Page 1 before the iowa industrial commissioner ____________________________________________________________ : DOUGLAS C. SLAIKEU, : : Claimant, : File No. 894105 : vs. : A R B I T R A T I O N : JOHN DEERE FOUNDRY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Douglas C. Slaikeu against his former employer, John Deere Foundry, based upon an alleged injury of May 15, 1987. Claimant seeks weekly compensation for healing period and permanent partial disability associated with carpal tunnel syndrome. The primary issues to be determined are whether the carpal tunnel syndrome is an injury which arose out of and in the course of his employment and determination of the claimant's entitlement to weekly compensation. The case was heard at Waterloo, Iowa, on February 3, 1992. The evidence in this proceeding consists of testimony from Douglas Slaikeu and claimant's exhibits 1, 2, 4, 6, 7 and 8. Claimant's exhibits 3, 5 and 9 were offered but were not received into evidence. They are with the file as an offer of proof only pursuant to agreement of the parties made at the conclusion of the hearing, subsequent to the departure of the court reporter. Both counsel and the undersigned have signed the exhibit envelope to indicate that the documents are with the file as an offer of proof but for no other purpose. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. Douglas C. Slaikeu is a 39-year-old high school graduate who lives at Waterloo, Iowa. He commenced his employment with John Deere in 1972 and remained employed at John Deere through the summer of 1987. The last day that he actually worked is uncertain. It is noted, however, that he was placed on restrictions against repetitive gripping and twisting and from intense use of vibratory tools effective commencing May 13, 1987 (exhibit 6, page 23). According to the record, Slaikeu had no problems with his hands until after resuming work on or about February 23, Page 2 1987. He had been in a layoff status since December 15, 1985. The first report of any problem with his hands is dated May 8, 1987 (exhibit 6, pages 22 and 23). EMG tests were conducted which showed him to have bilateral carpal tunnel syndrome which was worse on the left side (exhibit 6, pages 27 and 28). Slaikeu apparently worked with activity restrictions and then was known to be off work on June 30, 1987 (exhibit 6, page 35). He did not return to work at John Deere subsequent to June 30, 1987. During the summer and fall of 1987, he continued to receive treatment for his carpal tunnel syndrome from the company physician (exhibit 6, page 35). Repeat EMGs were conducted on September 24, 1987, and February 17, 1988. The first of those two showed slight improvement. The second showed normal results on the right extremity and improved but abnormal results for the left upper extremity (exhibit 6, pages 29-33). After Slaikeu obtained other employment, the company discontinued care for the condition. Slaikeu eventually sought treatment at the University of Iowa Hospitals and Clinics where he underwent surgery for the bilateral carpal tunnel syndrome. The precise amount of time he was disabled as a result of that surgery appears uncertain, but it appears to be in the range of approximately three months, an amount which is within the range of that normally seen following bilateral carpal tunnel release surgery. While the starting date is uncertain from the record, it appears to have been approximately August 1, 1990. In view of the provisions of the hearing assignment order, the claimant was unable to submit into evidence any medical ratings of permanent impairment, his medical records associated with the surgery and his medical expenses associated with the surgery. According to claimant's testimony at hearing, he continues to experience weakness and fatiguability in his hands, although the numbness and other complaints were resolved by the surgery. His residual complaints appear to be quite mild in comparison to those sometimes seen in other cases dealing with this same physical affliction. The evidence fails to show the existence of any permanent disability as a result of the carpal tunnel syndrome. The crucial issue in the case is whether the condition is one which arose out of and in the course of Slaikeu's employment with the John Deere Foundry. William F. Blair, M.D., the treating surgeon, has expressed an opinion that the condition is most likely related to the claimant's work activities (exhibits 1 and 2). The history given to Dr. Blair is not shown in the record, however, and that greatly detracts from the amount of weight which can be given to the opinion. The history was possibly correct. There is nothing in the record to indicate that it was erroneous in any way. Claimant's exhibit 6 contains the records from the employer's medical department. Those records show a Page 3 scenario of events which would be consistent with the employment having caused the condition. The employer initially treated the condition as though it were work related. There is no expert opinion evidence which states that the condition was not work related. The claimant's work activities which he described at hearing would be expected to place considerable stress and strain on the individual's hands and wrists, but they did not appear to be as stressful as the causative activities often seen in carpal tunnel syndrome cases. When the record is viewed as a whole, the assessment made by Dr. Blair is found to be correct. It is based upon an unknown medical history, but if it were viewed in light of the information contained in exhibit 6, such would certainly be sufficient to support the opinion. Where a medical opinion is uncontradicted by an opposing opinion, questions regarding the accuracy of the foundational facts upon which the opinion is based are less important than if the opinion were controverted by other expect evidence. This is particularly true where the foundational facts shown in the record support the opinion, even though it cannot be certain whether or not the physician was aware of those foundational facts at the time of expressing the opinion. Where the known foundational facts support the expert opinion, it is more probable than not that the opinion is based on those known facts, in the absence of any indication to the contrary. It is therefore found that the work Douglas Slaikeu performed at the John Deere Foundry between the dates of February 23, 1987, and May 13, 1987, were a substantial factor in producing the carpal tunnel syndrome which was diagnosed in May and June of 1987. conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on May 13, 1987, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 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. McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). The "arising out of" requirement is satisfied by showing a causal relationship between the employment and the injury. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986). The actual date of injury is amended from May 15, 1987, to May 13, 1987, in order to conform to the evidence. The variance is determined not to have any substantial impact on the outcome of the case. The evidence does not show that the claimant left his employment with John Deere Foundry as a result of disablement related to the carpal tunnel syndrome. The date of disablement is not a viable choice Page 4 for the date of injury. The assessment of the case made by Dr. Blair has been determined to be correct. The claimant has therefore carried the burden of proving that the carpal tunnel syndrome is an injury which arose out of and in the course of his employment with the John Deere Foundry. The onset of his complaints occurred while in that occupation. Once removed from the work, his symptoms and the severity of the condition improved. These are all factors consistent with the work having been a causative factor. The claimant seeks compensation for healing period. It has previously been found that three months was a reasonable amount of time for the claimant to have recovered from the surgery and that August 1, 1990, appeared to be the date that the first surgery was performed. It has likewise been found that the evidence does not show it to be probable that the claimant has any ascertainable degree of disability which resulted from the carpal tunnel syndrome. His entitlement is therefore limited to three months of temporary total disability payable commencing August 1, 1990, in accordance with section 85.33 of The Code. Three months is equivalent to 13 weeks. Since claimant's medical expense records are not in evidence, no award of medical benefits can be made. The parties dispute which 13 weeks should be counted in determining the rate of compensation to be applied in this case. The claimant's contentions are found at exhibit 7, page 1, while defendant's contentions are found at exhibit 7, pages 3-9. Upon reviewing the pay records, it appears that the claimant was off work due to an eye problem from approximately March 29 through April 2, 1987 (exhibit 6, page 18). When determining the appropriate 13 weeks