefits is October 30, 1991; 5. The appropriate compensation rate is $306.22; 6. Affirmative defenses have not been raised; 7. Entitlement to medical benefits is no longer in dispute; and, 8. Defendants voluntarily paid certain benefits prior to hearing. Issues presented for resolution in file number 936087 include: 1. Whether the injury caused permanent disability (or, as defendants allege, whether the injury merely caused temporary aggravation of a previous back injury); and, 2. The extent of industrial disability, if any. Page 3 FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Donna Hall, age 42 at hearing, is a 1969 high school graduate. Ms. Hall described herself as an above average student. She has since taken two management courses at a community college, stress management courses, and is currently enrolled in a cosmetology school anticipating graduation in July or August, 1994. Ms. Hall has work experience as a computer operator, secretary/receptionist, school bus driver and as a journeyman mailer for defendant, a large metropolitan newspaper. She was so employed from June 25, 1983 through October 30, 1991 (per the appeal decision in companion Job Service litigation, 91A-UI-14362-HT). A journeyman mailer is responsible for numerous tasks associated with bundling and shipping newspapers for delivery. Frequent lifting in excess of 50 pounds is required. On August 5, 1986, claimant suffered a back injury at the Register while lifting a "jogger" machine, a device used to vibrate newspapers in the bundling process. A claim based on this injury was briefly litigated (June 15 through July 17, 1987) in this office under file number 830229. That contested case was dismissed without prejudice and has not been refiled. Defendants are of the view that the admitted back injury of November 21, 1989 was only a temporary aggravation of Ms. Hall's condition resulting from the 1986 injury. They believe that any permanent disability is attributable to the 1986 injury. The 1988 injury, found below to be a shoulder injury, resulted from a slip and fall on a wet spot. One of the evaluating physicians, Jerome G. Bashara, M.D., is a board certified orthopedic surgeon. His chart notes of July 23, 1992, detail claimant's history to that point with respect to her back injury. Except as hereafter noted, that history is accepted as fact: This is a 41 year old white male [sic] who injured her low back on 8-5-86. She was apparently working at the Des Moines Register and Tribune when she lifted a "jogger" weighing approximately 65 lbs. She developed immediate pain in the low back and bilateral lower extremity pain, bilateral lower extremity numbness and tingling, right greater than left. The patient heard a snap in her back at the time of the injury. She was seen at the Mercy Skywalk clinic, x-rays were taken. Diagnosis: lumbar muscle strain, right hip pain and right hamstring strain. She continued to have symptoms as above. On 8-12-86 the patient was seen by Dr. David McClain. Impression: Acute lumbosacral strain.. Page 4 He recommended complete bedrest, no work, medications, and physical therapy. Physical therapy was not instituted. She continued to have low back pain, bilateral lower extremity pain, right worse than left. On 9-29-86 the patient was seen by Dr. David Boarini. His impression was the patient had a moderate low back strain. He recommended Robaxisol and aggressive physical therapy. The patient was returned to work on 11-11-86 with a 50 lb lifting limit. The patient did return to work, without restrictions. She continued to have symptoms of low back pain, progressively worsening. CT scan of the lumbar spine was performed on 2-24-87 at IMMC. On approximately 3-12-87 the patient was lifting 65 lb objects when she aggravated her right sided Page 5 low back pain. She was seen on 4-1-87 by Dr. Raymond Webster. His impression was resolving acute lumbar strain, right. She was returned to light work on 4-6-87. She continued to have right sided hip and low back pain. Numbness and tingling in both legs. On 4-14-87 x-rays of the right hip were taken. Dr. Webster indicated they were negative. Diagnosis: chronic right lumbar strain of myofascial origin. She returned to light duty with no lifting greater than 20 ls [sic]. She will work 4 hours a day for one week and then followup. The patient states she was only put on a light duty job for one week and then returned to her regular job. On 5-6-87 the patient was seen by Dr. Ronald Bunten. His recommendations were for a trial of work hardening, but probable job retraining to more sedentary sort of work activities. He did not feel she would likely be able to return to her usual work. The patient was also given a TEN's unit with some relief. She continued to have low back pain, bilateral lower extremity pain, right greater than left with numbness and tingling in both lower extremities, right greater than left. She continued to see Dr. Webster. She did undergo a work hardening program. She continued to have symptoms as above. The patient was off work during 1988-1989 due to right shoulder injury. On 11-21-89 the patient reinjured her low back while lifting paper bundles at work, she developed a sudden stabbing pain in the right low back. She was seen on 11-22-89 at the Iowa Methodist Medical Center, ER. Diagnosis: Acute paraspinous muscle strain. She was given Tylenol No. 3 and Parafon Forte. She was seen the same day by Dr. Michael Makowsky the company physician. His diagnosis was acute paraspinal muscle strain. The patient was returned to work on 11-30-89. On 1-1-90 the patient was rechecked in the IMMC ER for her low back pai [sic]. The patient continued to have fairly constant low Page 6 back pain, left side, bilateral lower extremity pain, right greater then left. Numbness and tingling in both lower extremities right greater than left. In approximately January of 1991, the patient developed an increase in the low back and right lower extremity pain. No known injury. She was seen at the Mercy Medical Clinic by Dr. Reel. X-rays were taken on 2-22-91. Due to the patient's continued symptoms she was referred to Dr. Scott Erwood. MRI was performed on 3-26-91 which revealed a shallow left sided L5-S1 protrusion/HNP. Mild to moderate degeneration of the L5-S1 disc and early/mild degeneration of suggested in the L3-4 disc. Dr. Erwood felt the patient was a candidate for a lumbar myelogram and CT. This was carried out on 4-5-91 and was positive for a left sided HNP and a profound right renal hydronephrosis. The patient ultimately underwent a nephrectomy, Dr. Quinlan, June of 1991, however, she continued to have low back and bilateral lower extremity pain and numbness in the lower extremities, right worse than left. The patient returned to see Dr. Erwood on 8-23-91. He recommended EMG and nerve conduction studies of the right lower extremity. He also indicated an epidural steroid injection may be beneficial. She was referred to physical therapy. EMG was not performed. Epidurals were performed. The patient was also seen by Dr. Dan McGuire on 10-10-91 for a second opinion, no specific treatment was outlined with regard to the low back. The patient was terminated on 10-31-91. The patient has continued to have constant sharp stabbing pain in the low back, left sided, pain in both lower extremities and hips right greater than left. Numbness and tingling in bilateral lower extremities, right greater than left. The pain is aggravated by prolonged sitting, standing, walking, and stairclimbing. Also she cannot tolerate any bending, stooping, twisting, squatting, or lifting activities. As Dr. Bashara noted, claimant was terminated by the Register on October 31, 1991. The Register then contested claimant's eligibility for unemployment insurance benefits on the basis of claimed job misconduct. The issue was decided adversely to the Register by Administrative Law Page 7 Judge Bonny Hendricksmeyer in an appeal decision issued January 10, 1992, under the auspices of the Divison of Job Service, a sister agency to this. That determination is entitled to preclusive effect. The discharge was not for disqualifying job misconduct. Dr. Bashara also testified by deposition on September 28, 1992. He indicated that on examination, claimant showed moderate spasm and tenderness at L5-S1. He described the observed "spasm" as the muscles being contracted, tight and swollen. Dr. Bashara specified that this was an objective finding as opposed to a subjective finding. Dr. Bashara also found a restricted range of motion in the lumbar spine, leading to his diagnosis of a disc injury at L5-S1 and a musculoligamentus strain of the lumbar spine. He believed claimant would have difficulty in employment requiring her to lift, bend, pull or to perform essentially physical labor. Impairment was rated at nine percent of the body as a whole. On direct examination, Dr. Bashara was never asked to distinguish between the 1986 and 1989 back injuries. On cross-examination, he identified the 1986 injury as the "primary" injury leading to his impairment rating. In particular, Dr. Bashara noted a CAT scan done in 1987 showed a disc herniation at L5-S1. He agreed that subsequent injuries were "an aggravation of the initial injury of 1986." (Deposition, Page 26), but on re-direct examination, testified that the 1989 injury "increased" the amount of injury to the herniated disc, agreed that it would be difficult to divide impairment between the two injuries. He added: A. Well, it is my opinion that it took both the injury of 1986 and 1989 to produce the injury which I diagnosed in my evaluation in July of 1992. It took both those injuries to produce that injury that I saw or the condition that I saw. Dr. Bashara also evaluated claimant for her shoulder injury, as discussed below. Ms. Hall was also evaluated for both conditions by Daniel J. McGuire, M.D., also a board certified orthopedic surgeon. Dr. McGuire testified by deposition on May 12, 1993. Dr. McGuire stressed that claimant did not have reproducible major neurological deficits. He believed "100 percent" that claimant had back pain, but