Page 1 before the iowa industrial commissioner ____________________________________________________________ : E. DEAN SMITH, : : Claimant, : : vs. : : File No. 888079 CHURCHILL TRUCKLINES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ introduction This is a proceeding in arbitration brought by Earl Dean Smith against Churchill Trucklines, Inc., his employer, and Liberty Mutual Insurance Company. Claimant seeks compensation for the permanent disability which was proximately caused by his August 12, 1988 injury. The case was heard and fully submitted at Des Moines, Iowa on September 11, 1990. The evidence consists of joint exhibits 1 through 5, 6a, 6b, 6c, claimant's exhibits 7 and 8, defendants' exhibits 9, 10, 11 and 12, and testimony from Earl Dean Smith, Allan G. Fuller, Paul Ficken and Lorraine Hackett. Official notice was taken of file number 511618 which is the file which deals with a prior injury affecting Earl Dean Smith. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made. Earl Dean Smith is a 59-year-old married man who has lived in Des Moines, Iowa since 1950. He is a high school graduate who has been in the trucking industry since 1954. Prior to that time, he had farmed for several years and also worked briefly for John Deere & Company. His work in the trucking industry was initially in the moving business where he loaded, unloaded and drove moving vans. He also worked in the warehouse. At one point, he estimated in order to bid moving jobs. In 1972, Smith became employed by Churchill Trucklines, Inc., a general commodities carrier. He loaded trailers and straight trucks for deliveries. In 1978, he injured his Page 2 back while handling a crate and underwent back surgery. Later in 1978, he had surgery performed upon his neck by Robert Jones, M.D. He returned to work in 1982 after recuperating from those injuries and surgeries. During the first four years of his return to work, he bid into a job where he made round trips with freight between Des Moines and Kansas City. During the most recent four years, he was on a city job where he unloaded trailers and placed freight into delivery trucks. He considered the work to be heavier than the Kansas City run. He was earning approximately $15.00 per hour and had a very good fringe benefit package. On August 12, 1988, a carton weighing approximately 80 pounds slipped out of his hands while he was loading a trailer. The carton hit him on the top of his head causing him to fall to the floor, landing on his buttocks. When the discomfort did not resolve, he sought treatment from the company doctor who in turn referred him to S. Randy Winston, M.D. Smith was off work for a few days in August, but then returned to work and continued working until March. He explained that he kept working because he needed money and did not want to undergo more surgery. Dr. Winston diagnosed him as having cervical radicular compression at the C7 and C8 levels of his spine. Claimant was evaluated by Steven R. Adelman, D.O., who agreed that surgical decompression surgery would be appropriate (exhibit 3). On March 22, 1989, cervical laminectomy surgery with decompression of the nerve roots was performed from the C6 through the T1 level of Smith's spine (exhibit 2; exhibit 5). Consistent with the stipulation of the parties, Dr. Winston had reported that claimant reached a plateau in his recovery on or about July 20, 1989 (exhibit 1d). Dr. Winston went on to state that the 1988 injury had produced a 15 percent permanent functional impairment of claimant's body as a whole. He further recommended that claimant should not engage in employment which would require lifting more than 20 pounds or any repetitive lifting. Dr. Winston stated that claimant was precluded from working as a truck driver (exhibit 1d). In a subsequent report, Dr. Winston related that claimant should be able to return to work in a sedentary occupation which would allow him to get up and move about periodically. He had no problem with claimant dispatching or answering a telephone, but did object to claimant doing general cleaning and painting work (exhibit 1e). Smith did not make any significant efforts to resume employment with his employer. On July 12, 1988, R. J. Foley, M.D., examined claimant and reported that he agreed with Dr. Winston to the extent that claimant is permanently disabled from any type of employment which requires full use of the back, neck and extremities. He agreed with a 12 percent disability rating Page 3 (exhibit 4). In early 1990, Lorraine Hackett, a vocational consultant, became involved in claimant's case. She conducted vocational testing and a transferrable skills analysis. She developed a number of targeted jobs which she felt would be appropriate for the claimant (exhibit 6). During the summer of 1990, claimant was offered two or three different positions by his employer, positions which appear to have been ones which the claimant quite possibly would have been capable of performing adequately (exhibits 6b and 6c). Claimant declined to accept any of the offered positions because he felt that there were parts of the jobs which exceeded his physical capacities and also because he felt he did not have the background and experience which would be required for performing those jobs. Those jobs with Churchill Trucklines would have provided a level of income comparable to that which he had been earning with the company. Lorraine Hackett also developed a number of job prospects, but claimant declined to follow up on those prospects. Those jobs would have involved a reduction of income which would have been greater than 50 percent in comparison to what claimant had been earning with Churchill Trucklines. They would have also provided a very large reduction in fringe benefits. Claimant declined to accept any of the jobs or to make any efforts to resume employment. He quite frankly stated that he preferred to retire and possibly travel. He has applied for and been awarded Social Security disability benefits. He testified at hearing that he had applied for his Teamsters pension and expected no problem in obtaining it. Claimant's decision to retire under the circumstances appears quite reasonable. His lack of employment and earnings from employment is not an accurate reflection of his earning capacity. It does not establish that he is totally disabled. It is specifically found that Earl Dean Smith probably could have resumed employment in one of the positions offered by Churchill Trucklines and that, if he had done so, he would not have experienced any reduction in his actual earnings. It is further found that Earl Dean Smith was physically capable of performing some of the prospective jobs which had been identified by Lorraine Hackett. If he had accepted any of those positions, he would have experienced a reduction in his actual earnings exceeding 50 percent. The assessment of his disability and physical restrictions as made by Dr. Winston is accepted as being correct. conclusions of law Page 4 The claimant has the burden of proving by a preponderance of the evidence that the injury of August 12, 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). The reports from Dr. Winston clearly relate claimant's present disability to the 1988 injury. It is clear that he had some preexisting physical disability, but it was not totally disabling as claimant had resumed employment for four years following recuperation from his 1978 injuries and surgeries. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." 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, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. Defendants assert that claimant's disability should be apportioned between this injury and the 1978 injury. They are correct in the sense that their liability is only for Page 5 the degree of disability which is proximately caused by the 1988 injury. Industrial disability is not, however, a mathematically precise concept. It is not something which can be determined through a mathematical formula. The loss of earning capacity which is to be compensated in this case is the reduction based upon the earning capacity that existed immediately prior to the injury on August 12, 1988, not the earning capacity that the claimant might have had immediately prior to his 1978 injury or at any other point in his life. The 1978 injury reduced this claimant's earning capacity. That residual earning capacity which existed immediately prior to the 1988 injury then became 100 percent of Earl Dean Smith's earning capacity. All individuals differ in their earning capacities based upon their individual skills, strengths and weaknesses. An individual's earning capacity in all likelihood changes through his lifetime. One individual who has sustained a 50 percent loss of earning capacity due to an injury may still have more earning capacity than some other individual who has never been injured. The earning capacity is reflected to some extent by the actual earnings which in turn determine the weekly rate of compensation. Whenever industrial disability is determined, it is based upon the earning capacity that existed immediately prior to the injury rather than some abstract concept of the earning capacity of the perfect, unimpaired individual. In this case, it is determined that the 1988 injury proximately caused a 30 percent reduction in this claimant's earning capacity, as that earning capacity had existed immediately prior to August 12, 1988. This entitles claimant to receive 150 weeks of compensation. Defendants are entitled to credit for all weekly compensation for permanent partial disability which has been previously paid. The amount of the credit is based upon the number of dollars paid. Claimant seeks to recover costs consisting of his $65.00 filing fee and $50.00 for a medical report. The amounts are reasonable and fall within the matters contemplated by 343 IAC 4.33. They will therefore be assessed against defendants since claimant has prevailed in his claim. order IT IS THEREFORE ORDERED that defendants pay Earl Dean Smith one hundred fifty (150) weeks of compensation for permanent partial disability at the stipulated rate of four hundred and 58/100 dollars ($400.58) per week payable commencing July 21, 1989. IT IS FURTHER ORDERED that defendants receive credit against the foregoing award for the amount of permanent partial disability compensation previously paid. Any unpaid past due amounts shall be paid in a lump sum together with interest pursuant to Iowa Code section 85.30. Page 6 IT IS FURTHER ORDERED that the costs of this action are assessed against defendants in the amount of one hundred fifteen and 00/100 dollars ($115.00) pursuant to 343 IAC 4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to 343 IAC 3.1. Signed and filed this ______ day of ____________, 1990. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies To: Mr. Steven C. Jayne Attorney at Law 5835 Grand Avenue Suite 201 Des Moines, Iowa 50312 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 1803; 1806 Filed November 20, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : E. DEAN SMITH, : : Claimant, : : vs. : : File No. 888079 CHURCHILL TRUCKLINES, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1803 Fifty-nine-year-old truck driver with a history of three back and neck surgeries elected to retire rather than return to jobs offered by the employer or located by a vocational consultant. Awarded 30 percent permanent partial disability. 1806 In case where there was preexisting industrial disability, it was held that the permanent partial disability was not apportioned strictly, but that the percent of permanent partial disability was based on earning capacity immediately prior to the most recent injury rather than that which might have existed at some earlier time in the claimant's life. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ISABELLE SEXTON, : : Claimant, : : vs. : : File No. 888085 MANATTS, INC., : : 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. ISSUE The issue on appeal is: Whether claimant proved that decedent's death arose out of and in the course of his employment. FINDINGS OF FACT Earl J. Sexton ("decedent"), 57 hears of age on July 28, 1988, was employed by defendant Manatts, Inc., as a "fine grade foreman," in charge of a highway construction crew. The crew, in sequence with others, was responsible for preparing a properly-graded road bed of crushed concrete prior to paving. Decedent, apparently a "Type A" personality and a demanding supervisor, was responsible for making sure that string lines were properly set up to guide a "trimmer" machine and regularly checking that the machine continued to grade correctly. Decedent kept himself in good physical condition, frequently engaging in contests of strength with crew members. He was not hesitant to pitch in and perform hard physical labor when necessary. However, he had a number of risk factors for cardiovascular disease, including a history of high blood pressure, family history, elevated blood cholesterol, history of formerly being a cigarette smoker, use of a diuretic medication and "Type A" personality. Nonetheless, he had never been diagnosed as suffering from cardiovascular disease. July 28, 1988 was a very hot day, in the vicinity of Page 2 100 degrees Fahrenheit or even warmer. Decedent's crew had previously worked on a road project in Kansas and had been exposed to similarly high temperatures for several weeks. Decedent's normal duties were relatively light. They mostly involved measuring to make sure that a proper grade was maintained by the trimmer machine and occasionally making adjustments that trimmer machine operator Claude Collins (who testified by deposition on February 20, 1991) described as similar to operating a window crank, such as could be done by his 10-year-old daughter. On July 28, 1988 decedent's duties were lighter even than usual, since he was in charge of two trimmer machines operating some distance apart; he had to drive back and forth between the machines in an air conditioned pickup truck, rather than walking constantly behind one machine. At approximately 2:00 or 3:00 p.m., decedent complained to Collins of chest pain, but in a more or less light or joking manner. Collins suggested that he rest in the pickup, but decedent refused. Shortly thereafter, perhaps two hours before his eventual collapse, decedent drove to a service station to fill water jugs. While there, he reportedly mentioned his chest pains to a service station employee, although evidence of this conversation is hearsay. While hearsay may be admissible in an administrative proceeding under Iowa Code chapter 17A, it comes into the record only for what it is worth, and with the same intrinsic weaknesses which are the basic grounds for the general rule excluding it from evidence. DeLong v. Highway Comm'n, 229 Iowa 700, 295 N.W. 91 (1940). Nonetheless, the finder of fact accepts the testimony of Steve Rhoads that this "old fellow that worked in the gas station" reported to Rhoads that decedent discussed his chest pains and asked if the "old fellow" thought it was possibly a heart problem or heart attack. In