to be considered, the 13 weeks should be those where the employee would have worked the customary hours for the full pay period in which he was injured. Weeks which contain absence due to injury, illness, vacation or other conditions where the employee worked less than the normal hours of work available are excluded when computing the rate. Schotanus v. Command Hydraulics, Inc., I Iowa Industrial Commissioner Report 294, 298 (1981); Lewis v. Aalf's Mfg. Co., I Iowa Industrial Commissioner Report 206, 207 (App. Decn. 1980). Since carpal tunnel syndrome in this case is being treated by the parties as a cumulative trauma injury, a correct date of injury upon which to base the rate would be the last day worked before disablement. Since those records are not in evidence, including the date of the last day of work, May 13, 1987, will be treated as the date of injury. It is the last date of exposure prior to partial disablement being manifested in the form of activity restrictions. The parties agree that the week ending May 17, 1987, should be counted as the first week. The parties seem to be in agreement that the computation should include the weeks Page 5 ending May 10, May 3, April 26, April 19, 1987, December 8, 1985, November 17, 1985, and November 3, 1985. Which of the other weeks that should be used is in dispute. The first disputed week is the week ending April 12, 1987, when the claimant worked 32 hours and was paid $379.04. The records do not show any unusual absence or that the working of less than 40 hours was attributable to anything other than the amount of work available. It is therefore determined that the week ending April 12, 1987, shall be included in computing the rate. The same situation exists for the week ending March 22, 1987, and it will likewise be included with earnings of $369.92. It is determined that, despite the apparent agreement, the week ending April 19, 1987, should be excluded since it includes a paid holiday, even though the rate of holiday pay appears to be the same as the rate of pay for normal work hours. It is not known whether work would have been available on the holiday. The week of March 15, 1987, is includable based upon the total of 32.5 work hours and 8 hours of paid personal absence at the same rate as the work hours. If no work was available, there would have been no need to take a personal absence. The total earnings for that week are therefore $466.62. When reviewing the pay records, it is determined that the weeks to be counted are the weeks ending May 17, May 10, May 3, April 26, April 12, March 29, March 22 and March 15, 1987. The remaining weeks to be used in computing the rate are the weeks ending December 8, November 17, November 10, November 3, and October 20, 1985. The gross earnings are therefore $6,501.98. The 13-week average is therefore $500.15. The record appears to show that the claimant was married with two children and therefore is entitled to four exemptions in computing the rate of compensation. Using the July 1, 1986, benefit booklet, establishes that the average weekly wages of $500.15 provide a weekly compensation benefit of $309.81. Week Ending Hours Earnings 05-17-87 39.50 $ 467.88 05-10-87 47.88 567.04 05-03-87 66.25 784.73 04-26-87 68.00 805.46 04-12-87 32.00 379.04 03-29-87 40.15 475.58 03-22-87 32.00 369.92 03-15-87 32.50 466.62 12-08-85 40.00 448.40 11-17-85 39.50 437.99 11-10-85 32.00 356.80 11-03-85 40.00 495.80 10-20-85 36.00 446.22 Total $6,501.98 Page 6 13-Week Average 500.15 Compensation Rate 309.81 order IT IS THEREFORE ORDERED that the John Deere Foundry pay Douglas C. Slaikeu thirteen (13) weeks of compensation for temporary total disability payable at the rate of three hundred nine and 81/100 dollars ($309.81) per week commencing August 1, 1990. The entire amount is past due and owing and shall be paid to the claimant in a lump sum together with interest computed pursuant to section 85.30 of The Code. IT IS FURTHER ORDERED that the costs of this action are assessed against the employer pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that the employer file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 7 Copies To: Mr. Robert D. Fulton Attorney at Law 6th Floor, First National Building P.O. Box 2634 Waterloo, Iowa 50704-2634 Mr. John W. Rathert Attorney at Law 620 Lafayette Street P.O. Box 178 Waterloo, Iowa 50704 1402.30; 1801; 1803; 3001 Filed February 10, 1992 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : DOUGLAS C. SLAIKEU, : : Claimant, : File No. 894105 : vs. : A R B I T R A T I O N : JOHN DEERE FOUNDRY, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1402.30 Uncontroverted expert opinion finding causation held to be sufficient to establish arising out of though the record did not show what precise facts the expert had relied upon when forming the opinion. The facts shown to exist in the record were consistent with the opinion that was expressed and, if known by the expert, would have supported the opinion. There was no indication that the expert relied on incorrect facts or assumptions. 1801; 1803 Claimant, with bilateral carpal tunnel syndrome, had no impairment ratings or medically imposed activity restrictions and only mild subjective complaints. It was held that the evidence did not show any permanent disability. The record showed that the claimant had surgery for bilateral carpal tunnel syndrome, but it did not contain medical evidence showing the duration of recovery from the surgery. The claimant's testimony of the amount of time he was in treatment before being released and agency expertise from similar cases were relied upon to provide an entitlement to 13 weeks of temporary total disability. 3001 When determining the appropriate 13 weeks, those weeks where the employee appeared to have worked whenever work was available were counted. Also counted were the weeks when the employee was on a paid excused absence where the rate of pay was the same as though he had been working. Weeks which included holidays were not included since it was not known whether work would have been available, except for the holiday. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MASTAN SINGH, : : Claimant, : File No. 894106 : vs. : A R B I T R A T I O N : JOHN DEERE DUBUQUE WORKS : D E C I S I O N OF DEERE & COMPANY, : : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case Claimant Mastan Singh filed a petition in arbitration against self-insured defendant employer John Deere Dubuque Works upon allegations of psychological injury suffered as the result of work-connected stress. As a result, he seeks benefits under the Iowa Workers' Compensation Act. This cause came on for hearing in Dubuque, Iowa, on October 15, 1991. Claimant was under medical advice to limit participation to 1-2 hours lest he risk a cerebral vascular accident. Claimant was allowed to discontinue his testimony after two hours, but the hearing continued in his absence. Mr. Singh completed his hearing testimony by deposition on November 5, 1991. The deposition was transcribed and filed with the agency on November 19, 1991. The cause is fully submitted as of that date. The record consists of claimant's exhibits 1 through 26, defendant's exhibits 1 through 49 and the testimony of claimant (including by deposition), Rita Singh, Mervin McClenahan, M.D., Alois Frommelt, Jeffrey Sanford, John Myers, Frank Sercu and Joseph Brunskill. Although the hearing assignment order required the parties to make every reasonable effort to avoid duplication of documentary exhibits, it is clear that respective counsel made no effort whatsoever to comply. Attorneys Andres and McCarthy are notified that this deputy reserves the option of requiring proof of compliance with the hearing assignment order before proceeding in future litigated cases. Page 2 issues The parties have stipulated to the existence of an employment relationship, the proper rate of compensation and that defendant is entitled to certain credits in the event of an adverse decision. Issues presented for resolution include: 1. Whether claimant sustained a psychological injury arising out of and in the course of his employment on December 8, 1986; 2. Whether there exists a causal relationship between the claimed injury and temporary or permanent disability; and, 3. The extent of temporary and permanent disability, if any. findings of fact The undersigned deputy industrial commissioner finds: Mastan Singh, 55 years of age at hearing, was raised in the state of Punjab, India, and came to the United States in 1956, attaining citizenship in 1961. He graduated from high school in India and has two years of junior college in the United States, although no degree. After employment as a clerk and timekeeper with two other businesses, he commenced employment with defendant John Deere Dubuque Works in 1966. John Deere is engaged in heavy manufacture, particularly of farm equipment. Claimant discontinued working for John Deere in December 1986, although he was paid full salary for another year, and disability payments thereafter. M. L. McClenahan, M.D., the company doctor, summarized