could not diagnose the source and agreed with Dr. Bashara that no surgical option was apparent. Dr. McGuire felt it significant that claimant's herniated disc is on the left side, while her more significant lower extremity symptoms are on the right. Indeed, Dr. McGuire referred to a "little disc bulge" on the opposite side and suggested that "some people might say a disc bulge is normal, myself included" (Deposition, page 34). Although Dr. McGuire in his October 10, 1991 report rated impairment of the spine at zero and recommended no specific restrictions, he agreed in his deposition testimony Page 8 that a five percent impairment rating would not be unreasonable. Dr. McGuire also testified that he would place no restrictions on claimant specifically due to her back, but conceded that a 70 pound lifting restriction and further restrictions against repetitive heavy lifting and bending are appropriate, based mostly on claimant's age and size (5 feet 2 inches, 125 pounds). Claimant saw a number of practitioners for her back complaints subsequent to 1986. Different physical restrictions were imposed by various physicians, but it is not clear that any of these were intended to be permanent. However, Raymond L. Webster, M.D., saw claimant after the 1987 lifting incident shown in Dr. Bashara's history. On April 15, 1987, Dr. Webster wrote that "at the present time" claimant's job was exacerbating her lower back and that she might be able to continue working in a different area at the Register if she were placed in a job requiring less heavy lifting and less frequent bending and twisting. He suggested that it might be beneficial to approach claimant about the possibility of retraining for a less strenuous line of work. Similarly, Dr. Bashara's history cites Dr. Ronald Bunten as recommending a trial of work hardening in May 1987, but suggesting the probable need of job retraining to a more sedentary work. As between the opinions of Dr. Bashara and Dr. McGuire, the undersigned concludes that Dr. Bashara is more persuasive. That physician takes into account the objective signs of muscle spasm and limited lumbar range of motion, agrees with other physicians (unlike Dr. McGuire) that the 1987 CAT scan showed a herniated disc, and both his impairment rating and suggested restrictions are more consistent with agency experience in cases of such chronic and protracted back pain. Those restrictions, which also take into account the shoulder injury discussed below, are set forth in Dr. Bashara's deposition testimony: A. I would recommend that for her it would be my opinion that she would do best in a job in which it was basically sedentary, where she would not have to bend, stoop, twist or lift; where she wouldn't have to use her right shoulder like in a production line above shoulder level; and in a job where she could, you know, sit for a few hours, get up, walk a little bit and maybe stand some. So I think basically one of the more sedentary type of occupations. Dr. Bashara also evaluated claimant on August 9, 1991 for her shoulder problems. He charted the following history, which is also accepted as fact: This is a 40 year old right handed white female who injured her right shoulder on 7-26-88 while working at the Des Moines Register. She apparently slipped and fell on a wet floor landing on the right elbow jerking her shoulder. She had immediate right shoulder pain as well as numbness and tingling in the right hand. Page 9 The patient was seen by Dr. Richard Reel of the Mercy Medical Clinic. Treatment included workup for cervical spine pain. The patient continued to have right shoulder pain, numbness and tingling in the hand. On October 17, 1988 she underwent an EMG and nerve conduction velocity which was normal. The patient was then seen by Dr. Peter Wirtz on 11-21-88. X-rays were taken of the right shoulder and interpretted [sic] as normal. Diagnosis: right rhomboid muscle pain referral cervical spine and stiffness, right shoulder. Dr. Wirtz recommended physical therapy. She continued to have difficulty grasping objects with pain in both shoulders. She continued to see Dr. Reel. She was subsequently referred to Dr. Randy Winston and was seen on March 22, 1989. It was Dr. Winston's opinion the patient had evidence of rotator cuff injury with pain on motion of the right shoulder, pain over the appropriate regions and distribution of pain over the deltoid to its insertion on the humerus. Dr. Reel then referred the patient to Dr. Marshall Flapan and was seen on 4-13-89. X-rays were reviewed. His diagnosis was probable right rotator cuff tear. An arthrogram and CT were performed at Mercy, 4-19-89. This was interpretted [sic] as normal. Dr. Flapan's diagnosis was probable bursitis right shoulder, no evidence of rotator cuff tear. He recommended Voltaren 75 mg bid. The patient was unable to tolerate this for any length of time due to stomach upset. On 5-4-89 she underwent an injection of DepoMedrol and Lidocaine into the shoulder. She does not recall having improvement following this. She was returned to work on 5-22-89. She continued to have constant right shoulder pain. Numbness and tingling in the right hand. Popping in the shoulder. Limited range of motion of the shoulder. The patient was seen again by Dr. Flapan on 8-24-89. Diagnosis: Recurrent bursitis right shoulder. On 9-21-89 the shoulder was injected with DepoMedrol and Lidocaine, no improvement. In October of 1989 the patient was working with some heavy papers, which aggravated the right Page 10 shoulder pain. She was seen by Dr. Flapan on 10-23-89, treated with over-the-counter Ibuprofen. The patient was again seen on 10-30-89. She had continued discomfort in the right upper extremity, loss of grip and numbness and tingling. EMG was performed at Mercy on 11-2-89. This was reported as being within normal limits. Bone scan was performed on 11-16-89 at Mercy Hospital, which revealed "minimal asymmetry of AC joints, of doubtful significance." The patient did not followup with Dr. Flapan. The patient then began seeing Dr. Michael Makowsky, company physician for her right shoulder pain. Treatment included medications and a wrist brace. On 12-12-89 she was seen in the IMMC ER for back and right shoulder pain. The patient was then referred by Dr. Makowsky to Dr. D. Quenzer and was seen on 1-5-90. His diagnosis were: 1) work related pain dysfunction syndrome, right upper extremity 2) Possible component of brachial plexus neuritis and/or focal compressive neuropathies, difficult to localize, clinically or by EMG. 3) Possible subacromial impingement as original insiting event. Dr. Quenzer recommended the patient be seen at the Mayo Clinic in Rochester, MN. She continued to have constant right shoulder pain. She was seen at the Mayo Clinic on 3-2-90, right shoulder x-rays and EMG were performed which were normal. The patient was evaluated by Dr.'s P. Amadio, hand surgeon; J. K. Campbell, Neurology; J. L. Opitz of Physical Therapy; and Dr. S. Goldman. Diagnosis: 1) Pain dysfunction right upper extremity. 2) Components of myofascial pain and thoracic outlet syndrome. Recommendations were for nonsurgical treatment and pain management clinic. Also recommendations were made for the patient not to return to work. The patient continued to have constant right shoulder pain. A work hardening program was instituted through the Iowa Methodist Hospital, as well as pain management. Dr. Makowsky returned the patient to half days in the mailroom. The patient was seen on 6-25-90, she was told she Page 11 could be rechecked on a prn basis. The patient was seen on 12-7-90 by Dr. Makowsky for increased pain in the right shoulder, arm, and hand. EMG and nerve conduction velocity was performed on 12-14-90 which was interpretted [sic] by Dr. Denhart as normal. The patient was started on Volteran and referred back to Dr. Quenzer. The patient was seen by Dr. Quenzer on 1-8-91. Diagnosis: 1) Chronic pain, right upper extremity work-related and possible thoracic outlet syndrome versus carpal tunnel syndrome, possible subacromial impingement. The right carpal tunnel was injected, the patient had to return to work that night. She felt this injection aggravated her shoulder pain. She continues to have right shoulder pain. Also numbness and tingling in the right hand. The pain does radiate up into the neck. She relates stiffness in the shoulder. She has pain on range of motion. Popping in the shoulder. Dr. Bashara found that claimant lacked range of motion in the right shoulder and showed marked tenderness over the rotator cuff and subacromial bursa and in the Page 12 infraclavicular region. He also noted moderate crepitation during abduction and forward flexion. Diagnosis was of a rotator cuff injury to the right shoulder with chronic rotator cuff tendinitis and subacromial bursitis. Dr. Bashara rated impairment at nine percent of the upper extremity and recommended restrictions against excessive or repetitive use of the right arm above shoulder level. In his deposition testimony, Dr. Bashara agreed that sophisticated objective testing had not objectively shown the cause of claimant's pain (which, incidentally, she found so severe as to actually consider amputation of her dominant right arm), but found this consistent with his diagnosis. Dr. Bashara causally related claimant's condition to the work injury of July 26, 1988. He also specified that his impairment rating to the upper extremity should, because of the location of the injury, be converted to a "body as a whole" rating, which he assigned as five percent. Claimant was also evaluated for her shoulder by Dr. McGuire. Dr. McGuire noted the dearth of objective evidence for claimant's symptomatology, emphasizing that nothing had been found which might require surgical repair. Dr. McGuire was not inclined to rate impairment or issue physical restrictions, but deferred to those "other experts' who had found restriction in range of motion of the shoulder joint. This includes Dr. Bashara. Accordingly, Dr. Bashara's opinion is again given greater weight than that of Dr. McGuire. Note also that claimant was seen at the Mayo Clinic for a full work-up of her shoulder problems. The discharge report, prepared by Sherwin Goldman, M.D., showed a diagnosis of pain dysfunction of the right upper extremity with components of myofascial pain and thoracic outlet syndrome. Dr. Goldman concluded that as of March 1990 claimant was not capable of work due to pain. REASONING AND CONCLUSIONS OF LAW The stipulated 1989 back injury will be considered first. It will be recalled that the parties dispute whether that injury caused permanent disability, or merely a temporary aggravation of claimant's 1986 injury. 