Page 1 Before the iowa industrial commissioner ____________________________________________________________ : CATHY DeKEYREL, : : Claimant, : : vs. : : File No. 892048 MASON & HANGER-SILAS MASON CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE COMPANY,: : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Cathy DeKeyrel, claimant, against Mason & Hanger-Silas Mason Company, employer (hereinafter referred to as M & H), and The Travelers Insurance Company, insurance carrier, defen dants, for workers' compensation benefits as a result of an alleged injury on February 1, 1988. On January 14, 1992, 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 con tested issues and stipulations contained herein which were approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. On February 1, 1988, claimant received an injury arising out of and in the course of employment with M & H. 2. Claimant is seeking temporary total or healing period benefits from May 20, 1991 through August 15, 1991 and defendants agree that she was not working at this time. Benefits have been paid for time off work prior to 1991. 3. Claimant's rate of weekly compensation is $225.58 based upon a stipulated gross rate of $353.20, three exemp tions and single status. (The original stipulated rate was not consistent with the commissioner's published rate booklet) 4. All requested medical benefits have been or will be paid by defendants. Page 2 ISSUES The only issue submitted by the parties for determina tion in this proceeding is the extent of claimant's entitle ment to disability benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: Claimant has worked for M & H at its ammunition plant near Burlington, Iowa since September 1986. Claimant con tinues to work at this plant at the current time. During her employment, she has always been assigned to production labor work. At the time of the work injury herein, claimant had been performing a job called "subdividing" for approxi mately 14 months. This job involved the repetitive use of her hands and arms in the bagging of "sticks" which are approximately the diameter of a lead pencil and one foot long. Plastic bags filled with these sticks are then placed into a bucket. When full, the bucket was placed onto a roller conveyor behind claimant's work station. Claimant testified that she was a fast worker and this was not challenged by defendants in the record. At the time of her injury, claimant earned approximately $8.80 per hour. Claimant currently is paid $9.60 per hour. Despite imposi tion of permanent work restrictions, claimant returned to work after her injury performing various jobs, including janitor work pushing a broom, work in "jay bay" placing small parts into a machine, her former job of subdividing, inspection work and recently a new job of soldering. Claimant's supervisor, during her inspection work, testified she was performing the job well but had recently been bumped to the soldering job. At the time of hearing, she has been performing this work for only a few days. The injury herein consists of a cumulative trauma or overuse syndrome of both of her wrists and arms occurring over a long period of time. However, the injury to both wrists occurred simultaneously over the same period of time from a single accident or injury process. The injury is limited to the arms and does not extent into the body as a whole. The parties stipulated as to the date of injury. Claimant first began having problems with her wrists and arms in January 1987. This initial event ended and then recurred in April 1987. Then beginning in February 1988, claimant's wrist and arm problems began again and became chronic. These problems continue at the present time. Claimant was initially treated by physicians at the field hospital at the ammunition plant for bilateral wrist and arm pain radiating into the shoulders. In June 1988, she was referred for treatment to an orthopedic surgeon, Michael W. Hendricks, M.D. Upon a diagnosis of bilateral carpal tunnel syndrome of the wrists and cubital tunnel syn Page 3 drome of the elbows, Dr. Hendricks treated claimant conser vatively at first. However, in July 1988 he performed a surgical carpal tunnel release of the left wrist and trans position of the ulnar nerve in the left elbow. A few months later he performed a release of the carpal and cubital tun nels on the right wrist and elbow. Claimant returned to work after recovery from these surgeries on December 12, 1988, with permanent restrictions against subdividing type of work and against repetitive motion of the hands and arms without rotation of jobs every two hours. Since her return to work in December 1988, claimant continues to experience wrist and arm pain radiating into the shoulders and neck. In February 1989, Dr. Hendricks diagnosed bilateral medial epicondylitis or tennis elbow and prescribed a splint. Claimant also wears wrist splints at the present time. In January 1991, Dr. Hendricks diagnosed early spondylosis of the cervical spine and prescribed use of a neck collar. At that time, claimant was complaining of neck and low back pain with headaches along with her bilat eral arm pain. In March 1991, Dr. Hendricks opined that claimant suffers from a five percent permanent partial impairment to each of her arms as a result of the bilateral wrist and elbow problems or a total body as a whole impair ment of six percent. Dr. Hendricks states that his rating is based upon the AMA guidelines. Claimant reached maximum healing in March 1991 at the time she was rated by Dr. Hendricks. On May 20, 1991, claimant was compelled again to leave work as a result of her wrist and arm injuries of February 1, 1988, upon the advise of Dr. Hendricks. Although this absence from work was due to the work she was performing immediately prior to May 20, 1991 and probably constitutes a new work injury, this new injury was an aggravation of the prior injury of February 1, 1988 and the resulting disability in 1991 is causally connected to the February 1, 1988 injury. Although she only saw Dr. Hendricks on a couple of occasions during this absence from work, he clearly released her from work due to worsened symptoms from the prior bilateral carpal tunnel and cubital problems. Absence from work is a treat ment modality. When she improved, claimant was released to return to work on August 15, 1991, under the same restric tions as imposed at the time of her return to work following the earlier February 1, 1988 injury. While she was off work during the summer of 1991, claimant was evaluated by physicians at the University of Iowa Hospitals and Clinics in May 1991. These physicians confirmed that claimant suffers from a cumulative trauma disorder. In July 1991, claimant was evaluated by a neurol ogist, Richard F. Neiman, M.D., who opined that claimant has overuse syndrome of the left hand. As a result of the work injury of February 1, 1988, claimant has a five percent permanent impairment to each arm which converts to a total body as a whole impairment of six percent. This finding is based upon the uncontroverted views of Dr. Hendricks. It is clear from the record and the additional opinions obtained by claimant that this was an Page 4 overuse syndrome caused by her repetitive work at M & H. Also, due to her injuries claimant is unable to perform without significant pain from physical activities consisting of repetitive use of her hands and arms. All of her physi cians recommend that she no longer engage in factory produc tion work involving repetitive use of her hands. In all likelihood, these symptoms will continue if she remains in production work. However, despite the recommendations of her physicians, claimant chooses to continue such work despite the pain. She enjoys the work and its compensation. She has a very admirable work ethic. Unfortunately her disability which limits her work and her strong work ethic to continue work ing has combined to cause her emotional difficulties which were apparent during the hearing. These emotional difficul ties recognized by her physicians are also work-related and probably should receive greater attention by her physicians. There is no opinion in the record from Dr. Hendricks or any other physician that claimant suffers permanent impair ment or injury as a result of the shoulder and neck pain. Consequently, it