claimant's numerous physical problems in a letter to the John Deere personnel manager dated October 28, 1987: Mastan Singh is a 51 year old married gentleman who has been an employee of John Deere Dubuque Works since 28 June 1966. He has been unable to work since 9 December 1986. Mr. Singh suffers carotid artery stenosis, renal artery stenosis, labile hypertension and Diabetes mellitus. The first condition is disabling in and of itself, so the combination preclude [sic] the employee's ever being able to perform meaningful duties here. Mastan was in relatively good health until 1977 when control of blood pressure began to be a problem. (Episodic lumbar muscle problems dated to 1967, but have not been incapacitating). Diabetes mellitus was diagnosed in 1978 and adequate control of this has been difficult to achieve. It is conceivable that current vascular Page 3 problems had some origin with the hyperglycemia. Peculiarities of cerebral functioning began as early as 1980 when an episode of vertigo lasted a quarter hour. In November of 1984 his "mind went blank" with resultant amnesia from 10:00 PM to the following morning. In early August 1986, the patient phoned me describing a sudden onset of left sided weakness (arm and leg) with inability to speak. This lasted several minutes and was later diagnosed as a transient ischemic attack. The patient continues manifesting some "memory lapses" light headedness, and emotional lability. He has on-going care for elevated renin and unilateral renal artery stenosis. At this time his nephrologist has the process under adequate control. Mr. Singh reports that dizzy spells are becoming more frequent. Two days ago "my left side went numb and I fell". His primary physician has recommended that he not drive his car and not walk more than a few blocks from his home. Mastan's illnesses are permanent. It is clear that there is no job he will be able to perform here, therefore is permanently and totally disabled. (Defendant's exhibit 2, page 1) Even this unhappy situation is but the tip of the iceberg. There is evidence that Mr. Singh has suffered one or more strokes since leaving Deere (he testified to a loss of function on the left side continuing through his deposition on November 5, 1991), and he suffered a myocardial infarction followed by triple coronary bypass surgery in July 1988. In addition, Mr. Singh asserts that he is independently disabled on a permanent and total basis due to psychiatric impairment stemming from harassment, discrimination and general stress during his years of employment at John Deere. Although claimant personally blames essentially all of his physical problems on work-related stress (including dizziness and fainting spells, blurred vision in the right eye, chest pain, left-sided paresthesias, hypertension, strokes, renal artery stenosis and his infarction), he seeks compensation for psychiatric impairment only in this proceeding. Claimant has a long history of psychiatric treatment with multiple and frequent hospitalizations, both voluntary and involuntary. It is necessary to consider Mr. Singh's underlying personality and psychological status not only to determine if he has sustained an emotional insult from alleged job stress, but also to weigh the validity of his accusations, since Mr. Singh is the only eyewitness to Page 4 support his version of events. Sushil Upadhyay, M.D., testified by deposition on May 22, 1991. Dr. Upadhyay, a psychiatrist, treated claimant from February 5 through April 2, 1987, at the Mental Health Institute in Independence, Iowa. He testified: Q. Could you go ahead and tell me what the results were of the psychological testing that was performed? A. There was sufficient evidence in test findings to suggest a great deal of guilt followed by the depression. The degree of the depression has also reached the point that passive paranoid ideation is taking place. So even if somebody is talking nice to him, he feels that everybody is against him. That's part of their thinking like if you want to help him, he feels that you have something against him. Degree of the depression has also reached the point that passive paranoid ideation is taking place and is predominant in Mastan's over-all functioning. Mastan is trying to hide his depression, inadequacy, worthlessness, despair and rejection and general emotional turmoil. And the codes might suggest a borderline psychotic depression with very precarious defenses and controls. Q. Was an MMPI test administered? A. Yes. These are the results from that. Q. Okay. A. And psychologist mentioned patient is suffering from passive dependent features. It's a personality disorder. (Dr. Upadhyay deposition, page 12, line 22 through page 13, line 22) Another Minnesota Multiphasic Personality Inventory (MMPI) was given on April 1, 1991, during a later hospitalization. The interpretation noted possible problems with its own validity, as claimant's responses to items in the latter portion of the MMPI were inconsistent with earlier responses and he may have made the latter responses carelessly or in a random manner. The reviewer thought there was some possibility that the clinical report was an exaggerated picture of claimant's current situation, since he was presenting an unusual number of psychological symptoms; an "extreme response set" which could result from poor reading ability, confusion, disorientation, stress, or a need for attention. "Clinical patients with this validity profile are often confused, distractible, and show memory problems. Evidence of delusions and thought disorder may be Page 5 present. He may be showing a high degree of distress and personality deterioration." In pertinent part, the reviewer found: SYMPTOMATIC PATTERNS Individuals with this MMPI-2 profile usually are experiencing much psychological distress and personality deterioration. He is quite disturbed, hyperactive, and seems to have a great deal of difficulty with emotional control, all of which may seem threatening to others. He may have quite unrealistic or bizarre plans and a loud and boastful manner. Individuals with this profile are usually viewed as having a thought disorder. They are confused, disorganized, have a hard time concentrating, and tend to withdraw into fantasy and to manifest paranoid ideation. There is a strong likelihood that the client is experiencing delusions or hallucinations, along with other signs of serious disturbance such as autistic thinking and bizarre speech. Many individuals with this profile are unable to care for themselves and require supervision or a controlled environment. The client seems to lack the cultural interests characteristic of individuals with his educational level. He has a rather limited range of interests and prefers stereotyped masculine activities to artistic or literary pursuits or introspective experiences. He tends to be quite competitive and may feel the need to be or appear macho. He may over-emphasize the masculine role and feel the need to dominate women. Interpersonally, he is likely to be somewhat intolerant and insensitive and others may find him rather crude, coarse, and narrow-minded. INTERPERSONAL RELATIONS He appears to have very disturbed interpersonal relationships. He is unpredictable and demanding with others, becoming hostile when his needs are not met. He appears to have a poor sexual adjustment. He is probably behaving in unpredictable and erratic ways which may produce a great deal of marital strain. BEHAVIOR STABILITY His MMPI-2 profile reflects a pattern of extreme personal instability. He is quite overactive and may behave in erratic and threatening ways. If retested at a later date his profile might change somewhat; however, major personality features and Page 6 symptoms are likely to remain fairly constant. His interpersonal style is not likely to change significantly if retested at a later date. (Defendant's exhibit 23, pages 3 and 4) Measurements of claimant's intelligence have varied widely. During hospitalization at the Mayo Clinic in Minnesota, claimant was measured on January 27, 1987, as having a full scale IQ of 83 on the Wechsler Adult Intelligence Scale, showing low average intelligence and low average short-term memory with no indication of cognitive deficits. Rorschach and MMPI testing showed claimant severely depressed and anxious with high scores on three special scales measuring autistic thinking and impaired reality testing, thus raising the possibility of psychosis. However, further testing on February 6 and 10, 1987, at the Independence Mental Health Institute found a full-scale Wechsler IQ of 105, indicating an upper average intellectual level. Clinical psychologist Josh Rosenberg also employed other tests, again including the Rorschach and MMPI. Rosenberg reported that seven elevated codes in the MMPI suggested a borderline psychotic depression with very precarious defenses and controls. Diagnostic impression was of major depression, recurrent, with paranoid features and passive dependent features. In his testimony at hearing, claimant appeared to be very slow, showed a poor