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 Page 13 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). Dr. Bashara's opinion on causation has been accepted as entitled to the most weight. In his opinion, both the 1986 injury and the 1989 injury here under review combined to cause claimant's current condition. This opinion necessary raises the question of whether apportionment of disability is appropriate. Apportionment of disability between a preexisting condition and a current injury has been held proper only when some ascertainable portion of the ultimate industrial disability existed independently before the employment-related aggravation of disability occurred. Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). However, it has also been held that to be apportionable, the preexisting disability must not be the result of another injury with the same employer for which compensation was not paid. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990). Based on the history set forth by Dr. Bashara, it must be concluded that the 1986 injury also was related to employment with the Des Moines Register, and the record fails to reflect that compensation for permanent industrial disability was paid. Accordingly, apportionment is improper. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the Page 14 healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant has work experience as a computer operator, secretary/receptionist, and bus driver along with her employment with the Des Moines Register. Dr. Bashara recommended a sedentary job where claimant would not have to bend, stoop, twist or lift and in which she should have the ability to alternate sitting, standing and walking. He also noted that pain is aggravated by prolonged sitting, standing, walking and stair climbing and that claimant cannot tolerate any bending, stooping, twisting, squatting or lifting. (He also limited use of the right arm above shoulder level, discussed further below). Based on those restrictions, claimant cannot continue her work with the Des Moines Register and could not accept work as a school bus driver. Employment as a computer operator or secretary/receptionist would require accommodation, especially of the need to alternate positions. However, claimant is clearly capable of retraining, and has taken the initiative to improve her employability by taking a cosmetology course. Nonetheless, she is clearly foreclosed from much of the employment she could perform prior to the work injury, and has sustained a Page 15 considerable loss of earning capacity. Considering then these factors in specific and the record otherwise in general, it is held that claimant has sustained a permanent partial disability equivalent to 35 percent of the body as whole (175 weeks) attributable to the 1989 back injury. The parties have stipulated that the appropriate commencement date for permanent partial disability benefits in file number 936087 is October 30, 1991. That stipulation is accepted. The parties also dispute whether the 1988 upper extremity or shoulder injury caused permanent disability. Dr. Bashara's opinion on causation has again been accepted in this claim. Claimant has met her burden of proof. Defendants also dispute that the 1988 injury should be compensated industrially, rather than as a scheduled member disability to the arm. Although diagnoses vary, it is clear that disability and range of motion impairment exists in the shoulder. Accordingly, the injury is compensated industrially. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). The only work restriction resulting from claimant's shoulder injury limits overhead use of the affected arm. Loss to claimant's earning capacity is relatively minimal. It is held that claimant has sustained a five percent industrially disability (25 weeks) as a result of the 1988 shoulder injury. The parties have stipulated to the same rate and same commencement date as in the 1989 back injury. ORDER File Number 1018232 is dismissed without prejudice. In File Number 936087: Defendants shall pay one hundred seventy-five (175) weeks of permanent partial disability benefits at the rate of three hundred and 06/100 dollars ($300.06) commencing October 30, 1991. Defendants shall have credit for all permanent partial disability benefits voluntarily paid to date. All accrued benefits shall be paid in a lump sum together with statutory interest. Costs are assessed to defendants. In File Number 887987: Defendants shall pay twenty-five (25) weeks of permanent partial disability benefits at the stipulated rate of three hundred and 06/100 dollars ($300.06) commencing October 20, 1991. Page 16 Defendants shall have credit for all permanent partial disability benefits voluntarily paid to date. All accrued benefits shall be paid in a lump sum together with statutory interest. Costs are assessed to defendants. Signed and filed this ____ day of March, 1994. ________________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Mark S Pennington Attorney at Law 620 Fleming Building Des Moines Iowa 50309 Mr James C Huber Attorney at Law 500 Liberty Building 418 6th Avenue Des Moines Iowa 50309-2421 5-1803 Filed March 18, 1994 DAVID R. RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DONNA HALL, : : Claimant, : File Nos. 887987 : 936087 vs. : 1018232 : DES MOINES REGISTER, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1803 Industrial disability determined. Page 1 before the iowa industrial commissioner ____________________________________________________________ : STELLA FISTER, : : Claimant, : : vs. : : File No. 888021 CHILDRENS HABILITATION : CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Stella Fister, claimant, against her former employer, Childrens Habilitation Center, and its insurance carrier Liberty Mutual Insurance Company. The record in this case consists of claimant's exhibits 1 through 5; defendants' exhibits A, B and C; and, testimony from the claimant. The case was heard on April 30, 1992, at Des Moines, Iowa. issues The parties submit the following issues for resolution: 1. Whether claimant sustained a permanent disability due to her work-related injury on August 25, 1988; 2. If claimant has sustained a permanent disability, the extent of her industrial disability. findings of fact The undersigned deputy, having reviewed all of the evidence received, finds the following facts: Claimant, Stella Fister, was born on July 23, 1960. At the time of the hearing, she was 31 years of age. Ms. Fister is a high school graduate, and has attended several nurse's aide and medications courses. She is a certified medications aide as well as a certified nurse's aide. She received her education through Des Moines Area Community College. Although claimant has held jobs as a waitress and as a housekeeper, the majority of her work experience has been Page 2 focused in the nurse's aide field. Claimant has worked as a direct care worker providing complete care to physically and mentally handicapped people ranging from one year of age to age to 21 years of age. Her job duties have included overall care for patients, including bathing and dressing patients, changing their clothes and lifting them from wheelchairs to beds. Lifting requirements have ranged from 20 to 150 pounds. If claimant worked during the day shift, assistance was usually available to perform the heavier lifting duties. On the night shift, frequently no help was available. For the defendant employer, Childrens Habilitation Center, claimant worked as a lead worker and medications aide which required her to perform duties previously described. She also had additional responsibilities of charting and supervising medications administered to patients. As an alternate supervisor, claimant supervised workers and patient care, and usually performed additional duties of providing total care to patients on the floor. On August 25, 1988, claimant was working the night shift. As she was performing duties on her rounds, she was walking between two rooms and stepped on a paper clip. Claimant slid, started to fall, and caught herself on the side of a dressing table. She continued to work, but felt pain on the left side of her back. Claimant was unable to complete her shift, informed her supervisor about the incident, and sought treatment from the emergency room at Mercy Hospital Medical Center, in Des Moines, Iowa. She was treated for an acute lumbar sprain and was advised not to do any heavy lifting. She was to return to the emergency department in four days (Claimant's Exhibit 1, page 38). During this time period, claimant became aware that she was pregnant. Due to her pregnancy, claimant saw Harold E. Eklund, M.D. He recommended that claimant do no heavy lifting and he was unable to prescribe medications for her back pain due to the pregnancy. In October of 1988, claimant sought conservative treatment and was examined by Charles Denhart, M.D., at the Low Back Institute. He recommended a 25 pound lifting restriction, and kept claimant off of work. Her examination revealed good range of motion in the back. Dr. Denhart was unable to take x- rays or prescribe medications due to claimant's pregnancy. He diagnosed claimant's condition as a low back strain (Cl. Ex. 1, p. 11). Approximately one month later, claimant returned to Dr. Denhart after undergoing physical therapy. Dr. Denhart's records indicated that the pregnancy prevented aggressive treatment, and recommended that claimant undergo home exercises (Cl. Ex. 1, p. 10). In