could not be found that the injury of February 1, 1988, extends beyond the arm. In February 1991, Michael Paul, D.O., another orthopedic surgeon, opined that claimant's condition is thoracic outlet syndrome of the upper mid torso rather than a cervical spine problem, appar ently disagreeing with Dr. Hendricks. Dr. Hendricks' views are given the greater weight due to his greater involvement in claimant's case. Claimant was treated and evaluated by a chiropractor on two occasions in April and May 1991 who made reference to back problems. He recommended further treatment but claimant did not return to the chiropractor. Again, the views of Dr. Hendricks are given greater weight Page 5 over those of the chiropractor. Dr. Neiman and the physi cians at the University of Iowa support Dr. Hendricks' views. Finally, it could not be found that claimant suffered a total loss of earning capacity as a result of her injury on February 1, 1988. Claimant is 34 years of age and has suf fered no actual loss of earnings as a result of the injury other than her absences from work during recovery which were compensated above. Although it may be difficult for claimant to continue working at M & H, she continues to do so, even working overtime when it is available. CONCLUSIONS OF LAW It is not necessary that claimant prove her disability results from a sudden unexpected traumatic event. It is sufficient to show that the disability developed gradually or progressively from work activity over a period of time. McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 (Iowa 1985). The McKeever Court also held that the date of injury in gradual injury cases is the time when pain prevents the employee from continuing to work. In McKeever the injury date coincided with the time claimant was finally compelled to give up his job. This date was then used by the Court to determine rate and the timeliness of claimant's claim under Iowa Code section 85.26 and notice under Iowa Code section 85.23. In the case sub judice, the date of injury was moot due to the parties' stipulation. Claimant must establish by a preponderance of the evi dence the extent of weekly benefits for permanent disability to which she is entitled. As the claimant has shown that the work injury involved a permanent impairment to two upper extremities from a single accident, the extent of disability is measured pursuant to Iowa Code section 85.34(2)(s). Measurement of disability under this subsection is peculiar. Normally, if the injury is to only an extremity, the amount of disability is measured functionally as a percent age of loss of use which is then multiplied by the maximum allowable weeks of compensation allowed for that scheduled member set forth in Iowa Code sections, 85.34(2)(a-r) to arrive at the permanent disability benefit entitlement. These disabilities are termed a "scheduled member" disabili ties. Barton v. Nevada Poultry Company, 253 Iowa 285, 110 N.W.2d 660 (1961). "Loss of use" of a member is equivalent to "loss" of the member. Moses v. National Union C.M. Co., 184 N.W. 746 (1922). For all other injuries including those to the body as a whole, the degree of permanent disability is measured pursuant to Iowa Code section 85.34(2)(u). Unlike scheduled member disabilities, the degree of disabil ity under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or Page 6 may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, imme diately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963); Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). Under Iowa Code section 85.34(2)(s), this agency must first determine the extent of industrial disability or loss of earning capacity caused by the two simultaneous injuries. If the injury caused a loss of earning capacity that is less than total or 100 percent, then the extent of the permanent disability is measured only functionally as a percentage of loss of use for each extremity which is then translated into a percentage of the body as a whole and combined together into one body as a whole value. This is accomplished, as done in this case by Dr. Hendricks, using the AMA guides. If the industrial disability is total or there is a total loss of earning capacity, then claimant is entitled to per manent total disability benefits under Iowa Code section 85.34(3). See Simbro v. DeLong's Sportswear 332 N.W.2d 886 (Iowa 1983); Burgett v. Man An So Corp., 3 Ia Ind Comm Rep 38 (Appeal Decision 1982). In the case sub judice, it was found that claimant had not suffered a total loss of earning capacity, consequently her entitlement to permanent disability benefits is measured functionally. Based upon a finding of a combined six percent impairment to the body as a whole as a result of permanent injury to both arms, claimant is entitled as a matter of law to 30 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(s) which is six percent of the 500 weeks allowable for a simultaneous injury to two extremities in that subsection. This may appear to be a rather low entitlement to per manent benefits but Dr. Hendricks' uncontroverted rating was low. This deputy commissioner must give weight to Dr. Hendricks' views especially when he states that he used the AMA guides to arrive at the rating. Claimant's entitlement to permanent partial disability also entitles her to weekly benefits for healing period under Iowa Code section 85.34 from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the Page 7 work she was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. In the case at bar, claimant was off work a second time due to her work-related carpal tunnel and cubital tunnel arm problems occurring after more repetitive work at M & H. This absence was clearly precipitated by a new injury occur ring just prior to her absence on May 20, 1991. However, this was an aggravation injury of the February 1, 1988 injury and causally related to this prior injury and com pensable as a result of the earlier injury. See Lawyer & Higgs, Iowa Workers' Compensation--Law and Practice, section 4-4, pp. 23-24. Whether or not the new injury could affect the rate of compensation for this period of absence is moot as the parties stipulated as to the applicable rate for the claimed disabilities in this case. Consequently, whether or not you consider the absence beginning on May 20, 1991, as a new injury or an aggravation of an old injury, the absence is compensable at the same weekly rate. In cumulative trauma cases, this agency may choose an injury date in cumu lative trauma cases different than those alleged. McCoy v. Donaldson Company, Inc., Case No. 752670, (Appeal Decision Filed April 28, 1989). ORDER 1. Defendants shall pay to claimant thirty (30) weeks of permanent partial disability benefits at a rate of two hundred twenty-five and 58/l00 dollars($225.58) per week from December 12, 1988. 2. Defendants shall pay to claimant temporary total disability benefits from May 20, 1991 through August 15, 1991, at the rate of two hundred twenty-five and 58/l00 dollars ($225.58) per week. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for benefits previously paid. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pur suant to Rule 343 IAC 4.33 set forth in the prehearing report, including reimbursement to claimant for any filing fee paid in this matter. 6. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to Rule 343 IAC 3.1. Signed and filed this ____ day of February, 1992. Page 8 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael J. Schilling Attorney at Law P O Box 821 205 Washington St Burlington IA 52601 Ms. Vicki L. Seeck Attorney at Law 600 Union Arcade Bldg Davenport IA 52801 5-1803 Filed February 7, 1992 LARRY P. WALSHIRE Before the iowa industrial commissioner ____________________________________________________________ : CATHY DeKEYREL, : : Claimant, : : vs. : : File No. 892048 MASON & HANGER-SILAS MASON CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE TRAVELERS INSURANCE COMPANY,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JEAN PETERSEN, : : Claimant, : : vs. : : File No. 892058 LOUIS RICH COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by claimant, Jean Petersen, against Louis Rich Company, employer, and The Hartford, insurance carrier, both as defendants. Ms. Petersen bases her claim on a work injury sustained on February 22, 1988. ISSUES In accordance with the prehearing report, the parties submit the following issues for resolution: 1. The nature and extent of claimant's disability; and, 2. Whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. The case was heard and fully submitted at Cedar Rapids, Iowa, on June 25, 1992. The record consists of testimony from the claimant and Linda Riley, the assistant human resources manager; joint exhibits A through K; and, claimant's exhibits 1 through 4. FINDINGS OF FACT The undersigned deputy, having reviewed all of the evidence received, finds the following facts: At the time of the hearing, claimant was 27 years of age. She graduated from high school in 1983, and has had no further training or education. From 1983 until 1987, claimant worked as a waitress/cook, and as a grocery store clerk and cashier. In March of 1987, claimant began working on the Page 2 production line for the defendant, Louis Rich. Her job required her to bend over a table located approximately two feet from the floor. She would grab a piece of meat, and in approximately thirty seconds would trim off the gristle, feathers and bones. The trimmed meat was then placed back on the conveyer line. She then moved to another production line which required her to trim two different cuts of white turkey meat. The job also required her to empty large buckets filled with turkey trimmings. Claimant began to experience physical problems when production levels increased and she was working six days per week. On February 22, 1988, she felt her right shoulder ache, her right arms felt tired, her wrists began to make snapping noises, and her fingers were numb. She reported to the company first aid department that she was experiencing bilateral wrist and arm pain. Overuse syndrome was the initial diagnosis by the company physician, William Catalona, M.D. The following day she continued to complain of wrist pain and right shoulder pain. She received "warm pack" treatment to the shoulder, and both wrists were wrapped (Joint Exhibit A, pages 13A and 13). Claimant was given Advil and was sent back to the production line with restrictions of no grasping, flexing, rotating, reaching, pulling or pushing with the right upper extremity. These restrictions were to be reviewed in one month (Jt. Ex. A, p. 16). In March of 1988, claimant requested a second opinion and was sent to Walter Hales, M.D., who recommended she continue with the restrictions outlined above. He diagnosed early symptoms of carpal tunnel syndrome, prescribed anti-inflammatories and a wrist splint (Jt. Ex. B, p. 1). In April of 1988, claimant moved to a different job within the plant, a labeling position which required lifting boxes weighing approximately 25 pounds. Her duties worsened her condition, and she returned to Dr. Catalona. His examination revealed positive Tinel's test of the right hand. He recommended an EMG and modified work activities. There is no mention of shoulder pain (Jt. Ex. A, pp. 13 and 18). Claimant returned to Dr. Hales in April of 1988 and elected to undergo carpal tunnel release surgery, which was performed on May 5, 1988 by Dr. Hales at the Mercy Hospital in Cedar Rapids, Iowa (Jt. Ex. b, p. 2; Jt. Ex. F, p. 1). After the surgery, claimant returned to the trim line and was instructed to perform no repetitive motions. During May and July of 1988, claimant participated in occupational therapy. Again, there is no mention of shoulder pain or problems in the medical records (Jt. Ex. C, pp. 1-2). In July of 1988, claimant was diagnosed as having ulnar nerve symptoms at the elbow. Dr. Hales recommended a splint Page 3 after a flexion test of the elbow was positive, yet an electrophysiological study yielded normal results (Jt. Ex. B, pp. 1-2; Jt. Ex. G, pp. 1-2). In September 1988, claimant underwent surgery to release the ulnar nerve at the right elbow (Jt. Ex. B, p. 3; Jt. Ex. F, pp. 2-3). Claimant returned to occupational therapy in October of 1988 and continued her exercises through November 1988, when she was transferred to the work injury rehabilitation center (WIRC). Notes from both the occupational therapy and the WIRC indicate claimant's satisfactory progress. Again, there is no mention of shoulder pain or problems in either set of medical records (Jt. Ex. C, pp. 3-4; Jt. Ex. E, p. 1). Although claimant sought vocational rehabilitation with the state of Iowa, the defendant employer was able to find work suitable to meet claimant's work restrictions (Jt. Ex. 8, pp. 1-5). Claimant eventually returned to work with restrictions of no lifting of more than 5 pounds and no repetitive movement of the right hand. She was placed in a job called capping casings, which consisted of stapling the casings for the meat products. This position did not require repetitive motions, but after a limited time the job was redesigned and claimant was replaced by a machine. Claimant continued her follow-up treatment with Dr. Hales who noted some tenosynovitis in the fingers a condition which was eventually treated with injections. In October of 1989, an associate of Dr. Hales (Dr. Hawkins) thought claimant might have a thoracic outlet syndrome, although this problem was never formally diagnosed or treated. Range of motion tests performed on the neck and right shoulder yielded normal results (Jt. Ex. D, p. 1; Jt. Ex. B, p. 6). In December of 1989, claimant received a 6 percent permanent partial impairment rating due to the loss of range of motion and some loss of grip strength in the right upper extremity (Jt. Ex. A, p. 58; Jt. Ex. D, pp. 3-12). In July of 1990, claimant returned to Dr. Hales for additional follow-up treatment, and his examination revealed some stiffness and soreness of the little and ring finger on the right hand, but x-rays were normal. There is no mention of shoulder pain or shoulder problems (Jt. Ex. B, p. 8). After claimant left the capping casings job, she was placed in a position that required her to weigh meat, a job she held for one month. Then, claimant was placed in a quality control position that required her to test meat by placing samples in test tubes. Claimant experienced difficulty when removing the test tube caps. Apparently, the job also required claimant to use and clean a meat grinder. When cleaning the grinder, claimant encountered difficulties lifting some of the heavier parts. Claimant, on December 15, 1989, was placed on medical Page 4 leave because she began to have muscle spasms in her hand and arm. The defendants had no other jobs that fit within claimant's work restrictions, and she was told to file for unemployment benefits. Claimant stated that when she left the employment with defendants, she had muscle spasms and pain in her right arm, right shoulder and neck. Ultimately, claimant was denied unemployment benefits. She was unemployed until January of 1991, when she secured employment with Wabash Transformers. Claimant started on the production line, where her job consisted of putting terminals on lead wires. She then started a job testing terminals, and eventually advanced to the process control/inspection department where she became an incoming inspector. As such, she compares parts shipped by vendors to the blueprints of the parts prepared by the company. She is required to measure various parts, a job claimant performs by lifting the parts with her left hand. She currently earns $5.32 per hour and works 40 hours per week. At the time she left Louis Rich, she was earning $7.49 per hour. In May 1991, claimant sought treatment from K.A. Ward, D.C. She received chiropractic treatments to the right trapezius muscle. She continued to receive treatments until June of 1991, and upon her release was given no impairment ratings and no restrictions (Jt. Ex. J, pp. 1-12). Also included in Dr. Ward's notes is a notation that indicates that the onset of claimant's symptoms of headache, right side neck and right side shoulder pain and upper back pain was May 20, 1991. The notes also state that this is an ongoing problem (Jt. Ex. J, p. 9). In March of 1992, claimant went to Richard Neiman, M.D., apparently for a second opinion regarding her permanent partial impairment, and whether she had sustained an injury with resulting impairment to the shoulder. His notes indicate that the history given by claimant was that her shoulder hurt while working for the defendant employer. Eventually, after various testing, Dr. Neiman provided an impairment rating as follows: "Therefore, impairment rating of the upper extremity regarding the shoulder would be 5%. Impairment rating of the whole person would therefore amount to 10% of the upper extremity." (Jt. Ex. I, p. 2). These figures are based on ratings to the fingers on the right hand, the right hand and the right shoulder (Jt. Ex. I, pp. 1-3). Dr. Neiman attempted to clarify his rating in a subsequent letter dated June 8, 1992 (Cl. Ex. 1). ANALYSIS AND CONCLUSIONS OF LAW The first issue to be addressed is the nature and extent of claimant's disability. Claimant argues that she has sustained an injury to her Page 5 shoulder, which caused permanent disability and entitles her to an evaluation of her industrial disability. Defendants argue that claimant's injury and any resulting impairment or disability is limited to her arm, only, and that she is entitled to benefits as the schedule allows. When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. 