memory, was frequently non-responsive and in general failed to track well on questioning. A review of his subsequent deposition testimony also suggests a degree of confusion and inability to track. According to his wife, Rita Singh, this is related to two strokes claimant suffered in March 1991. Claimant's intellectual functioning is apparently subject to a fairly wide degree of day-to-day variation and, he is somewhat disadvantaged by a lack of fluency in the English language. This observer could well believe that Mr. Singh might experience difficulty fitting in well on a personal level with other factory workers in this heavy industry. It is Mastan Singh's belief that work-induced stress accumulated over the years to cause his psychological impairment. He complains generally that management shifted him from job to job, placed him in dangerous factory settings, supervised him too closely (overly watchful and suspicious) and considered him a malingerer due to frequent medical complaints, especially of dizziness and faint headedness. (Rita Singh testified that claimant had been hospitalized 27 times from 1977 to June 15, 1991; 7 of those being psychiatric.) He complains that other workers discriminated against him on the bases of race and nationality, for example, by suggesting that he return to India to free up his job for a native American. Claimant now feels vindicated because only after he quit working did physicians diagnose carotid artery stenosis of a greater Page 7 than 50 percent blockage; this recently discovered defect furnishes a physiological explanation consistent with his history of transient ischemic attacks (TIAs). Generally speaking, claimant furnished few details as to what he considers to constitute "harassment." According to his wife, he attributes every one of his problems to work stress and his supervisors. John Myers, an advance buyer for defendant, testified that claimant became emotional when he was confronted over complaints that he could never be found in his designated work area. He noted that claimant attracted complaints from supervisors throughout the plant frequently, but saw no harassment on the part of those supervisors. Myers believed that claimant thought he was harassed when he was questioned in detail about his job performance, but that was only because he drew so many complaints. Myers on one occasion disciplined another employee for criticizing claimant as a poor worker. However, Myers was aware of a degree of name calling and practical jokes directed at claimant by coworkers. Frank Sercu, manager of processing, was claimant's supervisor. He noted that claimant refused to do jobs he considered "too difficult," and that on one occasion when he made special arrangements to procure a different job for claimant, this, too, was refused at first. He denied that he or, to his knowledge, any other supervisor harassed claimant and was unaware of any practical jokes played on him. Claimant did not complain of being harassed during his employment, but made frequent exaggerated complaints on other issues, such as noise levels. When upset, claimant refused to work hard. Joseph Brunskill, supervisor of strategic production control, directly supervised claimant during his last six months on the job. However, for various health reasons, claimant worked only about four weeks during those six months. Brunskill also saw no harassment of claimant and noted that he made no such complaints. He testified that coworkers frequently complained of claimant's error-ridden work, and noted that claimant often accused others of sabotaging his work at such times. He generally described claimant as recalcitrant and unwilling to try new jobs. On one occasion, claimant tried a new job only for about ten minutes (after he had refused two different prior jobs) before deciding that "I'm too dumb, I can't do that job," breaking down emotionally and heading directly to the medical department. In one conference held to find claimant an appropriate job, Mr. Singh refused to speak at all. Alois Frommelt, personnel administrator, has known claimant since 1975. John Deere has had at least two major reorganizations involving large work force reductions, these being in 1977 and 1985. In 1977, salaried employees were reduced from approximately 2,000 to 1,000 and wage earners Page 8 from 6,000 to 2,000. Claimant was essentially exempt from these reorganizations, both due to his history of medical problems and for affirmative action reasons, claimant being valuable in the latter context due to his cultural background. According to Frommelt, John Deere management has worked at least as hard to assist claimant since 1975 as any other employee in the Dubuque plant. Frommelt found claimant at least 6-8 jobs to fit within various medical restrictions, claimant many times displacing other workers, including at least one minority employee. Claimant was permitted to refuse jobs, a privilege not granted to any other employees. Frommelt was unaware of any harassment directed at claimant. Dr. Upadhyay, who diagnosed adjustment disorder with depression, is of the view that both medical problems and the stress claimant perceived at work were material factors in bringing about his adjustment disorder. Asked to compare stresses claimant experienced in his employment to those which an individual ordinarily runs into in nonemployment life, he testified: A. Actually, he was little different than the normal person. When a person has some personality disorder, we cannot continue him with other -- like normal person can just tolerate some stress, and they can act, but he has no ability to exist with the stress. Q. He had no ability what? A. He had no ability to exist with this stress. Q. Okay. The stresses, though, that were present at his place of employment, is it your opinion that those stresses were greater than what another individual might be confronted with in an ordinary non-employment life, or do you think that these stresses were less? Just tell me how you compare the stresses that Mr. Singh was confronted with at work with stresses that people ordinarily are confronted with in their non-employment life. A. To me like normal person can realize how much they need employment so they tolerate stress quite frequently, and then he was not in a condition to tolerate normal stress. Q. But the stresses that were present at his place of employment, were these greater stresses than what people usually are confronted with? A. For him it was definitely greater. Q. What about for an ordinary individual? A. Oh, they would tolerate the stress. Page 9 Q. Pardon? A. They tolerate the stress, and they work in a normal condition. Q. You're saying that ordinary people might be able to resolve this stress and overcome it? A. Sure. Q. I think you're saying Mr. Singh could not? A. Yeah, That's right. Q. Why could he not overcome them? A. It's partly his medical condition and partly personality disorder. (Dr. Upadhyay deposition, page 23, line 6 through page 24, line 21) And: Q. The stress present in Mr. Singh's employment, how does that stress compare with what people ordinarily have in their employment? Do you think these were greater than usual stresses, average stresses of employment? What is your opinion in that regard? A. Oh, people come with different type of stress, and he had -- like to looking at other people's stress, I feel it was average. (Dr. Upadhyay deposition, page 26, lines 13 through 21) Dr. Upadhyay noted that claimant's personality disorder is a life-long diagnosis which preexisted employment. In a continuing downhill pattern, each episode of psychiatric distress has reduced his ability to tolerate stress. He noted that claimant's family has given a history indicating a near life-long tendency to be overreactive to situational stressors. Newton Chun, M.D., testified by deposition on May 21, 1991. Dr. Chun is board certified in general surgery and in thoracic and cardiovascular surgery. He has treated claimant since 1974 and noted that as early as 1977, there were complaints of emotional depression. To his knowledge, there was no precipitating factor other than job-related stress. Dr. Chun is also of the view that claimant is medically disabled by organic reasons other than psychiatric distress. Within a reasonable degree of medical certainty, claimant is not "completely" disabled by psychiatric problems. Page 10 Claimant has long been treated by Richard H. Lee, M.D., a psychiatrist. As early as 1981, Dr. Lee suggested that claimant made use of his medical problems in efforts to manipulate John Deere into assigning what he believed would be suitable work. Dr. Lee cared for claimant from December 7, 1986, through January 6, 1987 (immediately following the claimed work injury) and on the latter date released him to return to light-duty work. Dr. Lee has consistently diagnosed claimant as suffering adjustment disorder with depressed mood. On January 23, 1987, claimant was admitted to the closed psychiatric unit of St. Mary's Hospital due to repeated suicidal threats. M. Kevin O'Connor, M.D., wrote that claimant