January of 1989, claimant again visited Dr. Denhart and continued to complain of low back pain and left buttock pain. Again, Dr. Denhart diagnosed a strain and noted no radiculopathy (Cl. Ex. 1, p. 9). Claimant's baby was born in March of 1989, and in May Page 3 of 1989, she underwent a CT scan of the low back. The results showed a bulging disc at the L5-S1 level but did not indicate compression or entrapment of the neural elements. The CT scan also showed mild degenerative changes in the low back (Cl. Ex. 1, pp. 5 and 8). The physical therapy notes indicate that after seven to eight visits, claimant continued to display a high pain level and low tolerance to exercise. Both Dr. Denhart and the physical therapist recommended that claimant return to work on a limited hourly basis with a gradual return to work and full duties in twenty days (Cl. Ex. 1, p. 19). Dr. Denhart also recommended that claimant not lift more than 50 pounds, and claimant indicated she felt she could not do any work at the Childrens Habilitation Center due to this work restriction (Cl. Ex.1, P. 3). In August of 1989, claimant was referred to John Kelley, M.D., for further treatment. His examination revealed normal back motions and normal reflexes and negative results on the straight leg raising tests. An MRI of the low back indicated that claimant had an impingement on the cauda equina at the L5-S1 level. He felt claimant suffered from a chronic myofascial lumbosacral strain, and felt that she had aggravated her condition by both the delivery of her child in March of 1989 and her obesity. Dr. Kelley stated that claimant currently had a 7 percent permanent partial impairment to the body as a whole, and if she were operated on to correct the impingement, she would sustain an 8 percent permanent partial disability to the body as a whole. He recommended claimant return to light duty work (Cl. Ex. 1, pp. 15-16). From September of 1989 through February of 1990, claimant underwent vocational rehabilitation as provided for by Counselor Lori Hackett. Although a job search was met with some success, claimant demonstrated low motivation in pursuing employment, and other factors such as family, her obesity, and lack of job skills impinged upon her ability to secure suitable employment. However, claimant did secure a position with O-Harco Building Supply Company in January of 1990. She performed clerical duties including taking orders from the telephone and computer data entry. She was hired to work 40 hours per week at $5.70 per hour. Claimant held this position for one month and then quit, stating that she did not like the work and did not feel qualified to perform the work. After several months of unemployment, claimant secured a position with Equifax, a position which she continues to hold today. This position allows her to work part-time hours, although she occasionally works eight hours per day. She is paid by the number of cases she completes by securing necessary paperwork, and earns approximately $600 every two weeks. Claimant stated that the lowest amount she has earned has been $200 biweekly and she has earned a high of $900 biweekly. In this position, claimant does not have paid sick leave nor paid vacation, and no pension, profit sharing or retirement program. In April of 1991, and July of 1990, Dr. Denhart was of the opinion that claimant had sustained a 10 percent Page 4 permanent partial disability to the body as a whole which was causally related to the incident at work in August of 1988. He stated that all of her disability is related to the back condition and not by claimant's weight problem or pregnancy (Cl. Ex. 1, pp. 1-2). analysis and conclusions of law The first issue to be addressed is the nature and extent of claimant's industrial disability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, expe rience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disabil ity. This is so as impairment and disability are not syn onymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. There are no guidelines which give, for example, age a weighted value of ten percent of the total value, education a value of fifteen percent of total, motivation - five percent; work experience - thirty percent, etc. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience, general and specialized knowledge to Page 5 make the finding with regard to degree of industrial dis ability. See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, March 26, l985). At the time of the hearing, claimant was 31 years old. She is a high school graduate, and holds several certifications in the field of nurse's aide. One factor to be considered is whether claimant is able to return to her previous employments as a nurse's aide. Frequently, aides are required to lift more than 50 pounds while performing their regular job duties. Claimant's 50 pound lifting restriction prevents her from performing some of the job duties as a nurse's aide, but would allow her to work in the nursing field as a supervisor. This restriction places her in the medium work category. Claimant has been able to secure suitable employment outside of the nurse's aide profession. Her current position allowed claimant some flexibility in the number of hours she works on a weekly basis, and she is paid according to the amount of work completed. Claimant was evaluated by Dr. Denhart, who assigned claimant a 10 percent permanent impairment due to the work injury. She was also evaluated by Dr. Kelley, who opined that claimant had sustained a 7 percent permanent partial impairment due to a preexisting condition aggravated by delivery of her child and her weight problem. The medical evidence indicates that claimant's back problems began after the incident at work. She had not had any problems performing her job duties prior to the paper clip incident. Much of claimant's testimony centered around pain she feels when exerting herself. Although pain is a subjective complaint, and it would be difficult to assess a great amount of industrial disability due to pain, the evidence confirms that claimant has a disk problem centered in the low back. After careful consideration of all the applicable factors, it is found that claimant has sustained a 25 percent industrial disability. order THEREFORE, it is ordered: That defendants shall pay claimant permanent partial disability benefits for one hundred twenty-five (125) weeks at the workers' compensation rate of one hundred eighty- three and 37/100 dollars ($183.37) per week beginning July 10, 1989, the date claimant returned to work. That defendants shall pay accrued weekly benefits in a lump sum. Page 6 That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants are awarded credit for benefits previously paid. 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 May, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: nnMr Channing L Dutton Attorney at Law West Towers Office 1200 35th St Ste 500 West Des Moines IA 50265 Mr James C Huber Attorney at Law 500 Liberty Bldg Des Moines IA 50309 5-1803 Filed May 27, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : STELLA FISTER, : : Claimant, : : vs. : : File No. 888021 CHILDRENS HABILITATION : CENTER, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant sustained a work-related back injury. Primary employment was in the nurse's aide profession. Work restrictions included no lifting of more than 50 pounds, and a 10 percent impairment. Claimant awarded 25 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DARWIN OBERENDER, : : Claimant, : : vs. : : File No. 888049 UNITED TRUCK & BODY COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on September 1, 1988. The record in the proceeding consists of the testimony of the claimant, Don Flor, Larry Smith and Steven Bombela; and, joint exhibits 1 through 8. ISSUES The issues for resolution are: 1. Whether claimant incurred an injury on September 1, 1988, which arose out of and in the course of his employment; 2. Whether there is a causal connection as to claimant's permanent disability and a September 1, 1988 alleged work injury; 3. The extent of claimant's permanent disability and entitlement to disability benefits; and, 4. Whether claimant is entitled to 85.27 medical benefits. The issues are whether the medical treatment and services were reasonable and necessary, whether they are causally connected to claimant's alleged September 1, 1988 injury, and whether there was authorization. The bills in dispute are represented by joint exhibit 8. Page 2 FINDINGS OF FACT The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 39-year-old high school graduate. His only other formal education is appropriate three month course in arc welding at an Area 11 school, the course having been taken in the 1980's while claimant was working for defendant employer. Claimant related the various jobs he had beginning in high school up to beginning work for defendant employer for the first time around the first part of 1981. He was hired by defendant employer at that time to do body work on semi trucks. Claimant indicated he learned how to do this work while working with his father and teaching himself more or less by doing this type of work. Claimant worked for defendant employer until some time in 1984. He described the type of work he had to do, his duties, tools he used, the nature of his job and what it required as far as his body movements, etc. Claimant left defendant employer's employment to work for another company in similar type work but more in a supervisory capacity. Claimant did not like this new job and the requirements and was rehired by defendant employer in 1985 to do auto body work. Because defendant employer at that time had put into existence a department making sleepers for trucks, claimant ended up working mainly in that department. Defendant employer indicated this was similar to the type of work claimant did when he previously worked for defendant employer. Claimant last worked for defendant employer on May 1, 1989. Although the words termination and quitting were used at various times during the questions and