1982), a torn rotator cuff was found to cause disability to the body as a whole. The right of an employee to receive compensation for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). Claimant sustained a work-related injury on February 22, 1988. Notes from the company physician and the nurse's station show that claimant complained of pain in her shoulder, and received treatment for the same over the next several days. No additional references to shoulder pain appear in the medical records until a report from Dr. Ward dated January of 1992 makes reference to the onset of shoulder problems in May of 1991. Likewise, other than initial hot pack treatment to claimant's shoulder, there was no treatment to the right shoulder until May of 1991. Claimant has the burden of proving by a preponderance of the evidence that her injury of February 22, 1988, is causally related to any disability she may have in her shoulder. 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). Page 6 No physician involved in this case has rendered an opinion that claimant's current shoulder problems, if any, are related to the work injury in February of 1988. None of the evidence submitted would support a finding that claimant sustained a permanent injury to her shoulder in February of 1988. Claimant has, however, shown that she sustained a permanent disability to the right arm. Her treating physician, Dr. Hales, was of the opinion that claimant sustained a 6 percent impairment to the arm. As a result, she is entitled to 15 weeks of permanent partial disability benefits beginning on January 15, 1990, the date Dr. Hales rendered his opinion. The next issue to be addressed is whether claimant is entitled to medical benefits as governed by Iowa Code section 85.27. The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services.... .... For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. From the record, it appears that claimant did not receive authorization to visit either Dr. Neiman or Dr. Ward. Both doctors treated symptoms that are not related to claimant's claim, and therefore defendants are not liable for payment of expenses incurred by claimant. ORDER THEREFORE, it is ordered: That defendants shall pay claimant permanent partial Page 7 disability benefits for fifteen (15) weeks at the rate of two hundred four and 20/100 dollars ($204.20) per week commencing on January 15, 1990. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That claimant is responsible for payment of medical bills incurred for treatment or examinations rendered by Dr. Neiman and Dr. Ward. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay the costs of this action. That defendants shall file an activity report upon payment of this award as requested by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of September, 1992. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. J. Richard Johnson Attorney at Law 1715 First Ave SE P O Box 607 Cedar Rapids IA 52406 Mr Greg A Egbers Attorney at Law 600 Union Arcade Bldg 111 E third St Davenport IA 52801-1596 5-1108 Filed September 14, 1992 Patricia J. Lantz BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : JEAN PETERSEN, : : Claimant, : : vs. : : File No. 892058 LOUIS RICH COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1108 Claimant failed to prove by a preponderance of the evidence that a wrist and arm injury sustained on the job caused disability to her shoulder. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JEAN PETERSEN, Claimant, vs. File No. 892058 LOUIS RICH COMPANY, A P P E A L Employer, D E C I S I O N and THE HARTFORD, Insurance Carrier, Defendants. _________________________________________________________________ This case is on remand from a decision by the Iowa District Court for Linn County which determined that dismissal of claimant's notice of appeal was error and reinstated claimant's appeal. The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed September 14, 1992 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of November, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. J. Richard Johnson Attorney at Law P.O. Box 607 Cedar Rapids, Iowa 52206 Mr. Greg A. Egbers Attorney at Law 600 Union Arcade Bldg. 111 East Third St. Davenport, Iowa 52801-1596 5-1108 Filed November 22, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ JEAN PETERSEN, Claimant, vs. File No. 892058 LOUIS RICH COMPANY, A P P E A L Employer, D E C I S I O N and THE HARTFORD, Insurance Carrier, Defendants. _________________________________________________________________ 5-1108 Claimant failed to prove by a preponderance of the evidence that a wrist and arm injury sustained on the job caused disability to her shoulder. Page 1 before the iowa industrial commissioner ____________________________________________________________ : KEVIN D HOYT, : : Claimant, : : vs. : : File No. 892089 CLARINDA EXCAVATING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ROYAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Kevin D. Hoyt, claimant, against Clarinda Excavating, employer, and Royal Insurance, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on May 18, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on February 16, 1993, in Des Moines, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. The documentary evidence identified in the record consists of joint exhibits 1 through 32. issues Pursuant to the hearing report and order dated February 16, 1993, the parties have presented the following issues for resolution: 1. Whether claimant is entitled to temporary total/healing period benefits from May 23, 1988 through July 11, 1988 and from November 28, 1988 through February 13, 1989: 2. Whether claimant's injury on May 18, 1988, is a cause of temporary and permanent disability; and 3. Claimant's entitlement to medical expenses under Iowa Code section 85.27. 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: Page 2 Claimant was born on January 17, 1963, and completed the eleventh grade of school in 1982. He obtained his GED certificate in July 1989. He has worked at various times as a laborer, production line worker, truck/trailer washer, excavator, furniture/appliance deliverer, and truck driver. He commenced working for employer in 1988. On May 18, 1988, he was injured in an excavation cave-in accident and injured his back. Claimant testified that the other workers dug him out with shovels and transported him to the company treatment office. He requested ambulance service to the emergency room, but employer refused. He returned to work and completed and eight-hour day. The next day, his mother took him to see David Minard, M.D., orthopedist. Claimant testified that Dr. Minard took him off work for three months, from May 19 through September 11, 1988. He returned to work with employer on September 12, 1988. On November 28, 1988, he aggravated his back condition while swinging a sledgehammer at work. He saw the company doctor, William J. Shelton, M.D., a family practitioner, in Clarinda, Iowa. Claimant testified that Dr. Shelton took him off work. He was released him to return to work on February 13, 1989. Claimant testified that in February 1989 he contacted employer and was told that there was no work available. On July 5, 1989, claimant