was diagnosed a suffering a severe character disorder with a minor depressive component. He writes: The patient has a long history of occupational and interpersonal dysfunction dating back as far as 1977. Our review of these difficulties has led us to believe that they are fundamentally due to the patient's unwillingness to accept circumstances or job duties which are not to his liking. He has repeatedly resorted to what we view as the highly manipulative behavior of becoming tearful, distressed, and suicidal in an effort to manipulative [sic] his superiors at work and his family at home into complying with his wishes. (Defendant's exhibit 6, page 2) Claimant was evaluated in February 1989 for Social Security purposes by Thomas J. Hughes, M.D. Dr. Hughes concluded that claimant suffered arteriosclerotic heart disease, a profound history of vertigo secondary to carotid arteriosclerosis and emotional problems which were probably to a great extent secondary to the previous two diagnoses. Although claimant denies any other non-work stress, particularly finances or family problems, the medical records establish otherwise. P. R. Whitis, M.D., wrote in March 1991 that claimant described a long history of marital stress and conflict dating back to 1961 when, he alleges, his wife was discovered having some sort of affair with the engineer of an ocean-going ship on a return trip from India. Claimant stated that marital problems had continued, and that his wife at times had left him, although they were living together in 1991. He was in 1991 feeling afraid for his life, stating that his family had accused him of visiting a prostitute, had followed him, had let the air out of his tires and might be poisoning him. It should further be noted that claimant's psychological problems have not abated since he left work. conclusions of law Page 11 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 an injury may be accomplished by either expert testimony or nonexpert testimony. .... Not only must claimant prove that his work was Page 12 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). The evidence shows that Mastan Singh is subject to a lifetime personality disorder which has led to a deteriorating mental health status. The deterioration is progressive. There can be but little doubt that Mr. Singh reacts badly to many stressors. And it is doubtless true that Mr. Singh has been subjected to more stressors than most people. Significant nonemployment stressors include marital and family strife and his dramatically deteriorating physical health. No doubt stressors perceived in the work environment have also been aggravating factors. Given claimant's underlying personality disorder as disclosed by MMPI testing, there should be little doubt but that his reported perceptions of unfair and discriminatory treatment were largely true as he saw them. By the same token, there is much reason to doubt the objectivity of those perceptions. The weight of the evidence shows that claimant's perception of work place stressors was an aggravating factor in the progressive development of his mental disease. This constitutes causation in fact. But, it does not prove "causation in law." To meet that test, claimant must show a situation of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience. All employment involves a degree of stress, although the particulars vary widely from job to job. The cumulative tension of delicate brain surgery is unlike the sensation of physical danger as experienced by a peace officer on the beat or the angst shared by a psychiatrist or rape counselor. Almost all jobs involve interaction with people, whether the surroundings and participants be those of field, factory, office or shop. In Mr. Singh's case, the heavy manufacturing facility in which he served no doubt involves a degree of clamor. John Myers corroborates claimant by noting his awareness of some name calling and practical jokes directed at him. Of course, it would be surprising indeed if a 20-year veteran of the factory environment did not experience unmannerly conduct from time to time. It is also probable that claimant was something of a misfit. He may well have been regarded as something of a complainer and possibly a little "different" in that he is of Indian extraction and lacks fluency in English. It is not inconceivable that there may have been some resentment due Page 13 to claimant's preferential treatment (it will be recalled that Mr. Singh was immune from large scale layoffs despite being a marginal employee and that he was allowed to refuse assigned jobs, unlike others). In any event, it remains to determine whether those stresses are of greater dimensions than the day-to-day mental stresses and tensions which all employees must experience. The evidence in this case requires that this question be answered in the negative. Claimant's reports of harassment and discrimination are much less persuasive than the combined testimony of Messrs Frommelt, Sanford, Myers, Sercu and Brunskill. Claimant has no doubt received some real slights, as well as those he merely perceives. But the reliable evidence does not establish stresses and tensions beyond those normally to be expected in the ordinary course of a long-term employment relationship. Although Dr. Upadhyay's comparison of work stress and nonemployment life does not directly relate to the Desgranges test discussed supra, it will be recalled that he also felt stress was only of an average level compared to other employment. Because claimant has failed to prove causation in law, the cause must be decided for defendant. order THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. The costs of this action are assessed to defendant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert C. Andres Attorney at Law East 4th & Sycamore P.O. Box 2634 Waterloo, Iowa 50704-2634 Mr. Leo A. McCarthy Attorney at Law 222 Fischer Building P.O. Box 239 Dubuque, Iowa 52004 Page 14 2204 Filed February 20, 1992 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : MASTAN SINGH, : : Claimant, : File No. 894106 : vs. : A R B I T R A T I O N : JOHN DEERE DUBUQUE WORKS : D E C I S I O N OF DEERE & COMPANY, : : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 2204 Wisconsin rule was applied in "mental/mental" stress case. Claimant proved "causation in fact," in that perceived supervisory harassment accelerated mental illness, but not "causation in law," since his perceptions were not reliable and work conditions were not of greater dimensions than the day-to-day stresses which all employees experience. Page 1 before the iowa industrial commissioner ____________________________________________________________ : GARY ALLGOOD, : : Claimant, : : vs. : : File No. 894108 ROLSCREEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by Gary Allgood against his employer, Rolscreen Company, and its insurance carrier, Employers Mutual Companies, based upon an injury that occurred on May 22, 1987. Claimant seeks compensation for healing period, temporary partial disability and permanent partial disability. The rate of compensation is also in issue with the dispute centering upon whether or not the employer's annual bonus should be included as part of the rate. The case was heard and fully submitted at Des Moines, Iowa on October 26, 1990. The evidence consists of testimony from Gary Allgood, Myron Linn, Sue Pelon and Jerry Stump. The evidence also contains jointly offered exhibits 1 through 16. Included in the evidence as part of the prehearing report is a statement of stipulated facts submitted by the parties which addresses the rate of compensation issue. One additional issue in the case is whether the disability resulting from a fall which occurred on or about January 13, 1989 should be compensated as part of the May 22, 1987 injury or as a separate injury. 