answers, it was obvious that the claimant was terminated from his employment. Claimant described the nature of his alleged September 1, 1988 injury and how he thought it occurred. Claimant indicated that in the previous August while working on a truck installing a sleeper, he had hit his head on the truck door which had been left open. This did not cause a cut but he said that was the first indication he began to have pain in his neck area. He indicated that he then notified his employer around the first of September in 1988 and made arrangements to see a doctor because of the pain becoming more severe and affecting his ability to work. Claimant was making $9.50 per hour at the time. Claimant was off work September 15, 1988 through January 3, 1989, which amounts to 15.857 weeks for which he was paid compensation payments at the rate of $229.78 per week. Claimant testified as to the various doctors he saw and the treatments and physical therapy he received. Claimant indicated that the physical therapy received in December 1988 helped more than the earlier treatment from the physical therapist, Thomas Bower. He indicated the later Page 3 treatment was more elaborate and involved electronic stimulation which helped the most. Although there is a document indicating in February 1989 that claimant was released to return to work, he actually did go back to work for defendant employer on January 4, 1989, at which time for a short period he was put on half days and eventually then after approximately two weeks or so went to full time again. He returned with no restrictions (Joint Exhibit 7, page 32). Claimant indicated that when he returned to work his pain started to flare up again and it became worse as he then eventually began working full time at the similar type or same duties as he was doing in September 1988. Claimant indicated that the reason he was terminated in May of 1989 was mainly for lateness and absenteeism. He acknowledged that he missed a lot of time and that he had this tardiness and lateness problem before his injury in which cases he missed work. He agreed he had a history of being late and missing work. Claimant blamed the absenteeism and lateness after his injury at least in part due to his injury in that he indicated he was not getting a good night's sleep and blamed this on his neck pain. Claimant indicated he did receive a verbal warning as to his lateness earlier in 1988 prior to his alleged injury (Jt. Ex. 7, p. 43). Claimant testified as to the employment he has had since he was terminated at defendant employer. Claimant currently is working at Younkers having begun in January 1992. His work involves working in the warehouse pricing items, filling store orders, opening boxes, marking them with stickers and counting out the particular inventory that would go to a particular store. He indicated his lifting would involve approximately 50 pounds maximum. If heavier, he has others to help him. He is making $4.79 per hour. Claimant indicated upon direct examination that in May 1989 he had done some body work and gave an example working on a pickup of his friend who was in no hurry to have it done. He indicated that he ran out of time doing this and did not finish it and that he had been working on it for a period of five to six months. He indicated that the reason it took him that long was because of his physical medical condition and was unable to work on it any length of time. Claimant indicated that he has not had much medical treatment since May of 1989. He said he is not worse but actually better today but usually feels something in his neck every day. Claimant indicated that prior to September 1, 1988, he had no neck problems, never saw doctor regarding his neck or shoulders and never hurt nor had he collected any amount on workers' compensation prior to that date. Claimant indicated that he is limited in his ability to turn his head to the left as much as he used to. He cannot look down for more than 15 or 20 minutes and it hurts to reach over his head. He must watch what he lifts and he Page 4 cannot drive a car for a long period of time. He indicated it hurts him to drive on bumpy roads. Claimant was extensively cross-examined. He indicated since January of 1992, he has been a part-time worker to the present at Younkers. He indicated sometimes he gets 40 hours a week and other times he may not work for a week. He is happy with his current job but not with the pay he is receiving, which is $4.79 per hour. Claimant was asked as to his work for Mr. Sweeney who is in the plumbing contractor business and for whom he worked during a certain period after May 1989. Claimant related working at one job in which he was working with concrete and he had to help shovel and distribute it as it was being laid and being poured from the truck. This resulted in working approximately three or so hours in a row. Claimant acknowledged that this brought on symptoms that were worse than he had three weeks previously when he had been terminated at defendant employer. He said the pain also was running down his arm. He indicated he had quit shortly after this as he indicated the pain was the worse he had ever had. Claimant was then off several months until he got the cashier job at Amoco. Claimant indicated he wore a TENS unit at one time and apparently has it at home but didn't indicate when or how often he wears it if at all. Claimant acknowledged that he knew a Mr. Albaugh who at one time was his landlord. He said that he would disagree with him if Mr. Albaugh did say that claimant was working on something all the time while renting from him. Claimant acknowledged that he can do mechanical work and has replaced an engine and does his own maintenance and oil changes. He has three vehicles presently. Claimant contends that he has done no other body work after leaving defendant employer on May 1, 1989. Claimant acknowledged that he helped Ed Sweeney for whom he had at one time worked. Mr. Sweeney had feeder cattle on the premises that the claimant was renting. Claimant indicated that Mr. Sweeney paid claimant's rent for him to the landlord in the amount of $200 per month. Claimant indicated that he did the chores for Mr. Sweeney over a two or three year period, which encompassed a period before and after his alleged September 1, 1988 injury. Claimant indicated the chores amounted to scooping and carrying grain to the feed trough where the cattle eat. These were carried in five gallon pails. He also had to use the pitchfork to rake the bales of hay and scoop or throw the hay with the pitchfork to the cattle. He indicated that he did this three or four days a week during this period of time, sometimes more, sometimes less. Claimant also indicated that the most strenuous work he had to do involved the cattle and giving medicine to them. He indicated he would have to wrestle the calf and hold them long enough to give them a shot. The calves would weigh approximately 75 pounds and he would hold them against the building as they Page 5 were given the shot. Claimant indicated that after he had left defendant employer on May 1, 1989, doing these chores never bothered him when he was pitching hay to the cattle. He indicated he could control the weight and that the hay was not that heavy. Claimant indicated that the chores took approximately one hour in the morning and one hour in the evening. Claimant acknowledged that he is presently under indictment for possession with intent involving drug charges. Claimant was arrested in 1992. The undersigned might note that he was not impressed with certain parts of claimant's testimony. Claimant on many occasions, regardless of who was asking the question, took considerable time in answering the questions which seemed to be able to be readily answered. Whether claimant was deciding what best answer to give or that this is just his style the undersigned is not sure. There were occasions in which claimant did not respond when the question was clear and either another question had to be answered or in some cases it appeared the attorneys would move on. It seemed like the claimant was downplaying his activities and things he did and the extent he did them and the effort needed to do various activities notwithstanding his alleged injury. Donald Flor, who has worked 27 years for defendant employer, knew claimant and indicated he got along with him. He has bowled with claimant and was claimant's supervisor when claimant worked in the sleeper department at defendant employer. Mr. Flor indicated he knew claimant had other activities or work other than what he was doing at defendant employer such as doing chores and taking care of cattle near Saylorville Lake. Mr. Flor couldn't remember claimant being gone from work because of injuries but he said in their type of business the employee always has a pain here and there. Claimant had mentioned that he had a problem with his neck and arms. Larry Smith, owner of defendant employer, testified as to the nature of his business. He testified that claimant worked for him two periods and he knows claimant well. The last time claimant worked was 1984 to 1989 when claimant was hired back as a body man but actually did work in the sleeper division. Mr. Smith indicated claimant had other jobs and duties and that the claimant had a rent agreement in which his rent was paid to take care of someone's cattle. He said claimant missed a lot of work, would call in sick or indicate that the cows got out or claimant would have to leave work because he was notified that the cattle had gotten out. Mr. Smith also indicated that people at work would be saying things concerning the claimant such as he partied last night or rebuilt or put a motor in a vehicle. Mr. Smith said Page 6 claimant told him one time he was mending fences late at night and the cattle got out. He said he was off two days in a row. Mr. Smith said claimant was a good worker and he wanted to keep him employed as he is a good body man but he had to have someone he could rely upon. He said claimant never told him anything as to his neck problems or that his