attended a 21-week truck driver program which he completed in September 1989. From May 1990 through December 1990, he worked for F.C. Grace Furniture and Appliance Store delivering furniture and setting up show room floors. He had a disagreement with his boss and quit on December 22, 1990. He then worked for seven weeks in Blundt, South Dakota, driving a truck. He quit this job because it aggravated his back condition. From May 6, 1991 through February 1992, he worked for D and D Transport Company in Silver Creek, Nebraska, as a truck driver. He was in an accident in February 1992 and reinjured his back. Claimant testified that he has not been employed since February 1992. The documentary medical evidence in the record reveals that claimant was seen by Dr. Minard on May 20, 1988. He presented with generalized soreness. An examination revealed tenderness in the left lower chest and dorsal spine region. X-rays taken of his chest and dorsal spine were essentially normal. He had no extremity pain and full range of motion of his neck. Dr. Minard suggested home rest and Tylenol with codeine and Naprosyn. He was asked to return the following Monday if his condition had not improved (exhibits 21 & 23). Claimant presented to Dr. Minard for follow-up evaluations in June and July 1988. Due to persistent pain he was started on physical therapy with heat and ice, ultrasound with cortisone cream and traction. He had no lasting relief of his pain with this treatment. Dr. Shelton referred claimant to Michael T. O'Neil, M.D., orthopedic surgeon, for evaluation. Dr. O'Neil saw claimant at the Clarinda Municipal Hospital Clinic on July 22, 1988. After conducting a physical examination, Dr. Page 3 O'Neil diagnosed acute ligamentous strain and muscle spasm of the dorsal and lumbosacral spine. He felt that claimant was not ready to return to work at this time and anticipated a healing period of 12-16 weeks from the time of the injury (exs. 27 & 28). Claimant testified that in addition to being followed by Dr. Minard, he was also followed by Dr. Shelton, company physician. However, Dr. Shelton's office treatment notes are not in the record. In a note dated August 12, 1988, Dr. Shelton indicates he last saw claimant on July 22, 1988, and he was unable to predict how long it would take claimant to recover from his May 1988 injury (ex. 25). Defendant, Royal Insurance Company, referred claimant to Career Design, Inc. for a medical management assessment on August 9, 1988. Craig Ferguson, rehabilitation specialist, gave a brief summary of claimant's medical status, family/social background and educational/vocational history. However, no constructive services were provided at this time (ex. 24). On September 6, 1988, Mr. Ferguson filed a status report which again makes no specific recommendations regarding claimant's future goals (ex. 26). On September 8, 1988, claimant saw Dr. Shelton for evaluation. Claimant informed Dr. Shelton that he had increased his physical activity and was able to walk a mile and one-half, up and down ditches and squirrel hunt. An examination revealed an essentially normal back without muscle spasm or tenderness. Dr. Shelton released claimant to return to work and advised minimal twisting and stooping (exs. 16 & 31). Claimant testified that he aggravated his back condition on November 28, 1988, while using a sledgehammer. He stated that he was sent to Dr. Shelton for evaluation and was taken off work. However, the record does not contain any medical reports from Dr. Shelton regarding the November 28, 1988 incident. Claimant was seen by Anil K. Agarwal, M.D., on December 13, 1988, for an independent medical examination at the request of defendant, Royal Insurance Company. After conducting a physical examination and reviewing x-rays of the cervical, lumbar and dorsal spine, Dr. Agarwal diagnosed cervical strain and thoracolumbar strain. Dr. Agarwal prescribed a lumbosacral support and discussed an exercise program. He restricted claimant to lifting no more than 25 pounds and advised him to avoid prolonged stooping and bending (ex. 30). Claimant presented to Dr. Minard on January 13, 1989, with complaints of low back pain since November 28, 1988. On examination muscle spasms were evident in the low back area and straight leg raising was positive at 60 degrees on the right and 70 degrees on the left. X-rays taken of the lumbosacral spine were essentially normal. Arrangements were then made for a CT scan of the lumbar spine (exs. 21 & Page 4 23). Results of the CT scan were normal. However, because of continued back pain, Dr. Minard referred claimant for a caudal injection. This was performed by David Rosenberg, M.D., on January 20, 1989, at Bergan Mercy Hospital in Omaha, Nebraska (exs. 2, 21 & 23). Dr. Minard saw claimant for follow-up evaluation on January 27, 1989. Claimant's condition was not improved. Therefore, arrangements were made for physical therapy in Clarinda, Iowa (exs. 5-7). Dr. Minard saw claimant on February 10, 1989. At this time, claimant complained of pain in the upper dorsal region between his shoulder blades. He related that his low back pain had disappeared. He denied any radicular pain into either lower extremity. An examination of his back revealed no abnormalities. Dr. Minard released him to return to work on February 13, 1989. He stated, "His problem to me appeared to be a lumbar strain and parascapular myofascitis. I do not see any disability." (ex. 21, p. 2). conclusions of law The issue to be determined is whether claimant received an injury on May 18, 1988, which arose out of and in the course of employment. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 18, 1988, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976); Musselman v. Central Telephone Co., 154 N.W.2d 128, 130 (Iowa 1967). The words "arising out of" have been interpreted to refer to the cause and origin of the injury. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consolidated School District, 68 N.W.2d 63, 65 (Iowa 1955). The words "in the course of" refer to the time, place and circumstances of the injury. McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65. An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while the employee is doing work assigned by the employer or something incidental to it. Cedar Rapids Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 130. The supreme court has defined a personal injury for the purposes of workers' compensation cases. Almquist v. Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934). In this case the court found that a personal injury, is an injury to the body, the impairment of health, or a disease, not excluded by the Workers Compensation Act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. The injury to the human body must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, Page 5 interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The Almquist court further observed that while a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. A personal injury includes a disease resulting from an injury. However, the result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This is true, even though natural change may come about because the life has been devoted to labor and hard work. Results of those natural changes do not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. The undisputed evidence reveals that on May 18, 1988, claimant was laying sewer pipe for employer and a whole pile of dirt fell on top of him nearly burying him. As a result, he experienced generalized soreness and considerable difficulty with low back pain. He was advised by Dr. Minard to rest at home and take pain medication. A diagnosis of acute ligamentous strain and muscle spasm of the dorsal and lumbosacral spine was made by Dr. O'Neil. Claimant was off work from May 19, 1988 through September 9, 1988, when he was released to return to work activity by Dr. Shelton. Claimant testified that he returned to work with employer. He was assigned to work on a water tower project at Clarinda Treatment Complex. While swinging a sledgehammer he experienced a flare-up of his back symptoms on November 28, 1988. He was again taken off work and participated in conservative therapy. Dr. Minard released him to return to work without restrictions on February 13, 1989 (ex. 20). Since claimant