any event, decedent continued to work. Collins once worked in a care center and has a father who has suffered multiple heart attacks. Collins considers himself knowledgeable of physical signs of a heart attack, but did not observe any such signs in decedent. Duane McDonald is defendant's superintendent of construction. He stopped to check on progress at some time after 5:00 p.m. and found decedent apparently uncomfortable, as he was pacing in a rigid fashion and holding his arm, apparently in pain. He looked ill. McDonald suggested that decedent get in the pickup and cool off, but was refused. Decedent hoisted a jug of water (weighing perhaps 40 pounds) over his head to get a drink, and apparently had difficulty. Shortly afterwards, he collapsed. Collins called a hospital in Ames, Iowa (approximately six miles from the work site) at 5:24 p.m. An ambulance was dispatched and decedent taken to the hospital. Repeated attempts at CPR and defibrillation failed and Mr. Sexton expired. The death certificate, prepared by Rick Wilkens, M.D., certified death as caused immediately by cardiac arrest, with probable Page 3 myocardial infarction. No autopsy was performed. Three cardiologists have discussed the relationship between decedent's work and his death: Robert Kreamer, D.O., Paul From, M.D., and Ernest Theilen, M.D. Dr. Kreamer, testifying by deposition on behalf of claimant on May 10, 1990, believed that decedent was "working very hard" at the time of his collapse. This misunderstanding seriously affects the weight to be given his testimony. He believed that decedent died of ventricular fibrillation (the heart became electrically unstable and failed to beat in rhythm) probably caused by a myocardial infarction (death of heart tissue through insufficient blood, probably due to an occlusion of a coronary artery). Dr. Kreamer hypothesized that decedent became dehydrated, causing his blood to become thicker and more predisposed to clot; the thickened blood was unable to pass a narrowed area in an artery "and when the sludge became immovable, the tissue downstream then was not irrigated, and the heart attack occurred." Noting decedent's various risk factors, Dr. Kreamer opined that the combination of heat and emotional demands of running the construction team combined as factors in pushing decedent "over the brink." Decedent was described as "an accident looking for a place to happen." Although, in the absence of an autopsy, Dr. Kreamer could not be certain as to whether decedent had suffered a myocardial infarction, his reading of electrocardiographic tracing taken in the hospital after his collapse indicated a "current" of injury such as is normally seen in cases of coronary thrombosis or at least a temporary occlusion of coronary arteries. It was Dr. Kreamer's opinion that cardiac patients do not tolerate heat well, although it will be recalled that decedent was not a cardiac patient at any time prior to his death. He agreed that decedent's chances of surviving would have been increased had he sought medical attention when symptoms first developed. Dr. Kreamer indicated that it was not clearly defined whether the decedent had a preexisting heart disease. Dr. From is a cardiologist who is board certified in internal medicine, but not cardiology. He testified for defendants by deposition on May 9, 1990. Dr. From also misunderstood a significant background fact: He believed that Mr. Sexton first developed chest pain approximately 3:00 to 3:30 p.m. and collapsed at 3:30. This error affects the weight to be given his testimony. Dr. From also agreed that decedent died of ventricular fibrillation, but did not agree it was clear that decedent had first suffered a myocardial infarction. He really had no opinion as to what precipitated fibrillation, although the most likely cause would be coronary artery disease. He suggested that in the heat, if decedent had been sweating and losing salt from his body, then given his history of hypertension and medications, these things combined might have led to arrhythmia. In particular, Dr. From did not Page 4 believe that arrhythmia could be related to work activities. However, when it was suggested to Dr. From that decedent had suffered pain for 1-2 hours before his collapse, the chest pain could either be related to a blockage with infarction or merely angina. Interestingly, Dr. From described the heart pain of an infarction as usually starting and quickly building in intensity, rather than gradually building up; and, once present, remaining constant until relieved, usually through medication. That is, the pain is not intermittent in nature. Dr. From also agreed that had decedent sought medical attention upon developing symptoms, chances of survival would have been improved. Dr. From indicated that without an autopsy it was impossible to tell whether the decedent had heart disease. Dr. Theilen, who testified for defendants by deposition on January 17, 1991, is board certified both in cardiology and internal medicine. He is a Professor of Medicine at the University of Iowa College of Medicine. Dr. Theilen believed it a reasonable assumption that decedent suffered coronary thrombosis leading to ventricular fibrillation, although noting that, in the absence of an autopsy, there was no way to distinguish between angina, transient occlusion or permanent and total occlusion. Noting that decedent was acclimated to the temperature, he did not believe temperature to have been a significant factor, particularly where decedent was not doing much physical work. He generally did not ascribe Mr. Sexton's death to his work activities. Dr. Theilen agreed that decedent may have been better off to seek medical attention when he developed symptoms, but further noted that this was no guarantee of survival. Even prompt hospitalization apparently does not improve chances of survival appreciably, unless in a properly-equipped cardiac unit. If, for example, decedent had suffered an occlusion of his left main coronary artery, there is little chance that he would have survived despite every possible effort. Dr. Theilen felt it largely irrelevant as to whether decedent's earliest symptoms were simple angina or the actual beginning of a myocardial infarction. That is so because there is essentially a continuum between these states, and fibrillation may occur at any point. Dr. Theilen indicated that there was no documentation that would support a diagnosis of coronary artery disease although he assumed that an underlying coronary disease manifested on the date of death. The opinions of Dr. Theilen are found to be the most reliable. Of the expert physicians, he alone has been shown not to have misunderstood significant background facts. In addition, Dr. Theilen is board certified in cardiology. Where opinions conflict, the views of a board-certified physician may be accorded more weight. Dickey v. ITT Continental Baking Co., Thirty-fourth Biennial Report of the Industrial Commissioner 89 (1979); Richland v. Palco, Inc., Thirty-second Biennial Report of the Industrial Commissioner Page 5 56 (1975). CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). The medical experts in this case agree that decedent died from an acute cardiac incident. There is insufficient evidence in the record to find that decedent had a preexisting heart disease. Dr. Kreamer indicated it was not clearly defined whether decedent had a preexisting heart disease. Dr. From indicated it was impossible to tell without an autopsy. Dr. Theilen assumed there was coronary artery disease but indicated there was no supporting documentation for the diagnosis. The suddenness of decedent's death also indicates a lack of a preexisting condition. Also, no autopsy was done and decedent had never been diagnosed as suffering from cardiovascular disease. Therefore, the line of cases in which an employee had a preexisting condition are not directly applicable. Claimant must prove entitlement to ion 38.64(c), at 7-145 (1972): The most obvious relevance of this element [continuing exertion after symptoms] is in showing causal connection between the obligations of the employment and the final injury; for if the workman, for some reason, feels impelled to continue with his duties when, but for these duties, he could and would have gone somewhere to lie down at once, the causal contribution of the employ-ment to the aggravation of the condition is clear. The first issue to be determined is whether claimant has proved that one of the standards of the legal test has been satisfied. The record is clear that decedent did not engage in "heavy exertion" or "unusually strenuous employment exertion" compared either with his normal employment (it will be recalled that his duties were less strenuous on the day in question) or with the exertions of normal, nonemployment life of decedent or any other person. Except for the matter of temperature, decedent's exertions on July 28, 1988, were mild. He walked perhaps 1-3 miles over a period of many hours, measured string with a ruler, occasionally turned a crank similar to an ordinary house window, and drove short distances in an air conditioned pickup truck. Decedent was under no particular pressure to complete the job at any particular time, as the crew normally worked until the allotted work for the day was completed. Normal procedure was to determine early how much grading was to be done in a given day, and work until that was completed without regard to "watching the clock" or quitting at a predetermined time. There was no factory whistle to beat. The "positional or actual risk" doctrine adopted in heatstroke cases in Hanson v. Reichelt, 452 N.W.2d 164 (Iowa 1990) has previously been held limited to those cases, and not applicable to heart attack cases. See for example Neil v. John Deere Component Works, Appeal Decision, August 30, 1990. Claimant has not met either of the two standards of the legal test involving work exertion greater than normal nonemployment life or work exertion greater than normal work. The third standard of the legal test is whether decedent felt impelled to continue working after the onset of a possible heart attack. In this case, claimant has failed to show that decedent underwent additional physical Page 8 or mental stress caused by delaying the acquisition of medical assistance. In the absence of an autopsy, it cannot even be said that Mr. Sexton suffered a myocardial infarction leading to fibrillation. Obviously, Mr. Sexton cannot testify as to his status some two or more hours prior to his collapse. It may well be that his early symptoms were those of angina or crescendo angina, and not actual heart attack symptoms. After all, while he made complaint to Claude Collins and, shortly thereafter, to an unnamed service station attendant, decedent continued to work for perhaps two hours without further complaint or showing signs of distress to Collins, who has a practiced eye in looking for heart symptoms. If the early symptoms were merely angina, it apparently cannot be said that continuing to work worsened decedent's condition or brought on a coronary occlusion. After all, Mr. Sexton has been credibly described as an accident waiting to happen. Work activities did not in any event appear strenuous. When severe symptoms came on (Mr. Sexton began pacing and holding his arm), his collapse followed in just a few minutes. He had a drink of water and collapsed without apparently working during the interim. The span of time was so short that decedent could not have obtained medical attention, even had he left immediately for the hospital. Even then, it is speculative to believe the result would have been different, since, in the absence of an autopsy, it cannot be said that even the best medical attention would have saved him (for example, if decedent did suffer an occlusion of a left main coronary artery). Also, given the suddenness of the clear symptoms of the heart attack and decedent's rapid demise, it cannot be said that decedent worked at all after the onset of symptoms. Furthermore, there is no evidence that decedent felt impelled to continue working after his early complaints. The second issue to be determined is whether claimant has proved by medical evidence that medical test has been satisfied. The claimant must prove that the work exertions in fact caused the heart attack. Claimant must satisfy both the legal and medical tests in a situation involving an employee with a preexisting heart disease. Because claimant would not satisfy the legal test, consideration of the medical test would be for discussion purposes only. As discussed above, claimant has not proved by reliable medical evidence that decedent's work was the cause of his fatal heart attack. In summary, there was no supporting medical evidence that decedent had a preexisting heart disease. Claimant did not prove that decedent's fatal heart attack was caused by his employment. Even if the decedent did have a preexisting heart condition, claimant met neither the legal nor the medical test for proving decedent's heart attack arose out of and in the course of his employment. Decedent's fatal heart attack did not arise out of and in the course of his employment. WHEREFORE, the decision of the deputy is reversed. Page 9 ORDER THEREFORE, it is ordered: That claimant take nothing from this proceeding. That defendants shall pay the costs of this matter including the transcription of the hearing. Signed and filed this ____ day of September, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Douglas A. Fulton Attorney at Law 820 Liberty Bldg. Des Moines, Iowa 50309 Mr. James C. Huber Attorney at Law 500 Liberty Bldg. Des Moines, Iowa 50309 1100; 1108.10; 2202 Filed September 30, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ ISABELLE SEXTON, : : Claimant, : : vs. : : File No. 888085 MANATTS, INC., : : A P P E A L Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 1100; 1108.10; 2202 There was insufficient evidence to find that decedent had a preexisting heart disease. The reliable medical evidence indicated that the work did not cause decedent's heart attack. It was also discussed that claimant must satisfy both a legal test and a medical test in order to prove that a heart attack superimposed upon a preexisting condition arose out of and in the course of employment. The legal test can be satisfied by meeting one of three legal standards: work exertion greater than nonemployment life; work exertion greater than normal work exertion; or employee impelled to continue exertion after onset of symptoms. The medical test is satisfied if medical evidence shows that the exertion in fact caused the heart attack. Decedent's work duties were very light, involving only some walking, turning a crank similar to a window crank, measuring strings with a ruler and driving between sites in a pickup truck. However, temperatures were very high. The facts did not indicate that decedent worked after the onset of his acute heart attack. Page 1 before the iowa industrial commissioner ____________________________________________________________ : ISABELLE SEXTON (surviving : spouse of EARL SEXTON), : : Claimant, : : vs. : : File No. 888085 MANATTS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Isabelle Sexton, claimant, against Manatts, Inc., employer (hereinafter referred to as Manatts), and Liberty Mutual Insurance Company, insurance carrier, defendants, for workers' compensation benefits as a result of the death of Earl Sexton on July 28, 1988. On March 11, 1991, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits received into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. An employer-employee relationship existed between decedent, Earl Sexton, and Manatts at the time of Earl Sexton's death. 