arms had tingling in them. He emphasized he never knew claimant was injured until claimant filed his claim. Mr. Smith said he hired a Steven Bombela as controller and to take care of problems with employees so that he could devote his time to the shop and other items. Steven Bombela testified he works for defendant employer as controller and is involved in many other things regarding the company, including books, daily operations and employee relationship. Mr. Bombela related claimant's poor attendance and lateness in that he would not call in if he wasn't coming in or if he was going to be late. Sometimes when he did call, he indicated that the cattle were lost or he had to get them or that he didn't get the chores done. Mr. Bombella indicated that claimant sometimes was gone up to three days. Mr. Bombela referred to joint exhibit 7, page 43, the notation concerning the February 29, 1988 late warning to claimant. He, too, emphasized that claimant was a good worker, and they wanted him there and that was the reason for tolerating his problems but they couldn't get claimant to come to work on time and be there so they could rely upon him. Mr. Bombela said claimant did say he was having physical problems when he was rebuilding a truck or doing chores and that his neck was sore when he got out of bed. Mr. Smith said claimant was terminated in May 1989. He indicated the company could no longer tolerate claimant's absenteeism. He said claimant's tardiness and work attitude would have an effect on the other employees ff the company continued to tolerate him. Mr. Bombela indicated that if claimant came back to work on a steady basis he would not have been fired. Looking at joint exhibit 1, pages 1 through 9, it appears that claimant did incur an injury that arose out of and in the course of his employment and that by January 20, 1989, claimant had called the doctor indicating he was ready to return to work on a half day basis. The parties had agreed that claimant returned to work on January 4, 1989. On February 8, 1989, K. Grauerholz, M.D., noted he was to write a release for claimant to return to work full time (Jt. Ex. 1, p. 11). Joint exhibit 7, page 25, is a letter from David J. Boarini, M.D., in which he indicates in a letter of December 8, 1988, that he thought claimant had a mild cervical radiculopathy which is not work related. Claimant contends he has a permanent disability. There is no evidence in the record that claimant has any permanent Page 7 restrictions or limitations as to his work or that he has any functional impairment. There is nothing in the record that causally connects claimant's alleged medical condition or disability to a September 1, 1988 cumulative work injury. In fact, taking claimant's testimony as a whole, it appears possible that claimant's original problem developed from hitting his head approximately one-half months prior to September 1, 1988, thereby, resulting in a traumatic injury rather than cumulative. Notwithstanding that, the undersigned does not find that there is any objective or sufficient evidence for claimant to carry his burden to show that he has a permanent injury. Although it had to be brought out on cross-examination and it is also evident by its lack of mention in claimant's medical records, it is obvious from the testimony that claimant was involved in other outside work doing chores and handling cattle. Even though he seemed to downplay this, it would appear he was more involved than he wanted to relate at the hearing. The various actions and activities he had to do in connection with watching cattle would indicate that those things could aggravate or cause injuries in and of themselves. Of particular note is claimant indicating that approximately once a week he had to wrestle 75 pound calves in order to give them a shot. He is also carrying five gallon pails of feed and pitching hay as feed to the cattle. There is even mention that hogs were involved at one time even though claimant did not mention that at all. It would appear that claimant is doing more auto body work on his own, whether it be helping himself or his friend, than he wants to relate. Joint exhibit 7 reflects claimant's lack of motivation, at least as to trying to be timely and put in the time when he was working for defendant employer. His firing on May 1, 1989 seemed to be based his attendance record and the undersigned does not believe it was the result of his alleged injury. Claimant had been given warnings prior to that date. Jt. Ex. 7, pages 56-57) The undersigned does find that claimant did incur a temporary total disability on September 1, 1988, which resulted in claimant being temporarily off work because of said injury beginning September 5, 1988 through January 3, 1989, involving 15.857 weeks. The defendants have paid these benefits at $229.78. The undersigned finds that this temporary total disability period was caused by a September 1, 1988 injury, but as further indicated above, this temporary injury did not result in any permanency nor is there sufficient evidence to show that claimant's current alleged problems are causally connected to any September 1, 1988 injury. As to the 85.27 medical benefits and the dispute involving certain medical bills as set out in joint exhibit 8, the undersigned finds that all those bills were incurred after September 1, 1988, and mainly prior to the end of claimant's temporary total disability of January 3, 1989, except for the TENS patches on March 19, 1992, in the amount Page 8 of $18.40 and the $723 Abbey/Foster bill. The drug bills appear to be prior to February 8 when the doctor said claimant could return to work (Jt. Ex. 1, p. 11). The undersigned finds that defendants shall pay all of those bills set out in joint exhibit 8 except the $18.40 and the $723 bill of an Abbey/Foster. There is no bill attached for Abbey/Foster and the undersigned does not know what that relates to or what is involved in that charge or when it was incurred. Therefore, the claimant has not proven that this bill is causally connected to claimant's September 1, 1988 injury. Therefore, defendants shall pay claimant for those expenses in a net total amount of $1,209.72 for reimbursement of claimant's medical bills as represented on joint exhibit 8. In summary, claimant takes nothing further in these proceedings other than having the medical bills and mileage paid as referred to above. Claimant is entitled to no permanent partial disability benefits and has already been paid for all temporary total disability benefits for which he is entitled. CONCLUSIONS OF LAW Claimant has the burden of proving by a preponderance of the evidence that he received an injury on September 1, 1988, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of September 1, 1988, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 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 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 Page 9 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 temporary total disability that arose out of and in the course of his employment on September 1, 1988. This injury caused claimant to incur a period of temporary total disability beginning September 15, 1988 through January 3, 1989, encompassing 15.857 weeks at $229.78 per week. Claimant did not incur any permanent disability as a result of a September 1, 1988 work injury. Claimant is entitled to have paid or be reimbursed for any bills paid that are represented in joint exhibit 8 except the $18.40 bill for TENS patches and the Abbey/Foster bill in the amount of $723. Defendants therefore are obligated to pay $1,209.72 of the bills represented on joint exhibit 8. ORDER THEREFORE, it is ordered: That defendants shall pay one thousand two hundred nine and 72/100 dollars ($1,209.72) of claimant's medical bills referred to above and as represented on joint exhibit 8. That claimant takes nothing further from these proceedings. 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 September, 1992. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr David Drake Attorney at Law West Towers Office Complex 1200 35th St Ste 500 West Des Moines IA 50265 Mr James C Huber Attorney at Law 500 Liberty Bldg 418 6th Ave Des Moines, IA 50309-2421 5-1100; 5-1108 5-1402; 5-2503 Filed September 3, 1992 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DARWIN OBERENDER, : : Claimant, : : vs. : : File No. 888049 UNITED TRUCK & BODY COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1100; 5-1108; 5-1402 Claimant took nothing further from this proceeding. Claimant incurred a temporary total disability period of 15.857 weeks for which he was already paid, which arose out of and in the course of his employment and which work injury caused claimant's temporary total disability. 5-2503 Claimant recovered part of his medical expenses. 5-1108; 5-1803; 5-2500 Filed July 23, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : GARY SPROUSE, : : Claimant, : : File Nos. 888072 vs. : 880941 : CHURCHILL TRUCK LINES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108; 5-1803 Found 51-year-old claimant's March 1, 1988 work injury caused claimant to incur a 30 percent industrial disability, several healing periods and certain work restrictions. 5-1108 Found claimant's September 21, 1988 alleged work injury was not a new separate injury, but was an aggravation and sequela of her March 1, 1988 injury. All compensation entitlement was attributed to March 1, 1988 injury. 