has suffered an injury, the next question to be resolved is whether the injury has caused a permanent disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of May 18, 1988, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167, 171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, 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 Page 6 material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The supreme court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. Claimant has not met his burden in this regard. The record clearly indicates that claimant's May 18, 1988 initial injury and his November 28, 1988 aggravation of that injury has not resulted in permanent disability. Dr. O'Neil released claimant to return to work on September 14, 1988, with no restrictions (ex. 29). Dr. O'Neil is a highly qualified orthopedic surgeon who was asked to examine and evaluate claimant by Dr. Shelton, a family practitioner. Dr. O'Neil's expertise is entitled to significant weight and consideration. Therefore, it is found that claimant incurred no permanent disability as a result of his May 18, 1988 injury. Claimant returned to manual labor in September 1988 and re-aggravated his back condition on November 28, 1988. Claimant underwent significant clinic and laboratory testing which revealed no abnormalities. On February 10, 1989, claimant reported to Dr. Minard that his low back pain had disappeared (ex. 21, p. 2). On February 10, 1989, Dr. Minard released claimant to return to work on February 13, 1989, with no restrictions (ex. 20). Therefore, claimant has not demonstrated an entitlement to any permanent partial disability benefits as a result of his work injury on May 18, 1988. However, claimant is entitled to temporary total disability benefits from May 19, 1988 through September 9, 1988, when he was released to return to work by Dr. Shelton. He is also entitled to temporary total disability benefits from November 28, 1988 through February 13, 1989, when he was released to return to work by Dr. Minard. The next issue to be determined is claimant's entitlement to medical benefits under Iowa Code section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Construction Specialists, Inc., file number 850096 (App. Dec. July 31, 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's Page 7 funds. See Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983). When a designated physician refers a patient to another physician, that physician acts as the defendant employer's agent. Permission for referral from defendant is not necessary. Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (Arb. Dec. 1979) (aff'd by indus. comm'r). An employer's right to select the provider of medical treatment to an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgement. Assman v. Blue Star Foods, Inc., file no. 866389 (declaratory ruling, May 18, 1988). Claimant contends that he has incurred medical bills in the amount of $3143. To support his contention, claimant has submitted copies of the unpaid bills (exs. 1-13). Defendants contend that they have paid $2,061.42 in medical bills (ex. 32). Defendants contend that some of claimant's medical expenses were unauthorized. However, they do not specifically identify the unauthorized medical expenses. Claimant is entitled to medical expenses incurred for treatment of his May 18, 1988 injury. Obviously, this would include treatment by Dr. Shelton, the company physician; Dr. O'Neil, the orthopedic specialist to whom Dr. Shelton referred claimant; assessments at Career Design; and any medication, laboratory testing and physical therapy undertaken to treat his injury. Claimant is also entitled to medical benefits for treatment of an aggravation of his back condition on November 28, 1988. This would include any treatment provided by Dr. Shelton and an independent medical examination performed by Dr. Agarwal. Claimant testified that he conferred with Dr. Minard without authorization from employer or insurance carrier. Dr. Minard performed laboratory testing of claimant's lumbosacral spine to determine the etiology of his complaints. Dr. Minard referred claimant to Dr. Rosenberg for a caudal injection to treat his pain. When this proved ineffective, Dr. Minard recommended physical therapy. On February 13, 1989, Dr. Minard released claimant to return to work without restrictions. Unauthorized treatment which improves an employee's condition and which ultimately may mitigate the employer's liability may subsequently be found reasonable and necessary for treatment of an injury. Tesch v. Sieh Farm Drainage Co., file no. 860672 (App. Dec. March 31, 1992). Claimant's condition appears to have improved with physical therapy because on February 13, 1989, he no longer had any back complaints. Therefore, the medical expenses of Dr. Minard, Dr. Rosenberg and physical therapy are awarded to claimant. order Page 8 THEREFORE, IT IS ORDERED: 1. That defendants pay to claimant temporary total disability benefits from May 19, 1988 through September 9, 1988 and from November 28, 1988 through February 13, 1989, at the rate of one hundred forty-nine 35/100 dollars ($149.35) per week. 2. That defendants receive credit for any benefits previously paid. 3. That defendants pay accrued amounts in a lump sum. 4. That defendants pay for all medical and mileage expenses incurred for treatment of his back injury. 5. That defendants receive credit for any medical benefits previously paid, if applicable. 6. That defendants pay interest pursuant to Iowa Code section 85.30. 7. That defendants pay the costs of this action. 8. That defendants file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ____ day of February, 1993. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Jon Johnson Attorney at Law 811 Indiana PO Box 670 Sidney, Iowa 51652 Mr. Melvin Hansen Attorney at Law 800 Exchange Bldg 1905 Harney St Omaha, NE 68102 Mr. Richard Crotty Attorney at Law 311 First Federal Bldg Council Bluffs, Iowa 51503 Page 1 51801 51803 52500 Filed February 24, 1993 Jean M. Ingrassia before the iowa industrial commissioner ____________________________________________________________ : KEVIN D HOYT, : : Claimant, : : vs. : : File No. 892089 CLARINDA EXCAVATING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : ROYAL INSURANCE, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51801 Claimant is entitled to temporary total disability benefits from May 19, 1988 through September 9, 1988 and from November 28, 1988 through February 13, 1989. Claimant was off work for treatment of a work-related back injury. 51803 Claimant has not shown by a preponderance of the evidence that a work-related injury caused permanent disability. 52500 Pursuant to Iowa Code section 85.27 claimant is entitled to the costs incurred for treatment of his work-related injury. Claimant is also entitled to costs for unauthorized treatment which improved his condition. Tesch v. Sieh Farm Drainage Co., file number 860672 (App. Dec. March 31, 1992) BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : EUGENE GALLAGHER, : : Claimant, : : vs. : : File No. 892095 GRINNELL MUTUAL REINSURANCE CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GRINNELL MUTUAL REINSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Eugene Gallagher, against his employer, Grinnell Mutual Reinsurance Company, and its insurance carrier, Grinnell Mutual Reinsurance Company, defendants. The case was set for 8:00 a.m. July 17, 1992 at the Woodbury County courthouse in Sioux City, Iowa. On April 15, 1992 claimant's then attorney, David P. Jennett, filed an application to withdraw. Defendants filed a resistance to application to withdraw. Deputy Industrial Commissioner David Rasey filed his ruling on May 7, 1992. Deputy Rasey denied the application on the basis that: A review of the Application to Withdraw discloses that Mr. Jennett has made no effort to comply with the administrative rule governing withdrawal of appearance, 343 IAC 4.9(8). Subsequent to the ruling, Mr. Jennett filed an application to withdraw for the following reasons: 1. There has been a breakdown of the attorney/ client relationship and the client refuses to follow counsel's advice. 2. That the attorney and client have a difference of opinion as to the merits of his case. 3. The development of these problems between Claimant and counsel make it impossible to continue an attorney/client relationship in this matter. 