2. With reference to claimant's rate of weekly compensation, it was agreed that decedent was married and entitled to two exemptions at the time of his death. Page 2 issues The issues submitted by the parties for determination in this proceeding are: I. Whether Earl Sexton's death arose out of and in the course of his employment with Manatts; and II. The extent of claimant's entitlement to death benefits. findings of fact Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: (Note: Decedent will hereinafter be referred to as Earl). Earl was 57 years old at the time of his death. The testimony of his wife, fellow workers and supervisors at Manatts established that Earl was a very committed, hard working employee. Earl was a "fine grade foreman" or in charge of a crew which prepared the level or grade of a roadway just prior to the laying of concrete. Earl took great pride in his work and was very demanding of not only his employees but of himself. He was also hot tempered and had quit for a short period of time two weeks prior to his death in a dispute with Manatts. Manatts' superintendent referred to him as a grumpy supervisor. Earl took pride in keeping his body in shape and was not a complainer. He was not overweight. Immediately prior to his death, he was watching his diet and exercising regularly. Earl was the type of person that would shrug off or discount physical pain. On or about July 28, 1988, while performing his duties at Manatts, Earl suffered a heart attack, collapsed and died shortly before 5:25 p.m., the recorded time the emergency service received a call from a Manatts employee. Shortly before his collapse, Earl had just returned from a nearby service station to fill his water jugs. After first delivering a jug to one of his employees, Earl began to pace and hold his arm as if in pain according to Manatts' superintendent who was standing next to him. Earl then took a drink of water and collapsed. Fellow employees began CPR and this was continued after the arrival of paramedics who also attempted defibrillation. This treatment continued until Earl arrived at the hospital and was pronounced dead. It is found that Earl's death arose out of and in the course of his employment at Manatts. This finding is based upon the views of Robert Kreamer, D.O., a cardiologist, that Earl's job duties specifically contributed to the heart attack and his death. It is also based upon the combined views of Dr. Kreamer and two other cardiologists who testified in this case, Paul From, M.D., and Ernest Theilen, M.D., with reference to the consequences of Earl's decision to stay on the job and not seek medical care after the onset Page 3 of chest pains approximately one and one-half hours prior to his collapse and death. Earl had preexisting coronary heart disease. Although no autopsy was performed and there was no prior medical diagnosis or treatment of heart disease, this finding is based upon the views of Dr. Kreamer and Dr. Theilen who opined to a reasonable degree of medical certainty that claimant had coronary artery disease which contributed to his death. This disease was not symptomatic or disabling until Earl's death. These physicians based their opinions upon Earl's prior history of high blood pressure, which was being treated at the time of his death with diuretic medication; Earl's history of high cholesterol in his blood stream; and the events on the day of Earl's death. Contrary views received into the evidence from Dr. From were not convincing and were outweighed by the other two cardiologists. Immediate cause of Earl's death was ventricular fibrillation. This was caused by myocardial infarction or death of a portion of Earl's heart muscle. The infarction was due to blockage from a blood clot in a narrowed portion of one Earl's coronary arteries. This finding is based upon the views of cardiologists Kreamer and Theilen. Although they could not be scientific certain due to the absence of an autopsy, they felt this was more likely than not the sequence of death from the circumstances. Again, contrary views from Dr. From were not convincing and were outweighed by the views of the other two cardiologists. According to Dr. Kreamer, Earl's job duties on the date of death were a significant contributing factor in precipitating the onset of the myocardial infarction. The day in question was very hot. A fellow employee testified in his deposition that the temperature was well over 100 degrees and Earl was performing his duties in even a hotter area near a running engine on the grade machine that was being operating by the fellow employee. Although Earl's actual physical labor that day was very minor in that he was simply measuring the grade with rulers while walking along next to the machine, he still was performing his work in a hot environment and was under the mental stress of his job. Both Dr. From and Dr. Theilen rejected a causal connection of claimant's job duties to the onset of the heart attack. Dr. From's views were rejected largely because of his misdiagnosis of the immediate cause of Earl's death, as explained above. Dr. Theilen's views were rejected because he was not convincing in his deposition testimony. Admittedly, Dr. Theilen is a professor of medicine at the University of Iowa Hospitals and Clinics and is board certified. However, two aspects of his testimony did not make much sense to this deputy commissioner. The first problem was a total rejection by Dr. Theilen that the heat that day played any role in the death sequence. Dr. Theilen admitted that heat does cause stress on the heart but stated that simply because it was 100 degrees that day meant nothing as it would have to also involve high humidity. He theorized that Page 4 even if it were that hot, low humidity as would be experienced in a desert environment would cause little stress on the heart. As a lifelong resident of the state of Iowa, it is absurd to suggest that a late July day could resemble desert heat. After all, we must approach these issues with some semblance of common sense. Although Dr. Theilen took issue with Dr. Kreamer as to Earl's dehydration stating that Earl had plenty of liquids available, it apparent Dr. Theilen failed to realize that claimant had to travel to a nearby service station to fill water jugs. Access to water was certainly limited and delayed. Dr. Kreamer, in his deposition, mentioned that Earl was performing strenuous work that day. Although the actual physical tasks Earl was performing are not demanding for a normal heart, given Earl's diseased heart, the high temperatures and the emotional stress of supervision was extremely strenuous for Earl. Although Earl was a long-time construction worker and was accustomed to physical work and adverse working conditions, such work at those temperatures was more than the physical and emotional stress of everyday, non-employment, looking at the general population of this nation as a whole. Independent of the finding that Earl's work duties were a significant cause of the myocardial infarction, it is also found that Earl's employment was the cause of death due to Earl's decision to ignore chest pain complaints and remain on the job approximately an hour and a half before his death. Fellow employees even advised at that time he seek medical care for a possible heart attack. There was ample time after the onset of chest pain to obtain coronary care as Earl was working only a few miles from a major metro area in the state of Iowa. According to all the cardiologists who testified, Earl's decision to not seek medical care and to remain on the job significantly reduced his chances of survival. It is more likely than not that although ventricular fibrillation may not have been avoided, had Earl sought care, he would have been placed on a monitor and treated and fibrillation could have been treated immediately as soon as it occurred. Dr. Theilen stated that chances are Earl would be alive today if he had sought such immediate treatment after the first onset of pain. It is found that claimant, Isabelle Sexton, is the surviving spouse of Earl Sexton and was wholly dependent upon Earl for her support at the time of his death. According to Exhibit 7, claimant's average weekly earnings over 13 weeks prior to the injury were $688.39. It is found that Earl was a construction worker at the time of his death and that he occasionally worked 12 months a year seeking employment in the South during Winter seasons. Decedent's employment and occupation was not exclusively seasonal. conclusions of law I. Claimant is seeking benefits as a result of the death of her husband. Such benefits are available under chapter 85, Code of Iowa, because a work injury is defined Page 5 in the statute to include death as a result of injury. Iowa Code section 85.61(5)(a). However, an employer is liable for death benefits only if claimant establishes by a preponderance of the evidence that the death arose out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See generally Cedar Rapids Community School District v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). In work injuries involving the heart, Iowa claimants with preexisting circulatory heart conditions are permitted upon proper proof to recover workers' compensation benefits when the employment contributes something substantially to increase the risk of injury or death. The employment contribution must take the form of an exertion greater than that of employment life. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The comparison, however, is not with the employee's usual exertion in his employment but with exertions of normal non-employment life of this or any other persons. Id. These exertions may be physical or emotional. Swalwell v. William Knudson & Son, Inc., II Iowa Indus. Comm'r Rep. 385 (Appeal Dec. 1982). The Sondag rule is favored by Professor Larson in his treatis on workers' compensation. See 1A Larson, Workmen's Compens the deceased employee's last illness. Iowa Code sections 85.27 and 85.29. Claimant is further entitled to burial expenses of decedent not to exceed the sum of $1,000. Iowa Code section 85.28. Also, defendants are liable to the Second Injury Fund in the amount of $4,000 as decedent in this case died with dependents. Iowa Code section 85.65. Furthermore, weekly benefits are also available from the employer to the surviving spouse. Such benefits are paid in the same amount and manner as a work injury except that benefits are paid to the surviving spouse for life or until remarriage. Iowa Code section 85.31. A surviving spouse is conclusively presumed dependent unless there has been a willful desertion of decedent by the spouse. Iowa Code section 85.41(1). With reference to the appropriate rate of weekly compensation in this case, the parties agreed to various facts in the prehearing report if Iowa Code section subsections 85.36(1) or (9) were applicable to this situation. It is held that neither of these code subsections are appropriate for determination of the gross weekly rate of compensation in this case. Iowa Code section 85.36(1) is available only if Earl's weekly rate did not vary. It has long been the policy of this agency that Iowa Code section 85.36(9) is only applicable to occupations which are "exclusively" seasonal. This agency has taken official notice that construction as an occupation is carried out on a year-round basis in this country. Wolfe v. Weigel & Stapf Construction Co., Thirty-three Biennial Rep., Iowa Indus. Comm'r 221 (1977). It has been the long- standing practice of this agency to apply Iowa Code section 85.36(6) when the earnings of an injured worker vary from week to week, especially construction workers. Under this Code subsection, the last 13 "representative" weeks prior to the injury is averaged to determine gross weekly earnings for rate purposes. According to the commissioner's published rate booklet for a death occurring on July 28, 1988, and giving claimant's gross weekly earnings of $688.39 along with marital status and entitlement to two exemptions, as stipulated by the parties, claimant's rate of weekly compensation for death benefits is found to be $413.26. order 1. Defendants shall pay to claimant weekly death benefits at the rate of four hundred thirteen and 26/100 dollars ($413.26) per week from July 28, 1988 until her death or remarriage, whichever occurs first. 2. Defendants shall pay to claimant the expenses of her husband's last care and treatment as a result of the heart attack and attempts to revive him as well as burial expenses up to a maximum sum of $1,000. 3. Defendants shall pay to the Treasurer of the State of Iowa as custodian of the Second Injury Fund the sum of Page 7 four thousand dollars ($4,000). 4. Defendants shall pay accrued weekly benefits in a lump sum. 5. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendants shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 7. Defendants shall file activity reports upon payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this _____ day of May, 1991. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Page 8 Copies to: Mr Douglas A Fulton Attorney at Law 820 Liberty Bldg Des Moines IA 50309 Mr James C Huber Attorney at Law 500 Liberty Bldg Des Moines IA 50309 5-1108; 3001 Filed May 13, 1991 Larry P. Walshire before the iowa industrial commissioner ____________________________________________________________ : ISABELLE SEXTON (surviving : spouse of EARL SEXTON), : : Claimant, : : vs. : : File No. 888085 MANATTS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108 Heart attack death case. 3001 Claimant's occupation as a road construction supervisor was not exclusively seasonal. Rate arrived at by averaging last thirteen weeks before death. BEFORE THE IOWA INDUSTRIAL COMMISSIONER GLENDA J. SCHOENHERR, Claimant, File No. 888117 vs. A R B I T R A T I O N WELLS DAIRY, INC., D E C I S I O N Employer, F I L E D and JUN 20 1990 ATLANTIC MUTUAL INSURANCE COMPANY, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE May 30, 1990, was the time set for hearing on claimant's petition filed herein. However, on May 29, 1990, sanctions were imposed by another deputy commissioner which closed the record to further evidence or activity by claimant. Defendants have submitted a list of exhibits and exhibits. Defendants wish to place such evidence into the record and they request a negative finding against the claimant. As the record was closed to claimant, claimant was notable to submit evidence in support of her claim. Claimant's claim is therefore dismissed as no evidence could be offered in her case-in-chief. As the case was dismissed before defendants case could be opened, no evidence will be received from the defendants. The request for a negative finding against claimant is unnecessary and will not be done. FINDINGS OF FACT Claimant offered no evidence. No findings could be made. CONCLUSION OF LAW Claimant failed to show by a preponderance of the evidence an injury which arose out of and in the course of his employment. ORDER 1. Claimant's petition is dismissed with prejudice. 