5-2500 Claimant allowed medical benefits. Page 1 before the iowa industrial commissioner ____________________________________________________________ _____ : RANDY SNIDER, : : Claimant, : : vs. : : File No. 888077 SUPER VALU STORES, INC., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ _____ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed June 25, 1991 is affirmed and adopted as the final agency action in this case with the following additional analysis. Claimant failed to prove by a preponderance of the evidence a causal connection between his low back injury on August 8, 1988 and his current condition. Michael J. Makowsky testified that it was possible that claimant's herniated disc diagnosed in August 1990 was causally related to claimant's August 8, 1988 work-related injury. A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). Claimant asserts that he was not afflicted with low back pain prior to his August 8, 1988 work injury and continued to be afflicted with the same condition afterward. Therefore, sufficient evidence exists to warrant an inference that claimant's present condition resulted from his August 8, 1988 work injury. In a letter dated April 20, 1990, Dr. Makowsky opined that claimant reaggravated his preexisting back condition. (Claimant's exhibit 1, p. 2) This reaggravation occurred after he quit working for the defendant-employer. Defendants are not liable for claimant's low back problems as Dr. Makowsky testified to a number of possible causes of claimant's low back problems other than claimant's August 8, 1988 work injury. Claimant failed to prove by a preponderance of the evidence that his August 8, 1988 work-related injury caused his current back condition. Page 2 Administrative agencies are not bound by the technical rules of evidence. "Findings shall be based upon the kind of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs, and may be based upon such evidence even if it would be inadmissible in a jury trial." Iowa Code section 17A.14(1). Evidence that claimant had been convicted of burglary in the second degree in 1980 is relevant and was properly admitted into evidence. On appeal, however, little weight is given to the conviction as it occurred ten years prior to the hearing. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1991. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. R. Ronald Pogge Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 Mr. Richard G. Book Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309-2421 9999 Filed November 18, 1991 BYRON K. ORTON DRR before the iowa industrial commissioner ____________________________________________________________ : RANDY SNIDER, : : Claimant, : : vs. : File No. 888077 : SUPER VALUE STORES, INC., : A P P E A L : Employer, : D E C I S I O N : and : : LIBERTY MUTUAL INSURANCE CO.,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision filed June 25, 1991, with short additional analysis. Page 1 before the iowa industrial commissioner ____________________________________________________________ : RANDY SNIDER, : : Claimant, : : File No. 888077 vs. : : A R B I T R A T I O N SUPER VALU STORES, INC., : : D E C I S I O N Employer, : : and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration upon the July 25, 1990 petition of claimant Randy Snider against his employer, Super Valu Stores, Inc., and its insurance carrier, Liberty Mutual Insurance Company. Claimant alleges that he sustained a work injury to his back on August 8, 1988, and that he has sustained permanent disability as a result. This cause came on for hearing in Des Moines, Iowa, on June 5, 1991. The record consists of claimant's exhibit 1 (including deposition exhibits 1 through 8), defendants' exhibits A through D and the testimony of claimant, Scott Foster and Pauline Snider. issues The parties have stipulated that claimant sustained an injury arising out of and in the course of his employment with Super Valu Stores, Inc., on August 8, 1988, and that the injury caused temporary disability from August 9 through August 20, 1988. Issues presented for resolution include: 1. Whether there exists a causal relationship between the injury and any subsequent permanent disability; 2. The extent of claimant's permanent disability, if any; and, 3. Whether claimant is entitled to medical benefits under Iowa Code section 85.27. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, Page 2 finds: Randy Snider, 29 years of age at hearing, began his employment with Super Valu Stores, Inc., as a warehouse order filler in January 1987. He previously worked as a concrete worker, general laborer, concrete block worker and warehouse worker, but states that he was afflicted with no physical problems prior to employment with defendant. Claimant has a criminal record. In 1984, he was convicted of driving while intoxicated; in 1986, he was convicted of possession of a controlled substance (marijuana); and, in 1980, he was convicted of burglary in the second degree. Although strict rules of evidence are not applicable in an administrative proceeding, Iowa Rule of Evidence 609 provides guidance in weighing the probative value of these convictions. Rule 609(a) provides that evidence that the witness has been convicted of a crime involving dishonesty or false statement is admissible if the crime constituted a felony, aggravated misdemeanor or other crime punishable by imprisonment in excess of one year and the probative value of admitting the evidence outweighs its prejudicial effect. Rule 609(b) provides that evidence of a conviction is not admissible if more than ten years has elapsed since the date of conviction or the release of the witness from confinement imposed for that conviction, whichever is the later date. See also State v. Roth, 403 N.W.2d 762 (Iowa 1987); State v. Hackney, 397 N.W.2d 723 (Iowa 1986). Claimant's convictions for drunk driving and possession of marijuana do not involve dishonesty and have no impact on his credibility. Under Iowa Code section 713.5, burglary in the second degree is a Class C felony. Under Iowa Code section 902.9(3), a Class C felon shall be confined for no more than ten years. Claimant's conviction was more than ten years prior to trial, but not the expiration of his two-year probation, arguably the functional equivalent of confinement. Claimant also gave somewhat inconsistent testimony in his deposition, as opposed to his trial testimony, with respect to his ability to perform work for a siding company; he averred that he could perform the work in his deposition, but indicated an inability to do so at trial. He also gave testimony in at least one respect that was clearly shown to be erroneous: He alleges that he had no problem performing his warehouse duties with defendant until after the subject work injury (in August 1988), whereas he actually received his first warning for low productivity on April 20, 1988, nearly four months earlier. If believed, his testimony on this point would tend to show greater industrial disability, all to his benefit, since it would give rise to the implication that the work injury caused his productivity problems. Considering all these factors, it is found that claimant is not a reliable witness. On August 8, 1988, claimant injured himself while loading turkeys in the freezer department. Something "popped" in his back while he was bending under a pallet, lifting a box of turkeys weighing approximately 80 pounds. He was treated conservatively for a diagnosed muscle strain and unsuccessfully released to temporary light duty Page 3 scrubbing gas tanks for half a day, then to clerical work until the last week of September 1988. He then quit employment to attend DeVry Institute of Technology in Illinois. While in school, claimant did no heavy work and sought no medical attention, although he complains of continued minor back pain. During his early medical treatment, claimant underwent no diagnostic procedures such as computerized axial tomography or magnetic resonance imaging that might have conclusively demonstrated the existence of a herniated disc. Claimant returned to Des Moines, Iowa in May 1989 to enroll in the National Education Center, through which he eventually took a part-time position for Library Binding Service, Inc., in February 1990. This job, manufacturing book covers, required frequent lifting of 45-50 pounds. Claimant testified that the exertion re-awakened his back symptoms beginning the first day and that he worked only two weeks in the job. As of this time, claimant had no complaints of radiating pain to the left hip or leg. The absence of radiating symptoms had been specifically charted on August 26, 1988 by David T. Berg, D.O., during claimant's early treatment. Through his attorney and defendants, claimant shortly thereafter made an appointment to see Michael J. Makowsky, M.D., on April 20, 1990. After these arrangements were made, but before the appointment, claimant suffered a fall on April 7 or April 8 when a ladder collapsed. Claimant alleges that this fall injured his right knee, but not his back. Pauline Snider, his wife, agreed that he did not complain of back pain, but only knee pain. After seeing claimant on April 20, 1990, Dr. Makowsky reported that claimant had already begun working for Superior Siding (according to claimant, general work attendant to application of house siding) and was not complaining of any significant pain, self-described as less than one on a ten-point scale and non-radiating. Dr. Makowsky reported his opinion that "the recent episode is probably a reaggravation of the pre-existing back condition." Dr. Makowsky felt claimant had muscle strain, not a herniated disc. Mr. Snider was released to return as needed. While working for Superior Siding, claimant noted that his back continued to hurt with lifting and he began developing pain in the left hip joint and leg. He returned to see Dr. Makowsky on August 22. Magnetic resonance imaging of the lumbar spine interpreted by Robert M. McCleeary, M.D., showed mild left lateral herniation of the L5-S1 disc on axial images, but this was not clearly identified on sagittal views. Accordingly, Dr. McCleeary recommended a confirmatory test such as myelography before surgery was considered. He also noted mild degenerative disc disease at L4-5 with slight desiccation of the nucleus pulposis and minimal generalized bulging of that disc without evidence of neural compression. Page 4 Dr. Makowsky thereupon referred claimant to Dan McGuire, M.D., for a surgical consultation. Dr. McGuire apparently did not recommend surgery, although his letter of September 12, 1990 is unclear. He saw "nothing of importance" on the MRI, although he agreed herniation of L5-L1 was present. Yet, Dr. McGuire