4. That by this notice Eugene Gallagher is Page 2 advised that he may contest the withdrawal by filing objections and a request for hearing in writing to the Division of Industrial Services prior to the date upon which this matter is ruled upon. 5. That this matter has been set for hearing on July 17, 1992. 6. That attached hereto and incorporated by reference is a certified copy of the mailing of this notice of opportunity for hearing. On May 21, 1992, Mr. Jennett filed an amended affidavit of mailing whereby Mr. Jennett established that he had mailed the application by certified mail. He provided a return receipt, (green card), signed by "Gene Gallagher." No resistance was ever filed by claimant with the Division of Industrial Services. On July 15, 1992, a telephone hearing was held for purposes of ruling on the application. Thomas Plaza, attorney for defendants, waived his right to appear. Claimant did not appear or notify the office that he was contesting Mr. Jennett's application to withdraw. During the telephone hearing, Mr. Jennett orally reasserted his application to withdraw. The application was orally granted by the undersigned. As mentioned previously, the matter was set for July 17, 1992 at 8:00 a.m. at the Woodbury County Courthouse. Claimant failed to appear. Neither did anyone else appear upon claimant's behalf. Claimant failed to present any evidence in support of the allegations found in his original notice and petition. Claimant had the burden of proving by a preponderance of the evidence that he sustained an injury which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976). Consequently, claimant failed to meet his burden of proof that he had sustained an injury which arose out of and in the course of his employment. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing from this proceeding. Costs are taxed to the claimant pursuant to rule 343 IAC 4.33. Signed and filed this ____ day of July, 1992. Page 3 ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. David P. Jennett Attorney at Law 701 West Main Sac City, Iowa 50583 Mr. Thomas M. Plaza Attorney at Law 701 Pierce Street STE 200 P O Box 3086 Sioux City, Iowa 51102 Mr. Eugene Gallagher RR #1 Vail, Iowa 51465 REGULAR & CERTIFIED MAIL 1400; 1402 Filed July 24, 1992 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : EUGENE GALLAGHER, : : Claimant, : : vs. : : File No. 892095 GRINNELL MUTUAL REINSURANCE CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GRINNELL MUTUAL REINSURANCE CO.,: : Insurance Carrier, : Defendants. : ___________________________________________________________ 1400; 1402 Claimant failed to appear at the hearing. No evidence in support of allegations of a compensable work injury was presented and claimant therefore failed to meet his burden of proof. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOYCE ROMIG, : : Claimant, : : vs. : : File No. 892128 IMI CORNELIUS COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SENTRY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This case came on for hearing on October 1, 1991, in Des Moines, Iowa. This is a proceeding in arbitration wherein claimant seeks compensation for permanent partial disability benefits as a result of an alleged injury occurring on July 26, 1988. The record in the proceedings consist of the testimony of the claimant; joint exhibit 1; and defendants' exhibits A through D. issues The issues for resolution are: 1. Whether claimant's alleged July 26, 1988 injury arose out of and in the course of her employment; 2. Whether there is a causal connection between claimant's alleged disability and the July 26, 1988 alleged injury; 3. The nature and extent of claimant's disability and entitlement to disability benefits; and, 4. The commencement date of any benefits. findings of fact: The undersigned deputy, having heard the testimony and considered all the evidence, finds that: Claimant is a 47-year-old who quit high school in the eleventh grade but obtained a GED in 1987. She has no other formal education. Claimant described her work history prior to beginning work for defendant employer in October 1983. This pre-1983 work basically involved restaurant work such as being a Page 2 cook, a waitress, washing dishes, etc. Claimant's work at defendant employer's in July 1988 involved making ice machines. This required lifting parts to place in the metal frame and machines and required the use of claimant's shoulders and arms. There was a layoff from which claimant returned in January 1988. Claimant alleged her right shoulder began to bother her approximately one week after she returned. Claimant insisted nothing occurred to injure her shoulder during nonwork hours. Claimant described in part her medical treatment and pain. She was referred to Scott B. Neff, D.O., who prescribed tests and eventually performed surgery on July 26, 1988, which is the alleged date of injury. Claimant said she has loss of motion, the same as before surgery, pain, diminished lifting ability, a 25 pound lifting restriction, and cannot put her right hand in her right back pocket. Claimant contends she could lift 50 pounds before the July 26, 1988 injury. Claimant is now working in the literature department for defendant employer. This work involves working with catalogs, paper, etc., which is a different position than at the time of her alleged July 26, 1988 injury. The difference in pay is her current $7.90 versus her prior pay with current updates of $9.15 per hour. At the time of her injury, claimant was making $8.34 per hour. Claimant has made no bids for other jobs within the defendant company. Claimant relates many things she cannot do at home but said she has not currently complained at work because the employer would put her in the office at $4.15 per hour. Claimant said she returned to work on March 14, 1989, so she was off work since July 26, 1988. Claimant was asked about her 1986 automobile accident and the reference to a neck and right and left shoulder. She didn't remember that she indicated her shoulder hurt. She was treated for this injury up to May 1987 (Defendants' Exhibit D). Claimant discussed the July 24, 1987 incident when she was carrying a compressor. This was the subject of an August 2, 1990 decision filed by the undersigned (File No. 893347). The undersigned stated that he is taking official notice of this decision, as requested by the claimant. Eventually, at the end of the hearing, the parties agreed to enter this decision as joint exhibit 1. Claimant said she has not seen Dr. Neff since March 1989, and he released her to work. She said no doctor has given her a prescription. The undersigned notes there is no medical evidence to indicate a release of the claimant by Dr. Neff in March 1989. In fact, there is no evidence of any doctor indicating when claimant reached maximum healing or was released except for a December 2, 1987 letter from Dr. Neff in which he indicated on that date that claimant sustained a 15 percent impairment to the right upper Page 3 extremity. He also indicated that he did not see a need to incorporate this into a body as a whole measurement simply because it is an impingement release and not involving a rotator cuff group of muscles (Def. Ex. B, p. 2). Claimant feels she has the smarts to take school courses but is not pursuing it at the present time. She said her shoulder could cause her problems in a vocational setting. On July 11, 1988, Dr. Neff wrote that claimant's history indicated she incurred an injury which happened approximately one year ago when she fell over a compressor. At that time, he indicated claimant had a right carpal tunnel syndrome and an impingement syndrome (Def. Ex. A, p. 1). On September 7, 1988, Dr. Neff indicated claimant was not ready to return to work at that time due to her right wrist and right shoulder surgery which occurred in July 1988 (Def. Ex. A, p. 2). On December 2, 1988, Dr. Neff and Thomas Bower, L.P.T., wrote that claimant had a 15 percent impairment to the right upper extremity that did not go into claimant's body as a whole as it did not involve the rotator cuff group of muscles (Def. Ex. A, p. 2; Def. Ex. C). There is no medical report which specifically causally connects claimant's July 26, 1988 