2. Claimant is assessed the costs of this action as set forth in Division of Industrial Services Rule 343-4.33. Signed and filed this 29th day of June, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Alice S. Horneber Attorney at Law Suite 400 First Nat'l Bank Bldg P 0 Box 1768 Sioux City, IA 51102 Ms. Judith Ann Higgs Attorney at Law 701 Pierce St, Suite 200 P 0 Box 3086 Sioux City, IA 51102 5-2902 Filed June 20, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER GLENDA J. SCHOENHERR, Claimant, vs. File No. 888117 WELLS DAIRY, INC., A R B I T R A T I 0 N Employer, D E C I S I 0 N and ATLANTIC MUTUAL INSURANCE COMPANY, Insurance Carrier, Defendants. 5-2902 - Nonprecedential Claimant failed to show compensable injury due to sanctions imposed. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARVIN TIMMERMAN, Claimant, vs. File No. 888128 WILSON FOODS CORPORATION, A P P E A L Employer, Self-Insured, D E C I S I O N and SECOND INJURY FUND OF IOWA, 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 August 26, 1991 is affirmed and is adopted as the final agency action in this case with the following additional analysis: Claimant clearly suffered a prior injury to his lower extremity in the form of an injury during his service in Vietnam. Claimant testified that as a result of this injury, his injured leg is shorter than the other, requiring him to wear a special shoe and partial leg brace. Claimant contends this constitutes a prior loss for purposes of qualifying for second injury fund benefits. However, the record establishes that claimant has no work restrictions connected with his leg; claimant has not missed work because of his leg injury; claimant is and has been for many years able to perform all the duties of his job in spite of the leg injury. Claimant does not have to actually miss work because of his leg injury in order to establish an impairment of his leg. However, claimant failed to produce a medical rating of impairment of his leg in order to establish a prior loss. A military disability rating provided in 1973 does not establish a present loss of use of the leg. Claimant has not offered a more recent rating of impairment for his leg, has been able to work without restriction, and claimant's testimony indicates he does not currently suffer a loss of use of his leg. Claimant bears the burden of proof. Claimant has failed to establish that he currently suffers a prior loss of use of his leg for Page 2 purposes of Iowa Code section 85.64. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of September, 1992. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steve Hamilton Attorney at Law P.O. Box 188 Storm Lake, Iowa 50588 Mr. David L. Sayre Attorney at Law P.O. Box 535 Cherokee, Iowa 51012 Mr. Charles S. Lavorato Assistant Attorney General Tort Claims Division Hoover State Office Bldg. Des Moines, Iowa 50319 9999 Filed September 29, 1992 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ MARVIN TIMMERMAN, Claimant, vs. File No. 888128 WILSON FOODS CORPORATION, A P P E A L Employer, Self-Insured, D E C I S I O N and SECOND INJURY FUND OF IOWA, Insurance Carrier, Defendants. ____________________________________________________________ 9999 Summary affirmance of deputy's decision filed August 26, 1991, with short additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : SYLVIA MARIE BORREGO, : Surviving Child of DANIEL : BORREGO, JR., : : and : : KIMBERLY S. ANDRIES, as Mother: and Next Friend of SHAWNA LISA: ANDRIES and GREGORY DANIEL : ANDRIES, : : Claimants, : : vs. : : File No. 888132 HAWKEYE PAVING CORPORATION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : FIREMAN'S FUND INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE In this contested case proceeding, three surviving children (claimants) of Daniel Borrego, Jr., seek death benefits from his employer, Hawkeye Paving Corporation, and its insurance carrier, Fireman's Fund Insurance Company. A hearing was accordingly held in Des Moines, Iowa, on July 20, 1993. The record consists of defendants' exhibit 1, claimants' exhibits 1 and 2 and official notice taken at hearing of the entire litigated file, except for the prehearing conference notes prepared on May 4, 1992. ISSUES The parties entered into the following stipulations: . Daniel Borrego's death on June 9, 1988, arose out of and in the course of his employment with Hawkeye Paving; . The correct rate of compensation is $264.69 per week; . Medical benefits are not at issue; . Sylvia Marie Borrego, Shawna Lisa Andries and Gregory Daniel Andries are surviving children of Daniel Borrego, Jr; and Page 2 . A fair and equitable apportionment of death benefits would be one-third to each surviving child as long as each is entitled to receive benefits; thereafter, remaining benefits should be apportioned equally among all such children who may remain entitled. Issues presented for resolution include: . Whether and to what extent defendants are entitled to "credit" under Iowa Code section 85.22 with respect to a third party settlement; and . Whether the industrial commissioner has subject matter jurisdiction to determine the nature and extent of that "credit." FINDINGS OF FACT The undersigned deputy industrial commissioner finds: Daniel Borrego was employed as a highway construction laborer on June 9, 1988, when he was struck and killed by a passing motorist, one Arthur Olson. Mr. Borrego was survived by three children born of two different mothers. An estate was opened on behalf of Sylvia Marie Borrego, born September 24, 1976, by Attorney Kent Hutcheson, whose license has since been suspended for violation of temporary restraining orders and false testimony under oath, Committee on Professional Ethics and Conduct v. Hutcheson, 471 N.W.2d 788 (Iowa 1991). On behalf of the estate, Hutcheson prosecuted a lawsuit against Arthur Olson and, on June 17, 1988, so notified Hawkeye Paving Company. The lawsuit was apparently settled at policy limits in the gross sum of $100,000. On October 3, 1988, the Des Moines County District Court, sitting in probate, approved certain death expenses to be paid from those proceeds, along with attorney fees to Hutcheson totalling $33,330. The balance was allocated to the conservatorship of Sylvia Borrego. The industrial commissioner was not asked to approve the settlement, nor was a written memorandum of that settlement filed by the employer or insurance carrier in the office of the industrial commissioner as required by Iowa Code section 85.22(4). The estate also received $25,000 in uninsured or under-insured motorist coverage held by Mr. Borrego. Defendants make no claim that they are entitled to "credit" or indemnity on account of this payment. Apparently in March 1989, the probate court recognized the existence of two additional children: Shawna Lisa Andries (born January 28, 1982) and Gregory Daniel Andries (born June 28, 1984). On February 21, 1991, the Des Moines County District Probate Court entered an order sharply critical of Mr. Hutcheson's doings, which required him Page 3 either to make an appropriate application for attorney's fees or to reimburse the estate in the sum of $41,700 for fees and expenses. Due to procedural defects, this judgment was later vacated by the supreme court and the matter remanded (on September 23, 1992) to the Des Moines County District Court for further proceedings, In re Estate of Borrego 490 N.W.2d 833 (Iowa 1992). The record does not show any further probate proceedings as of the time this case was tried. However, Hutcheson's malpractice carrier has reimbursed the Borrego estate for all fees and expenses he received. Committee on Professional Ethics and Conduct v. Hutcheson, 504 N.W.2d 898 (Iowa 1993). In this case, Hutcheson was again suspended from the practice of law due to his handling of the Borrego estate. Relying on their "credit" resulting from the third party settlement, defendants have paid no death benefits whatsoever. ANALYSIS AND CONCLUSIONS OF LAW Claimants take the position that the industrial commissioner lacks subject matter jurisdiction to determine the existence of or extent of defendants' section 85.22(1) lien or right to "credit." They rely on the recent case of Fisher v. Keller Industries, Inc., 485 N.W.2d 626 (Iowa 1992), a declaratory judgment action originally brought in the Clay County District Court to establish the extent of an 85.22(1) lien against a third party judgment. In Fisher, the defendant insurance carrier contended that the district court lacked subject matter jurisdiction and that exclusive jurisdiction rested with the commissioner. The court summarily dismissed this contention, noting that disputes over the amount or validity of the right to 85.22 indemnification have consistently been raised in district court. Several citations served to illustrate the point. Clearly then, the district court has original jurisdiction to determine a claimed 85.22(1) lien. However, the court did not address the reverse issue: Does the industrial commissioner share concurrent jurisdiction? This appears to be an issue of first impression. The commissioner has, as a matter of routine, accepted jurisdiction to determine 85.22 credits in the past. See, e.g. Higgins v. Arthur R. Peterson, II Iowa Industrial Commissioner Reports 199 (App. Dec. 1982). However, it does not appear that a challenge to subject matter jurisdiction has previously been raised and litigated. One starts with the recognition that examples of such concurrent jurisdiction do not spring readily to mind. Where original jurisdiction of a dispute is vested in the district court, this writer knows of no example in Iowa law of any lesser or quasi-judicial body holding concurrent jurisdiction over the same dispute. The Administrative Procedure Act, chapter 17A, contemplates judicial review of agency action, but does not directly address possible instances of concurrent jurisdiction. Page 4 Of course, as the statute is written, the commissioner is unable to exercise wholly concurrent jurisdiction. Under section 85.22(1), an employee or carrier shall be indemnified to the extent of compensation payments made "except for such attorney fees as may be allowed, by the district court," and sets up a lien on the claim for recovery. Note that exclusive jurisdiction to determine the reasonableness of attorney fees is statutorily granted to the district court, not the commissioner. Therefore, in an overwhelming majority of such third party claims, the commissioner lacks the ability to make a determination on an essential element going to the extent of any lien. Attorney fees in such cases commonly reach one-third of the net recovery, sometimes more in complex cases. Other provisions of section 85.22 convince this writer that the lien process was intended to rest in the sole jurisdiction of the district court. The employer perfects the lien by, within 30 days after receiving notice of suit, filing notice in the office of the clerk of the court where the action is brought. That notice itself is to be given by claimant to the employer not less than ten days before the trial of the case, thus pegging the notice requirement to a district court event, not any action on the part of the industrial commissioner. Under 85.22(4), a written memorandum of any settlement, "if made," is to be filed with the commissioner. As written, this contemplates notice of an action already taken, not one to be taken by the commissioner. For all these reasons, it must be concluded that the legislature intended to vest exclusive jurisdiction to determine 85.22(1) liens in the district court. In this case however, it seems appropriate to briefly discuss the merits of the claimed credit, so as to possibly avoid the necessity of remand should the commissioner adopt a more inclusionary view of this agency's jurisdiction. Section 85.22(1) provides: If compensation is paid the employee or dependent or the trustee of such dependent under this chapter, the employer by whom the same was paid, or the employer's insurer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made, with legal interest, except for such attorney fees as may be allowed, by the district court, to the injured employee's attorney or the attorney of the employee's personal representative, and shall have a lien on the claim for such recovery and the judgment thereon for the compensation for which the employer or insurer is liable. In order to continue and preserve the lien, the employer or insurer shall, within thirty days after receiving notice of such suit from the employee, file, in the office of the clerk of the court where the action is brought, notice of the lien. (Emphasis supplied). Page 5 The Iowa court has adopted a literal reading of this language. Fisher, 485 N.W.2d 626. There is no credit for future payments of compensation benefits defendants intend to make. The credit is limited to compensation already paid to the dependents. In this case, the amount of the credit is, accordingly, zero. Defendants, however, assert that Fisher did not address "whether parties can by agreement have a credit as part of the settlement and consent to settlement of a third party claim." (defendants' brief, page 9). Defendants' reliance upon certain correspondence from Attorney Hutcheson is misplaced. First, there is nothing in the record to show that Hutcheson at any time represented claimants Shawna Andries and Gregory Andries. He could hardly settle or waive any right to benefits held by those dependents. Even if he could make a settlement, it would be valid only if signed by all parties and approved by the industrial commissioner under section 86.13. The file does not disclose the approval of any settlement by this office. Likewise any claim of waiver is barred under Iowa Code section 85.55, which provides: No employee or dependent to whom this chapter applies, shall have power to waive any of the provisions of this chapter in regard to the amount of compensation which may be payable to such employee or dependent hereunder. Iowa law does not recognize any equitable right of indemnification independent of section 85.22, Daniels v. Hi-way Truck Equipment, Inc., 505 N.W.2d 485 (IOwa 1993). Accordingly, defendants' claim of credit is without merit. ORDER THEREFORE IT IS ORDERED: Defendants shall pay death benefits at the stipulated rate of two hundred sixty-four and 69/100 dollars ($264.69) commencing September 9, 1988, equally (one-third each) to Sylvia Marie Borrego, Shawna Lisa Andries and Gregory Daniel Andries so long as each is entitled to receive benefits under the provisions of Iowa Code section 85.31; benefits shall continue to be apportioned equally among all children who remain entitled to benefits until such time as no such entitlement remains under the provisions of section 85.31. All accrued benefits shall be paid in a lump sum together with statutory interest under Iowa Code section 85.30. Costs are assessed to defendants. Signed and filed this ____ day of November, 1993. Page 6 ______________________________ DAVID R. RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Gordon Liles Attorney at Law 710 Ave F Ft. Madison, Iowa 52627 Ms. Merry C. Ford Attorney at Law STE 205 Hoth Bldg PO Box 1111 Burlington, Iowa 52601 Mr. Steven E. Ort Attorney at Law 121 W Main St New London, Iowa 52645 Ms. Deborah Dubik Ms. Vicki Seeck Mr. Greg Egbers 600 Union Arcade Bldg 111 E 3rd St Davenport, Iowa 52801-1596 1704 2301 2906 3301 1301 3900 Filed November 17, 1993 David R. Rasey BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ SYLVIA MARIE BORREGO, Surviving Child of DANIEL BORREGO, JR., and KIMBERLY S. ANDRIES, as Mother and Next Friend of SHAWNA LISA ANDRIES and GREGORY DANIEL ANDRIES, Claimants, vs. File No. 888132 HAWKEYE PAVING CORPORATION, A R B I T R A T I O N Employer, D E C I S I O N and FIREMAN'S FUND INSURANCE CO., Insurance Carrier, Defendants. ___________________________________________________________ 1704 2301 Under Fisher v. Keller Industries, 485 N.W.2d 626 (1992), industrial commissioner was held to lack subject matter jurisdiction to determine nature and extent of 85.22 lien against third party recovery. 