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. Gary Allgood is a 46-year-old married man who dropped out of school after completing the ninth grade at age 15. He has no further formal education. After leaving school, Gary entered construction work. Most of his construction work was in the area of masonry, Page 2 concrete work and construction of large metal buildings. Gary commenced work for Rolscreen Company in 1978 and has remained so employed since that date. Different jobs he has performed have included clipping channel, laying glass and cutting tape. He has been a lead worker, but was dropped from that position when he declined to advance into management positions. While at Rolscreen, he cut his arm on one occasion and, in the early 1980's, injured his back for which he was off work for approximately one week. He considers his prior injuries to have been minor. Gary denied having any significant problems with his back which produced any continuing symptoms until the May 22, 1987 injury. On May 22, 1987, Gary injured his back while attempting to pick up mastic tape which was stuck to the floor. After treating briefly with the employer's physician, Stuart Kanis, M.D., without success, claimant was referred to Ottumwa orthopaedic surgeon Donald D. Berg, M.D. When further conservative treatment proved unsuccessful, diagnostic tests were conducted which showed a bulging disc at the L5 level of claimant's spine (exhibit 4, pages 1-4). Gary was hospitalized for traction and other conservative treatment in August 1987. On October 2, 1987, laminectomy surgery with removal of the L5-S1 disc was performed by Dr. Berg (exhibit 4, page 10). The surgery improved Gary's symptoms, but did not completely resolve them. Further diagnostic tests were performed, but Dr. Berg was reluctant to perform additional surgery. He reported on January 14, 1988 that claimant cannot perform the heavy physical work which employment at Rolscreen provides (exhibit 3, page 13). Claimant's care was transferred to Des Moines orthopaedic surgeon William R. Boulden, M.D. Dr. Boulden diagnosed claimant as having degenerative disc disease, but no recurrent disc herniation. The diagnostic tests did show some nerve root scarring. Facet blocks and other nonsurgical treatments were administered to claimant, but were not particularly beneficial. On May 18, 1988, Dr. Boulden reported that claimant could return to light-duty, part-time employment. He completed a work restriction evaluation which indicated that claimant could resume working by starting at two hours per day and then increasing the work by one hour per day each week thereafter. On June 30, 1988, Dr. Boulden clarified that the lifting restriction which he had recommended was that claimant should not perform lifting with his back, but that he could lift 10-20 pounds with his arms (exhibit 5, pages 4, 9, 10 and 11). It is noted that the work release was for restricted part-time work. It was not a release to perform work substantially similar to that which claimant had performed at the time of injury. It is further noted that Dr. Boulden indicated that maximum improvement had been reached on March 8, 1988, yet the record in this case shows a continued course of improvement well after March 8, 1988. That portion of Dr. Boulden's assessment is rejected in view of the fact of the continued subsequent improvement. Page 3 While off work, claimant received services from vocational consultant Barbara Chaldy. Chaldy attempted to enter claimant into a pain management program and similar types of programs, but claimant uniformly resisted them. As early as May 10, 1988 claimant was expressing his desire to return to work (exhibit 1, pages 17-21). Nonetheless, Chaldy continued to schedule evaluations well into the month of June 1988 (exhibit 1, pages 19 and 20). Chaldy's report of May 26, 1988 communicates to claimant that the employer and its insurance carrier do not feel that claimant is ready to return to work due to Dr. Boulden's quite limiting restrictions (exhibit 1, page 16). Gary was provided suitable work in accordance with Dr. Boulden's restrictions and did resume work on June 27, 1988. Thereafter, he gradually increased his working hours until October 2, 1988, at which time he resumed full-time employment. During this period of resumption of full-time employment, Gary worked limited hours (exhibit 11). His total earnings during those 12 weeks were $2,391.05. According to the stipulated weekly gross earnings for the 13 weeks prior to May 22, 1987, this represents a loss of $2,819.47. Sixty-six and two-thirds percent of the difference is $1,880.59. The weekly difference is as set out below: Week Ending Temporary Partial Disability 7-16-88 $ 230.43 7-23-88 217.28 7-30-88 250.16 8-6-88 250.16 8-13-88 210.70 8-20-88 184.39 8-27-88 164.66 9-3-88 105.47 9-10-88 59.44 9-17-88 52.86 9-24-88 112.05 10-1-88 42.99 Total $1,880.59 It is specifically found that Gary Allgood did not reach maximum medical improvement from the May 22, 1987 injury until October 2, 1988 when he resumed full-time employment. Prior to October 2, 1988, he did not resume employment which was substantially similar to that in which he was engaged at the time of injury and he was not capable of doing so. Gary is now working full-time for the Rolscreen Company. He clips channels, a job which he is able to perform from a seated or standing position as he desires. He moves about to obtain materials. Gary feels that it is working out nicely. His current job is classified in the middle 3 class, while his job at the time of injury was a high 4. This represents a reduction in actual wages of Page 4 approximately $.70 per hour (exhibit 12). Rolscreen Company also has an annual bonus which is paid near Christmas. It is a regular, recurring bonus which provides the employee with an additional sum based upon a percentage of the employee's actual earnings. The percentage is determined by longevity with the company. Adoption of the bonus plan was discretionary with the employer as is its continuation. It exists by virtue of written policy. The only manner in which an employee can be denied the bonus is if the employee is fired or resigns. The plan has been in effect since 1952. Social Security, state and federal income taxes are withheld from the bonus payment. Claimant slipped and fell on or about January 13, 1989 in the employer's parking lot. There is no indication in the record that the May 22, 1987 injury was a proximate cause of that slip and fall. It is found that it is a separate, distinct injury from the one now under consideration. conclusions of law The January 13, 1989 slip and fall is a separate injury claim which cannot be properly addressed in this decision. It requires a separate contested case proceeding under the controlling agency rules. Under Iowa Code section 85.34(1), an employee is entitled to recover compensation for healing period until the first of one of the three specified events occurs. The law in section 85.33(2) also provides temporary partial disability. While claimant was working under restrictions, he was clearly within the provisions of temporary partial disability found in section 85.33. He is therefore entitled to recover temporary partial disability compensation for those 12 weeks in the total amount of $1,880.59, all as previously listed in this decision. The healing period ended by claimant reaching maximum improvement when he became capable of resuming full-time employment on October 2, 1988. The fact that the earlier work release was with restrictions prevents it from being a release for substantially similar employment. It is therefore determined that claimant is entitled to recover healing period compensation running from July 15, 1987 through October 1, 1988, a span of 63 and 4/7 weeks, less the 12 weeks of temporary partial disability which leaves a balance of 51 and 4/7 weeks. It is specifically noted that exhibit 11 does not contain any record of earnings for the week which began June 28, 1988. The first record of earnings is for what would have been the week commencing July 9, 1988. The full healing period compensation is therefore deemed to have been replaced by temporary partial disability compensation commencing July 9, 1988. Page 5 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. The actual reduction in claimant's earnings as a result of the injury is less than 10 percent. It is also apparent, however, that in view of his limited educational achievement and apparent lack of proficiency for academic pursuits, his actual loss of earnings would have been very great if this employer had not retained him in its work force. Gary has not received a particularly good result from his medical treatment. He does not appear to have the capacity to move into management positions. The position which he presently occupies is very well suited for him. When all pertinent factors of industrial disability are considered, it is determined that Gary Allgood has a 20 percent permanent partial disability as a result of the May 22, 1987 injury. Gary's rate of compensation is the remaining issue. It appears as though the employees at Rolscreen Company are paid on a two-tier basis. They are paid weekly based upon the number of hours of work. The bonus is then paid annually. The entitlement is the controlling factor. George M. Moore v. Posters 'N Things, Ltd., IV Iowa Industrial Commissioner Report 252 (App. Decn., 1984). The Page 6 fact that claimant could have lost the bonus if he had chosen to resign does not, under the prior agency precedent, make the payment one which would not be considered as part of the earnings for purposes of determining the rate of compensation. The bonus is not a premium payment since that term has been applied to refer to shift differentials. Burmeister v. Iowa Beef Processors, Inc., II Iowa Industrial Commissioner Report 59, 64 (App. Decn., 1982). While the type of bonus which exists in this case appears to be one which would not be excludable from gross earnings under Code section 85.61(12) and one which historically would have been considered in determining the rate of compensation, the most recent agency precedent holds that the Rolscreen Christmas bonus is not to be used in determining the rate of compensation. The undersigned is bound by that agency precedent. Noel v. Rolscreen