injury, which, in fact, was the date of claimant's right shoulder and right carpal tunnel syndrome surgeries, to claimant's present impairment or disability. Defendants' exhibit 1 is a decision filed by the undersigned in which case the claimant had alleged an injury in July 1987, and the undersigned deputy had held that claimant's complaints from that injury were only temporary and claimant received full recovery as no permanency was found. Claimant returned to work in January 1988 and developed problems with her right upper extremity and right shoulder. Claimant at that time returned to the same type of work she had been doing before the layoff in the fall of 1987. Taking the evidence as a whole, and gleaning the decision in file No. 893347, it is apparent to the undersigned that the complaints from which claimant now complains were caused by claimant's work, and that the cumulative effect of her work ultimately resulted in the right shoulder and right carpal tunnel syndrome surgery she occurred in July 1988. It would appear that claimant's problems may have begun on a limited basis in July 1987, but as indicated in the decision filed August 2, 1990 (file No. 893347), claimant was not suffering any permanency from that injury and that any temporary disability or healing period had been taken care of already by the defendant employer. It was the understanding of the parties and the undersigned and there was considerable discussion to the extent that the admission of joint exhibit 1 could not result in the undersigned's finding that claimant's complaints now are the result of a July 24, 1987 injury. In other words, claimant's complaints now were raised in the prior hearing and it was found that those were not the result of a July Page 4 24, 1987 injury and, therefore, claimant did not recover. It would seem contrary to law and good judgment to now determine and defendants are not so arguing that these current complaints are now in fact the result of a prior July 24, 1987 injury which would in fact be a reversal of defendant employer's position at the prior hearing. There is no evidence that these injuries occurred other than at work. It is obvious the nature of claimant's work is such that claimant materially and substantially aggravated and developed an increased situation in her right wrist and right shoulder that may have begun in July 1987 but had not reached any compensable stage or did not at that time result in any permanency. The undersigned finds that claimant did incur an injury and the surgery to her right shoulder and right wrist which arose out of and in the course of her employment and that there is a causal connection between the injuries and claimant's current impairment. Claimant incurred a 15 percent impairment to her right upper extremity and as opined by Dr. Neff on December 2, 1988 (Jt. Ex. B, p. 2), this injury was to claimant's right upper extremity and did not go to claimant's body as a whole simply because it is an impingement release and did not involve the rotator cuff group of muscles. Claimant contends that claimant's healing period began on July 26, 1988 and ended March 15, 1989. It is obvious that claimant picked that date because that is the date she returned to work. Defendants contend that the date is July 26, 1988 up to and including December 2, 1988, and they base their contention on defendants' exhibit B, page 2, and the opinion of Dr. Neff on December 2, 1988, when he opined a permanent 15 percent impairment to claimant's right upper extremity. There is no other evidence that would indicate claimant was still recovering after said date or that there is any other reference to any maximum healing period. The undersigned finds that claimant's healing period began July 26, 1988 and ended up to and including December 2, 1988. It is surprising to the undersigned that there was no further follow-up by claimant that may have clarified this if claimant felt there was sufficient support or medical evidence available or acquirable to support a March 15, 1989 date. The undersigned, therefore, finds that claimant is entitled to 18.571 weeks of healing period benefits and 37.5 weeks of permanent partial disability based on 15 percent of 250 weeks, as provided by Iowa Code section 85.34(2)(m). conclusions of law Claimant has the burden of proving by a preponderance of the evidence that she received an injury on July 26, 1988, which arose out of and in the course of her employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 26, 1988, is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 Page 5 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). If a claimant contends he has industrial disability he has the burden of proving his injury results in an ailment extending beyond the scheduled loss. Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964). Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. Page 6 The Iowa Supreme Court in Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 1983) explained the two methods for evaluating a disability--functional and industrial: Functional disability is assessed solely by determining the impairment of the body function of the employee; industrial disability is gauged by determining the loss to the employee's earning capacity. Functional disability is limited to the loss of physiological capacity of the body or body part. Industrial disability is not bound to the organ or body incapacity, but measures the extent to which the injury impairs the employee in the ability to earn wages.... ...A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. It is further concluded that: Claimant incurred a cumulative injury on July 26, 1988 which arose out of and in the course of her employment and which caused claimant to incur a right carpal tunnel surgery and a right shoulder surgery on July 26, 1988. Claimant's work injury on July 26, 1988 involved scheduled member injuries to her right upper extremity and the shoulder injury did not go into claimant's body as a whole. Claimant's work-related injury on July 26, 1988 caused claimant to incur a 15 percent impairment to her right upper extremity, entitling her to 37.5 weeks of benefits at the rate of $227.06 per week. Claimant incurred a healing period beginning July 26, 1988 up to and including December 2, 1988, which encompasses 18.571 weeks of healing period benefits at the rate of $227.06 per week. order THEREFORE, it is ordered: That defendants shall pay unto claimant healing period benefits at the rate of two hundred twenty-seven and 06/100 dollars ($227.06) per week beginning July 26, 1988 through December 2, 1988, which encompasses eighteen point five seven one (18.571) weeks of healing period benefits. That defendants shall pay unto claimant thirty-seven point five (37.5) weeks of permanent partial disability benefits at the rate of two hundred twenty-seven and 06/100 dollars ($227.06) per week beginning December 3, 1988. Page 7 That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties stipulated that claimant has previously paid ten point five seven one (10.571) weeks of benefits at the rate of two hundred thirty and 97/100 dollars ($230.97) and twenty-six point eight five seven (26.857) weeks at a rate of two hundred twenty-six and 60/100 dollars ($226.60) per week. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1991. ______________________________ BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr Mark S Pennington Attorney at Law 620 Fleming Bldg Des Moines IA 50309 Mr Harry W Dahl Attorney at Law 974 73rd St Ste 16 Des Moines IA 50312 5-1402.30; 5-1108; 5-1803.1 5-1802; 5-1803 Filed October 18, 1991 Bernard J. O'Malley before the iowa industrial commissioner ____________________________________________________________ : JOYCE ROMIG, : : Claimant, : : vs. : : File No. 892128 IMI CORNELIUS COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : SENTRY INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1402.30; 5-1108; 5-1803 Found injury arose out of and in the course of claimant's employment and this work injury caused claimant to incur a right carpal tunnel surgery and a right shoulder surgery, all limited to claimant's right upper extremity and not to the body as a whole. 5-1802; 5-1803 Claimant awarded permanent partial disability benefits and healing period benefits.