2906 Where commissioner was held to lack subject matter jurisdiction in a case of first impression, a provisional ruling on the merits was also suggested so as to avoid possible remand. 3301 1301 Claimed agreement or settlement to forego weekly death benefits was not valid against dependents where no such agreement had been approved under section 86.13. 3900 Under section 85.55, dependents could not validly waive right to death benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JANET E. MEYERS, : : Claimant, : : vs. : : File No. 888380 UNITED PARCEL SERVICE, : : 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. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Janet E. Meyers, claimant, against United Parcel Service, employer, and Liberty Mutual Insurance Company, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act. Claimant alleges that she sustained an occupational disease and physical and psychological problems as a result of chronic chemical poisoning at her place of employment. This matter came on for hearing before the undersigned deputy industrial commissioner on July 28, 1992, in Davenport, Iowa. The claimant was present and testified. Also present and testifying were Robert Black, Lisa Hopper, Lee Moore, Roger Wuestenberg, and Mary Beth Andrews. Documentary evidence identified in the record consists of joint exhibits 1 through 24 and claimant's exhibits A and B. ISSUES The parties have presented the following issues for resolution: 1. Whether claimant suffers from chronic poisoning due to overexposure, for an extended period of time, to toxic chemicals in the work place, and as a result, has suffered psychological and physical disabilities; 2. Whether claimant's occupational disease arose out of and in the course of employment with employer; 3. Whether the alleged disease is a cause of temporary and permanent disability; 4. The extent of entitlement to weekly compensation for temporary and permanent disability, if defendants are liable for the injury; Page 2 5. The commencement date for permanent partial disability, in the event such benefits are awarded; 6. Whether claimant is entitled to medical expenses under Iowa Code section 85.27; and 7. Whether fees charged for medical services by Bertram Carnow, M.D., are reasonable. FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on June 13, 1943, and graduated from high school in 1960. She commenced working for employer in 1976. She performed odd jobs until 1979 when she started working as a washer and fueler. Claimant terminated her employment with employer on May 1, 1992. On May 15, 1992, she was placed on a company disability plan and receives benefits in the amount of $110 per week. Claimant alleges that she suffers physical and emotional problems brought on by her employment environment and exposure to chemicals. She alleges forgetfulness, irritability, sleep disturbance, mood swings, skin blistering and oozing, second degree burns on her face, visual deficits, muscle spasms, black liquid discharge from her breasts, green perspiration, swollen lymph glands, diarrhea, vomiting, loss of memory and dexterity, speech problems, loss of equilibrium, and depression. Claimant testified that her physical problems surfaced the beginning of 1986, but it wasn't until April 1987 that she realized they were work related. In her deposition dated January 30, 1992, claimant testified that when she learned that chemicals, Zep T N T and G P Forward, were in the detergents used to wash the trucks, she filed a complaint with OSHA in 1987. She stated that no safety gear was provided and the tunnel was poorly ventilated. In addition, a solvent called Zepteen was used to clean off the frames of the tractors. Other chemical additives were used to clean the interior of the cab and she was exposed to anti-freeze, deicers, transmission fluid, clutch oil, glass cleaners, and grease. Occasionally, when a tractor was undercoated, the cleaning process involved using sand silicone. Claimant testified that even though these chemicals were applied with a brush, they would drip on her skin and clothing and the mist would permeate her lungs. Claimant testified that the company was cited by OSHA for various safety violations and the company responded by eliminating Zep T N T and G P Forward as cleansing agents and substituted J-Wax. The documentary evidence in the record corroborates claimant's testimony that in July 1987, an OSHA citation was issued to employer for various infractions regarding the use of potentially hazardous chemicals and employer's failure to Page 3 provide information and training to employees using these chemicals. Furthermore, employer was cited for failure to maintain copies of the required material safety data sheets for each hazardous chemical in the work place and to insure they were readily accessible to employees. The record also indicates that employer complied with complaint resolution on January 7, 1988, and took corrective measures requested by OSHA (exhibit 15a-d). As is apparent from the voluminous medical evidence in this case, claimant has had extensive medical evaluations for a myriad of physical and emotional symptoms which she contends are the result of chronic ongoing chemical poisoning during the course of employment with employer. On January 13, 1987, claimant presented to John F. Collins, M.D., her treating physician, with complaints of a productive cough with fatigue, diarrhea and decreased appetite. She was treated with Lomotil and amoxicillin (ex. 6, p. 6). A follow-up examination by Dr. Collins on April 13, 1987, found claimant complaining of easy fatigability and breast discharge for one month. A blood chemistry profile was normal except for a slightly increased chloride. A complete blood count and urinalysis was normal. Dr. Collins noted a rash on claimant's face and cheeks which was reddish and scaly. The rest of her skin was normal. He was not certain as the etiology of the rash but stated it could likely be due to exposure to toxic chemicals. On April 28, 1987, claimant reported to Dr. Collins that employer removed the chemicals she was using and introduced a safer chemical. On April 6, 1987, claimant submitted an employee accident report, claiming severe fatigue, lightheadedness, face dermatitis, gastroenteritis, bronchial pneumonia, loss of sleep, decreased appetite, muscle aching, headaches, and breast discharge for the past fifteen months. She attributed her symptoms to chemical exposure in the work place (ex. 21). On April 21, 1987, claimant was seen by James D. King, D.O., for evaluation. She presented with multiple complaints, including black watery discharge from her breasts, green perspiration, progressive exhaustion, fatigue, diarrhea, vomiting, weakness, recurrent and intermittent dermatitis, periods of disorientation, shortness of breath and wheezing for the past sixteen months. She related to Dr. King that she had been working in the truck wash at United Parcel for the past eight years and using the same type of soap (Zep T N T detergent) for two years prior to the onset of her symptoms. On examination, no specific lesions or dermatitis was found on her face. A very dark, black-green discharge was seen from her breasts. Laboratory tests were performed which showed that the breast nipple discharge was essentially normal for culture and pap smear of the nipple discharge was negative. Bilateral mammograms were consistent with fibrocystic disease. A blood count was normal as were thyroid function tests. Claimant returned for a follow-up visit on May 28, 1987, and was feeling much better since the company stopped using the Zep T N T. Dr. King was unable to relate Page 4 claimant's symptoms to the particular soap she was using at work because none of the environmental protection agency records detailed the type of symptom complex she described (ex. 11a, pp. 1-2). On August 13, 1987, at claimant's request, Robert B. Black, an environmental chemist, reviewed the cleaning agents (Zep and Johnson Wax products) used by UPS personnel and felt that their long-term use could have a detrimental effect on the skin and internal irritation to the mouth, throat and lungs. He noted that the Zep product 0376 contained EDTA (ex. 3). Claimant was sent by defendant insurance carrier to Chicago Occupational Medicine Services where she was evaluated by E. Jay Van Cura, M.D., Director of Medical Services, on November 18, 1988. Pursuant to this evaluation, Dr. Van Cura reviewed the records of Dr. Collins, Dr. King, Mr. Black, letters written by claimant, and the Material Safety Data Sheets (MSDS) for G P Forward Cleaner, J-Wax Believe, Zepteen and Zep T N T. Dr. Van Cura conducted a physical examination which was essentially within normal limits except for dry facial skin and patches of mild redness and scaling, especially over the neck. There was a mild greenish pigment over the bilateral axillary areas and a faint greenish color from her sweat. There was also a small amount of greenish fluid emanating from her breasts. According to Dr. Van Cura, she presented herself in a very intelligent, organized manner and her emotional responses were normal. Dr. Van Cura concluded that while claimant has normally dry skin, the work place exposure to water and soaps probably contributes to her dry skin. However, he felt this was a mild condition which can be treated with moisturizing agents and reduced direct contact with solvents. As to the greenish discharge from claimant's breasts and axillary sweat glands, Dr. Van Cura knew of no occupational cause for this phenomenon. He felt she should be evaluated for a possible metabolic or hereditary abnormality. As to her orthopedic complaints (soreness in her fingers and elbows), Dr. Van Cura felt this was a manifestation of early arthritic problems. He could not explain her complaints of burning spots throughout her body. It was his opinion that claimant was capable of performing normal work activity without restrictions (ex. 5a, pp. 1-8). On September 6, 1989, claimant was referred by Andrew A. Andresen, M.D., to St. Luke's Hospital, Outpatient Facility, for evaluation and possible treatment of right elbow joint pain. During the course of treatment, it was recommended that claimant become involved in the Back In Balance program for work hardening. This was sanctioned by Dr. Andresen (ex. 7, pp. 5-7). Initial testing at the Back In Balance program occurred from October 16 through October 19, 1989. This included a psychological evaluation by W. David McEchron, Ph.D., licensed psychologist. On the Minnesota Multiphasic Page 5 Personality Inventory (MMPI) the results were suggestive of a histrionic or passive-aggressive personality disorder, with a strong possibility of a conversion disorder or somatization disorder. The profile suggested an individual who exaggerates physical problems due to an underlying emotional disorder (ex. 9, p. 29; ex. 4a, p. 1). Claimant participated in 11 sessions of work hardening at the Back in Balance program from October 30, 1989 through November 17, 1989, when she was released to return to an eight-hour work day only restricted from doing heavy lifting (ex. 9, p. 34). Dr. Collins referred claimant to the University of Iowa, Occupational Medicine Clinic, for evaluation on November 9, 1989. Claimant presented with a rather "lengthy list of somatic complaints including greenish black discharge from breasts, greenish perspiration and shortness of breath." As reported by James Merchant, M.D.: ...HEENT exam was unremarkable for mucosal erythema or lymphadenopathy or skin changes. Extremities were within normal limits without cyanosis or clubbing. Lungs were clear to auscultation in all fields. Heart revealed a regular rate and rhythm without murmurs or gallops. Abdomen was slightly tender to palpation in the right upper quadrant without hepatosplenomegaly. Chest x-ray revealed no active disease. Pulmonary function tests were excellent for her height and weight. (exhibit 1, pages 6) Dr. Merchant concluded that there was no biological basis for claimant's complaints of breast discharge, perspiration or other somatic complaints (ex. 1, p. 6). Claimant's attorney then referred her to Bertram Carnow, M.D., Executive Vice President and Senior Scientist with an occupational and environmental health consulting firm in Chicago, Illinois for evaluation on March 26, 1990. After reviewing the claimant's medical history and noting her complaints, Dr. Carnow conducted a physical examination. He observed a jet black discharge from claimant's breast nipple and a greenish tint, but no green discharge, in the axilla areas. A chest x-ray, electrocardiogram, pulmonary function studies, EMG and nerve conduction studies were essentially normal. Robert S. Wilson, Ph.D., administered claimant a battery of neuropsychological tests and concluded that claimant manifested "Clear deficits in attention and fine motor speed and coordination; questionable deficit in constructional praxis; and clinical significant depression." According to Dr. Carnow, immune system testing carried out by Dr. Ronald Kerman at the University of Texas revealed multiple functional abnormalities. In summary, Dr. Carnow concluded that claimant was Page 6 suffering from chronic chemical poisoning as a result of exposure to a wide range of strong cleansing agents, chelating agents, solvents, diesel fuel fumes, and other chemicals while working in employer's wash tunnel. He recommended that claimant immediately remove herself from the harmful work environment (deposition ex. 2, pp. 12-69). On July 10, 1992, at the request of insurance carrier, Dr. Van Cura reviewed Dr. Carnow's medical evaluation. In a letter dated July 27, 