Co., file number 878911 (App. Decn., December 16, 1990). It is noted, however, that according to the stipulated facts which were submitted as part of the prehearing report, the claimant's average weekly gross earnings for the appropriate time period was shown to be $434.21. With claimant being married with four exemptions, his rate of compensation should therefore be $273.96, rather than the stipulated rate of $271.74. Page 7 order IT IS THEREFORE ORDERED that defendants pay Gary Allgood fifty-one and four-sevenths (51 4/7) weeks of compensation for healing period at the rate of two hundred seventy-three and 96/100 dollars ($273.96) per week commencing July 15, 1987. IT IS FURTHER ORDERED that defendants pay Gary Allgood weekly compensation for temporary partial disability for twelve (12) weeks commencing July 9, 1988 in the total amount of one thousand eight hundred eighty and 59/100 dollars ($1,880.59). The weekly benefit amount is payable as previously set forth in the Findings of Fact of this decision. IT IS FURTHER ORDERED that defendants pay Gary Allgood one hundred (100) weeks of compensation for permanent partial disability at the rate of two hundred seventy-three and 96/100 dollars ($273.96) per week commencing October 2, 1988. IT IS FURTHER ORDERED that defendants pay the costs of this action pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that defendants file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Harold B. Heslinga Attorney at Law 118 North Market Street Oskaloosa, Iowa 52577 Mr. Charles E. Cutler Attorney at Law 729 Insurance Exchange Building Des Moines, Iowa 50309 5-1801.1; 5-1802; 5-1803 5-3001 Filed February 11, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : GARY ALLGOOD, : : Claimant, : : vs. : : File No. 894108 ROLSCREEN COMPANY, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL COMPANIES, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1801.1; 5-1802; 5-1803; 5-3001 Claimant, with a bad result from back surgery, impairment ratings ranging from 8-15 percent, and a less than 10 percent reduction in actual earnings due exclusively to the employer's retaining him in its work force, was awarded 20 percent permanent partial disability. Healing period benefits were terminated when claimant resumed part-time employment with the employer. Temporary partial disability awarded until he resumed full-time work. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JANET COPPER, Claimant, File No. 894110 vs. A R B I T R A T I O N KITCHENS OF SARA LEE, D E C I S I O N Employer, F I L E D and APR 18 1990 THE TRAVELERS COMPANIES, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Janet L. Copper, against Kitchens of Sara Lee, employer, and Travelers Insurance Company, insurance carrier, defendants, to recover benefits as a result of an alleged injury sustained on April 6, 1988. This matter came on for hearing before the deputy industrial commissioner in Waterloo, Iowa, on March 5, 1990. The record consists of the testimony of the claimant and Mary Jo Talkington; claimant's exhibits 1 through 18; and defendants' exhibits A and B. ISSUES The issues for resolution are: 1. Whether claimant's injury arose out of and in the course of her employment; 2. Whether claimant's alleged disability is causally connected to her April 6, 1988 injury; 3. The nature and extent of claimant's disability; 4. The weekly rate if liability is found; 5. Whether claimant is an odd-lot employee; 6. Whether claimant is entitled to Iowa Code section 85.27 medical benefits; and 7. Whether claimant is entitled to Iowa Code section 85.70 benefits. REVIEW OF THE EVIDENCE Claimant testified she is a high school graduate and has received no further formal education. Claimant described her work history beginning upon graduation from high school and involved working in a pet shop at a Pamida store, working at a health care nursing home doing laundry and housekeeping 1977 to 1979, helping raise 500 head of hogs and 70 head of cattle on her parent's farm full-time until 1984, and chicken deboning for Allstate Quality Foods until she became employed by defendant employer on August 3, 1987 Claimant acknowledged she had been to the doctor for back problems in 1974 resulting from a horse accident. She said the injury resolved itself and went away. Claimant said she was in an automobile accident in June 1986 resulting in an injury to the upper part of her back, but this also resolved itself after she used heating pads. Claimant also related a three-wheeler accident in 1986 injuring the upper part of her back but stated this never interfered with her work and she lost no time. Claimant stated she had hand trouble at Allstate Quality Foods due to the repetitive hand motions connected with the work. Defendant employer sent her to a doctor who, in turn, sent her to her treating doctor. This doctor said her hands were okay. Claimant said she began working at Sara Lee in the packaging department, which involved lifting boxes, some overhead. In April 1988, claimant was working with another employee making cinnamon rolls. She said she was lifting boxes of rolls weighing ten pounds on April 6, 1988 when she experienced back pain. Claimant was then put on light duty for one week by the company doctor. Claimant indicated she was put on four hour days initially and this was increased until May 1988, at which time she was back to full-time duty. At that time, claimant was told workers' compensation benefits would stop. Claimant worked until October 1988, at which time she was pushing 30 pound racks of pans into the refrigerator. She said these racks are stacked in eight foot tall racks which hold 18 to 20 racks. Claimant related she hurt her back again at that time. Claimant contends the pain in October 1988 was the same type pain she had experienced in May 1988. Claimant said she went back to work and worked five days. The company doctor, Roswell M. Johnston, D O., sent weight restrictions for claimant on October 28, 1988 (Defendants' Exhibit A, part 26) Claimant said she was terminated November 2, 1988 by defendant employer because the employer contended she had falsified her job application. She has not worked for defendant employer since. Claimant related she first knew she had spondylolisthesis from Rodney E. Johnson, M.D., in April 1988. Claimant said she tried to find a job after termination but it was hard due to her back. She testified she called vocational rehabilitation and was referred to the Des Moines office. She said the recommendation was not to go to school due to the results of her school testing. They suggested she find a job working with people. Claimant related she currently cooks for twelve people in a small home, working five hours per night. She said she started at $3.75 per hour and now makes $4.40 per hour. Claimant said she was making $6.07 per hour on April 6, 1988, the date of her injury, and was making $6.79 when she was terminated by defendant employer. Claimant said she has not worked at any other jobs since obtaining this position but she continues to look for a job that pays more. She states that $5.00 plus per hour is the maximum she could make in her current job. Claimant said she currently lives with her parents on their farm but doesn't help with the farming. She stated there are no horses on the farm and she doesn't ride anymore. Claimant was referred to Dr. Breitbach's records concerning a July 1988 tailbone treatment. Claimant said she was riding a horse then and stopped riding shortly thereafter. She related she sold her horse in July 1988. Claimant contends she rode the horse off and on before July 1988, approximately once a month but it could have been more often. Claimant related that when riding the horse, it did not cause her back to hurt. Claimant said she rode a horse as a child and actually most of her life. Claimant acknowledged she has not missed work since May 1988 due to the April 6, 1988 back injury. She said any work she missed is a result of other reasons. On cross-examination, claimant was asked about several medical records referring to her back problems from 1974 to 1978. Some of the dates claimant did not remember or forgot to mention. Several of them involved a horse. Claimant acknowledged she did not report prior back problems in her Sara Lee employment application. She said her back was not hurting at the time. Claimant said she doesn't specifically remember filling out the medical report section of her application, but she does acknowledge signing the application based on the fact that the contents are true and correct to the best of her knowledge. Mary Jo Talkington, assistant personnel manager with defendant employer three years in June 1990, testified that it is important for a person to disclose prior back problems because the work at Sara Lee is physical work requiring a lot of standing on concrete floors, bending, twisting and repetitive motions. She indicated that if claimant's prior medical history concerning her back was disclosed, claimant would have been sent for a physical examination with a back specialist. Since claimant only