reported that claimant had "absolutely no leg symptoms," clearly a misunderstanding on his part, and for that reason did not believe the disc was the source of claimant's problems. He felt mild degenerative changes at L4-5 could be the source of chronic back pain, but that this was highly unlikely. Dr. Makowsky thereafter treated claimant with a course of epidural injections, but the series was not completed when defendants denied liability and ceased authorization for treatment. Claimant also worked as a roofer in October 1990 and again in May 1991, after recuperating from knee surgery related to his April 1990 fall. He worked only three weeks on the latter occasion and redeveloped back pain, along with continued problems in the right (surgical) knee. He was still off work at the time of hearing, but intended to commence a course in real estate the following week. Dr. Makowsky testified by deposition on January 7, 1991. With respect to the "preexisting back condition" referred to in his letter of April 20, 1990, he testified: A. I was referring to the injury that had occurred back when he lifted the box of turkeys at Super Valu. Again, he is telling me that this pain is similar to what he had before, and from what I could tell, it was similar. Q. The fact that more than a year and a half after that injury he was still experiencing pain when he was doing heavy lifting, does that--would that indicate to you that any permanent injury had been sustained back in August of 1988? A. "Any permanent injury." That's hard to answer. It would sound that his symptoms at least occurred for at least a year and a half. Again, that's not unusual, and not always is there a permanent injury sustained from a back strain. Q. As of the time you saw him in April of 1990 with the complaints he had at that time, did you put any restrictions on his physical activities? A. No. Like I said, I was pretty unimpressed by his symptoms at that time, and I had seen him and really released him. It was only supposedly a one-time evaluation. I didn't plan on seeing him again. At least I don't recall I did. (Dr. Makowsky deposition, page 13, line 18 through page 14, line 15) Page 5 Dr. Makowsky further noted that claimant's symptoms were substantially increased when seen again in August 1990, but did not recall history of any specific incident, although he did remember that claimant had performed a great deal of lifting in his work for Superior Siding. It was in August 1990 that claimant first made note of radiating pain in the left hip and leg. On the crucial issue of whether the herniation was caused by the original work injury, Dr. Makowsky testified: Q. Doctor, did you form an opinion at that time as to the cause of the herniated disk? A. That's hard to answer. Obviously, I was thinking back to his original injury that occurred at Super Valu, but I also considered that perhaps this herniation occurred as a result of some of his more recent activities, either at the library binding company or at the siding company that he worked for. (Dr. Makowsky deposition, page 19, lines 3 through 11) He agreed that the subject injury was capable of causing a herniated disc and noted that a herniated disc does not necessarily cause radiating pain at first. The disc was compatible with the injury, but, on the other hand, people can develop herniated discs simply by sneezing. Dr. Makowsky did not testify to more than a possibility that the work injury caused the herniated disc: Q. When does a pain in the leg, such as in the left thigh, develop, at what point in time? A. I don't understand the question. Q. It's too vague and general a question. Does the pain in a leg usually develop at a time that there is an impingement on the nerve root? A. Usually. Q. And that may or may not coincide with the herniation of the disk? A. Correct. Q. If one didn't have a herniated disk before, and all of a sudden developed left leg pain, that would probably be a good bet that that was the time the herniation of the disk occurred? A. Would it be a good bet? Q. A good guess that that's when it occurred? A. Usually, but it's not common to--not to see that. I think generally you're correct; that if Page 6 someone developed pain down their left leg, you would assume that's when the herniation occurred, but to say is it always that way, I couldn't answer that. Q. Can a person have a herniated disk and then aggravate that condition such that they herniate it even more? A. Certainly. That's in reference to bulging disks. Often we see that. Someone comes in with pain in their back, we do an MRI, and we see some swelling of disks. We try to restrict their duty; but if they went back to a risky job, it's not unusual to see that bulging disk then herniate and then develop symptoms. Q. Can an individual have a slightly herniated disk that causes occasional mild back discomfort, engage in some activity that aggravates the condition, makes it worse, and then develop that left thigh pain? A. That's not uncommon. (Dr. Makowsky deposition, page 34, line 1 through page 35, line 13) And: Q. Based on the history that was given to you, is it your opinion that the increase in the back pain symptoms and the new symptom in the left leg were the result of some aggravation that had occurred since you last saw him in April of 1990? A. Yes. Q. When you saw Mr. Snider in April of 1990, he did not need any treatment, is that correct? A. Correct. Q. He did not have any limitations on him at that time? A. No, he did not. Q. You would not have put any restrictions on him at that time? A. Correct. Q. Could he have engaged in an occupation of heavy lifting at that time? A. From--yes, from what I knew at that time. (Dr. Makowsky deposition, page 38, line 14 through page 39, line 6) Page 7 The gist of Dr. Makowsky's testimony on causation was summarized as follows: Q. As I understand your testimony here today, Dr. Makowsky, you really can't say with any degree of certainty when the herniated disk occurred, is that correct? A. I think that's fair to say, yes. Q. And certainly it's possible that it could have occurred in August of 1988 when he had his original injury, is that correct? A. Yes. Q. It's also possible that it could have occurred subsequent to that time when he worked for the library binding company and reported an increase in symptoms, is that correct? A. Correct. Q. It's also possible it could have occurred in 1990 when he worked for the siding company and reported an increase in symptoms from lifting? A. It's possible, yes. Q. And he has, in his deposition, I believe, testified that he was required to lift up to 100 Page 8 pounds at the siding company. Is that type of activity something that could cause a herniated disk? A. Yes. (Dr. Makowsky deposition, page 40, line 16 through page 41, line 14) conclusions of law The parties have stipulated that claimant sustained a work injury as he alleges that caused temporary disability. They disagree as to whether the work injury caused permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of August 8, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). There is a possibility that claimant's herniated disc and resultant permanent disability is causally related to the work injury. However, on this record, it cannot be said that a probability of that causal nexus exists. The only expert opinion of record is that of Dr. Makowsky. His opinion is of a possibility, but not a probability of the necessary causal relationship. Rather, it appears more likely that the onset of radiating leg pain (while claimant was working for Superior Siding) marked the onset of the disc herniation at L5-S1. Claimant points out that expert testimony of a possible causal relationship coupled with lay testimony that claimant was not afflicted with the injurious condition prior to the accident and continued to be afflicted with the same condition afterwards is sufficient basis to warrant an inference that claimant's present physical condition resulted from the injury. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). However, this rule is not of direct applicability here. Page 9 Claimant's condition is now not the same as it was following the injury, in that his pain is worse and, in August 1990, became radiating to the left lower extremity. This pain developed approximately two years after the injury and after claimant engaged in strenuous and heavy work for a binding company and a siding company. In addition, claimant suffered a severe fall that resulted in a surgical repair of his knee. While claimant professes to be unaware of any specific back injury following the admitted work injury of 1988, it has been noted that the word of this convicted burglar is unreliable. No permanent medical restrictions were suggested earlier than August 1990. The restrictions suggested by Dr. Makowsky relate to claimant's present condition, not his condition as it existed following the work injury. Claimant has failed to meet his burden of proof in establishing a causal relationship between the original work injury and his current condition, apparently including a herniated disc at L5-S1. Other issues are accordingly rendered moot. order THEREFORE, IT IS ORDERED: Claimant shall take nothing further from this proceeding. The costs of this action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. R. Ronald Pogge Attorney at Law Suite 111, Terrace Center 2700 Grand Avenue Des Moines, Iowa 50312 Mr. Richard G. Book Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 5-1402.40; 3700 Filed June 25, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : RANDY SNIDER, : : Claimant, : : File No. 888077 vs. : : A R B I T R A T I O N SUPER VALU STORES, INC., : : D E C I S I O N Employer, : : and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1402.40 Claimant failed to prove his present disability was causally related to the stipulated work injury. 3700 Iowa Rule of Evidence 609 (impeachment by prior criminal record) did not operate to exclude evidence in an administrative proceeding, but was used as guidance in weighing probative value of evidence.