1990, Dr. Van Cura questioned the validity of Dr. Carnow's findings and conclusions. He noted that nerve conduction velocity testing, which is an objective test of the peripheral nerves was entirely within normal limits. Immune-electrophoresis performed by Metpath, a national laboratory, was entirely within normal limits. Liver function tests performed by Metpath were also within normal limits. He stated that claimant's most extreme abnormality, (black icky discharge from the breast and greenish discharge from the axillary sweat glands) has not been explained by Dr. Carnow or anyone else. He thought that the possibility of a work place exposure to chemicals causing this problem was extremely remote and recommended further evaluation for metabolic or hereditary causes (ex. 5b, pp. 1-3). Claimant was then referred by defendant insurance carrier to Paul From, M.D., for evaluation on November 12, 1990. Claimant presented with numerous physical and mental complaints but indicated that her condition was beginning to improve. Dr. From reviewed extensive medical material in conjunction with his evaluation, performed laboratory testing and conducted a physical examination. He noted that all objective studies were normal and he found no connection between claimant's work and her symptoms except for skin dryness which may result from her frequent contact with water (ex. 13). On April 18, 1991, claimant presented to Dr. Collins with complaints of severe chest pain (ex. 6, p. 27). She was referred to the Work Well Occupational Medicine Center in Davenport, Iowa, on April 19, 1991, for evaluation. Claimant brought with her Dr. Carnow's report and a note from Dr. Collins indicating that "Janet is ill with chest pains due to stress of her work, she will be unable to return to work for the next two weeks." Subsequently, a stress test was performed at North Medical Center under the direction of Dr. Bontu. The tests showed no evidence of ischemic changes. Therefore, a psychiatric evaluation with Patrick Campbell, M.D., psychiatrist was arranged (ex. 12a, pp. 1-5). Dr. Campbell saw claimant for psychiatric evlauation on April 29, 1991. In a report dated February 21, 1992, Dr. Campbell noted that initially claimant appeared to be suffering from an acute anxiety disorder, depression, a somatiform disorder, and a histrionic personality disorder. However, she showed good response after a few psychiatric sessions. She was last seen on June 28, 1991 (ex. 14a, p. 1). Page 7 Progress notes from E.A. Motto, M.D., from Work Well Occupational Center, dated May 2, 1991, indicate that Dr. Campbell was reticent to make a definite diagnosis regarding claimant's psychiatric state, but he felt that she could return to work without restrictions. He noted that Dr. Campbell indicated to him that her acute episode of chest pain was probably a panic reaction and that much of her problem may be related to a somatization disorder (ex. 12a, pp. 5-6). On February 5, 1992, defendants' attorney sent to Dr. From reports from Robert Black noting the possible hazards associated with the use of Zep and Johnson Wax products. Dr. From commented that EDTA, a chelating agent, is used in medicine for removing arterial blockage. He noted however, "There was no history given by Ms. Meyers as to any actual irritations within her throat and lung area and no history of any significant skin irritation or burns during her work at United Parcel Service." He reported that his examination of claimant did not indicate any irritation about the mouth, throat, lungs, or skin and her neurological examination was normal (deposition ex. 13, p. 41). On March 13, 1992, defendants' attorney sent to Dr. From four material safety data sheets for (1) Zepteen, 0432; (2) Zep T N T, 0376; (3) G P Forward Cleaner; and (4) J-Wax Believe. These sheets were examined by Dr. From. He noted that the products contain certain ingredients which can cause irritation to the eyes and upper gastrointestinal tract and occasionally to the respiratory tract. However, these symptoms would result from acute overexposure. He concluded, "I could find nothing in these MSDS sheets which would make me change my opinion outlined in my letter to Liberty Mutual of November 21, 1990." (deposition ex. 13, p. 53). CONCLUSIONS OF LAW Claimant alleges she has suffered from chronic exposure to a wide range of toxic chemicals while in the employ of employer which has resulted in systemic organ abnormalities and psychological problems. The first issue to be determined is whether claimant suffers from an occupational disease under Iowa Code section 85A. Iowa Code section 85A.14 provides as follows: No compensation shall be payable under this chapter for any condition of physical or mental ill-being, disability, disablement, or death for which compensation is recoverable on account of injury under the workers' compensation law. The existence of section 85A.14 indicates a legislative intent to preclude recovery under both chapter 85 and chapter 85A for the same injury or condition. Thus, claimant cannot be compensated for an injury under chapter 85 and an occupational disease under chapter 85A for the Page 8 same work-related condition. Iowa's occupational disease law was enacted in 1947 and was designed to compensate "victims of disease resulting solely from the nature of the employment as opposed to traumatic injury...." [34 Iowa Law Review, 510, 512 (1949)]. One commentator has opined that, "Chapter 85A was remedial legislation intended to ameliorate the proof requirements normally associated with establishing a traumatic injury, and to obviate discrimination against disabled workers whose productivity has been terminated by disease. Shepler, "Occupational Disease Claims," 30 Drake Law Review 841, 841-2 1980-81. Iowa Code section 85A.8 was amended in 1973. Prior to 1973 chapter 85A set forth a list of specific conditions that would constitute occupational diseases. The list of diseases compensable under chapter 85A was contained in section 85A.9. Of the 17 enumerated conditions, eight were types of poisonings; two involved skin diseases from reactions to chemicals of substances; two involved diseases resulting from the handling of animals; two involved exposure to radiant energy; and one involved exposure to a chemical dust. The other condition enumerated was bursitis, synovitis or tenosynovitis or any process/occupation involving continued or repeated pressure on the parts affected. The 1973 amendment struck the references in section 85A.8 to a designated list of diseases and repealed section 85A.9, which set out the list of diseases compensable. The amendment also changed references to silicosis in sections 85A.10, 85A.12 and 85A.13 to refer to pneumoconiosis, a condition defined in section 85A.13 as the characteristic fibrotic condition of the lungs caused by the inhalation of dust particles. Commonly, those sections referred only to silicosis and the inhalation of silica dust particles. Chapter 85A defines occupational disease as follows: Occupational diseases shall be only those diseases which arise out of and in the course of the employee's employment. Such diseases shall have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment. Such disease must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment. Such disease need not have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence. A disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation is not compensable as an occupational disease. Page 9 The definition of occupational disease is set out in Iowa Code section 85A. To prove that claimant is suffering from an occupational disease, she must show by a preponderance of the evidence that the disease: (1) Arises out of and in the course of the employment; (2) Is causally related to exposure to harmful conditions in the field of employment; and (3) That harmful conditions must be more prevalent in the employment concern than in everyday life or in other occupations. If claimant is successful in establishing these elements of an occupational disease, then she must also prove that she has been disabled by the disease. Iowa Code section 85A.4, provides that claimant must be actually incapacitated from performing her work or earning equal wages in other suitable employment as a result of the occupational disease. Doerfer Div. of CCA v. Nichol, 359 N.W.2d 428, 433 (Iowa 1984); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980); Frit Ind. v. Langenwalter, 443 N.W.2d 88, 90 (Iowa Ct. App. 1989). Recently, the industrial commissioner in Noble v. Lamoni Products, file numbers 857575 & 851309 (App. Dec. 1992), defined "disease" which is not defined in chapter 85A. The commissioner specifically stated that "disease" and "injury" were not interchangeable terms, otherwise, all injuries compensable under chapter 85 may also be compensable under chapter 85A as well, contrary to section 85A.14. The commissioner determined that the legislative intent in enacting chapter 85A was to compensate those work-related conditions that result from exposure to various agents that would invade the body and act adversely on it, and which could not be compensated as a traumatic injury under chapter 85. Noble at page 13. Claimant has the burden of proof. To prove the causation element described in section 85A.8, the Iowa Supreme Court in McSpadden, stated that claimant must meet two basic requirements. First, she must show that her disease is causally related to the exposure to harmful conditions in the field of employment in which she was engaged and secondly, that those harmful conditions are more prevalent in the employment concerned than in everyday life or in other occupations. Although McSpadden might be read as eliminating the arising out of and in the course of requirements, the statute clearly retains those elements. The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). 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 Page 10 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 v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). After carefully considering the total evidence in this case, the undersigned concludes that claimant has not met her burden of proof. Claimant has a long and complicated medical history. She has conferred with numerous physicians and has participated in extensive evaluations and testing. Claimant began working in the wash tunnel in 1978. She testified that she began experiencing a multitude of symptoms in 1986 and by 1987 she was convinced that her symptoms were the result of toxic exposure to chemicals at work. This impression was reinforced by Dr. Bertram Carnow in March 1990 but disputed by Dr. Van Cura, Dr. Merchant and Dr. From. Dr. Carnow is convinced that claimant was exposed to a multiplicity of toxic agents and such exposure resulted in multiple organ systems abnormalities and psychological problems. The greater weight of the evidence does not support his conclusions. While it is true that claimant has a dry skin condition, she does not have acute dermatitis. Extensive testing at the University of Iowa Medical Center in November 1989 could find no biological basis for any of her complaints. Psychological evaluations indicate that claimant is prone to exaggerate her physical symptoms and she has been described on more than one occasion as suffering from a somatization or conversion disorder as part of her overall personality. Dr. Van Cura and Dr. From vigorously dispute any suggestion that claimant suffers from chronic chemical poisoning or systemic damage as a result of chronic exposure to a wide range of toxic chemicals. No physician has been able to explain the black discharge from her breasts or her green colored perspiration. Causation cannot be established by conjecture or possibility. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). In evidence are the depositions of Dr. Paul From and Dr. Bertram Carnow. Dr. From was asked to review a statement made by Dr. Carnow on June 25, 1990, to claimant's attorney (deposition ex. 13, p. 18). The statement reads, "As a result of the chronic chemical poisoning, she is suffering damage to, and dysfunction of, multiple organ systems, particularly of the brain and central nervous system but also of the peripheral nervous system, the immune system, liver metabolism and perhaps, others." During the course of his deposition, Dr. From was asked the following questions: Q. Doctor, in the course of your practice, have you diagnosed or have you observed any patients who you believed to be suffering from chronic poisoning from exposure to any of the four compounds that are mentioned in the first paragraph of your March 24, 1992, letter, which is Page 11 Exhibit 12? A. I have not seen any that I can recall of those particular four products, no, sir. Q. Was there anything in the information that you obtained from Janet Meyers that -- or that you had an opportunity to review that suggested to you that she may have been overexposed to any toxic chemicals in the course of her work with UPS? A. From an objective standpoint in going over her history of subjective complaints with what I did, what I observed in the laboratory, from various physicians who had often repeated many of the studies that I already did -- that I had done, I could conclude that there seemed to be nothing about the symptomatology and the exposure to which she complained and what could be objectively found. (exhibit 13, pages 38-40) Dr. From testified that when he examined claimant on November 12, 1990, claimant did not complain of any irritation to her eyes; burning, irritation in swallowing, dryness, swelling or any symptoms of upper gastrointestinal tract problems; shortness of breath, coughing, wheezing, or other respiratory tract symptoms. Dr. From testified that there was no objective evidence to indicate that claimant's neurological system was impaired in any way. Finally, Dr. From agreed with Dr. Van Cura that immune-electrophoresis performed by Metpath, a national laboratory, was entirely within normal limits, indicating that she has no damage or dysfunction to her immune system (ex. 13, pp. 65-69). Dr. Carnow, in his deposition dated July 6, 1992, stated that claimant's exposure to the chelating agent, to sodium hydroxide, to alcohols, and a host of unknown chemicals, resulted in liver dysfunction, peripheral polyneuropathy, central nervous system damage, memory problems, profound fatigue, headaches, organic brain damage and depression (ex. 2, pp. 32-34). However, these findings are not supported by the totality of the objective medical evidence. Dr. Carnow indicated that claimant's pulmonary function tests were normal and her chest x-ray was negative (ex. 2, p. 40). A specimen of the black fluid was tested at Metpath for chemical content and the results were negative (ex. 2, pp. 62-64). Finally, Dr. Carnow stated that the following laboratory tests were all normal, bilirubin, total protein, globulins, immunoglobulins, chem-screen (except for depressed albumin), liver enzymes, immunofixation of the serum (except for borderline abnormal low total protein), and nerve conduction velocity (ex. 2, pp. 75-79). Thus, the undersigned finds that the greater weight of the evidence does not support claimant's contentions that she is suffering from chronic exposure to a wide range of Page 12 toxic chemicals which has resulted in multiple organ system abnormalities. Accordingly, she has failed to prove by a preponderance of the evidence that she has sustained an occupational disease as a result of her employment with employer. On February 27, 1992, claimant amended her original notice and petition and alleging emotional and/or psychological injuries. Claimant bears the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). The standard for determining whether a mental injury arose out of and in the course of employment was recently discussed in Ohnemus v. John Deere Davenport Works, File No. 816947 (App. Decn., February 26, 1990) and Kelley v. Sheffield Care Center, File No. 872737 (App. Decn., October 31, 1991) as follows: In order to prevail claimant must prove that he suffered a non-traumatically caused mental injury that arose out of and in the course of his employment. This matter deals with what is referred to as a mental-mental injury and does not deal with a mental condition caused by physical trauma or physical condition caused by mental stimulus. The supreme court in Schreckengast v. Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), recognized that issues of causation can involve either causation in fact or legal causation. As stated in footnote 3 at 369 N.W.2d 810: We have recognized that in both civil and criminal actions causation in fact involves whether a particular event in fact caused certain consequences to occur. Legal causation presents a question of whether the policy of the law will extend responsibility to those consequences which have in fact been produced by that event. State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Causation in fact presents an issue of fact while legal causation presents an issue of law. Id. That language was the basis of the language in Desgranges v. Dept of Human Services, (Appeal Decision, August 19, 1988) which discussed that there must be both medical and legal causation for a nontraumatic mental injury to arise out of and in the course of employment. While Desgranges used the term medical causation the concept involved was factual causation. Therefore, in this matter it is necessary for two issues to be resolved before finding an injury arising out of and in the course of employment - factual and legal causation. Proving the factual existence of Page 13 an injury may be accomplished by either expert testimony or nonexpert testimony. .... Not only must claimant prove that his work was the factual cause of his mental injury, claimant must also prove that the legal cause of his injury was his work. In order to prove this legal causation claimant must prove that his temporary mental condition "resulted from a situation of greater dimensions than the day to day mental stresses and tensions which all employees must experience." Swiss Colony v. Department of ICAR, 240 N.W.2d 128, 130 (Wisc. 1976). Kelley v. Sheffield Care Center, File No. 872737 (App. Decn., October 31, 1991). Claimant's mental state was referred to by Dr. Van Cura on November 18, 1988. He noted, "The patient appeared to have a normal emotional response during my time with her. She did not appear abnormally depressed nor excited. She seemed quite intelligent and very organized." (ex. 5a, p. 5). On October 27, 1989, claimant was administered an MMPI and sentence completion forms while a patient at the Bettendorf Physical Therapy Center. The MMPI strongly suggested the presence of a histrionic or passive-aggressive personality disorder with a strong possibility of a conversion disorder or somatization disorder present (ex. 9, pp. 29-30). Neuropsychological testing was performed by Robert Wilson, Ph.D, on March 26, 1990. Intelligence testing on the Wechsler Adult Intelligence Scale revealed a verbal IQ score of 98, a performance IQ score of 110 and a full-scale IQ score of 102. Dr. Wilson, without explanation, reported that claimant suffers a diffuse encephalopathy or brain damage (deposition ex. 2, p. 56). Using this report, Dr. Carnow concluded that claimant has an impaired ability to concentrate and clear deficits of attention, fine motor speed and coordination (deposition ex. 2, pp. 21 & 56-57). This was not evident at the hearing. Claimant was able to tolerate two hours of sustained questioning and answered all questions in a logical and concise manner. On April 18, 1991, when claimant presented to Dr. Collins with complaints of chest pain and depression, he referred her to Work Well Occupational Center for further evaluation. When a cardiac stress test showed no evidence of ischemic changes, claimant was referred to Dr. Campbell for psychiatric evaluation. It was Dr. Campbell's impression that claimant's acute episode of chest pain was probably a panic reaction and that her problems may be related to a somatization disorder. He was reticent to make a definite diagnosis but felt that she could return to work without restriction (ex. 12a, p. 5). The evidence indicates that claimant probably has a lifetime personality disorder. Dr. Collins and Dr. Carnow opined that work stressors caused claimant's depression. In Page 14 view of claimant's underlying personality disorder, as disclosed by MMPI testing, her reported perceptions of unfair and discriminatory treatment by employer, this opinion may be valid. However, whether such resulted in an acute anxiety disorder, depression, somatiform disorder and histrionic personality disorder is questionable. Nevertheless, even if claimant's perception of work place stressors was an aggravating factor in the progressive development of her mental deterioration, this only constitutes "causation in fact and does not prove causation in law." To meet that test, claimant must show a situation of greater dimensions than the day-to-day mental stressors intentions which all employees must experience. All employment involves a degree of stress, although the particulars vary widely from job to job. Claimant has not shown a situation of greater dimensions than the day-to-day mental stressors and tensions which all employees must experience. Claimant testified, without being specific, "It got so bad I could not tolerate it any longer." She voluntarily quit her job in May 1992. Medical evidence on this causation issue was not presented. If, in fact, claimant was driven to quit her job due to stress and whether that stress caused her mental condition is not clearly ascertainable from the medical evidence. What is clear is that claimant suffers from a long-term personality disorder with a tendency to exaggerate physical problems. These tendencies cannot be attributed to her employment. Accordingly, claimant has not met her burden of proof that her work environment was either the factual or legal cause of her alleged mental injury. There are virtually no objective findings to substantiate her claim of emotional and/or psychological work injuries. Claimant has not proved by a preponderance of the evidence that she suffered a nontraumatically caused mental injury that arose out of and in the course of her employment with employer. The above determinations are dispositive of the entire case and further analysis is unnecessary. ORDER THEREFORE, IT IS ORDERED: Claimant shall take nothing from these proceedings. The parties shall pay their own costs pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of September, 1992. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Page 15 Copies to: Mr. Earl A. Payson Attorney at Law 126 Kirkwood Blvd Davenport, IA 52803 Ms. M. Leanne Tyler Attorney at Law 1503 Brady St. Davenport, IA 52803 Ms. Deborah Dubik Mr. Greg Egbers Attorneys at Law 600 Union Arcade Bldg 111 E. 3rd St. Davenport, IA 52801 2203 2204 Filed September 1, 1992 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ JANET E. MEYERS, Claimant, vs. File No. 888380 UNITED PARCEL SERVICE, 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. ___________________________________________________________ 2203 Claimant has not shown by a preponderance of the evidence that she has suffered from chronic exposure to a wide range of toxic chemicals while in the employ of employer which has resulted in multiple organ system abnormalities. 2204 Claimant has not proved by a preponderance of the evidence that she has suffered a nontraumatically caused mental injury that arose out of and in the course of her employment with employer. Page 1 before the iowa industrial commissioner ____________________________________________________________ : DARVIN M. BOBST, : : Claimant, : : vs. : : File No. 888438 VIKING PUMP, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by the claimant, Darvin M. Bobst, against his employer, Viking Pump, Inc., and its insurance carrier, Liberty Mutual Insurance Company, to recover benefits as a result of an injury allegedly sustained on August 1, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner at Waterloo, Iowa, on November 25, 1991. A first report of injury has been filed. The record consists of joint exhibits 1 through 21 as well as the testimony of claimant, of Mark Durst, of John Hanna, of Lynette Bobst, of Donald Knudsen, and of Walter V. Cuvelier. issues Pursuant to the prehearing report and the oral stipulations of the parties at hearing, the parties have agreed that the provider of medical services would testify that services were reasonable and necessary treatment for the condition treated and that the medical costs were fair and reasonable and defendants will not offer contrary evidence. The parties further stipulated that claimant was off work from August 10, 1988, through August 14, 1988, and from February 13, 1989, through September 17, 1989, with a light-duty work return on July 9, 1989 to full-time work return on September 18, 1989. The parties also stipulated that claimant had a gross weekly wage of $496.00 when injured and was married and entitled to four exemptions, creating a rate of weekly compensation of $315.09. They further agreed that claimant has received two-sevenths of a week of benefits totalling $83.49. Issues remaining to be decided are: 1. Whether claimant received an injury which arose out Page 2 of and in the course of his employment on the alleged injury date; 2. Whether a causal relationship exists between the alleged injury and claimed benefits; 3. Whether claimant is entitled to benefits and the nature and extent of any benefit entitlement; 4. Whether claimant is entitled to payment of certain medical costs pursuant to section 85.27; 5. Whether claimant is entitled to additional benefits under section 86.13, unnumbered paragraph 4, for unreasonable delay or denial of benefits; and, 6. Whether defendants are entitled to a credit in the amount of $3,700.00 for sick pay and disability benefits paid claimant pursuant to section 85.38(2). findings of fact The deputy, having heard the testimony and reviewed the documentary evidence, finds: The claimant is 46-year-old married gentleman who has completed tenth grade. He has also taken several welding classes to assist him in his job at Viking Pump. Claimant's welding training has been predominantly on the job, however. Claimant worked a variety of unskilled jobs before beginning work as a production welder at Viking Pump in 1968. Claimant has remained employed with Viking Pump since that time, initially working as a production welder and later as a maintenance welder. Subsequent to his August 1, 1988, injury and his surgery, claimant was unable to perform as a maintenance welder. Claimant currently runs a small mill putting a key way into a shaft used to power a pump. Eighty to ninety percent of the lifting involved is under 20 pounds; mechanical assistance is available for lifting over 20 pounds. Claimant stands throughout the day. At the end of the day, his hips ache and his legs are weak. Claimant has not reached any pain level which he cannot tolerate, however. On August 1, 1988, claimant was working in a stooped stance in the research and development lab test tank. He had to position by hand 3/4 inch steel pieces weighing 50-60 pounds. Claimant experienced pain and then severe "charley horses" in the back of his legs. The Viking Pump nurse referred claimant to Steven W. Tarr, M.D., who subsequently referred him to Arnold E. Delbridge, M.D., an orthopaedic physician. Dr. Delbridge had previously treated claimant for low back problems. A myelogram of October 3, 1984, had shown lumbar disc syndrome. Dr. Delbridge had then performed discograms and chymodiactin injections of the L4/L5 and L5/S1 disc spaces. Dr. Delbridge performed surgery on February 13, 1989, which surgery revealed disc herniation at both the L5/S1 and L4/L5 levels. The disc material found at L5/S1 was basically hard; free fragments were also found. Dr. Delbridge indicated the latter were Page 3 likely from the L4/L5 disc space. The doctor opined the free fragments likely represented a recent herniation, which herniation likely occurred or was related to the August 1, 1988, work incident. Dr. Delbridge previously had opined that, given that claimant's back pain increased markedly after having been bent over several days at work without a chance to straighten up, the acute pain produced in August 1988 could very well be considered work related. As defendants have offered no countervailing evidence but for claimant's previous low back episodes of which Dr. Delbridge was aware, Dr. Delbridge's opinions are accepted. On May 12, 1990, Dr. Delbridge instructed claimant not to work Saturdays for at least six months to a year. At time of hearing, claimant apparently was still not routinely working Saturdays. Dr. Delbridge returned claimant to full-time work on July 9, 1990, with a 25-pound lifting restriction. Also, on July 9, 1990, Dr. Delbridge opined that claimant was at maximum medical healing and had a permanent partial impairment of 17 percent of the body as a whole. Dr. Delbridge related 6 percent of such to the August 1988 injury and 7 percent to the chymodiactin injections in 1984. Dr. Delbridge's testimony relative to the August 1988 work activities producing claimant's herniated disc and his need for surgery in February 1989 is uncontroverted and is accepted. It is noted that chiropractors David E. Vorland, D.C., and L. C. Knutson, D.C., treated claimant for a variety of problems including lumbar, thoracic and cervical back pain from 1977 through 1985. Those facts, like Dr. Delbridge's treatment of claimant in 1985, establish that claimant had a preexisting condition. They do not counter Dr. Delbridge's opinion testimony and his objective findings at surgery which support that claimant had an actual work injury in August 1988, however. Claimant testified that most other jobs he would be able to perform at Viking Pump are not full-time jobs but are jobs available for only one or two days and generally performed by utility workers. Claimant earns approximately $.25 per hour less than his earnings as a maintenance welder. Walter V. Cuvelier, factory manager at Viking Pump, indicated