indicated prior hand problems, she was not sent for a back examination. On June 8, 1988, Rodney E. Johnson, M.D., wrote: This was patient [who] was seen for complaint of low back pain that she has experienced intermittently since she was 16 years old. Most recent episode was of gradual onset and felt to be releted [sic] to her work activity. The spondylolisthesis that is mentioned is a pre-existing defect and is not necessarily related to employement [sic] at Sara Lee. I would expect her to return to functional activity level that she was at prior to the onset of her of [sic] recent complaints. (Defendants' Exhibit A, part 19) Claimant's medical records on July 23, 1988 reflect: "Tailbone is still sore, tried riding a horose [sic] & couldn't ride. Low back is sore." (Def. Ex. 8, pt. 22) On October 2, 1988, Dr. Johnson felt claimant's mechanical low back pain was related to her work activities and not to the preexisting spondylolisthesis. He also wrote that "she would not have any permanent impairment because of her injury." (Def. Ex. A, pt. 23) On October 28, 1988, Roswell M. Johnston, D.O., wrote: Clearly she has a spondylolysis. She has had a work related aggravation of her symptoms back in the April and June time frame. Presently she is asymptomatic but she will have to be on a permanent restriction involving no pushing or pulling or heavy lifting or straining of her back. (Def. Ex. A, p. 26) On March 14, 1989, Dr. Johnston's notes reflect: Janet comes in because she is concerned about her back. She has had a couple of episodes,.particularly in the past week where she has slipped and fallen on the ice and now her back is hurting her again.. It is localized right across the lumbosacral region and radiates off the right side. She has been turned down for disability benefits because she is still able to do something functionally with gainful employment though she will be restricted from any repetitive heavy lifting or straining on her back. (Claimant's Exhibit 17, page 8) Notes of David S. Schweizer, M.D., reflect that he has provided services for claimant since 1962 when she was five years old. His records show that claimant's last visit to him prior to her July 1988 visit was over ten years previously. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that she received an injury on April 6, 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 April 6, 1988 is causally related to the disability on which she now bases her claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation sec. 555(17)a. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 and cases cited. An employee is not entitled to recover for the results of a preexisting injury or disease but can recover for an aggravation thereof which resulted in the disability found to exist. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W. 2d 251 (1963) Yeager, 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591. See also Barz v. Oler, 257 Iowa 508, 133 N.W. 2d 704 (1965); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). Claimant has a history of back problems, but the record of her long-time doctor, David Schweizer, indicates it has been over ten years since she had back complaints. Claimant has had a horse for many years and appears to have done considerable horseback riding. On April 6, 1988, claimant was lifting boxes of rolls at work and developed a low back pain. It is undisputed that claimant has a spondylolysis and spondylolisthesis condition which is preexisting her April 6, 1988 injury and is not caused by the injury. Dr. Johnson said claimant had spondylolisthesis and Dr. Johnston said "claimant clearly has a spondylolysis." The greater weight of medical evidence shows claimant's preexisting condition was aggravated and lightened by her April 6, 1988 injury. There is no medical evidence which concludes any permanent impairment to claimant from this April 6, 1988 injury. Claimant basically has not lost any time from work prior to her termination by defendant employer in November 1988. Claimant contends the weight restrictions placed on claimant shows a permanent disability exists. It is true an impairment rating by a doctor is not necessary to conclude a permanent disability. The undersigned finds claimant incurred a temporary injury on April 6, 1988 which arose out of and in the course of her employment. Claimant contends she did not know of her preexisting condition prior to receiving medical treatment after her April 6, 1988 injury. The fact is she had this condition and the permanent restrictions involving no pushing, pulling, heavy lifting or straining of her back are restrictions that could be placed on anyone with a spondylolysis or spondylolisthesis condition. In fact, it would be advisable, if a person were aware of their condition, to impose such restrictions on themselves. Claimant is not currently suffering from a condition resulting from her April 6, 1988 injury. Basically, the restrictions are suggested to prevent another injury or aggravation due to claimant's congenital condition. It also appears claimant has been seen by Dr. Johnston on March 14, 1989 concerning two slip and falls on ice the prior week. The doctor indicated claimant's back was hurting again. Claimant contends she will not be able to find work like she had at the time of her injury because of her back condition. This is very true in most circumstances, but had she fully disclosed her back condition to defendant employer prior to employment, she most likely would not have had the job in the first place. The undersigned is not finding that claimant materially falsified her application for employment as the evidence is confusing as to the nature of the application and whether a doctor filled out part of it. Claimant did sign the application attesting to the truth of the contents. The undersigned believes claimant was not suffering from any back pains at the time of filling out the application and felt her prior back problems were insignificant as to whether she should work at Sara Lee. The undersigned finds claimant has no permanent impairment as opined by Dr. Johnston. The undersigned finds claimant does not have an industrial disability. Claimant incurred various medical bills during her treatment resulting from her April 6, 1988 work injury. The temporary aggravation caused the claimant to incur those expenses and defendants shall pay all the medical. Defendants denied all liability and, therefore, they waive the right to choose claimant's medical care. All the other issues are moot in light of the above and will not be further discussed. FINDINGS OF FACT 1. Claimant incurred a temporary low back injury while lifting a box at her place of employment. 2. Claimant has a preexisting spondylolysis and spondylolisthesis condition which was temporarily aggravated and lighted up by her work injury on April 6, 1988. 3. Claimant has no permanent impairment as a result of her work-related April 6, 1988 injury. 4. Claimant's weight lifting, pulling and pushing restrictions are not materially or solely related to her April 6, 1988 injury, but are as much related to her congenital preexisting spondylolysis and spondylolisthesis condition. 5. Claimant lost no time from work nor incurred any healing period as a result of her April 6, 1988 work injury. 6. Claimant incurred medical bills as a result of her temporary April 6, 1988 work injury. CONCLUSIONS OF LAW Claimant's temporary low back injury arose out of and in the course of her employment on April 6, 1988. Claimant's work injury on April 6, 1988 temporarily caused an aggravation and lightening up of claimant's preexisting spondylolysis and spondylolisthesis condition. Claimant's.work injury on April 6, 1988 caused no permanent impairment or permanent disability to claimant. Claimant's medical bills were caused by claimant's temporary work injury on April 6, 1988. ORDER THEREFORE, it is ordered: That defendants shall pay all of claimant's medical bills. That claimant take nothing further from these proceedings. That claimant shall pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this 18th day of April, 1990. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr W H Gilliam Attorney at Law 722 Water Street Crt 2nd Flr Waterloo IA 50703 Mr Mark A Wilson Attorney at Law 30 4th St NW P 0 Box 1953 Mason City IA 50401 5-2206; 5-2505; 5-1800 Filed April 18, 1990 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER JANET COPPER, Claimant, File No. 894110 vs. KITCHENS OF SARA LEE, A R B I T R A T I 0 N Employer, D E C I S I 0 N and THE TRAVELERS COMPANIES, Insurance Carrier, Defendants. 5-1800 Found claimant incurred a temporary low back injury resulting in no loss of work time, and no permanent impairment or disability 5-2206 Found claimant had a preexisting spondylolysis and spondylolisthesis condition which was temporarily aggravated by her work injury. 5-2206 Claimant's restrictions were not related materially or solely to her temporary work injury, but related as much to her preexisting condition. 5-2505 Awarded claimant only her medical bills. No other benefits awarded.