that, even if claimant should experience a 25 percent decline in his work load at his machine (a possibility to which claimant alluded), claimant would be provided with other work within his restrictions. Cuvelier stated and it is accepted that 6-8 jobs have opened up in the past year that are within claimant's restrictions, all at approximately the same pay rate. Cuvelier admitted that not all of them would be on the first shift, the shift claimant has customarily worked and prefers. Cuvelier indicated that Viking Pump has no current plans for layoffs and, if layoffs were to happen, the least senior people would be laid off first. He characterized claimant with 24 years of work time as having "a lot of seniority." Cuvelier stated, and it is accepted, that Viking has been in operation since 1911 and is a stable business unlikely to close its doors. Page 4 Claimant testified that he can no longer ride motorcycles subsequent to his August 1988 work injury. A note of Dr. Delbridge of November 31, 1978, indicates that a chiropractic physician, Dr. Miller, had advised claimant not to ride his motorcycle the previous summer. The note further states that claimant had sold his cycle subsequent to that advice. Claimant's testimony that he routinely rode motorcycles in the time between 1978 and 1988 is found to be entitled to little weight, therefore. Likewise, claimant's testimony that he saw chiropractic physicians for his shoulder and not for his back is found not credible as it is not supported by the chiropractic records in evidence. It is accepted that claimant can no longer roller skate, cannot dance without leg problems, and has problems doing gardening and yard work as well as doing vehicle maintenance and home maintenance. Given claimant's significant preexisting problems, however, and given claimant's tendency to overstate which of his problems actually began subsequent to August 1988, such limitations are given less weight in assessing the actual physical disabilities which developed subsequent to August 1988, however. Thomas W. Magner, a certified rehabilitation consultant, evaluated claimant and indicated that he estimated an industrial disability of "close to" 60 percent as the result of claimant's limitations, age, lack of transferrable skills, lack of education and reading problems. Magner accepted the characterization by claimant and claimant's spouse that he likely has a learning disability. Magner also reported that claimant has congenital near blindness in the left eye. Magner's estimate of claimant's industrial disability is given less weight in that Magner does not appear to have considered the fact that claimant's employer has returned claimant to work, has worked with claimant in finding jobs within claimant's limitations, and represents a stable, long-term employer with whom claimant has had an apparently satisfactory work relationship for 24 years. Claimant has seen Glen L. Groothuis, D.C., from December 29, 1989, through October 1, 1991, for treatment of lumbalgia, facet syndrome and thoracic spine myalgia. The record does not causally relate claimant's treatment with Dr. Groothuis to the August 1988 work injury. Claimant has submitted medical charges with Cedar Valley Physical Therapy in the amount of $1,128.25. The record reflects that Dr. Delbridge prescribed physical therapy for claimant subsequent to his surgery. Charges are also submitted with Dr. Delbridge in the amount of $3,174.00 all subsequent to and found related to the August 1988 work incident. Additional charge of $693.00 is submitted for Beth H. Penrose, M.D., an anesthesiologist, for services rendered on February 13, 1989, the date of claimant's surgery. Such is found causally related to claimant's August 1988 work injury. conclusions of law Page 5 Our first concern is whether claimant received an injury arising out of and in the course of his employment. The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). Claimant has established an injury arising out of his employment. Claimant had a work incident that extended over several days in early August 1988. Dr. Delbridge has indicated that the finding of fresh soft fragments at surgery on February 13, 1989, made it probable that the work incident produced claimant's new problems which required surgical intervention. Our next concerns are causation and temporary benefit entitlement. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted Page 6 or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Additionally, a worker who accepts suitable work while temporarily partially disabled shall be appropriately compensated with temporary partial benefits. Section 85.33 (2) and (3). Again, claimant prevails. Dr. Delbridge's uncontroverted testimony once again establishes causal relationship between claimant's August 1988 work injury and his claimed disabilities. It is noted that Dr. Delbridge has causally related claimant's need for surgery with his August 1988 work incident. Claimant therefore is entitled to healing period benefits from August 10, 1988, through August 14, 1988, as well as from February 13, 1989, through July 9, 1989. The parties stipulated that claimant was on light duty and the record reflects that claimant was on part-time duty from July 9, 1989, through August 17, 1989. Claimant is therefore entitled to temporary partial disability benefits for that time as provided in the statute. We reach the question of industrial disability entitlement, if any. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." 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, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Apportionment of disability between a preexisting condition and an injury is proper only when some ascertainable portion of the ultimate industrial disability existed independently before an 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). The burden of showing that disability is attributable to a preexisting condition is placed upon the defendant. Where evidence to establish a proper apportionment is Page 7 absent, the defendant is responsible for the entire disability that exists. Bearce, 465 N.W.2d at 536-37; Sumner, 353 N.W.2d at 410-11. 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. As noted, Dr. Delbridge has attributed six percent of claimant's overall permanent partial impairment to his August 1988 work injury. That allocation appears consistent with the factual record in that claimant obviously had problems requiring either chiropractic or medical intervention from at least 1977 onward. Claimant's previous problems did not require any change in his work activities, however. Hence, apportionment of industrial disability is not appropriate. Having so said, we consider claimant's appropriate industrial disability entitlement. Claimant has a 25-pound work restriction. That restriction required him to leave his established job of maintenance welder. Doing so caused a $.25 per hour wage loss. Additionally, claimant is permitted to work only an occasional Saturday. That also has produced an impact upon claimant's actual wages earned. Those factors appear to be most important in assessing claimant's industrial disability in this case. This is true in that the employer has retained claimant, albeit with a work transfer, and remains committed to retaining claimant. Additionally, the employer is a long-term employer of claimant's and is a well-established entity in the local industrial community. Given the long-term satisfactory relationship between claimant and employer and the employer's commitment to retaining claimant, it does not appear likely that claimant will need to transfer to another employer. For that reason, claimant's loss of job mobility is given less weight than it might otherwise be given. When the loss of hourly wages, the loss of the ability to work routinely on Saturdays and the 25-pound weight restriction are all considered in balance with claimant's likelihood of stable employment, it is found that claimant has sustained a loss of earning capacity of 20 percent of the body as a whole, entitling him to 100 weeks of permanent partial disability benefits. We reach the question of whether claimant is entitled to additional benefits under section 86.13, unnumbered paragraph 4, for unreasonable delay or denial of benefits. Section 86.13 permits an award of up to 50 percent of the amount of benefits delayed or denied if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse. The standard for evaluating the reasonableness of defendants' delay in commencement or termination is whether the claim is fairly debatable. Where a claim is shown to be fairly debatable, defendants do not act unreasonably in denying payment. See Stanley v. Wilson Foods Corp., File No. 753405 (App. August Page 8 23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 818849 (App. November 1, 1989). Early on, some question existed as to whether claimant had had a work-related injury. Dr. Delbridge's early correspondence with the company and the insurance carrier so reflects. After claimant's February 13, 1989, surgery, however, Dr. Delbridge clearly related claimant's condition and his need for surgery to the work incident in August 1988. Defendants have produced no viable evidence contradicting Dr. Delbridge's opinion testimony in this regard. Dr. Delbridge had long treated claimant and had great familiarity with his overall medical history. Given that, it cannot be said that defendants reasonably denied claimant benefits after Dr. Delbridge's clear opinion testimony supported by objective findings at time of surgery was rendered on March 6, 1989. Claimant is entitled to a penalty of 50 percent of healing period and temporary partial disability benefits owed between March 6, 1989, and September 17, 1989. On July 9, 1990, Dr. Delbridge indicated that six percent of claimant's permanent partial impairment related to his August 1988 injury. Given claimant's secure work position, however, and the employer's willingness to retain claimant, it cannot be said that defendants did not reasonably believe that a fair question existed as to whether claimant would be entitled to permanent partial disability benefits. Therefore, claimant is not entitled to a penalty relative to any amount of permanent partial industrial disability awarded. We reach the question of defendants' entitlement to a credit under section 85.38(2). Defendants seek a credit of $3,700.00 for previous payment of sick pay and disability income. Defendants are apparently asserting that the benefits would not have been paid had claimant been entitled to workers' compensation. Section 85.38(2). The record is largely silent in that regard. Claimant, however, has not offered evidence showing that the benefits would have been paid in addition to workers' compensation benefits. In most cases, such benefits are not paid in addition to workers' compensation benefits. Given that claimant has not offered evidence indicating that they would have been paid in addition to workers' compensation benefits, defendants are found entitled to the credit sought in the amount of $3,700.00. Claimant seeks payment of medical costs under section 85.27. It is noted that claimant did not submit an itemized list of medical costs seeking to be recovered as required under the hearing assignment order. Given such, the undersigned has had some difficulty discerning those costs for which recovery is sought. Defendants, of course, are required to provide payment for all charges related to compensable injury. Section 85.27. As noted in the above Findings of Fact, the record does not support that the care received with Dr. Groothuis subsequent to August 1988 relates to claimant's compensable injury. The record does Page 9 demonstrate that claimant's physical therapy with Cedar Valley Physical Therapy, his treatment with Dr. Delbridge and his services with anesthesiologist Penrose do relate to his compensable injury. Claimant is entitled to recovery of those costs as delineated in the Order below. order THEREFORE, IT IS ORDERED: Defendants pay claimant healing period benefits at the rate of three hundred fifteen and 09/100 dollars ($315.09) per week from August 10, 1988, through August 14, 1988, and from February 13, 1989, through July 8, 1989. Defendants pay claimant temporary partial disability benefits from July 9, 1989, through September 17, 1989, at the appropriate rate given the hours claimant worked each week. Defendants pay claimant permanent partial disability benefits for one hundred (100) weeks at the rate of three hundred fifteen and 09/100 dollars ($315.09) per week with such benefits to commence on September 18, 1989. Defendants pay claimant additional benefits pursuant to section 86.13(4) in the amount of fifty percent (50%) of benefits due from March 6, 1989, through September 17, 1989. Defendants pay accrued amounts in a lump sum. Defendants pay interest pursuant to Iowa Code section 85.30. Defendants pay claimant the following medical expenses: Cedar Valley Physical Therapy, P.C. $ 1,128.25 Arnold E. Delbridge, M.D. 3,174.00 Beth H. Penrose, M.D. 693.00 Total $ 4,995.25 Defendants receive a credit in the amount of three thousand seven hundred and 00/100 dollars ($3,700.00) for sick pay disability income paid claimant. Defendants pay the costs of this action pursuant to rule 343 IAC 4.33. Defendants file claim activity reports as required by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Page 10 Copies To: Mr. William S. Smith Attorney at Law 501 Sycamore P.O. Box 1947 Waterloo, Iowa 50704 Mr. Jeffrey J. Greenwood Attorney at Law 528 West Fourth Street P.O. Box 1200 Waterloo, Iowa 50704 5-1100; 1108; 1801.1 1803; 4000.2 Filed February 26, 1992 HELENJEAN M. WALLESER before the iowa industrial commissioner ____________________________________________________________ : DARVIN M. BOBST, : : Claimant, : : vs. : : File No. 888438 VIKING PUMP, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : LIBERTY MUTUAL INSURANCE, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1100; 1108 Uncontroverted medical evidence established that claimant sustained a work injury and related disability. Fact of preexisting condition without more was insufficient to override uncontroverted opinion of treating physician. 1803 Claimant, with 17 percent body as a whole permanent partial impairment, 6 percent of which treating physician related to work injury, whose lifting was restricted to 25 pounds and who was permitted to work Saturdays only occasionally and who required a job transfer albeit with the employer subsequent to injury, awarded 20 percent permanent partial disability. Claimant had 24 years seniority and satisfactory employment relationship with stable employer that had existed since 1911 and was committed to retaining claimant. 4000.2; 1801.1 Claimant awarded 50 percent penalty benefits from time treating physician issued report relating claimant's condition and subsequent surgery to the work incident until the date claimant returned to full-duty work. Period included several months where claimant worked part time under doctor's supervision for which temporary partial benefits were awarded.